Criminal Justice and Police Bill

HL Deb 08 May 2001 vol 625 cc938-73

6.2 p.m.

House again in Committee.

Clause 76 [Use of video links for proceedings about Terrorism Act detention]:

[Amendments Nos. 131G to 131J not moved.]

Clause 76 agreed to.

Clause 77 agreed to.

Clause 78 [Codes of practice]

Lord Cope of Berkeley moved Amendment No. 131K: Page 69. leave out lines 6 and 7.

The noble Lord said: The Committee now moves to that part of the Bill which deals with the video recording of interviews. This matter appears to have lost the interest of some noble Lords. These amendments are directed at the code of practice which is to be prepared in this regard. The particular subsection that is dealt with by Amendment No.131K provides that the code of practice can vary in different parts of the country. That seems rather odd. Why should different parts of England be treated differently from the point of view of the code of practice for the video recording of such interviews?

Similarly, although I believe more understandably, Amendment No. 131L goes to the subsection which suggests that different offences or descriptions of offenders may be treated differently in the code of practice. I can see that more serious offences may require greater safeguards, but it seems odd that descriptions of offender should he treated differently in the code of practice.

Finally, Amendment No. 131M in this group proposes that where the code of practice is to be, first, introduced and, secondly, altered at a later stage, the matter should be dealt with in Parliament by the affirmative rather than negative procedure. In view of the lack of time that we are devoting to the matter at this stage, I believe that that is a reasonable suggestion. I beg to move.

Lord Bassam of Brighton

If taken together, these amendments would undermine the whole purpose of Clause 78, which is to provide a more straightforward mechanism for changes to the codes to be trialled. Clause 78 enables proposals for limited amendments to the codes for trial purposes to be made subject to the negative resolution procedure. The clause works by inserting after Section 67(7) of PACE three new subsections, (7A), (7B) and (7C). New subsection (7A) provides for an order to be made so that an existing code of practice can be modified. Subsection (7B) sets out the limits for such modifications to a code of practice in relation to the length of time for trialling, designated areas and classes of offences or offenders. Subsection (7C) sets out the requirement for the order to be subject to the negative resolution procedure.

Amendments Nos. 131K and 131L simply remove from subsection (7B) two of the three trialling limitations. The effect of the wording proposed by Amendment No. 131M would appear to be a requirement for any modifications to the codes to be subject to the affirmative resolution procedure. The Committee needs to be aware that the situations in which it is desirable to trial amendments to the PACE codes of practice are becoming increasingly common. This increase reflects the legislative changes to the Police and Criminal Evidence Act as well as the evolution of police practice—new procedures and techniques—and consequently the knock-on effects for the codes of practice.

If we supported the amendments, whenever it was considered desirable to pilot changes to the codes of practice it would not be possible to limit trials to designated areas or to particular types of offences or classes of offender and any changes would require the full affirmative resolution procedure. I assure the Committee that we do not seek to shortcut Parliament by the provisions of Clause 78. Before any changes to the codes of practice are implemented nationally they will still be subject to the same procedure of public consultation and full debate before both Houses, as is already required by Section 67 of PACE.

We believe that it is important for a number of changes to the codes of practice to be trialled before they are implemented more widely. It is our intention to do this with the proposals for reviews of detention by video link and other custody decisions which are proposed in Clause 74. In order for trials to be carried out effectively and evaluated properly, it may well be necessary for them to be conducted in particular areas and with specific types of offence and classes of offender. Additionally, for trials to be conducted more readily the negative resolution procedure which we propose is a more flexible way to achieve that end.

I can understand some of the concerns raised by the noble Lord, but what we are trying to do is to ensure that in making changes for the longer term we have effective trialling in the short term. In that way we can effectively evaluate those trials so that before we advance to full implementation across the country we have a better picture of how the measures may work in practice. We argue that ultimately there are safeguards here and no short circuit is intended.

Lord Cope of Berkeley

We have not been given any examples but have been told that it is all about pilots. I shall not pursue the matter at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 131L and 131M not moved.]

Clause 78 agreed to.

Clause 79 agreed to.

Clause 80 [Authority for intimate searches]:

Baroness Whitaker moved Amendment No. 131MA: Page 71, line 8, at end insert— (2) After subsection (7) of section 55 of the 1984 Act there is inserted— (7A) The Code of Practice issued by the Secretary of State under section 66 shall provide guidance as to the circumstances in which it would be proper to consider that it is not practicable. for an intimate search to be conducted by a suitably qualified person."

The noble Baroness said: I am grateful to my noble friend the Minister for his letter to me on this matter. I hope he will forgive me if I nevertheless briefly air the concerns of the Joint Committee on Human Rights.

An intimate search—for example, a physical examination of a body orifice other than the mouth—most usually of the anus or of the vagina, is a highly intrusive procedure. It is permitted under the Police, and Criminal Evidence Act 1984, only when an officer of the rank of superintendent or above, has reasonable grounds for believing— (a) that a person who has been arrested and is in police detention may have concealed on him anything which—

1. (i) he could use to cause physical injury to himself or others: and
2. (ii) he might so use while he is in police detention or in the custody of a court; or

(b) that such a person—

1. (i) may have a Class A drug concealed on him; and
2. (ii) was in possession of it with the appropriate criminal intent before his arrest".

Where the search falls under paragraph (a), it may be conducted either by a person with medical qualifications or by a constable of the same sex as the detainee if, an officer of at least the rank of superintendent considers that"— to have the medical examination— is not practicable.

This Bill would allow an officer of the rank of inspector to authorise such a search, if necessary by force, by a constable with no medical qualifications.

The Joint Committee on Human Rights does not in any way dissent from the need to have this power to search. However, as it pointed out in its first report at paragraph 75: It is hard to imagine a more intrusive or humiliating police procedure which could be lawful". The committee noted a risk that the searches might violate Article 3 concerning freedom from inhuman or degrading treatment and Article 8, the right to respect for private life.

As a member of the Immigration Complaints Audit Committee, I received complaints where young persons of perhaps 19 were in acute distress at the prospect of being examined in this way by a law enforcement officer. Not all cultures view these events with equanimity. They are associated with violation and torture. That is not to say that the power should not be there. But that is why the Joint Committee on Human Rights expressed concern about, reducing the level of seniority of the officer who has to decide … whether it is impracticable for an intimate search to be conducted by a medically qualified person". The committee was, particularly disturbed by anything which even slightly erodes the protection for a person's interests in physical integrity, and bodily privacy, or gives the impression that an interference with them is being taken less seriously than it was". When the committee took evidence on this point, the Government told it that, in practice, a constable would rarely be authorised to conduct such a search, and would be so authorised, only in a wholly exceptional and urgent case to prevent injury to the detainee or other people from a hidden weapon such as a razor blade, where no medically qualified personnel could be reached quickly". The committee accepts that. However, regard for Articles 3 and 8 indicates that guidance for exercising the discretion to authorise a constable to conduct an intimate search, should be included on the face of the legislation".

The most reasonable and easy way to achieve this general objective would be to amend Clause 80 with the proposed amendment. There would then be a necessary consequential change to the code of practice.

The Joint Committee asked for guidance to be included on the face of the Bill. However, it may work as well, and allow time for consultation before the code is adjusted, to follow my proposed amendment. The whole purpose of the amendment is to ensure that the limits of discretion which this more junior officer may exercise are defined with greater clarity. I beg to move.

6.15 p.m.

Lord Cope of Berkeley

I rise to point out that this is another part of the Bill—there are more parts to come—where the permission of an inspector is required instead of that of a superintendent. The underlying reason for that is that there are fewer superintendents than junior officers. As a matter of fact, there are also fewer inspectors. Therefore, it all adds to the overstretch of the work of the inspectors. I hope that this provision will not lead to a downgrading of the quality of decisions.

Lord Williams of Mostyn

I am grateful for the thoughtful way that my noble friend Lady Whitaker has brought the matter forward. Intimate searches by junior officers—constables—are very rare indeed. There were only four out of a total of 170 searches in 1999–2000.

I recognise the force of the noble Baroness's comments and that there is a good case for guidance in circumstances in which it might reasonably be considered that it was not practicable for a doctor or a nurse to carry out such a search. Probably, in practice, the circumstances are likely to he the situation described by my noble friend where there are reasonable grounds to believe that a detained person is concealing a dangerous article and speedy action is necessary.

In certain circumstances, intimate searches may also be made for Class A drugs. However, there is no discretion for searches in that category to be carried out by anyone other than a suitably qualified person.

I hope that I can assist my noble friend by underlining that a full review of all codes of practice under PACE is currently being carried out. We would endeavour to incorporate the relevant guidance in Code C. That covers detention, treatment and questioning of persons by police officers.

It is not necessary or appropriate to insert a specific requirement for guidance into the legislation. The codes under PACE, as is well known, refer to many critically important areas of police practice. But PACE does not spell out in detail what they cover. The proposed addition put forward by my noble friend, for reasons I perfectly well understand, would go against that general approach. I hope that my assurance that the full review is being carried out and that our aim is to incorporate the relevant guidance in Code C meets my noble friend's concerns.

Baroness Whitaker

I thank my noble and learned friend the Attorney-General for that answer and for his assurances. The assurance would be stronger if there were more on the face of the Bill. However, in the circumstances, I shall withdraw the amendment and I hope that we shall be able to look at the guidance.

Amendment, by leave, withdrawn.

Clause 80 agreed to.

Clause 81 [Samples]:

Lord Cope of Berkeley moved Amendment No. 131N: Page 71, line 13, at end insert— () Subsection (1) shall not come into force until the Secretary of State has issued guidance about the circumstances and procedures for the authorisation of the taking of samples under sections 62(1)(a) and (1A)(a), and 63(31(b) of the 1984 Act.

The noble Lord said: The noble and learned Lord has said that guidance will be provided. Amendment No. 131N suggests that the new provisions regarding samples should come into force only after completion of the review of the guidance and its publication.

Also in the group is Amendment No. 131P. Clause 81(2) states that whereas an intimate sample has up to now been taken only by a doctor, it can now also be taken by a nurse. That is in a more normal case where it is not being done by a constable. My amendment suggests that it should be done by a nurse only if a doctor is not available. We believe that it should be done by a doctor wherever possible. I beg to move.

Lord Williams of Mostyn

Amendment No. 131N is not necessary as the change in the authority level to which the noble Lord referred does not seek to alter the circumstances in which authorisation can be given. It simply changes the level of authority. There is no diminution of the criteria. The Government have already undertaken to up-date the current guidance in Home Office circular 16/95 which provides guidance on the use of the DNA database. The circular, when up-dated, will emphasise that samples should be taken in the least intrusive manner possible.

I turn to Amendment No. 131P. Registered nurses are highly trained medical professionals. They now regularly carry out an expanded range of work, and rightly so, in the National Health Service. Allowing them to take the whole range of samples which at present only registered medical practitioners can take reflects their expanding role in many different medical environments. The proposed change would be in keeping with current practice in hospitals and doctors' surgeries, where they already take such samples. It also means that delay will be avoided, which is useful not only to the investigator but to the person from whom the sample is to be taken.

We do not wish to impose any restrictions on nurses' ability to take such samples. I therefore advise the Committee not to support the amendment.

Lord Cope of Berkeley

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 131P not moved.]

Clause 81 agreed to.

Clause 82 [Speculative searches]:

[Amendment No. 13IQ not moved.]

Lord Phillips of Sudbury moved Amendment No. 131R: Page 72, leave out lines 28 to 30.

The noble Lord said: Clause 82 deals with the right of the police to make speculative searches against records held anywhere in the country. Amendment No. 131R seeks to delete paragraph (d) from the new subsection to be inserted by Clause 82(2). We are unhappy with the prospect of a "public authority", as it is called in paragraph (d), having the same rights with regard to surfing the national databases as the police. The police are highly disciplined and highly trained and are susceptible to discipline in a way that other public bodies certainly are not. We feel that the power given by the clause is altogether too intrusive, too great and too wide. We feel that there is no need to allow public authorities to have that right. We feel strongly that it should not form part of the Bill. I beg to move.

Lord Cope of Berkeley

Can the noble Lord enlarge on the kind of public bodies he has in mind?

Lord Phillips of Sudbury

That is a fair question. One that seems to be within the purview of the provision is a local authority acting under the Protection from Harassment Act 1997. As I am sure the noble Lord will know, that Act provides for a number of hybrid offences that have certain civil as well as certain criminal characteristics. However, where there is a breach of an order made under the Protection from Harassment Act the local authority has the right to take the malefactor back to the magistrates for criminal penalty. At that point, if not earlier, the local authority will have the right of speculative search under Clause 82. I give that one example. It may be that in replying to the amendment the Minister will give others.

Lord Williams of Mostyn

There are number of amendments in this grouping—Amendments Nos. 131S, 131T, 131TA, 131TB and 131TC. Does any Member of the Committee wish to speak to those amendments?

Lord Cope of Berkeley

Amendments Nos. 131S to 131TC stand in my name. They deal with overseas authorities that are to be given the same power to trawl through British police records. The power is extremely wide. Any policeman in the world will be able to trawl through information held by our police forces. Those who are competent in their own countries to carry out an investigation—perhaps the local authorities to which the noble Lord, Lord Phillips, referred—will also be able to trawl extremely widely. Any person with, functions under any international agreement which consist of or include the investigation of conduct which is … unlawful … or … contrary to international law", will also be able to trawl extremely widely.

Those are very wide powers. We do not seek to stop them altogether. Our amendments are limited to making the Secretary of State tell Parliament which overseas authorities are to be given the powers and allow Parliament the opportunity to approve the giving of authority to overseas bodies in the way I have described.

Lord Williams of Mostyn

I shall deal with Amendments Nos. 131R, 131S, 131T, 131TA, 131TB and 131TC. Amendment No. 131R would remove paragraph (d) from new subsection (1A), which, if passed, would include public authorities with any functions in any part of the British Islands whose functions consist of or include the investigation of crimes or the charging of offenders, to be included in the list of bodies with whose fingerprint and sample records can be speculatively searched.

Most public authorities which have prosecution functions will not have their own records of fingerprints or samples, but the police ought to be able to check records against those that do—for example, the Immigration Service or in some instances Customs and Excise. If the taking of evidence about fingerprints or DNA is scientifically and forensically accurately done, it is a very important tool indeed. It is objective evidence in a way that identification or circumstantial evidence are not. We believe that it is legitimate to have this extension. That is the short difference of principle and approach between the noble Lord and myself.

Amendment No. 131S seeks to replace ''British Islands" with a longer but identical description. As is well known, by virtue of the Interpretation Act 1978 the term "British Islands" includes the United Kingdom, the Channel Islands and the Isle of Man.

As regards Amendments Nos. 131T, 131TA and 131TC, for the reasons I gave a few moments ago, what we are looking for in Clause 82 is a clarification of the ability of police forces in England and Wales to check fingerprints and DNA profiles taken under PACE against those held by other British police forces, other public authorities concerned with the investigation of crime that hold such records—I emphasise that point—and police forces and criminal investigation bodies from outside the jurisdiction. I suggest that the drafting properly reflects the roles of the organisations and the purposes for which fingerprints and DNA profiles can be exchanged rather than trying to produce an exhaustive list of all possible police or law enforcement bodies.

I do not think that the proposals in these amendments would work. Potentially they would require the listing of hundreds of police forces around the world as well as other international bodies such as the War Crimes Tribunal. If an affirmative statutory instrument was required each time a request was received from a country for the first time, the system would collapse.

This clause would not give the persons and bodies listed access to our databases. It would enable the police to check our records against those of the law enforcement agencies that have their own records of fingerprints and samples, but only for the purposes of prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. It needs to be borne in mind that any exchange of information must comply with the provisions of the Data Protection Act 1998. I can inform the Committee that requests from abroad will be mediated through the Interpol Section within the National Criminal Intelligence Service.

Finally, Amendment No. 131TB seeks to replace the word "places" with "countries". In this context, the word "places" is meant to be vague. This sub-paragraph contemplates in particular international tribunals which may be set up to deal with war crimes and other crimes against international law. In some of these situations it may be arguable whether we are referring to states, provinces, territories or, simply, "places", whose status in international law for such purposes may be unclear.

6.30 p.m

Lord McNally

Before the noble and learned Lord the Attorney-General sits down, does he have no concerns as regards a matter that was raised during our discussions on the Regulation of Investigatory Powers Act regarding the issue of the "big browser"? Here we see two developments coming together in a pincer movement: first, legislation that will broaden the databases that can be consulted and, secondly, as the noble and learned Lord mentioned earlier, frightening advances in the technologies capable of undertaking such cross-referencing. The two arms of this pincer will give the authorities massive powers to cross-reference data and, to borrow the phrase used in the discussions on the Regulation of Investigatory Powers Act, the ability to "big browse" without any real controls over what is being done.

Lord Williams of Mostyn

I am grateful for the noble Lord's intervention. I do not regard these advances in technology as frightening. I recall, as will the noble Lord, Lord Phillips, how when we first started out in the law, many questions were raised and arguments fought over fingerprinting. At that time, neither of us could have contemplated the objective quality of DNA.

I do not wish to refer unnecessarily to a matter that is sub judice, but we know of the allegations made against the man who is supposed to have raped and murdered the young English schoolgirl in northern France. If—I emphasise that word—those allegations are proved, DNA will have provided an extraordinary tool to aid detection. It is not possible to provide for the legitimate use of that tool without sometimes being able to cross-refer. I should have to say to the parents of that child that, although I recognise the civil liberties implications here, in the balance I believe that their needs come rather higher.

This judgment has to be made. One does not want to see the state intrude illegitimately or unnecessarily. However, I believe that we have got the balance right, not forgetting that the Data Protection Act does provide protections to the individual. Any judge who tries a criminal trial constantly has his attention drawn to Section 28 of the Police and Criminal Evidence Act. He is entitled to exclude any evidence which militates against the fairness of the trial.

The technology surrounding DNA evidence has advanced, so much so that in a recent United States case it was said that the odds against someone else having committed the crime were 73 trillion to one; namely, more human beings than have existed since Creation. Although one has to be sceptical and careful, I think that a reasonable balance has been struck. I return to the point I made—which is not simply a call from the hustings. I would find it difficult to explain to an ordinary member of the public who has an interest in these matters and who may be a victim or complainant, or the relative of a victim or complainant, that we have the technology but that we do not allow for its use. I have not found an answer to satisfy myself, let alone one to satisfy such a questioner.

Lord McNally

I believe that the noble and learned Lord is moving on to the slope that leads to a complete national DNA database; namely, that every child born will have his or her DNA profile registered. As the noble and learned Lord has said, such a national database, on which everyone is included, would be a powerful police tool. However, I am sure that the noble and learned Lord reads the Guardian and other like-minded newspapers as much as the next man. He will know that this development causes others deep concerns about the thought of that kind of power being in the hands of the state.

Lord Williams of Mostyn

That is a fair philosophical question to put. If we are referring to extremes, we should set that against the scene of the police officer kicking down the door and going in with a search warrant. Ultimately, of course the intrusion remains, but it is modified and qualified by the law. The Data Protection Act does provide protections, as does Section 28 of PACE.

I recognise that new technology is worrying, but the best thing to do here is to put the worries out front. The noble Lord used the slippery slope argument and it is there for what it is worth. At present, we are not slipping down the slope, in part because of the vigilance of noble Lords who have already spoken and in part because of the vigilant views of the press. However, I do not agree with the Guardian on every conceivable occasion. That is particularly the case at the moment because the editor is trying to take me to judicial review for not prosecuting him.

Lord Cope of Berkeley

The noble and learned Lord relies to some extent on the Data Protection Act, but my noble friend has advised me that Section 29(3) of the Act broadly exempts data being used for the prevent ion or detection of crime or the apprehension or prosecution of offenders. I am not sure that the noble and learned Lord can rely on the safeguards provided in that Act, although I am in sympathy with some of his more general points.

Lord Phillips of Sudbury

As always, I have listened with great care to the Attorney-General. However, in his reply he did not refer to the main point which I strove to emphasise; namely, that the public authorities which will be given rights under this clause will not be subject to providing the kind of training, discipline and so forth of the police. I believe that the difficult balance which needs to be struck in these matters will he ill struck if, for example, the employees of a local authority—who will not have had any training along the lines given to the police—are allowed to become embroiled in surfing databases for information in cases over which they have control.

For that reason, I am disappointed by the Minister's reply, but at this stage, I do not propose to divide the Committee.

Lord Cope of Berkeley

I wondered whether the noble Lord was about to give the Attorney-General an opportunity to deal with the point I raised as regards Clause 29(3) of the Data Protection Act.

Lord Williams of Mostyn

Perhaps I may develop these points. Personal data can be disclosed under the 1998 Act only if the disclosure can be made consistently within the data protection principles, or if one of the non-disclosure exemptions applies, to which the noble Lord referred. In the first case, the data protection rules apply in full. In the second case, rules are eased, but only to the extent that they are inconsistent with the disclosure in question, as covered by Section 27(3) and (4) of the 1998 Act.

Section 29 of the Act provides an exemption to the "non-disclosure provisions" where both the disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders, and the application of the provisions would be "likely to prejudice" any of those purposes. It operates as a filter on the type of information which can be disclosed and imposes a requirement for a pre-disclosure assessment of the proportionality of disclosing the information. On the advice that I have, it would not justify routine searches or data matching. The data controller would have to be satisfied in each case that, if the data is not shared, matched or disclosed, this would be likely to prejudice the prevention or detection of crime or the apprehension of offenders. That is something of an expansion. I am grateful to the noble Lord, Lord Cope, for the general proposition that I was putting in reply to the noble Lord, Lord McNally.

Lord Cope of Berkeley

I would normally say that I would carefully consider the noble and learned Lord's reply between now and Report. I am not as trained or experienced in the law as the noble and learned Lord the Attorney-General and the noble Lord, Lord Phillips, and I doubt that I shall be able to give as much consideration to this issue as I would wish in the time available. All I can say is that we shall, of course, reflect on the point.

Lord Phillips of Sudbury

Perhaps I may come back, very briefly, on the point made by the noble and learned Lord the Attorney-General. The law to which the noble and learned Lord has referred is so complicated in relation to the powers under this clause—and on this occasion, perhaps, I speak also for those on the Conservative Benches—that this Bill and others like it go beyond the realms of practical workings. They get so contorted with regulations, guidelines, protocols and cross-references to a dozen other Acts that, in practice, they are unworkable by the ordinary policeman, let alone by the ordinary local authority employee. I do not think I have got that point across sufficiently to noble Lords opposite. I believe that the Government need to pay much more regard to that aspect of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 131S to 131TC not moved.]

Lord Phillips of Sudbury moved Amendment No. 131TD: Page 73, leave out lines 30 and 31.

The noble Lord said: I can deal quickly with Amendment No. 131TD because it raises a simple point—and one cannot often say that. We believe that it is inexplicable in common-sense terms why. if a citizen has to give his or her consent to the providing of a sample of some kind, he or she cannot at any time thereafter withdraw that consent and see the sample destroyed.

A further common-sense point is that if it is the case that once you give consent you shall not be able to withdraw it, a great many people who might otherwise have given their consent will, on advice—and I can imagine all kinds of interest groups giving this advice—never give their consent to the providing of samples. They will be told, as is obvious, that times and their circumstances may change. Although it is easy for any state to say "If you have nothing to fear you will never want to withdraw your sample", that is much too simple. I urge the Government, in terms of their own legislation, not to insist upon subsection (1D). I beg to move.

6.45 p.m

Lord Cope of Berkeley

Amendment No. 131TE seeks to build on the point made by the noble Lord, Lord Phillips. It suggests that the person giving the consent should have the provisions of the subsection drawn to his attention in writing before he gives consent. In that way, he or she will fully understand what it is that they are agreeing to.

I accept at once that this may have the effect of putting off even more people from giving their consent, but if the consent is to be absolutely permanent—that is, if the amendment of the noble Lord, Lord Phillips, is not accepted—people need a reasonable chance to understand this matter, given how complicated it is and given particularly the fact that—although the noble and learned Lord explained it away to some degree—the Data Protection Act does not give quite the kind of broad protection that the noble and learned Lord seemed to suggest.

Lord Williams of Mostyn

Amendments Nos. 131TD, 131TE and 132A are in this group. Amendments Nos. 131TD and 132A will probably not have the desired effect. They do not state that consent can be withdrawn; they simply remove the clarification that, once given, consent cannot be withdrawn.

One of the problems in practice has been that in some geographical areas individuals have been approached on more than one occasion to give a DNA sample. That is an illustration of what sometimes happens in practice. Fundamentally, consent is given voluntarily. The information on the database, once given, can be used only for the purpose of prevention and detection of crime, investigation of an offence and the conduct of a prosecution. We believe that when a volunteer whose fingerprints or samples have been taken consents in writing to the retention, that consent should not be capable of being withdrawn.

One problem is that if an attempted withdrawal is made by, for instance—this is a limited example—someone who is going to be investigated for a crime or may be matched, when does the elimination have to take place? Is it immediately on the giving of the written withdrawal? Is the written withdrawal effective immediately when it is made, when it is received or within a reasonable period of time afterwards? We think that if you, as an individual, have given your consent in writing to the retention of a sample for a limited purpose, you should not be able to withdraw that consent.

I accept what the noble Lord, Lord Cope, said was the spirit behind Amendment No. 131TE. However, if the amendment was accepted, there would have to be parallel amendments to new Section 64 (3AC) introduced by Clause 83 and to the parallel provisions for Northern Ireland in Clause 84.

On this point, we intend to issue guidance to the police to ensure that consent is fully informed, including the acknowledgement that once it is given it cannot be withdrawn. Home Office circular 16/95, which I mentioned earlier, will be updated to address the changes made by the Bill. In the light of those assurances—although I know that the noble Lord, Lord Phillips, will not find them perfect, but they may be a limited amelioration of his concerns—I hope that the amendments will be withdrawn.

Lord Carlisle of Bucklow

As I understand it, the noble and learned Lord the Attorney-General said that one of the reasons the power is needed is that people may have given their consent to the taking of their fingerprints during an investigation who may then find that they themselves are suspects and wish to withdraw their consent. The noble and learned Lord believes that they should not have the power to do so. Surely the answer is to say that they should not have the power to withdraw their consent until the investigation is completed. Once the investigation or any prosecution is completed, why should they not have the power then, if they wish, to withdraw their consent?

Lord Williams of Mostyn

In many circumstances the investigation will not have even begun at that stage.

Baroness Kennedy of The Shaws

I have recently returned from the United States, where I met with representatives of the FBI and discussed with them the whole issue of DNA and its use in the investigation of crime. They rather marvelled at Britain leading the way in the invasion of civil liberties. They found it extraordinary—they looked with somewhat jealous eyes—that we did not have an active civil liberties movement to resist some of the changes taking place in the Bill.

One point that was raised—which I was unable to answer but the Minister may be able to do so—was what happened to samples which were given by victims or a victim's husband, for example, when they were taken for elimination purposes rather like an intelligence screen. In those circumstances, will the samples be returned and destroyed or will they be kept too? Such samples will be obtained with the consent of the victim or members of the victim's family—from a husband, for example, in order to eliminate his DNA.

Lord Williams of Mostyn

I return to my earlier remarks. When a volunteer has provided fingerprints or samples for elimination purposes and he or she consents in writing to their retention, that consent should not be capable of being withdrawn. A precondition to the noble Baroness's question is that consent in writing would have to be given. I do not entirely accept the proposition that we have greater intrusive powers in this country than exist in the United States for the investigation of crime. To my certain knowledge, in many areas that is simply not correct.

Baroness Kennedy of The Shaws

In relation to DNA the Bill will take us far ahead of the United States and most other jurisdictions in the world.

Lord Williams of Mostyn

That may well be so, but that was not the noble Baroness's first proposition. In any event, it is true that much of the technology and technique of DNA is substantially advanced in this jurisdiction as compared with many continental countries. I draw some comparisons between the successful investigation of serious crime in this country and the lamentable lack of success in many continental jurisdictions.

Baroness Kennedy of The Shaws

I return to my question. Is the Minister saying that the husband of a rape victim who provides DNA for elimination purposes will not be able to request that his sample is destroyed after the investigation is closed?

Lord Williams of Mostyn

The question does not arise because the fingerprints cannot be—

Baroness Kennedy of The Shaws

The DNA can.

Lord Williams of Mostyn

Fingerprints and DNA samples are the same in principle. They are not retained unless there is consent in writing to their retention.

Baroness Kennedy of The Shaws

Having accepted that the sample would be retained in the case of the husband, will the Minister state whether it will be retained in the case of victims whose DNA is taken with their consent for investigation purposes? Will such DNA be retained and kept on the database without there being any possibility of applying for it to be removed?

Lord Williams of Mostyn

It cannot be retained unless consent in writing has been given.

Baroness Kennedy of The Shaws

Has the Minister considered the human rights implications of coercion—of circumstances in which in the investigation of crime people may feel obliged to co-operate with the police? Has he considered that the whole question of informed consent may come into play and that, therefore, there may be an abuse of the Human Rights Act?

Lord Williams of Mostyn

Yes, we have considered all the human rights implications; otherwise, my noble friend could not have given the certification that is required regarding the Human Rights Act which this Government introduced.

Lord Carlisle of Bucklow

Perhaps I may join in with the duo on the other side of the Chamber. Is not the problem that victims of, for example, rape are almost inevitably bound to give their consent to a DNA sample—probably without considering carefully what they are doing? Like the noble Baroness, Lady Kennedy, I cannot see why, once an investigation is over, the fact that they have given their consent, possibly at a time of emotion when they were first asked to provide the sample, should mean that they should never thereafter be entitled to withdraw their consent. In some ways that places them in a worse position than a person who has not given consent in the first place.

Lord Williams of Mostyn

I am obviously not explaining myself clearly. Anyone who volunteers a sample has a choice as to the retention of the sample, consent to which must be given in writing. If the person does not give consent in writing, the sample cannot be retained.

Lord Phillips of Sudbury

I am grateful to those who have contributed to this mini-debate. I am also grateful to the Minister. As he anticipated, I am not happy with the response. Although the amendment standing in the name of the noble Lord, Lord Cope, and others would improve matters a little, there is a principle here. The points raised by others are relevant. This kind of dangerous developing presumption that the state has a right vis-à-vis citizens when it is the citizen who has consented to the granting of a sample seems to me to be altogether wrong. I can say no more than that. At this stage of the Bill, realising that we are rushing towards some sort of doom, I shall not divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 131TE not moved.]

Lord McNally moved Amendment No. 131TF: Page 73, line 31, at end insert— () Speculative searches must be appropriate and necessary for the prevention of disorder or crime and any data obtained shall not be further processed in any manner incompatible with that purpose. () A search will only be appropriate and necessary where there is no reason to believe that the information held by the relevant law-enforcement authority is not accurate and up to date.

The noble Lord said: This was one of the amendments drafted by my noble friend Lord Lester, who alas cannot be present. The amendment was tabled with the intention of carrying out one of the recommendations of the Joint Committee on Human Rights, to which the Government gave general approval. I presume that my noble friend is hoping that the Government will give their approval to his amendment as well.

Lord Williams of Mostyn

No—and I wish that I could sit down.

There are two considerations. I understand what prompted the noble Lords, Lord McNally and Lord Lester, to table the amendment. We want to have data which are accurate. I repeat what I said earlier. Fingerprints and DNA, subject to appropriate scientific safeguards, are powerful and objective forms of evidence. They remain unchanged for the lifetime of any individual. We can, therefore, ensure that accuracy. We cannot ensure the accuracy of other details, such as a person's address or even his or her name. We cannot discover whether or not someone has moved.

Where information is supplied that links an individual's fingerprints or samples to a crime scene, it has to be considered by the police, together with other intelligence information and evidence, which will provide an opportunity for scrutinising information. If there is doubt about a match, a further evidential sample can be taken.

I am not entirely sure what the first part of the amendment is intended to bring about, but I do not believe that the second part is workable. I do not see how any relevant law enforcement authority will be able to come to a conclusion that some parts of the relevant information are, or are not, accurate and up to date. People regularly change their jobs, their homes and their circumstances. So the proposal is not workable in that way.

The Data Protection Act deals to an extent with the concern expressed by the noble Lord, Lord McNally. There is an obligation under the 1998 Act to ensure that records are accurate. There is a well-established procedure relating to subject access which enables individuals to obtain details of personal information held on a police computer. Therefore, if there is inaccuracy, that is the opportunity to put it right.

Although in this amendment the heart is in the right place, the intelligence has not been sufficiently focused to do away with ambiguity.

Lord McNally

I shall report both the "No" and the final insult to my noble friend Lord Lester. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 agreed to.

7 p.m.

Clause 83 [Restriction on use and destruction of fingerprints and samples]:

Lord Cope of Berkeley moved Amendment No. 131TG: Page 74, line 10, leave out "whether

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 132B. These amendments have been grouped with various other amendments, as set out on the groupings list. I believe that the noble Lord. Lord Lester, will be able to take some comfort from the fact that the Minister did not get it wholly right when he signed the statement attached to the Bill. Indeed, we know about that because we have already had to amend the Bill. However, no one is perfect. I have pointed out in the past that half the lawyers in the country are proved wrong every day in the courts. There is always someone on the losing side, as well as those on the winning side. We should always remember that when considering their advice; and not bow down to it too slavishly.

Amendment No. 131TG relates to the definition of crime as set out in subsection (1B)(c). The reference is to the restriction on the use and destruction of fingerprints and DNA samples. Basically, such samples can be used in the investigation of further criminal offences; indeed, not only further criminal offences in this country but also further criminal offences committed overseas. The particular point of my amendment is to say that that is a crime under the law of a country or territory outside the United Kingdom.

There are many laws around the world with which we would not agree. Moreover, many activities are criminal offences in one country and not in others; indeed, sometimes they are treated more seriously than is the case in the United Kingdom. If the clause is not amended it will allow any crime to be investigated in the manner proposed. My amendment seeks to ensure that a sample can be used only in the circumstances outlined if the crime being investigated in another country would be a crime if committed here. In other words, it must be a matter that we in this country agree should be against the law, and it must be against our law. That seems to me to be a protection that might well be inserted into the Bill. I am rather surprised that the Bill as drafted permits such a wide interpretation.

The other amendment tabled in my name in this group is Amendment No. 132B, which seeks to remove subsection (6) of the clause. The subsection says that if fingerprints and samples that should have been destroyed before the commencement of this Act were not so destroyed, they now do not need to be; and, indeed, can be used in the ways that we have been discussing. That seems to me to be rather extraordinary. Apart from anything else, it is somewhat retrospective. The subsection is saying that if someone gave his consent under one basis—the current basis—but, for some reason or another, the police force in question failed to destroy the samples, that can now be forgotten and such samples can continue to be used. That is retrospection of consent, as it were: it is a matter of someone giving his consent under one basis but suddenly finding that his samples are being retained on a different and wider basis, as we heard when discussing earlier amendments. I beg to move.

Lord Renton

I hope that the Government will take these two amendments most seriously. To say that a crime committed anywhere else in the world—that is what it comes to—shall be relevant to the constitution of one or more criminal offences really invokes the most extraordinary amount of uncertainty. Very odd activities are considered to be crimes in various parts of the world. Indeed, I believe that there is one Muslim country in which adultery is still a crime. The Government should be careful about this issue.

Lord Carlisle of Bucklow

Am I right in understanding and that we are debating with these amendments the other matters listed on the groupings list?

Lord Williams of Mostyn

Perhaps I may assist the noble Lord. In this group we find Amendments Nos. 131TG, 131TH, 132, 132B, 133, 133A and Clauses 83 and 84 stand part.

Lord Carlisle of Bucklow

I am most grateful to the noble and learned Lord. I thought that that was the position. Although I have not attached my name of any of the amendments in the group, I wish to make one very small point. Surely what we have here is a classic example of this Chamber being asked to make what is in effect a fairly major change in criminal procedure, without having had the time for adequate consideration.

At present, as regards those whose samples are taken—whether fingerprints or DNA samples—in the process of the investigation of a crime and who are then acquitted or, indeed are not proceeded against, there is a requirement that such samples should then be destroyed. As understand it, the clause would remove that requirement. It states that if the fingerprints or DNA samples have been taken from a person in the course of an investigation, those samples can be retained by the police even if the suspect was acquitted, or not proceeded against.

Can the noble and learned Lord say what, in principle, is the difference between retaining the fingerprints or DNA samples of someone from whom they have been taken as a suspect of a crime but who is ultimately not proceeded against, and taking such samples from any other member of society? It may be right to have the power to take fingerprints from all members of society and to build up such a bank held by the police. However, in this Bill alone it seems to me that we shall have: first, those who in any event had samples taken from them, who were then convicted, and which the police have power to retain; secondly, there will be those from whom such samples were taken during the course of an investigation who are then acquitted and yet the police will have the power to retain their fingerprints or DNA samples; and thirdly, there will be those whose fingerprints were taken and against whom no proceedings were instigated, but, again, the police will have the power to retain such samples.

Finally, as we discussed in the previous debate, there will be those from whom such samples were taken in the course of an investigation, whether as victims or otherwise. It will depend on whether such persons have given their consent in writing when consideration is given as to whether or not they can later be detained.

I repeat: there may be a strong argument for saying that there should be the power to fingerprint anyone in this country and retain his or her fingerprints indefinitely for the purpose of investigating future crime. However, in this Bill, it seems to me that we are in the process of making a major change in matters that may be considered by some to be issues of civil liberty, without proper discussion as to the situation ahead. I hope that this is one of those areas where the Government will agree that further consideration should be given to the arguments put forward before proceeding in the manner proposed.

Baroness Kennedy of The Shaws

I support the noble Lord, Lord Carlisle, in the remarks that he has just made. What concerns me and many others is that we believe we are seeing a creeping invasion by the state. We have here the creation of a national database of the male population—it will, essentially, be the male population—by stealth. If you are creating a national database and you ask everyone in the country to comply, a national debate could take place on the subject. But that is not what is happening. In order to gather as many samples as possible, the Government are now extending the reach of the database; in other words, instead of it just being confined to people who are convicted, it will include samples of people who have given a sample for the investigation of crime in any other capacity. Some will consent to that. However, the worrying point is that they will consent because they want a particular crime to be investigated or they want the best possible investigation of a crime committed against their wives. They will consent—and consent away one of their civil liberties.

I regret that there has not been enough debate on this subject. Indeed, it was not debated at all in the other place. The problem is that once a DNA database has been established, those in authority will be tempted to use it not just to eliminate people from specific inquiries but also to carry out other general searches which might, for example, throw up someone who is related to a suspect or discover an inherited psychological trait related to criminal behaviour. Those are the kind of worries that the general public have about this matter. I regret that we have not had the opportunity to debate whether people are content that this kind of data should be collected to investigate crime. I believe that most people consider that it is a case of other people's DNA. When victims realise that their DNA may also be collected, they may be greatly concerned about that.

Having expressed my general concern about what is happening by stealth, perhaps for good reasons and with good intentions but without enough public debate, I now turn to another area of concern which I raise in my Amendment No. 132 which is included in the group we are discussing. The amendment proposes that we should deal differently with fingerprints and samples of juveniles and young people under the age of 18. If the Government are intent on introducing the measure we are discussing, they should at least give some consideration to the position of young people. All the statistics show that the majority of young people who get into trouble in their adolescence or teens grow up to be law-abiding citizens. I should have thought that most of us believe in giving people an opportunity to make a fresh start, to accept responsibility, to be able to change and to enter adult life without any handicap. I know that the Secretary of State is mindful of the rehabilitation of offenders, particularly young offenders.

Both Canada and France have measures such as the one I propose in Amendment No. 132. I suggest that the fingerprints or samples of young people who commit a crime as juveniles under the age of 18 may be retained, but that seven years after they reach adulthood they should be able to apply for the destruction of the said fingerprints or samples if they have not got into any further trouble. The intention is clear; namely, to enable people to make a fresh start as adults. I believe that we are all familiar with the difference between young people and adults in certain respects. We can assume that adults have knowledge, foresight and a real appreciation of responsibility. Those traits are often acquired with maturity. We should adopt a different measure for those who are juveniles when their samples are taken.

I turn to a further rather serious issue. It is important that a distinction is made between the bar code, which is created from a DNA sample and which is then used for matching purposes, and a sample itself. The bar code can be entered on a computer. That bar code in itself will not tell us much more than is recorded on the computer. It usually comprises what is described as "junk" DNA; that is, DNA which does not inform you about, for example, the presence of genetic diseases. The sample, of course, is very different. If tested in a certain way, it can tell you all kinds of things about the individual from whom it has come. It could tell you about their propensity to certain kinds of illness. Perhaps in the future we shall discover all kinds of things we are not aware of now. A sample may, for example, be able to provide all manner of information, thereby very much invading the privacy of the individual concerned.

The police may well want to use the bar codes for matching purposes to eliminate individuals from investigations. Those can be kept in a database—a computer—but the databank of samples is far more complex and deserves special protection. Reasons that the Government will give for wanting to retain the samples are that a computer may go down and some bar codes may be lost, or, that there may be something questionable about a bar code that has been created from a sample and people may want to re-examine the relevant sample. They will say that there are therefore serious reasons for keeping samples. The Home Office may want to conduct research on such samples. However, the public are entitled to know what kind of research would be undertaken. In consultation undertaken by the Human Genetics Commission the public have expressed real concern about the possible cross-over between databases of information which relates to the privacy of the citizen.

My Amendment No. 133 proposes the creation of an independent body whose authorisation would be required before access to any such samples was permitted. It also proposes that in such databanks all information concerning identity should be coded to make it impossible to identify the people concerned should that information ever fall into the hands of people other than those one would want to have access to such information. It also proposes that, Any unauthorised use of DNA samples held on the databank constitutes a criminal offence". That criminal offence should result not in some trivial penalty but in a prison sentence.

I have important reasons for tabling the amendment. The highly regarded Science and Technology Committee of this House recommended such measures after having studied databases and genetic information. The forensic science body which collects DNA samples has an overseeing as well as a forensic role. There is already some concern that there is too much fudging of its functions and that there needs to be some kind of independent review body to regulate the use of such information. Gaining the public's trust in this whole area of genetics is so important that I urge the Government not to make a rash decision but to consider with great care whether the existing provisions are satisfactory when we are on the brink of a whole new body of science. Carrying the public with government, scientists and all the bodies concerned is important. Maintaining public trust should be foremost in the Government's mind. I commend the amendments in my name.

7.15 p.m

Lord Brennan

The criminal justice system has an inherent tension between the preservation of individual civil liberty and the protection of the public from crime. In creating a balance whereby that tension is fairly distributed between those two considerations one of the most important factors is to preserve the confidence of the public in that criminal justice system.

The provision of evidence by way of fingerprint and DNA sample has the enduring virtue of certainty, as near as science can produce it in those fields. Such proof, therefore, has an inherently important value: first, in the detection of serious crime; and, secondly, where the evidence substantiates it, in the conviction of those guilty of it.

As a lawyer devoted to civil liberty, as many in this House are, I share the concerns about the use to which such information can be put. But in determining my own conclusion I must have regard to the way the public will expect such information to be obtained and used. I give some examples. First, surely the public will say about DNA evidence, "This is the very strongest of evidence. Here, if used, we should find no miscarriage of justice". Just as 50 or 100 years ago, fingerprints obtained their station of importance in criminal prosecutions, so now will DNA.

Secondly, it is not realistic to expect DNA evidence to be used in the detection of middle-range or minor crime. However, the public will expect it to be used to detect the most horrific of crimes: murder, rape, especially against children—a point I raised at Second Reading. Most of the horrific crimes of murder and rape of children about which we read with such shock are often crimes committed by a stranger. The perpetrator comes from a different town, often another part of the country. The victim is often, if not in a rural locality, in a greenfield area; and the ability of the police to detect such crime is very limited indeed. Hence the importance of prosecution material such as DNA samples. I cannot imagine any reasonable member of the public saying that in that level of crime DNA samples, where possessed, should not be used in order to detect the guilty person.

Thirdly, in such serious crimes, especially if committed in tight-knit communities, there is usually a massive response to requests to give DNA samples. People give them and the unspoken motive usually is, "We want to exclude our community from any involvement in the crime". I do not think that this Act will result in a difference of attitude among ordinary citizens who are asked to volunteer to give such samples.

Lastly, the public will say, "If you have samples, if they have been given by consent, how can you possibly justify their destruction if, many years after the event, they can serve to prove somebody guilty of a heinous murder against a child?" I ask that question rhetorically. I would look forward to some very persuasive advocacy which would come to a different conclusion from what the public would expect.

From the standpoint of civil libertarians, I respect the concerns expressed by the speakers so far, and perhaps yet to come. However, I started by identifying the tension. There must come a time in this House when, faced with laws like this which are designed to protect the public, some of us have to swallow our beliefs in the purity of civil liberty and look to the protection of the public, albeit in time to come those important concerns which my noble friend Lady Kennedy has Set out may well call for a complete review of the manner in which we store and use this evidence in a technical database way.

I support this introduction of DNA sampling being kept by consent and used ever after. I cannot see the public saying to this House that on this occasion civil liberties will prevail against the protection of our citizens.

Lord Renton

As we are debating whether Clause 83 shall stand part and the amendments to it, I feel obliged to draw attention to subsection (4) which is very confusing, slightly contradictory and should be reconsidered by the Government. In particular, perhaps I may draw attention to subsection (3AB) which states: Subject to subsection (3AC) below, where a person is entitled under subsection (3) above to the destruction of any fingerprint or sample taken from him … neither the fingerprint nor the sample, nor any information derived from the sample, shall he used … in evidence against the person", and so on, or … for the purposes of the investigation of any offence". That is fair enough. But the top two lines of page 75 of the Bill, which have already been the subject of an amendment wisely proposed by the noble Lord, Lord McNally, state: a consent given for the purpose of this subsection shall not be capable of being withdrawn". It is rather odd that if a person has given a fingerprint he can ask for it to be withdrawn; but if he has given his consent to have a fingerprint or a sample taken he cannot ask for it to be withdrawn. There is a contradiction; the Government should attend to it.

7.30 p.m

Lord Phillips of Sudbury

I support the argument that this clause should not stand part of the Bill. The clause seeks to turn on its head Section 54 of the Police and Criminal Evidence Act 1984. It would treat those acquitted of a crime and those never prosecuted for a crime in the same way as if they were convicted criminals. Merely to state that proposition invites a great deal of inquiry as to what could justify such an extraordinary state of affairs. To create this new category, as it would be, is wholly without precedent, wholly adventitious and truly unprincipled. In this country, we do not have a Scottish system with the intermediate category in the criminal courts of cases "not proven". If we had such a category, some of my anxieties and of others who have spoken today, would be resolved. For the purposes of samples of DNA and fingerprints, it would be straightforward to have those "not proven" cases treated as though there had been a conviction.

No one mentioned today that this change in the law does not come after long and careful consideration, least of all after public debate, but against a backdrop of chaos in the national DNA database. Last year, the Inspectorate of Constabulary did an audit of the national DNA database and produced a report in July which found that over 50,000 samples are kept on that database illegally so that the existing 1984 law is honoured in the breach. On behalf of these Benches, perhaps I may say that it seems an extraordinary response to the fact that this crucially sensitive state instrument—the collection of citizen information—should have been so cavalierly misused. Yet the Government do not respond by saying, "This is dreadful. We'll put this right and it won't happen again"; they seek to make a norm of the present illegality.

In December last year, the House of Lords decided that the illegal use of DNA information for the purposes of apprehending and subsequently seeking to convict a person should not automatically strike down the prosecution. I refer to the case of Regina v B, the Attorney-General's third reference in 1999, when Lord Justice Steyn made a trenchant judgment to the effect that that would not automatically render the use of the DNA information inadmissible, but it would be left to the trial judge to decide in all the circumstances of the case.

Does it all matter? Are noble Lords across the House getting excited about a principle that is of little account? I think not. Ask the police. The Government asked them earlier this year to give voluntary samples to go on the national DNA database. I think that I am right in saying that one third of them are still holding out against that and that a dozen policemen in Gloucestershire are currently being disciplined for refusing to give samples "voluntarily" to the national database. Why would the police of all people be reluctant to give samples? The answer is only too simple: the database is in a chaotic mess. The systems between the police, the courts and the database are in chaos and they are unreliable.

I am afraid that that is not the only reason that those policemen are refusing to submit voluntarily. In 1998, a Mr Easton was prosecuted for burglary exclusively on the basis of DNA matching. Apart from the fact that Mr Easton was suffering severe Parkinson's disease and was incapable of getting out of his house, let alone burgling anybody else's, it turned out that this was a cock-up and that the so-called perfect system was imperfect. The Crown Prosecution Service withdrew the prosecution.

Unfortunately, as we know, systems for obtaining details of convictions of citizens are corruptible. It is almost certain that the DNA database is being used improperly. It is an open secret that one can obtain details of someone's criminal convictions unlawfully. There are people willing to co-operate in that.

How will the issue seem to the ordinary citizen? My noble friend Lord McNally and others have already referred to a sense that the state is getting too big for its boots—too powerful, too intrusive and too all-pervading. The instruments of state intervention and investigation are getting too strong and the citizen too weak. The system is so complicated that a citizen wronged by it will rarely if ever be able to find a way through to the truth.

Hundreds of thousands of young people in this country are already on the database because they have been cautioned for soft drug offences. I am concerned about them and many like them. They will always be on the database. We are talking about other categories of people, particularly young people, who have been acquitted—I stress acquitted—before a court of law of whatever the offence may be, drug or otherwise, but will still be permanently on what many of them will regard as a "Big Brother" database. They cannot even take advantage of the Rehabilitation of Offenders Act. Their convictions will be struck from the record, but never their fingerprints or their DNA samples. It is easy for us in this House to think that they are only the sort of people whom we want to put in prison anyway, but that is not true. We underestimate the psychology of the issue and what a tenuous thread exists between so many citizens, particularly the less fortunate ones, and the instruments of the state, particularly the forces of law and order, the police and the courts.

I do not need to tell the House that a society that does not ultimately rest for its lawfulness on the voluntary, willing adhesion of the vast majority of citizens to its policing and court system is a failing society and not one of which any of us here wants to be part. That is why I question the wisdom of this reversal of the status quo and why I feel strongly that the fairness and reasonableness that underpin the society that we cherish will not be well served by this provision.

The noble Lord, Lord Brennan, made some thoughtful remarks. He was right that this is a case of all in or convicts only in. There is no intermediate category. Let us have a national debate. Let us ask young people what they think. Let us find out whether my fears and other people's fears are well founded. Let us do what the Canadian Government did—incidentally, they decided not to have this arrangement. The United States Government have set up a commission on the future of the use of DNA. Let us do what the French Government did. Let us not proceed with this measure tonight. As many have said, it is a fundamental issue, going beyond reason and rationality to an aspect of feeling and attitude that is no less important than the purely rational.

On all those grounds, I urge the Government to think again. After a debate, we may come to a conclusion in favour of what they are pressing on us tonight, but this is a classic example of a reform that needs much more thought and time and much wider involvement than we have yet been able to give it.

Lord Williams of Mostyn

No one has yet mentioned the fact that preserved DNA samples are capable of producing the acquittal of those wrongly accused of serious crime. Is that not an important aspect of what a criminal justice system ought to provide for the confidence of the public?

Lord Phillips of Sudbury

The answer to that is simple. Any innocent person accused of a crime will readily give their DNA sample. That will do the trick.

Baroness Kennedy of The Shaws

It goes without saying that we want people to be able to use DNA to prove that they were not responsible for something. Such DNA as comes from the scene of a crime should be preserved, but that is not what we are talking about. We are talking about how samples should be kept, from whom they should be taken and whether there should be greater public debate about taking them from people who have not been convicted of crimes.

Lord Williams of Mostyn

I managed one sentence, which is almost a record, even in this House.

The issue is not as simple or polarised as some people claim or pretend. We are talking about a raft of different propositions. The matter relates to the inquisition into crime, the investigation of crime, the conviction of the truly guilty, and also the acquittal of those who are innocent. DNA is a very important tool in the same way as fingerprints have been over the years.

Let us consider one or two propositions that have been put forward. The noble Lord, Lord Renton, raised a question about Clause 83 in his helpful contribution on Clause 83 stand part. He wondered why fingerprints or samples should not be destroyed if a person had consented to the fingerprints or samples being given. However, I made this point earlier. New subsection (3AC) on page 74 of the Bill specifically refers not to a person from whom a fingerprint or sample has been taken but sets out an essential further qualification: a person from whom a fingerprint or sample has been taken [who] consents in writing to its retention". That is utterly different from a situation in which a person simply consents to the sample being taken. He or she must consent in writing to the retention of the sample.

One or two wide questions are raised in relation to storage. The noble Lord, Lord Phillips, spoke of a corruptible system. My noble friends Lord Brennan and Lady Kennedy asked how we can be sure that the storage and data bank is safe enough to give us confidence—I believe that that is a fair paraphrase. I believe that those are legitimate questions. I am prepared in the longer term—on behalf of the Home Office—to give consideration to the idea of an independent body holding the DNA samples.

Let us turn to the specific amendments. I have not found any sufficiently persuasive reason to impeach the argument put forward by my noble friend Lord Brennan, let alone to test it to destruction. I shall come to one or two specific illustrations when I deal with particular concerns that have been raised.

First, Amendments Nos. 131TG and 131TH attempt to restrict international co-operation, by which I mean our ability to share information with other law enforcement parties—I believe that that would also apply the other way round—to criminal offences which correspond to offences in the United Kingdom. Offences may well exist under foreign statutes that generally conform to offences in the United. Kingdom but where the terminology of the offence is not the same. I do not believe that it would be reasonably proportionate to expect the police in every case of an alleged offence committed abroad to establish whether the same conduct, if committed in the United Kingdom, would have corresponded to an offence here. Obviously the framing of offences and defences varies between jurisdictions.

We believe that these two amendments would bring about an unnecessary restriction on the exchange of fingerprints and samples. In the full evidence given by the Home Office, we explained to the Joint Committee on Human Rights that procedures were in place to deal with the disclosure of information, and we gave an undertaking to monitor the situation.

I now turn to Amendments Nos. 132 and 133, standing in the name of my noble friend Lady Kennedy of The Shaws. If approved, Amendment No. 132 would mean that the individual's fingerprints and DNA profile would be removed from the national database if the person in question was below the age of majority when the offence was committed. As I understand it, that would mean that a 17 year-old young man who had committed several murders would be the beneficiary of the removal of his DNA and fingerprint samples from the database. It would mean their removal, even if he were a seriously dangerous molester of young children—I take the example of my noble friend Lord Brennan—and that he had murdered several.

There is an argument for that on the basis that, as my noble friend put it very eloquently, all humans, particularly when young, are capable of change, improvement and redemption. That argument does exist, but I am sorry that it does not persuade me any more than it persuaded my noble friend Lord Brennan; nor do I believe, if we were to take the public point of view on an informed basis, that it would satisfy many members of the public. I would not recommend any of my colleagues to assent to that amendment.

7.45 p.m.

Baroness Kennedy of The Shaws

I hesitate to interrupt because I know that my noble and learned friend is anxious to proceed. However, perhaps I may suggest that, through this amendment, I sought to place before the Committee a proposition in relation to young people. If a person, such as has been described by my noble and learned friend, had committed a series of gross crimes, one could easily introduce into the provision an exception whereby, in very serious cases, objection could be made to an application for destruction. Therefore, there would always be a way in which to deal with the very rare cases of juveniles committing atrocious crimes.

As the Minister knows, the number of young people who commit such crimes are exceptionally rare. Therefore, we are talking about the majority of quite ordinary crimes and the circumstances in which young people may give their DNA and be acquitted or may do so voluntarily by signing a consent form. However, such action may be inappropriate, given the likelihood that they will never offend again.

I want to support a point raised by the noble Lord, Lord Phillips. He said that this matter concerns the relationship between the citizen and the state and the erosion of that relationship. It is a matter of particular concern to many people when it deals with young people.

Lord Williams of Mostyn

I am dealing with the amendment. I remind the Committee that the amendment states: Where a person from whom fingerprints or samples are taken is under the age of 18, the fingerprints or samples may he retained"— therefore, I take there to be no principled objection to the retention of samples— but after 7 years from the time when the person reaches his or her majority, and if no further offence has been committed, the person may apply for the destruction of the … fingerprints or samples". Plainly, this is a sighting shot because the latter part of the amendment lacks all particularity. However, if the sample may be retained, and if it may be retained until the person is seven years post-18 years of age, I hat is not an argument of principle; it is an argument that says, "Let us attend to it in practice".

Personally, I would not be willing to vote for such an amendment, even if it were properly couched in terms of who the application should be made to, on what basis, who could object, and so forth. However, I repeat that, if it is right to keep the samples for seven years, the principle for retention in certain circumstances is conceded.

The maintenance of the data bank is dealt with in Amendment No. 133—

Lord Cope of Berkeley

Before the noble and learned Lord proceeds, I do not believe that he can rest wholly—rather, that he can rest anything—on the argument of incomplete drafting of the amendment. Normally in a Committee stage, the amendment would be taken away and no doubt would be polished and improved for Report stage. That is difficult to do in the circumstances in which we find ourselves. However, the provision can be left out of this Bill. It can be given further consideration and brought back on another occasion when the remains of the Bill come before Parliament in the future.

Lord Williams of Mostyn

I believe that the noble Lord completely misunderstood what I said. I made it plain that I was not making a criticism of the drafting; I used those words because this is plainly a sighting shot. I was not criticising the amendment on that basis. My objection and observation is that if, in principle, it is acceptable to retain samples for seven years, there cannot be a wholly intact principle against the retention in any circumstance.

Personally, I should find it very difficult to say that someone of the age of 17 years and 11 months who had committed gross crimes of the type referred to by my noble friend Lord Brennan should be the beneficiary of the opportunity for destruction of those samples, which are kept as a public protection, whereas a young woman of 18 years and one day would not be. I do not find that logically sustainable.

Lord Phillips of Sudbury

Would not the argument of the noble and learned Lord be as effective when used to deprive the selfsame triple murderer of the normal protections, including the way in which he or she is handled by the police and in relation to evidence concerning his or her guilt?

Lord Williams of Mostyn

Not at all; the two circumstances have no comparability. Young people under the age of 18 have particular protections under PACE because of their personal vulnerability. Sample DNA depends on no personal characteristic other than the objective, scientific one that was referred to by my noble friend. If my fingerprint is taken, there may be safeguards about the taking of it, but the fact that I am 17, 18, 65 or 85 does not relate to the scientific, objective value—the probity value—of the fingerprint. That again returns me to the comments of my noble friend Lord Brennan. We should not forget that, provided that the safeguards are in place—I briefly dealt with that in connection with the database and the databank—that approach, curiously, involves much more powerful evidence than the certainty of an identification witness in so many cases or the possible scientific accuracy of a handwriting expert. It provides much better quality evidence. When we cast our criminal justice procedures, we should recognise that.

Noble Lords who have discussed Amendment No. 133 are entitled to the concerns that they have raised. If I may, I shall not go into the details of the present system because I indicated that we are prepared to consider the idea of an independent holding body.

There are further amendments in the group. Amendment No. 133A is a compendious attack on Clauses 83 and 84. We must agree to differ in this regard. I accept that civil liberties questions are raised but an intrusion into my personality or personal life is not necessarily an unacceptable intrusion into my civil liberties. In relation to the European convention, not all the rights are perfect, distinct and discrete. It is an intrusion into my personal liberty to be photographed when speeding in a speed zone of 30 miles per hour. It is in some ways an intrusion into my personal liberty when a CCTV record of my walking along a high street is kept for some time, often by private individuals. Some people say that that involves a balance of judgment that we must accept.

It is true that many young people are deeply suspicious of authority and that people who have been cautioned may deeply resent the fact that their fingerprints are retained. At the other end of the spectrum are the two cases that were mentioned by the noble Lord, Lord Phillips; namely, Regina v Weir and Regina vB. One of those cases was an Attorney-General's reference to the House of Lords. In a judgment that is worth looking at and reflecting on, the noble and learned Lord, Lord Steyn, came to certain conclusions about what admissibility of evidence should be. I do not want to over-dramatise the situation but I shall give the stark, implacable facts of the two cases. Many would take the view that if the evidence had been admitted in one of the cases, a rapist would have been convicted, and that if the evidence had been admitted in the other case, the cruel, mindless murderer of an elderly person—he was killed in his own home—would have been convicted of murder.

I am happy to engage in a public debate on that matter. I have a suspicion, which might be deeply unworthy, about which side the public view would fall in those circumstances. Many well informed, decent, scrupulous, civil libertarians may say, "The law is sometimes an ass. Can you do nothing to make it more consistent with what we think a civil society should provide in terms of the prevention, detection and prosecution of crime?"

Neither the noble Lord, Lord Phillips, nor those who are ranged behind his battlements, suggested that there were unworthy motives among those who took a different view and I do not for one moment make such a suggestion about those who disagree with me. There are different views to be had but there is a limit to how much discussion there can be. I believe—I am not alone in this—that the background circumstances that allowed the successful submissions to be made in relation to the cases of B and Weir were not consonant with what a civilised society should afford by way of protection or redress when objective, scientific evidence is available. There are of course cases in which fingerprints are challenged; we all know of them. There are notoriously well-known cases in the United States in which DNA has been challenged. I have constantly put my qualification on this class of evidence throughout this brief debate on where there are safeguards, both scientific and forensic.

Our proposals by way of remedy to a serious gap in the law are in Clause 83. Clause 84 is its sister—or brother—clause for Northern Ireland. I recognise the power and force of contrary arguments and I have listened with great care on this occasion and others. However, there comes a time when we simply have to disagree. If we reach a decision today or tomorrow, that point of disagreement will have been finalised.

Lord Lucas

The noble and learned Lord lays much emphasis on proposed new subsection (3AC) in Clause 84, in which the person who is giving the sample, consents in writing to its retention". Under what circumstances would anyone be well advised to do that? I cannot imagine any circumstances in which a person would benefit from doing so. Giving such consent under such circumstances may be done by failing to inform a person properly and, to some extent, by trickery and subterfuge.

Being on the database puts one in a position that is akin to mislaying a hair sample in the days of witchcraft. One puts oneself enormously in everyone else's power. If a person is known to be on the DNA database, all that one needs to do is to pick up one of his hairs and place it at the scene of a crime. That would be evidence that he was there and it would be extremely difficult for him to disprove that evidence.

The arrangement will put one in an enormously weak position in relation to the state generally, if the state has some reason for convicting one. Any reasonably organised criminal could use the arrangement to secure an incredible amount of power over one. To consent to put oneself on the database would be an act of enormous folly and no adult should be advised to do it. How a juvenile could give such consent I am unsure. Would their parents be asked to sign away their child's future security on his or her behalf? Again, it is not clear.

If one commits a crime and one is on the database, one has let oneself in for it. One can voluntarily give a sample to clear oneself as part of an investigation; one may tick the box, fail to tick the box or do whatever it is that amounts to giving written consent for the retention of one's sample, but one would be extraordinarily ill advised to do so.

I cannot believe that it is proper for the Government to arrange the forms or conditions under which consent is sought so that people will be lulled into giving their consent. The Government should treat the matter with great seriousness. Yes, this will be a wonderful database to have and, yes, we should do everything that we can to ensure that those who commit crimes at all regularly—most crimes are committed by criminals who have committed more than one crime—are on the database. However, the rest of us should not be put in the power of the state or in that of ill intentioned individuals simply because of one moment of community-mindedness. When one is asked by a police officer, "Will you allow us to keep the sample?", one would naturally consent because one could not believe that the police would ask such a thing unless it was in one's interest to consent.

8 p.m

Lord Williams of Mostyn

I can test the proposition of the noble Lord, Lord Lucas. If I wish falsely to implicate the noble Lord in a crime, his DNA details do not have to be on a database. I can take his hair and place it at the scene. The police may take his DNA sample and he will be liable anyway. So his witchcraft argument is not persuasive.

The noble Lord asked who would put themselves in that position. I would. If I lived in a small country village where, over a period of years, children had been attacked and murdered, I would not have the slightest hesitation in giving a sample, nor in advising my children to do so, subject to safeguards. Again, that demonstrates the disadvantage of rhetorical questions.

Baroness Kennedy of The Shaws

Will all Ministers of the Government put themselves on this database?

Lord Williams of Mostyn

I have not the slightest idea and nor will I make the inquiry. I do not want to be accused of being a "big browser" or a participant in witchcraft. The noble Lord, Lord Lucas, asked the question and he was entitled to my answer, which I gave honestly and conscientiously as he asked the question.

Lord Lucas

If someone places a hunk of my hair at the scene of a murder, the police will have no idea whose hair it is. They can trace the DNA but will have no idea it is mine. They would need some other reason to place me at the scene to come and ask me for a DNA sample.

Lord Williams of Mostyn

We are obviously in "Cluedo" now. But if I did put a hunk—or rather, a smaller sample—of hair from the noble Lord, Lord Lucas, at the scene of a crime, I may well make use of either an anonymous telephone call or an anonymous letter.

Lord Lucas

Then at least there would be a prompting and something which could be brought into question in court as to why the anonymous call had been made and whether it was all a stitch-up. If something of mine is just found at the scene, prima facie that is something which I have to explain.

Lord Thomas of Gresford

I have a little experience of cases involving DNA. The circumstance which most people postulate when talking about DNA is that a crime has been committed and a sample of DNA has been found at the scene. That is then compared with the samples of convicted people on the database which has been built up over a period of time.

But the reverse can be the case, as happened in a case I know well. A person was arrested on a minor charge and asked to provide a sample of blood. That was tested for DNA. That sample was then run against a database of samples taken from previous crimes. The person was subsequently convicted of rape from 15 years earlier when he was living in a completely different part of the country. There was no other evidence to connect him with the crime. But the certainty of which the noble Lord, Lord Brennan, spoke was applied by the prosecution and ultimately by the jury to convict him solely on that evidence.

Certainty is that which is postulated in relation to DNA evidence. But certainty is never claimed by the scientists who give evidence in criminal cases. They say that by operating a mathematical formula, by multiplying various parts of a random piece of DNA by a factor of 12, the chances of a specific piece of DNA coming from another person in the population chosen at random may be as much as 1 billion to one. Those are the sort of odds that are frequently quoted. However, scientists will admit that the chances of that piece of DNA coming from a close relative of the person who is a suspect is as low as two to one. So one can go quickly, because of the mathematics, from two to one to 1 billion to one, and one then arrives at the certainty about which the noble Lord, Lord Brennan, spoke.

I am talking about experience and practicality. There is no certainty. But people are now being convicted in this country on the basis of scientific findings. Those findings may be tainted by the manner in which the sample was collected or the manner in which it was stored. It depends on the ability or the integrity of the scientist who carries out the tests—we all know of cases in the past where the integrity of scientists has been questioned. But at the end of the day there cannot be certainty.

The consequences of the proposals are that there will exist in our society people who have been convicted of crime, perhaps at a young age, whose DNA and fingerprints will remain on the database for ever. There will be those who have been acquitted and those who are innocent whose DNA will remain on the database for ever; and so for victims and for those who take part in elimination tests. The rest of the population are nowhere.

In the case of which I spoke earlier when a person's DNA was set against the database, the computer threw up a 15 year-old rape. The fact was that four people in the adult population of this country could have committed that crime. The defence had no idea who the other three people could be because their samples had never been taken. So the one person whose sample was taken for something totally different, in a different town at a different time, finds himself serving a lengthy sentence for rape. That is the danger of the provisions before us.

There has been no public debate on this issue. There has been no detailed discussion so that the people of this country are aware of the limitations—indeed, the noble Lord, Lord Brennan, is not aware of them—of DNA and the fact that it can go wrong. The people of this country are not aware of the various gradations from guilt, to innocence, to victim, of the people whose DNA will appear on the database.

I agree entirely with what the noble Lord, Lord Lucas, said: the existence of the powers in this Bill place a weapon in the hands of the state that is hugely powerful. If the people of this country believe that certainty arises out of DNA, the possibility of ridding oneself of political opponents, for example, through the misuse of DNA in the manner referred to by the noble Lord really does exist. If that is thought to be far-fetched, let us remember that at this very moment in time there is a leader of an opposition party in a Commonwealth country who today is facing charges brought against him by the regime. Anybody who thinks this is something we can shrug off and say, "It will never happen here", is entirely mistaken. Why, in the past, have fingerprints and samples been destroyed? Because it was realised that if we place this power in the hands of the state, it may well be misused.

It is my view that the public must be involved in this debate. The public must appreciate the issues which arise. The rushing through of these provisions at the end of a Parliament, as is now proposed by this Government, must be resisted from all sides of the Committee.

Lord Cope of Berkeley

This debate was founded on a relatively modest amendment to leave out the word "whether". However, it has given rise to a long debate on the principles that lie behind the whole of the business involving DNA. It has tremendously opened up that argument.

I was glad to hear that the rapist mentioned by the noble Lord, Lord Thomas of Gresford, was convicted at last, after 15 years, even if it took some time to catch up with him, assuming that he did it. I cannot comment on the details of that, but he referred to the possibility of a false certainty in such cases.

I do not believe that the noble Lord, Lord Brennan, spoke so much about certainty as about high-quality evidence. There is no doubt in my mind that DNA and fingerprints are high-quality evidence. That does not mean to say that they can be treated as certainties.

They are also tremendous investigatory tools when used as set out in these clauses. The fact that 15 years later someone can be picked up in the circumstances described by the noble Lord demonstrates the power of using them as investigatory tools. In the case of the rapist, he could have been one of the other three and not have been in a position to have committed the crime. He may have been in another part of the country or otherwise engaged and so the case may not have been pursued. Those circumstances do not invalidate the fact that DNA is a strong investigatory tool in pointing to one of the four people who may have committed the particular crime, which is of great advantage to the police.

I do not mean to make, although it is difficult not to make, a party political point. At the moment we are not collectively winning the war against crime. All sorts of crimes continue to worry us. DNA evidence provides a valuable investigatory tool and potentially provides quality evidence in court, although it does not provide certainty.

We have to balance that against the principle of policing by consent, as has been raised in the debate. In this country we know that one cannot police except by consent. That is the way in which it works and should work. Anything that undermines that consent is a danger to us and to our whole system and way of life. That is why I wish there had been more discussion before this matter was put on the statute book because I believe that it puts at risk policing by consent.

We do not wish to deny the police a valuable investigatory tool or the courts a valuable tool in assessing guilt or innocence of individuals. However, I seek leave to withdraw Amendment No. 131TG.

Amendment, by leave, withdrawn.

[Amendments Nos. 131TH to 132B not moved.]

8.15 p.m.

On Question, Whether Clause 83 shall stand part of the Bill?

Lord McNally

In relation to Clause 83 stand part—my comments refer also to Clause 84—it is not the intention of those on these Benches to divide the House tonight. The Attorney-General gave a detailed response. I am one of his fans. His method of delivery is such that it is usually about 4 a.m. before one realises that he has either insulted or threatened you. However, my brain cells have moved a little faster than usual. About two hours ago he said that he did not want to bring the whiff of the hustings into the debate and then proceeded to do so.

On these Benches we are under no illusions that it will be easy to present the concerns expressed from all parts of the House as a denial of powers to prosecute rapists and murderers. Both the Attorney-General and the noble Lord, Lord Brennan, played that card very forcefully in their remarks.

If our civil liberties are to be dealt with by saying, "Unless you give us these powers, the people will denounce you", one may as well leave our civil liberties to the editor of the Sun or to those phone-in-and-give-your-views polls that they run so often. This House and this Parliament have other more important duties than simply to listen to the most emotive arguments that can be deployed.

Therefore, I say to the Attorney-General, as I said to the Home Secretary when he delivered a similar threat in the Moses Room, that, if our genuine concerns are to be met, then we should have a much expanded debate in the country—not just one truncated day's debate—before we move ahead. At times I have sat in this House and felt honoured to hear the quality of the debate, but tonight's debate should take place in the country. Tomorrow we shall divide the House and after the Division we shall consider whether these clauses should go forward.

I hope that the Attorney-General will also pause to think because it is not just the Hampstead Liberals who have been asking him to think, but also some of the most distinguished lawyers on the Conservative Benches and the noble Baroness, Lady Kennedy. The Government have given her special responsibilities to look at DNA. There have been some serious concerns and I believe that there is a case for a pause for thought. But for the fluke of the outbreak of foot and mouth delaying an election, this Bill would not have seen the light of day anyway, so it cannot be a matter of great urgency. It should be possible to have a national debate and a proper programme of legislation. This evening we have not been convinced by the Attorney-General's eloquence or by his threats.

Lord Williams of Mostyn

I have said at least three or four times that I recognise perfectly well that other people may have a different view that is conscientiously held. I have made no threats of any sort and I did my best to answer all the points. Of course, there is no threat and people must come to their conscientious conclusion. Not all of the people behind me will do so, but I have said several times, not least in reply to the noble Lord, Lord Phillips of Sudbury, that I recognise that people have different views. This is not a party political matter, but time and time again the question of what Mr and Mrs Joe Public think has been raised. I am entitled to offer my view on what they think, even though I do not live in Hampstead.

Lord Phillips of Sudbury

The Attorney-General has been fair, but there is a difference between what Joe Public, as he calls him, may think in answer to a question in the high street and what Joe Public may think on an issue after there has been a genuine thoughtful debate. Those are different issues. I have more faith in Joe Public than I have in some Members of the Committee.

Clause 83 agreed to.

Baroness Kennedy of The Shaws had given notice of her intention to move Amendment No. 133: After Clause 83, insert the following new clause—

"MAINTENANCE OF DNA DATABANK

(1) All DNA samples shall be kept on a databank with the identity of the persons from whom the samples were taken codified.

(2) The databank shall he maintained and supervised by an independent body whose authorisation shall be required before access to any such samples takes place.

(3) Any unauthorised use of DNA samples held on the databank constitutes a criminal offence, carrying a prison sentence of up to 5 years."

The noble Baroness said: I want to express my gratitude to the Minister for indicating that he will look closely at the idea of an independent body holding the database. That will give great confidence to many people who have concerns. In those circumstances, I shall not move my amendment.

[Amendment No. 133 not moved.]

Clause 84 [Provision for Northern Ireland corresponding to s. 83]:

[Amendment No. 133A not moved.]

Clause 84 agreed to.

Lord Davies of Oldham

I beg to move that the House do now resume. In doing so, I suggest that the Committee stage should begin again not before 9.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.