HL Deb 07 July 2003 vol 651 cc12-27

3.9 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Dholakia moved Amendment No. 31:

After Clause 8, insert the following new clause—


  1. (1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows.
  2. (2) In subsection (3) the words ", except as provided in the following provisions of this section," are omitted.
  3. (3) Subsections (3AA), (3AB) and (3AC) are omitted."

The noble Lord said: The amendment relates to the further extension of circumstances in which the police may take non-intimate samples from a person in police detention. That includes taking such a sample from a person arrested for a recordable offence. Such samples can be taken without the consent of the individual. It only requires the authorisation of an inspector. The new power is available whether or not the sample is required for the investigation of an offence in which the person is suspected of being involved.

One of the powers being given to the police is that DNA profiles extracted from arrested persons will be added to the DNA database and checked for matches with DNA taken from crime scenes. We have no difficulty in accepting that the action proposed is minor and that the process will benefit crime detection and help to protect the general public from criminality. At the heart of the debate is the argument, advanced by Justice, as to whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain information from innocent persons. If the database is not considered appropriate, then there is no logic in allowing the police to retain such samples or profiles.

The public is always happy to co-operate on cases where DNA is sought from a large number of people to assist in solving heinous crimes. However, if it were generally known that people who are not proceeded against or are found innocent in court might have the samples and profiles retained, ordinary members of the public would find it difficult to co-operate in establishing a national, perhaps international, database, on which they had no say whatever. I draw the attention of the House to the report of the Joint Committee on Human Rights. It says: We draw the attention of each House to the risk that the database might lawfully be put at the disposal of foreign investigators and intelligence agencies conducting speculative 'fishing expeditions' in circumstances where the law governing the work of the foreign agency requesting information offers little or no protection for privacy-related rights in relation to personal data held by public authorities. We also draw attention to the lack of clarity in the allocation of legal responsibility for securing compliance with Convention rights".

The number of profiles now being held total over 2 million. We could be adding another 300,000 arrestees a year to that number. We do not oppose samples being taken to determine whether or not a charge should be made. That is in the interests of the individual if he or she is innocent. We object to the proposal that this should be routine or on a continuous basis, irrespective of the charge being levelled.

Our amendment is designed to amend the Police and Criminal Evidence Act to take out the sections that allow fingerprint and DNA samples to be retained. We want to ensure the destruction of samples taken from detainees who are subsequently not charged. We have an important safeguard where courts should be the ultimate authority to determine if such samples should be kept. I am aware of the judgment of the Appeal Court in the case of S and Michael Marper against the Chief Constable of South Yorkshire. But we are now talking of the indiscriminate storing of samples and profiles. Surely the correct course of action, when the whole question of rights and liberties are infringed, is for the court to determine in each case whether the sample or profile should be retained.

We do this in relation to most matters in which police have to seek an order to retain or destroy material. DNA fingerprinting should not be an exception. Can the Minister tell me whether individuals would have the right to demand to see what use was being made of the samples? Would they be told if the information was being shared with international police forces? Who will be responsible for the protection of information on the database? I beg to move.

3.15 p.m.

Baroness Harris of Richmond

A short debate took place on Clauses 7 and 8 last week dealing with the taking of fingerprints and DNA samples without consent when someone has been arrested for an offence, even if subsequently they are not charged. I do not seek to reopen that debate, but it is interesting to read Hansard at those points and see how your Lordships stressed the careful balance which the present Section 61 of PACE enjoys, and the concerns expressed at the proposals within Clauses 7 and 8 of the Bill.

The taking of fingerprints and samples may well be necessary in many circumstances, but there is significant concern about the necessity to retain that data indefinitely—and. I quote the noble Lord, Lord Carlisle of Buck low. He said: I am worried about those whose fingerprints are taken in the course of examination and who are not proceeded against or are acquitted. Their fingerprints are retained but we do not have general fingerprinting for all people. Surely there is an issue here". The noble Baroness, Lady Scotland, the Minister, replied: I accept that that is an issue. I say that is an issue about balance and proportionality. That is a debate that we should have because the Committee will know that the Government's view, particularly in relation to the most serious offences, is that the risk to the public is so great that it is worth balancing it in their favour, as opposed to destroying information which may subsequently have proved to be vital and could have assisted in the identification of crime. It is a real issue and I do not seek to pretend otherwise. It is a question of where we draw that dividing line".—[Official Report, 30/6/03; col. 714.] So it seems that the Minister accepts that this is an area which needs further consideration and I hope that she will reassure us that that is indeed the case.

The Joint Committee on Human Rights also expressed concern about the data implications of the two clauses. I shall quote from paragraph 53 of its report, in which it concludes, it is not clear to us who would be legally accountable if an error on the part of any of those parties, or of one of the laboratories submitting samples of analyses for inclusion on the database, or of one of the operatives entering the data or processing them, led to an unjustified interference with a data subject's right to respect for private life under ECHR Article 8. In short, who would be the appropriate defendant in an action by an aggrieved data subject claiming to be the victims of a violation of his or her right under ECHR Article 8? The noble Lord, Lord Hunt of Wirral, also quoted from that report in Hansard on 30th June at col. 708, which clearly identified the Joint Committee's unease about data retention.

We agree. There is simply not enough clarity yet in areas of responsibility for collection and retention of highly sensitive and personal data—especially if the person from whom that data is taken is never charged with an offence. There was no debate on this in the other place at the time that the Government introduced the proposals at Report stage, and it seems to us that what is proposed will add huge numbers to an already staggeringly large database—I understand that there are already 2 million samples included on it—and the concern of these Benches is that the taking of these fingerprints or DNA samples should not become routine, nor should it be a way to build up the number of profiles held on the DNA database.

I shall make one final quotation, this time from my honourable friend in another place, Simon Hughes. He said: This is another step on the road to holding every citizen's DNA on the national database, and it is being done with virtually no public debate. Thousands of people are arrested every year who are guilty of no crime. Their fingerprints and DNA may now be recorded and held, even if they withhold their consent". That is our real concern. Some data will need retaining. Much more will not, and this new clause seeks, as my noble friend Lord Dholakia said, to reintroduce the ability to destroy fingerprints and samples of those who have not been charged.

Lord Alexander of Weedon

I rise briefly to support this amendment. The erosion of liberty and personal freedoms rarely takes place in a single bound. It tends to be a creeping process. It is easy to speak of any individual changing of the balance as something that continues the shaping of proportionality. At some stage the Government have to answer the question—what principle underlies the belief that it is right, without having general fingerprinting and sampling across the board, to keep the fingerprints of those people who are arrested but never charged? I have a suspicion that in this area proportionality tends always to move by degrees against individual freedoms. I hope that I am wrong, and I shall be interested to hear what the Minister has to say.

Lord Brittan of Spennithorne

I, too, support the amendment for the reasons already advanced. It seems to me that there is a case—it is not one I would support—for saying that such action should extend to the population at large or at random, or for any purpose that the police or others think appropriate. That is a case I would not support.

There is a case for saying that such samples should be retained only of those who have been charged or convicted. However, I can see no justification for treating people who have never been charged with an offence as being in a category different from the population at large. Members of the population at large are not subject to such samples being taken from them and retained against their wishes. Why, therefore, should someone who happens to have been arrested but not charged be treated in a different and more adverse way? There has been no explanation of that and I would not defend it.

Baroness Carnegy of Lour

I support entirely what my noble friend Lord Brittan said. I am not sure whether he is learned but he is very distinguished. There is a case, which many of us would not support, for all fingerprints to be on the database. I shall listen with great interest to what the Minister says in reply to my noble friend Lord Brittan. It seems extraordinary to treat separately those who have not been convicted just on the off chance that it might be handy for the government of the day at a future date. That should be resisted. It is an extraordinary idea and one that the Government should withdraw if they cannot explain it properly.

Baroness Anelay of St Johns

I support the amendment, to which I have added my name. As the noble Baroness, Lady Harris, of Richmond, said, it flows on from the debates we had on Monday. Like her, I shall not reopen the debate but the principles underlying it flow into today's debate.

The Government have not proved a case for retaining the evidence of fingerprints and DNA from those people who have crossed the threshold of a police station but were never charged or arrested. As the noble Lord, Lord Dholakia, said, we are not seeking to stop the police taking DNA and fingerprints from those people they think they will charge. It is a proper course to take in the exercise of tracking down whether a person should be charged. We are saying that we should not be creating a new subgroup of people against whom action was not subsequently taken but whose DNA, taken by so-called "non-intimate" samples of swabbing or fingerprints, has been retained.

My noble friend Lord Brittan commented that perhaps there is a case for a national database on the population at large. It is not a case that he would support and I suspect that many people would not do so. But if there is such a case, it is incumbent on the Government to set it out clearly and honourably and not try to move step by step towards it. As my noble friend Lord Alexander of Weedon rightly observed, there is sometimes a creeping process of eroding liberties and somehow one ends up with proportionality. One thinks one knows what is meant, then suddenly there is a completely different and unacceptable definition.

The Government must justify the position they have taken and we do not believe that they have done so as yet.

The Lord Bishop of Newcastle

I, too, am persuaded to support the amendment. However much the individual parts of the Bill have much to commend them—and they do—the cumulative effect must be considered. I worry that the power given to retain fingerprints and DNA samples indefinitely is part of a cumulative rebalancing against civil liberties.

I accept that DNA is an increasingly valuable tool in the fight against crime and that samples may be necessary to establish whether charges are to be brought. But I worry about the indefinite retention of the information, whether or not the person is charged or convicted of any offence. Is it appropriate or necessary to allow the state to retain such information from innocent persons, and to begin to create a universal DNA and fingerprint database? I believe that that is a matter for open public debate and if such a national database is judged to be appropriate and necessary it seems to me that everyone in the country should be compelled to provide samples.

There may be a strong case for holding everyone's DNA on file. If so, the case must be made openly and publicly and not be introduced bit by bit in what looks to me like stealth.

Baroness Scotland of Asthal

I thank all Members of the Committee who have participated in this short debate and I hope I shall be able to give the answers for which a number have called. The right reverend Prelate the Bishop of Newcastle and others have sought to suggest that this in an incremental approach by government who by stealth seek to in some way abuse improperly the civil liberties of those who come innocently into the system. I say straightaway that that is not the purpose or intent of the Government. The application is being made openly to the Committee to consider whether this should properly form part of the Criminal Justice Bill and we are now having a proper debate about it.

I must emphasise at the beginning that the advances we have made in DNA and fingerprinting are significant. We have the ability to use the data not just as a sword with which to pierce the criminality of those who would hide from us, but the opportunity to use the data as a shield to protect those who are innocent of any offence and are often wrongly accused. It is easy to alight on only the examples which have enabled us to convict and bring to justice those who are guilty of crime, but not to highlight sufficiently the large number of people who have been set free as a result of the data being available and capable of being utilised to their benefit and that of the public.

We read an example of that at the weekend. Many Members of the Committee will have read the case of a former sailor who spent 16 years behind bars for the murder of a barmaid and was cleared by the Court of Appeal on Thursday last week. That person remained in prison because he refused to accept his guilt and as a result could not take advantage of parole.

I very much hope that when noble Lords consider what I have to say they bear in mind that this is not simply a sword, but also a shield, and also that all those who have nothing to fear from having their fingerprints and DNA samples retained may come to find that it is of benefit. Having the information available can exclude people who might otherwise have been investigated. It is therefore important that the—

Lord Neill of Bladen

Is the Minister arguing that by keeping fingerprints the Crown confers a benefit on certain people? If so, perhaps the statute could say that one could have the option of having one's fingerprints retained indefinitely so that one may be a beneficiary under the scheme that the Minister has in mind.

3.30 p.m.

Baroness Scotland of Asthal

I did not say that there is a direct benefit, as the noble Lord suggests. I do not intend to deal with the matter at all facetiously; it is a very serious matter indeed. Often this is presented as all infringement and no opportunity or no benefit. I was simply highlighting that that is a very narrow way of looking at the use to which such data can and should properly be put. We are taking a balanced look at the information. It is important that we get it right. This is not a piece of sophistry; it may be of critical importance to those who come before our courts and are convicted improperly. It may also be important to victims and their families who see perpetrators go free. If we were to show a little courage, imagination and initiative, we may be able to stop certain criminal activities.

Lord Clinton-Davis

The issue is highly important. Have the Government considered the matter with the Law Society, the Bar Council, Justice and so on? Will the Minister give the Committee some idea of the consultations that have taken place?

Baroness Scotland of Asthal

Your Lordships will know that consultations took place on the whole Bill. Once I have explained the reasons why we have come to the conclusion that this is a proper stance to take, I shall answer my noble friend in greater detail. If I may, I would like to address the import of the amendment and the substance of it.

Lord Campbell-Savours

Will my noble friend confirm that the view of the lawyers on this matter is no more important than that of any other citizen?

Baroness Scotland of Asthal

Never let it be said that I suggest that lawyers are not ordinary citizens. I can assure your Lordships that there is parity of treatment.

Lord Elton

Perhaps the noble Baroness will explain the arguments that she has just advanced that the retention of fingerprints and so on of people who are not guilty of other crimes can somehow prevent them being wrongly brought before the courts and convicted of future crimes. Surely the time to take that evidence is at the time of arrest.

Baroness Scotland of Asthal

I can answer the noble Lord, Lord Elton, straightaway. However, after I have answered his point, perhaps noble Lords would allow me to answer the main import of the amendment tabled by the noble Lord, Lord Dholakia.

In answer to the noble Lord, Lord Elton, an individual may be under suspicion for a particular offence but data on the database may be capable of being compared with DNA samples taken from the crime scene. That comparative study may be able to exclude that person from the investigation so that the police never have to pursue him or her further and they can go on to consider others. That is when it becomes a great utility. There are occasions when, for various circumstantial reasons, the police may alight upon a certain individual who appears to have all the necessary components to indicate that he or she may have been involved but they can be excluded. That is why I say that it can have a beneficial effect at an early stage.

It is important that the police are able to retain all information assembled during the investigation of an offence, not least to enable them to investigate a possible miscarriage of justice in the future, as I have already indicated. The police are already able to retain other information gathered as part of the investigation, such as witness statements, photographs, and so on, and we would say that samples and fingerprints are really no different.

Furthermore, if the fingerprints and DNA samples are retained they will be available to the police in the event of that person committing an offence in the future. Law-abiding citizens have nothing to fear from their fingerprints or DNA being retained as they may be used only for the prevention or detection of crime, the investigation of an offence or the prosecution of an offence.

In the year following the amendments to PACE made by the Criminal Justice and Police Act 2001 which removed the requirement to destroy the fingerprints/DNA of persons who were acquitted, approximately 400 offences were detected involving some 300 offenders using DNA profiles that would previously have fallen to be removed from the database. Those included three attempted murders, four rapes and a number of aggravated burglaries and serious assaults.

In resisting the proposed amendment, I would like if I may, to take noble Lords back to the cases that gave rise to the amendments to the Police and Criminal Evidence Act 1984, contained in the Criminal Justice and Police Act 2001 which allowed police the discretion to keep the DNA samples of people who were acquitted or against whom charges were dropped.

The implications of the requirement on the police to destroy DNA samples in those circumstances were brought into focus in the most acute way by two cases heard together in the Court of Appeal: R v B and R v Weir. In those cases compelling DNA evidence linked the accused to two particularly bad brutal attacks on elderly people in their homes, one resulting in rape and the other in murder. In both cases a match was made between samples taken at the crime scene and DNA profiles on the database. However, those profiles were derived from samples that were taken in relation to offences of which the two accused had been acquitted. They therefore fell to be destroyed under the terms of Section 64 of PACE as it then was. New samples were taken as a result of the link made and it was those new samples that were adduced in evidence.

Nevertheless, the Court of Appeal concluded that the matches had been used in the investigation of the subsequent offences contrary to the prohibition in Section 64; that the trial judge had no discretion to admit the evidence and that, therefore, neither man could be convicted. As the Court of Appeal said: It would have been perfectly possible for Parliament to conclude that the fight against crime was so important that there should be no restriction on the use of DNA samples so that where such samples were lawfully obtained by the police the information derived from them could be retained on a database for all purposes. Whether in the light of these two cases and the repercussions in relation to other cases, the authorities or Parliament wish to revisit Section 64 of PACE is not a matter for this Court of Appeal but there can be no doubt as to the seriousness of the consequences".

The House of Lords' decision in R v B when it reached them on appeal took a rather different approach to that of the Court of Appeal. The House of Lords decided that the trial judge had discretion to admit the DNA evidence, even though it derived from a sample that ought to have been, but had not been, destroyed. The Government welcomed that decision which at least meant that where compelling evidence was available the courts were not forced to ignore it. Nevertheless, the law was left in what was, in the Government's view, an unsatisfactory state, hence the need for reform. The court might be able to look at evidence if it so happened that the relevant police force had not yet caused the profile to be removed from the database, but that would depend on a combination of chance and police efficiency.

Those two cases demonstrate in the most chilling way, the danger that lies beneath the proposed amendment. The Government at the time realised that and this is what led to the decision to remove the requirement that such samples be destroyed and not used in subsequent investigations. The Government also accepted at the time of course that the retention and use of fingerprints and samples from those who have been acquitted raised potential issues under article 8 of the ECHR, but they did not believe that article 8 required the destruction of potentially vital objective evidence.

As I have already said, we do not expect the police to destroy all interview notes or documentation relating to previous investigations, whether or not they lead to a conviction. It is accepted that information may well be relevant to subsequent investigations. Information derived from DNA samples is one of the most objective and conclusive forms of establishing involvement in a crime or, equally important, disproving involvement. We do not believe that the police should be under a duty to throw it away. The police are not given carte blanche to do with such samples as they will and Section 64 of PACE makes it clear that DNA samples and fingerprints can be used only for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

We heard in our earlier debate reference to a challenge to the current provisions of Section 64 of PACE in the Court of Appeal in the case of R v Chief Constable of South Yorkshire (ex parte S and Marper.), to which the noble Lord, Lord Dholakia, referred. Those two appellants argued that the chief constable's decision to retain their fingerprints/DNA, notwithstanding that one of them wasp acquitted and the charge against the other was not proceeded with, was a breach of the ECHR. The appellants had claimed that the chief constable's decision was in breach of Article 8—the right to privacy—and Article 14—the right to non-discrimination.

As the noble Lord, Lord Thomas of Gresford, reminded your Lordships in our earlier debate, the Court of Appeal found that in those cases there was some interference with Article 8(1). However, the court also went on to find that under Article 8(2) the interference was proportional and justified. Furthermore there was no interference with Article 14. The appellants have appealed against the decision and the appeal will be heard before this House probably later this year.

I hope I have made it clear that if fingerprints and DNA samples are retained they will be available to the police in the event of the person committing an offence in the future. Law-abiding citizens have nothing to fear from this; it does not impugn their integrity or leave a stain on their character where this is perfectly normal and in the interests of detecting crime and protecting the rights of victims it is clearly desirable that the police should have every possible technological or scientific aid available to them to enable them to do so.

It is also important that the police are able to retain all the information assembled during the investigation of an offence not least to enable them to investigate a possible miscarriage of justice in the future. DNA profiles are useful, objective forms of evidence that can be used to indicate guilt or—and we must not forget this—help to establish innocence.

The noble Lord, Lord Dholakia, asked what we should do if other agencies wish to go on fishing exercises and use such samples improperly—an issue touched on also by the noble Baroness, Lady Harris. As your Lordships will remember, we dealt with that matter in part in our topical Question last week. I am happy to reiterate that opportunities for the database to be used in such a way are non-existent. The JCHR was concerned that the data might be placed at the disposal of foreign investigators and intelligence agencies conducting such fishing exercises in circumstances where the law governing the work of a foreign agency requesting the information offered little or no protection for privacy-related rights in relation to personal data held by public authorities.

There are in fact strict protocols set by Interpol for the provision of information from the national DNA database to foreign law enforcement agencies, which allow information to be provided to EU members but otherwise restrict the provision of information to countries with good human rights records. DNA profiles and personal identification data associated with them are held by both the laboratories that analyse the samples sent to them and the custodian. They are subject to the provisions of the Data Protection Act 1998. Their databases are registered with the information commissioner and personal data are kept securely. It is accessed only on the authorisation of designated personnel. Therefore, I hope that I have reassured noble Lords that any fear that this information may be used improperly is ungrounded.

The noble Lord, Lord Brittan, asked why people who are arrested are treated differently from the population at large. The objective difference is the fact that there has been an arrest and therefore they have come into contact with the criminal justice system, so information is obtained. We should make it clear that that is not only in relation to that person; and it is a matter that noble Lords should consider. Such information has been used to identify those who may be within the same family.

I shall give your Lordships an example. A serious offence of murder was committed. An incomplete profile was obtained from the DNA evidence available at the scene of the crime. It was not possible to identify the perpetrator from the information held on the database, but it was possible to identify a person in the perpetrator's family, because the DNA indicated similarities. From using the data available from the family member of the perpetrator it was possible thereafter to identify the perpetrator. Your Lordships should not underestimate how powerful such evidence can be.

Some noble Lords, including the noble Lord, Lord Dholakia, asked about mass screenings where people are given the option of having their sample added to the national database. Their consent is important and must be given in writing. We think there is a difference in terms of opportunity and ability. People come forward and offer themselves up for mass screenings, which we need to continue to encourage. But it is different to say that we should give up the information we have culled from an investigation because it may be used in other cases.

Your Lordships should also know that in many cases where individuals have not been charged or they have been acquitted of offences, subsequently it has been discovered when they were arrested for another offence—sometimes of a fairly minor nature—and their DNA was obtained, that they were in fact guilty of some very serious offences. There is one example where an individual was arrested in relation to a shoplifting case involving a mere £10. Thirty years previously, that individual had committed some serious sexual offences, and was able to be identified. So we have some powerful evidence that can be put to good use.

There are now approximately 2 million DNA profiles on the database—as the noble Baroness, Lady Harris, said—and approximately 180,000 crime scene samples.

Since its launch, the database has matched over 170,000 suspects to previously unidentified DNA found at crime scenes. About 4,000 matches per month are found between the profiles of individuals and those from scenes of crime, and if a biological sample is taken from a scene of crime there is a 42 per cent chance of finding a matching profile from an individual on the database. As the number of profiles on the database increases so will the chances of identifying the individual whose DNA was found at the crime scene. In practical terms, the proposed new power in respect of fingerprints will probably be used most frequently to confirm the identity of an individual where it is in doubt rather than to check against a particular crime stain or stains. To that end, it may often be that individuals are already on the database under an alias or alternative name. One can see the huge value to which that information will be put.

Of course it is accepted that police powers to retain DNA samples and profiles of persons who have been acquitted or against whom charges have been dropped raises concerns about intrusion into personal liberty. I recognise absolutely why the noble Lord, Lord Alexander, and others raise the issue. Many of those concerns were debated in relation to Clause 7. Some people may be concerned about the building of larger databases, particularly where it relates to people who have not been proceeded against for an offence. That was the point made by the noble, Lord Brittan.

It can therefore be argued that any intrusion on personal privacy is both necessary and proportionate to the benefits for victims of crime and society generally in detecting crime and protecting the public against criminals. There are many examples of persons who have been acquitted of one offence, or have had a charge against them dropped, who subsequently commit other offences. It does not therefore stigmatise someone not convicted of any offence if it is the norm to retain fingerprints/DNA that have been lawfully obtained.

Lord Clinton-Davis

I thank my noble friend for giving way. I intervened earlier to ask what consultation had taken place between the Home Office—or whoever else is involved—and the Law Society, the Bar Council, and so on. My noble friend said that she would respond.

Baroness Scotland of Asthal

I beg the noble Lord's pardon. I do not believe that we have had specific consultation with either the Law Society or the Bar Council on the two clauses. The noble Lord will know that, in the ordinary way, consultation takes place on many of those issues.

Baroness Anelay of St Johns

I wish to register the Committee's thanks for the courtesy and detail with which the noble Baroness has presented the Government's arguments. Although we may not agree with her, we can only respect and admire her full answer. Further to the comment made by her noble friend Lord Clinton-Davis, is it not true that our particular difficulty with the clauses is rooted in the fact that they were only introduced to the Bill in another place on 19th May whereas the passage of the Bill began last December? As the Minister rightly said, there had been full consultation with the outside world, including both lawyers and non-lawyers, on the whole Bill. The difficulty, I am sad to say, is that the outside world took little notice on 19th May during the debate in another place. This matter will be hitting them only now. Is that not the difficulty that we face as a result of the lack of consultation on these controversial issues?

Baroness Scotland of Asthal

Of course it would have been better if we had had a fuller opportunity to discuss the matters, and if the clauses had been more fully debated in another place. One of the beauties of your Lordships' House is that we have the luxury to do just that. I cannot emphasise enough the importance of this opportunity. I am sure that we are having a very similar discussion to that which would have surrounded the decision on whether we retain the data on those acquitted. Members of the Committee will know that our practice in the past was that, if an individual was acquitted in accordance with our law and the procedures, he would be entitled to have the DNA information contained on the record expunged.

We know from the two cases that I have outlined, and the 400-plus that have followed, how important the retention of that information has already proved to be. One need only look at the newspapers to see daily proof of the good use to which DNA evidence can be put. So much evidence that comes before our courts can be besmirched, argued with and undermined because it may convict the innocent and may allow the guilty to go free. An objective tool that we can use both to free and to convict is therefore very powerful.

There need come to light only one of the sort of cases we have discussed for the public to say, "We simply do not understand why the system is deliberately disabling itself from giving us justice when the same is easily obtainable". We must address that question.

Lord Clinton-Davis

Would it not be better if, before Report stage, the sort of organisations to which I referred were consulted? My noble friend puts forward a powerful case.

Lord Alexander of Weedon

If the noble Lord could give way for one moment, I could answer one of the questions that he very thoughtfully raises as a keen supporter of Justice, of which I am chairman. Inevitably, as the noble Baroness says, there appears to have been no time to consult any bodies. But we have submitted to her very clear representations, which we have circulated to a number of noble Lords. The submission states:

"JUSTICE strongly opposes this new clause, added at the Commons Report Stage".

A later passage states: The issue of whether it is appropriate or necessary in a democratic society to permit the state to obtain and retain this information from innocent persons, and in effect begin to create a universal DNA and fingerprint database, is one of great importance. It is an issue upon which JUSTICE believes there should be a general and open public debate. If such a database is considered appropriate then all persons, arguably, should be compelled to provide samples". That was the point eloquently raised by my noble friend Lord Brittan. I must say to the Minister that the more I listened to her speak about how DNA samples could contribute towards establishing innocence or guilt, the more I felt that she was arguing for a national database or screening. I fail to be in the least convinced by her long exposition of how to differentiate between the innocent who are not charged but have been arrested and the innocent who have been neither arrested nor charged. That is at the heart of the debate. I regret to say that, for me, the Minister has not begun to answer that case.

Baroness Kennedy of The Shaws

I wish to raise the question of why there was no consultation with the Human Genetics Commission, of which I am the chair. The issue raised by my noble friend of how access to genetic information can assist justice raises very important matters with regard to public expectation, which have been explored by the commission. The public want to see that information used to deal with crime.

However, concerns are expressed about the creation of a national database without proper consent from the whole public. There has not been consultation on the matter. There are advocates of that approach. Professor Jeffreys, the discoverer of DNA for police investigation, has said that either everyone should be on the database or the matter should not be approached in the way that the Government propose. It would help if those involved in the issues were consulted. I am afraid that the Home Office has not been in touch with the commission that I chair. The other matter that I wish to raise—

A Noble Lord

It is an intervention.

Baroness Kennedy of The Shaws

Sorry. I wish to raise the following point because it is important. A distinction should be made between samples and matters that are purely "the barcode" kept by the police. Many advocate that the barcode could be kept but that the issue of samples is of real concern and should be debated much more publicly.

4 p.m.

Lord Dholakia

I thank the Minister. She said that we have powerful evidence for why we are recommending the retention and collection of samples, but if the case is so powerful, why was it not included in the Bill when it was first introduced in the House of Commons? As the noble Baroness, Lady Anelay, said, the matter was introduced very late in the day and I do not think that there was proper consultation. I could have quoted from Justice or the Law Society, both of which have shown great concern about the proposal that the Government are introducing.

The issue that bothers us most is the erosion of the rights and liberties of individuals and that there has not been proper consultation with the bodies that matter. Even at this late stage, it would be appropriate for the Government to consult those organisations before Report. If they do not, I am certainly bound to consult them, bearing in mind what the Minister said.

I remind the Minister that she mentioned the case of someone who was acquitted after serving a long term in prison. But that case is not relevant to what we are discussing. The amendment would not have helped that case. The person was charged, so the sample would have been retained and there would have been no problem in that respect. We are talking about 300 or 400 out of the hundreds of thousands of cases that go before the court, so this is a matter of serious concern, unless there is a public debate on this particular issue. I do not intend to press the amendment to a Division.

Lord Clinton-Davis

If my noble friend the Minister were to say at this late stage that the Government are prepared to enter into consultation before Report, which they have not done, would the noble Lord, Lord Dholakia, be satisfied?

Lord Dholakia

I thank the noble Lord, Lord Clinton Davis, but my answer would depend on the outcome of the consultations. I have got the preliminary views from those organisations but I will certainly return on Report after further consultation with these bodies, irrespective of whether the Home Office has consulted them or not.

Lord Hughes of Woodside

I am always fascinated by demands for consultation. Have the bodies concerned made representations to the Minister? Have they asked to meet the Minister, and if not, why not? Why should it be necessary to hold up the passage of the Bill because interested bodies cannot be bothered to take the initiative?

Lord Dholakia

If the noble Lord, Lord Hughes of Woodside, had listened to some of the answers put forward, he would have heard that this provision was introduced at a very late stage in the House of Commons and I do not think that the organisations involved had the opportunity to consult the Minister. However, I do not think that it is too late to consult them, and all that I intend to do therefore is to mention to the Minister that we will certainly be in touch with the organisations. If we feel on Report that the argument about the collection of samples has not been advanced, we will press appropriate amendments to a Division.

Baroness Scotland of Asthal

I reiterate what I said right at the beginning of the debate. Of course, in relation to all or any of these matters we remain open to discussion. We have already indicated that we will have the usual meetings with the Front Bench and other interested parties between now and Report. For the sake of the record, I make that offer once again.

I say openly both to Justice and to my noble friend Lord Clinton-Davis that, in relation to the Bar and the Law Society, in accordance with our usual practice, we will consider any representations made to us about any other issue arising from the Bill. I would love to answer the noble Lord, Lord Alexander, but I will do so on another occasion.

Lord Dholakia

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume.

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

House resumed.