Protection of Freedoms Bill (Programme) (No. 3)

I say to the hon. Gentleman—he and I had a fair and clear debate on this matter in Committee—that the Government take into consideration the position of the victim, which is why I said that that principle was our starting point. That is why we are adopting the provisions in the Bill. We recognise that more than 5.7 million people are on the national DNA database and about 70% of the profiles in the EU are on our national database, so it important—and our responsibility—to consider the issues extraordinarily carefully to ensure that we judge the balance correctly. I shall go briefly through the Government's amendments before returning to the important issues of principle and to do with the duration of retention. Government amendments 1 to 15, 33 to 38, 65, 66, 72 and 73 fine-tune the provisions governing the retention of DNA. In a number of cases, they pick up on points raised in Committee. The key amendments all touch on the role of the commissioner for the retention and use of biometric material and I shall detail those amendments first. When we considered clause 3 in Committee, the hon. Member for Eltham (Clive Efford) and others expressed concern that much of the detail about the arrangements for retaining biometric material taken from those arrested for, but not charged with, a qualifying offence was left to subordinate legislation. I gave the hon. Gentleman an undertaking that the Government would take the issue away and consider it. The Joint Committee on Human Rights also raised concerns about the issue in their recent report on the Bill. We have considered the issue further and agree that it is appropriate to place such detail on the face of the Bill. Amendments 1 to 5 therefore remove from clause 3 the existing order-making power for the Secretary of State to prescribe circumstances in which such retention would be permitted and replace it with new section 63FA of the Police and Criminal Evidence Act 1984. New section 63FA sets out the circumstances in which a chief officer of police may apply to the commissioner to retain DNA profiles and fingerprints of those arrested for, but not charged with, a serious offence. The first circumstance, in new section 63FA(2), is where the victim of the alleged offender is a minor, a vulnerable adult or is ““associated”” with the suspect. The second circumstance, in new section 63FA(3), is where none of the criteria in subsection (2) apply but the chief officer none the less considers it necessary to retain the material to prevent or detect crime. The chief officer must give the person to whom the biometric material relates a copy of the application made to the commissioner. It is then open to that person to make representations to the commissioner within 28 days and it will then fall to the commissioner to determine the application based on these papers. Amendment 15 to clause 24 enables the National DNA Database Strategy Board to provide guidance to the police in such cases, thus helping to ensure consistency in the making of applications to the commissioner. Amendment 9 to clause 20 ensures that the provisions dovetail with the Terrorism Prevention and Investigation Measures Bill. In addition to the commissioner's review function in individual cases, we believe that the commissioner should also have a more general oversight role. Amendment 11 therefore extends the role of the commissioner to provide him or her with a general function of keeping under review the retention and use of DNA and fingerprints by police and other law enforcement authorities. I draw the House's attention to amendment 7, which makes two further exemptions from the normal retention rules. First, new subsection (2A) of section 63T of PACE, inserted by clause 17, ensures that the police can retain hard copies of material on case files. That is in order to ensure that a copy of the material remains available for examination by defence experts, and potentially the Criminal Cases Review Commission, in accordance with the disclosure provisions of the Criminal Procedure and Investigations Act 1996. The changes are therefore intended to ensure that the provisions discharge CPIA compliance obligations. The CPIA exists to prevent miscarriages of justice and I am sure that we would all agree that nothing in the Bill can undermine that purpose. In order to enable the police to meet their obligations, new section 63T(2A) provides for the police to retain the minimum amount of biometric material necessary. So the records on the DNA and fingerprint databases would be destroyed in accordance with the existing provisions of the Bill, leaving only hard copies on the police case file that could be examined by the defence or the Criminal Cases Review Commission as necessary. The second part of amendment 7, which inserts new subsection (2B) of section 63T, arises from a concern raised with us by Forensic Science Northern Ireland. The service was concerned that, because of the way that PACE is drafted, all samples taken compulsorily from a suspect would be caught by the requirement to destroy them in clause 14 of the Bill. That would include material originating from another person that is evidence of contact between people and would often be key evidence in a trial examining that contact. An example may be where traces of victim's blood have been taken from a suspect's hand. New subsection (2B) of new section 63T therefore provides that where material is taken from one person that originates from another it is not required to be destroyed within six months but can be retained for as long as is necessary in the same way as crime scene material can because it is, essentially, crime scene material. Let me address the amendments in the name of the right hon. Member for Kingston upon Hull West and Hessle and others. As we have heard, the amendments return to the question of how long we should retain the DNA and fingerprints of innocent people. They would replace the Government's provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the previous Government's Crime and Security Act 2010.