Protection of Freedoms Bill

My Lords, Amendment 4 would seek to instate a more proportionate limit of six years for the retention of DNA and fingerprint data for those arrested and/or charged with a qualifying offence such as rape or serious assault. We return to the difficult balance to be struck between protecting people's freedom from police and government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists. As was mentioned in our debate in Committee, there is no more important series of cases involving DNA evidence than serious sexual crimes, rape and other offences against women, which cause huge anxiety, shame and sorrow for the victims. That fact is one of the major catalysts for the amendments before us. The six-year limit proposed by my Government was based on Home Office analysis and reflected a proportionate response to the European Court of Human Rights ruling that the blanket retention of DNA violated Article 8 of the European Convention on Human Rights. In Committee I cited the 23,000 criminals a year who go on to commit further offences, and who will not be covered by the Government's proposed three-year retention limit. I was asked by the noble Lord, Lord Phillips of Sudbury, who is not in his place, whether that figure included minor offences. I confirm that it does, but also that each year 6,000 of those individuals will go on to commit serious crimes including rape and other sexual offences, murder and manslaughter. This analysis comes from the House of Commons Library and from Home Office research given to the Minister, Mr James Brokenshire, in July 2010. I think that the research was buried for some time. As noble Lords will know, the three-year limit for the retention of DNA comes from the Scottish model, which was based on no real analysis of the risk to public security. The coalition Government made a commitment to the three-year limit based on no new evidence, simply a judgment that this was the appropriate balance between privacy and public safety. The Opposition fundamentally disagree with this judgment. When it comes to offences such as rape and serious assault, we believe that the balance should be in favour of protecting the public and that a more cautious, evidence-based limit should be set. I was particularly struck by the speech in Committee of the noble Baroness, Lady O'Neill of Bengarve, about the reality of what is stored, and how it is stored, on the National DNA Database, because this reaches the heart of the issue about the invasion of privacy. She said: "““The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as ‘junk DNA’, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone's face””.—[Official Report, 29/11/11; col. 145.]" I recognise that how far the state should keep sensitive information on its citizens is a sensitive and highly important issue. However, I believe that the noble Baroness’s detailed explanation about the data on individuals and how those data are actually held removes many of the core concerns voiced about the retention of biometric information. If more citizens understood that they would be willing to cede this tiny amount of personal privacy in exchange for the arrest and conviction of murderers or rapists. The Government have recognised that there will be situations when there is a clear need to retain an individual's DNA beyond the three-year limit. That is why new Section 63F, ““Retention of section 63D material: persons arrested for or charged with a qualifying offence””, contains a provision for allowing police officers to apply for a two-year extension to the limit. However, we have serious concerns about transferring the burden of responsibility for these decisions to the police. It would seem that the Government are abdicating responsibility for the adverse consequences that may result from their decision to set a limit of three years. We know that in practice such a safeguard does not work. In evidence given to the Public Bill Committee, ACPO stated that the Scottish system on which this is based has not led to a single application for an extension, "““because there are 6 million records on the national DNA database. We have always argued that it is impossible to create a regime of individual intervention for a database of 6 million … In effect, the Scottish model has to rely on a judgment being made against an individual profile when it reaches three years””.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 9.]" More fundamentally, the thrust of these provisions is to pass the burden of responsibility for these decisions over to the police. The Government, as I said, are abdicating responsibility for the impact on public safety that may result from their decision to limit the retention period to three years, by suggesting that it is up to the police to decide whether the three-year limit or a five-year limit is more appropriate for each individual who is on the DNA database for a serious offence. Passing that responsibility on to the police would be wrong on any occasion but it is wholly wrong to do so in these straitened times when intense burdens are placed on the police as a consequence of the cuts. The Government are taking a huge and very risky step in the Bill by reducing to three years the limit for which DNA and fingerprint data are retained for those arrested and/or charged with a qualifying offence such as rape or serious assault. Any such move should—indeed, must—be accompanied by robust evidence, but I do not believe that the evidence is there. I ask the Minister to think again.