Protection of Freedoms Bill

My Lords, I withdrew a similar amendment in Committee in order to take more time to consider carefully the concerns expressed by noble Lords. Having done so, I am confident about introducing this amendment. Among other things, Clause 3 sets out the rules governing the retention of the DNA profile of a person arrested for a serious offence but not charged with that offence. In such cases, the police can apply to the biometrics commissioner to retain the DNA in certain circumstances, including where the alleged victim of the offence was a vulnerable adult. As my right honourable friend the Home Secretary said at Second Reading in another place: "““We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person the expectation is that the police will apply to the commissioner for retention””.—[Official Report, Commons, 1/3/11; col. 207.]" Amendment 6 seeks to replace the definition of ““vulnerable adult”” as used in this context. Currently, Clause 3 defines a vulnerable adult by reference to Section 60(1) of the Safeguarding Vulnerable Groups Act 2006. However, as we will see when we consider Part 5, Clauses 65 and 66 seek to amend the definition of a vulnerable adult in the 2006 Act to mean any person over the age of 18 in receipt of a regulated activity—for example, health or personal care. The changes made by these clauses to the definitions of vulnerable adult and regulated activity put the emphasis on the activity and the person carrying out that activity. The Bill no longer attempts to define vulnerability or label a person as a vulnerable adult. As a result, the definition in the SVGA is not relevant in the context of Clause 3. Perhaps I may explain further. Clause 3, which we are discussing, is about protecting victims of crime. Clauses 65 and 66 are about protecting those necessarily in receipt of personal care or who rely on the support or contact of others. They are two separate things. The amendment therefore draws on the definition in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004, which defines vulnerable adult as, "““a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise””." The reason why the amendment inserts the definition in full in new Section 63G(10) of the Police and Criminal Evidence Act, rather than merely referring to the 2004 Act, is that our definition refers to persons aged 18 or over, given that the definitions in new Section 63G(2), as inserted by Clause 3, already include all those under the age of 18. For the purposes of protecting those who are truly vulnerable, we believe that this definition is far more apposite. It will cover and protect more people. The noble Baroness, Lady Royall, asked in Committee for an assurance that the new definition will include victims in women’s refuges and sheltered housing. This is an important matter that I wanted to be sure of myself. I can say clearly that such victims will be covered by Clause 3, but not by this definition of a vulnerable adult. It may assist the House if I put on the record what I said when I wrote to her following the Committee stage. I can confirm that those individuals—more often than not women—who have had to seek refuge from an abusive partner would not be included in this definition, or indeed the definition currently in the Bill. They would, however, be caught in another limb of new Section 63G(2), as inserted by Clause 3, in that they would be ““associated”” with the suspect, as defined in Section 62 of the Family Law Act 1996. That definition includes those who are or have been spouses, partners, cohabitants and so on, or who parent the same child, among other similar categories. To be absolutely clear, such people are already covered by the Bill. I hope that that reassures the noble Baroness and any of your Lordships who may have had similar concerns after reading the record of the debate in Committee. The noble Baroness, Lady Royall, also raised the issue of rape victims in general terms when we debated this amendment in Committee. Rape in general terms is not covered by the amendment as regards the definition of vulnerable adults, but I want to address the concerns raised in Committee. DNA, as we have already discussed, is of particular use in stranger-rape cases and is of minimal use in cases where the attacker is known to the victim. In these latter cases, the trial is more likely to turn on issues of consent than on the identification of the offender. In all rape cases, DNA recovered from the victim as evidence or crime scene material will continue to be retained indefinitely. Nothing whatever changes in that regard. In stranger-rape cases where a suspect is identified but it subsequently proves impossible to bring charges, the suspect’s DNA profile and fingerprints will be able to be retained, subject to the consent of the biometrics commissioner, in the following circumstances that are set out in the Bill: where the victim is under 18 as described in new Section 63G(2)(a) of PACE; where the victim is defined as a vulnerable adult, as I have described this evening; and where the victim or attacker is, "““associated with the person to whom the material relates””." In addition, where an attack was of particular ferocity or there were other aggravating factors, the police could make an application to the biometrics commissioner under new Section 63G(3)(b), on the grounds that retention was necessary to assist in the prevention or detection of crime. As my noble friend the Minister has said, the Bill strikes the right balance between protecting citizens from crime and affording the law-abiding their liberty. This amendment seeks to protect the most vulnerable in particular. We are importing a definition from another piece of criminal justice legislation dealing with the protection of the vulnerable that we believe is more suitable for the purposes of Clause 3 than the revised definition in the Safeguarding Vulnerable Groups Act. I hope that I have been able to address the concerns raised previously by noble Lords and I commend the amendment to the House. I beg to move.