My Lords, as the noble Lord, Lord Rosser, has explained, this amendment would provide for a person whose fingerprints and DNA profile are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted if the commissioner or a court have not previously authorised its retention.
One of the circumstances in which this new process would apply is where an individual had been arrested or charged as a result of a mistake, such as mistaken identity. I am pleased to be able to tell the noble Lord that existing legislation already addresses such cases of mistaken identity, providing a stronger safeguard, in fact, than the one he is proposing. Section 63D(2) of the Police and Criminal Evidence Act 1984, or PACE, provides that biometric data must be deleted by the police, without the individual needing to appeal, if it was taken as a result of an unlawful arrest, or an arrest based on mistaken identity. Given this existing provision, I believe that this aspect of the amendment is not necessary.
The second limb of the amendment covers cases where a person has been arrested but not charged with an offence. Of course, we touched on this ground in debating Amendment 47, tabled by the noble Baroness, Lady Hamwee. As I indicated in response to that earlier debate, the Government’s view is that where someone has been lawfully arrested for a terrorism offence but not charged with that offence, it is none the less appropriate, necessary and proportionate that their fingerprints and DNA profile are retained by the police for three years. That approach has been firmly established for some years, through the Terrorism
Act 2000, and we are now extending it to cover persons arrested for exactly the same terrorism offences under PACE. Consequently, I am not persuaded that we should now introduce a right of appeal to the Biometric Commissioner in such cases.
I stress that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 that the biometric data of a person who is arrested but not charged should not normally be retained indefinitely, as had previously been the case. In passing this legislation in 2012, Parliament recognised, rightly in my view, that in certain circumstances it is appropriate and in the public interest for biometric data to be retained for limited periods in the absence of a conviction. This includes when an individual is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. The law provides for a three-year automatic retention period in this situation. However, the retention of biometric data for any longer than this would require a national security determination to be made by a chief officer of police and approved by the independent Biometrics Commissioner.
As we have already debated, Schedule 2 makes an equivalent provision for a case where the same person may be arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to arrest an individual under the Terrorism Act or PACE is a decision to be taken by the police, one which will be based on operational considerations. It is a gap in legislation that the same biometric retention rules do not follow the two powers of arrest in terrorism cases, despite the fact that there may otherwise be no material difference between two such cases. Schedule 2 closes that gap. While I support the principle that biometrics taken following a mistaken or unlawful arrest should be deleted—that is the position at law already—I am afraid I cannot agree that we should remove the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism.
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It might be helpful if I can briefly outline to the Committee some of the reasons why a charge may not be brought in relation to an individual arrested on suspicion of terrorism but why it might still be necessary to retain their biometric data. An individual might have been reasonably suspected of involvement in terrorism, backed up by extensive intelligence to indicate that they pose a real threat. However, it would not be possible to produce that intelligence in open court. Should it have come from interception then it cannot be used to support a prosecution; should it have come from sensitive sources, which would be compromised, there may be strong reasons not to rely on such intelligence in court. Although the person will, quite rightly, be treated as innocent as a matter of law, given the intelligence picture it would be wrong for the police to do nothing further to protect the public.
It is therefore right that there should be a limited automatic period during which their fingerprints and DNA profile can be retained, so that the police can
identify their involvement in any further suspected terrorist activity. Should there be no information to suggest that the individual poses a threat at the end of this limited period, it would be neither necessary nor proportionate to retain the data under a national security determination. The data would therefore have to be deleted. I believe that this current approach strikes the right balance. While I appreciate the spirit in which the noble Lord has tabled his amendment, I am afraid that it would raise a number of difficulties.
Given the existing limited automatic retention period and the need for both a chief officer and the Biometrics Commissioner to approve any further retention under a national security determination, it is not, I suggest, necessary to introduce an additional review of each case in advance of that which would occur before the expiry of the three-year point, should a national security determination be considered. An additional review would place a disproportionate and unnecessary burden on the police and the Biometrics Commissioner. The existing safeguards provide a proportionate approach. The Biometrics Commissioner has raised no concerns about them in the case of arrests made under the Terrorism Act and they have not been found to disproportionately infringe the rights of suspects. Furthermore, as I have indicated, the Biometrics Commissioner has made it clear that he supports the measure in the Bill which will harmonise the automatic retention periods following an arrest under PACE with those existing under the Terrorism Act. As I have already said, he has commented:
“It seems to me to be a sensible approach”.
I turn to a more fundamental difficulty which would stem from this amendment. It would be very difficult to have a meaningful and transparent application process in which the reasons for decisions could be provided to applicants. The noble Lord’s amendment does not specify the basis on which the Biometrics Commissioner would consider an appeal under this provision. I presume that it would be under the same test for determining whether data should be retained under a national security determination: that is to say, whether it is necessary to do so.
The Biometrics Commissioner and his staff have the security clearance required to allow them to make this assessment on the basis of all relevant information including, where necessary, sensitive intelligence. However, in such a case as the one which I outlined earlier, where there is intelligence that clearly suggests that a person poses a risk but where this cannot—or for source protection reasons, should not—be adduced in open court, this would mean that the commissioner would be constrained in what he was able to say to the applicant. To inform an applicant of a decision on whether to retain or delete their data could compromise sensitive sources of information or reveal the extent of intelligence coverage of the individual. The simple fact of a decision to retain or delete the data could reveal the existence or absence of a hitherto covert investigation into them, as well as the level of interest in their activities from the police and other law enforcement or intelligence agencies.
This information would clearly be valuable to an active terrorist, as it could provide them with enough insight to enable them to disguise their activities and
avoid intelligence coverage. Equally, it might provide them with assurance that the authorities were not aware of their activities. I am afraid that this would not be in the public interest and would strike the wrong balance. Similarly, it would make such an application scheme very difficult to operate.
For all those reasons, I hope that I have been able to persuade the noble Lord, Lord Rosser, that the existing framework, as modified by Schedule 2, offers sufficient safeguards to address the points he has raised, and consequently that he will be content to withdraw his amendment.