Criminal Justice and Police Bill

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The Chairman: With this it will be convenient to take the following amendments: No. 277, in page 68, line 16, leave out `(whether'.

No. 278, in page 68, line 17, leave out—

    `or of a country of territory outside the United Kingdom)'.

Mr. Hawkins: These are very important matters, and I make no apology for taking time to deal with them. I hope that the Minister will not suggest that our points are legalistic, nit-picking or delaying.

Mr. Clarke: Will the hon. Gentleman give way?

Mr. Hawkins: I will give way in a moment. Before doing so, I want to deal with a matter raised by the Law Society in its briefing to my hon. Friends and me, which it regarded as the most important of its points. It was the first item in that briefing, and that shows how significant the professional body that represents all solicitors in England and Wales considers the matter to be. The briefing states:

    ``The Bill makes provision for the taking of intimate samples and fingerprints before a person has been charged with a crime. In addition, under the terms of the proposed legislation, the police will no longer automatically have to destroy samples or fingerprints once the individual is cleared of the offence or will not be prosecuted. Their samples and fingerprints may be kept indefinitely.''

The Law Society wants to know whether the public will be aware that, when assisting police, or after being cleared of an offence, such information will be held by the police for future speculative searches in the investigation of other crimes. It also asks whether that will mean that those who might come forward voluntarily would be less likely to do so. We are concerned about law-abiding people being encouraged to come forward voluntarily. The Government are unwise to propose the measure in the way that they have and in such terms.

Mr. Clarke: Will the hon. Gentleman give way?

Mr. Hawkins: There are several points that we wish to raise, but before I go on I will give way to the Minister.

Mr. Clarke: I just wanted to reassure the hon. Gentleman that we entirely accept his point. The matter is important, and certainly far more so than the definition of ``the British Islands''.

Mr. Hawkins: The Minister may find that the British electorate regard matters such as the way in which the United Kingdom is described more important than he thinks. That may come home to him and his hon. Friends more quickly than he realises. However, we will not go down that road again.

One of the reasons for the matter being so important is that the Government spent some time in the explanatory notes setting out some of the details in relation to DNA and the way in which samples will be retained. They refer in detail to the decisions of the Court of Appeal criminal division in R v. Weir and a case called R v. B (Attorney-General's Reference No 3/199) May 2000. We now also have the decision of the House of Lords.

I shall describe a serious case, concerning a 66-year old woman home owner, who was burgled. The burglar went to the lady's bedroom, threatened her, punched her several times and then tied her hands behind her back with flex and raped her anally. He pushed her into a hall cupboard and blocked its door with heavy items. After taking money and other items, the burglar left. At 7 pm that evening, the police found the victim in the cupboard. The judicial division of the House of Lords said that

    ``The ordeal of the woman was horrendous and the offence of rape was of the utmost gravity.''

The offence was in January 1997.

In January 1998, nearly a year later, the police arrested and charged the defendant concerned in the appeal with an unrelated offence of burglary. When he was arrested, he gave a false name to the police. A saliva sample was lawfully taken from the defendant without his consent in connection with the burglary alone under section 63(3)(a) of PACE. If the defendant had given his real name to the police, they would have immediately discovered that his previous convictions included one for affray. That conviction would have permitted the police to obtain a DNA sample and which would have justified in law the retention of the sample, whatever the fate of the burglary charge. In any event, on 12 May 1998, the sample taken from the defendant was submitted for DNA profiling.

On 23 August 1998, the defendant was acquitted of the burglary, the offence for which he had been arrested in January 1998. The Attorney-General had to concede that, under section 64(1) of PACE, the sample should then have been destroyed as soon as was practicable. In fact, it was not destroyed. Information derived from it, namely the DNA profile, remained on the DNA database.

On 6 October 1998, a match was made between the DNA profile obtained from the swabs taken from the rape and assault victim and the DNA profile obtained from the defendant's saliva. Relying on that match, the police re-arrested the defendant in October 1998 regarding the offences committed against the elderly victim in January 1997. In an interview, the defendant denied that he was involved in the offences and refused to give consent to the taking of an intimate sample. A police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October 1998, a forensic science laboratory confirmed that a DNA profile obtained from the defendant's plucked hair matched the DNA profile on the swabs taken from the rape and burglary victim.

In the opinion of the forensic scientist, if the DNA on the swabs had come from someone unrelated to the defendant, the likelihood of obtaining such a match would have been one in 17 million. Not surprisingly, the defendant was charged with the burglary, assault and rape. The issue in the case went all the way to the judicial division of the House of Lords. What was at question was whether the failure to destroy the sample meant that the case against the defendant was fatally flawed.

I have gone into some detail because it is important for all members of the Committee to understand the seriousness of the offences with which we could be dealing. I shall refer to one other point from the description of the case, because it relates to what we do in Parliament and the significance of our debates in Committee. The House of Lords obviously looked back at what was said by the Lord Justices of Appeal in the criminal division of the Court of Appeal.

In the Court of Appeal's judgment, Lord Justice Swinton Thomas said that, in his view:

    ``The words of the section are clear. In our judgment, the provisions contained in section 64(3B)(a) and (b) stand together. We do not accept Mr. Perry's submission that if Parliament had intended to exclude the exercise of a judge's discretion, it would have said so. In our judgment, on the contrary, if Parliament had intended that a judge should have a discretion in the circumstances envisaged in section 64(3B)(a) or in (3B)(b), Parliament would have said so. 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. It would have been equally possible for Parliament to enact that whilst information derived from samples taken from persons cleared of involvement in offences should not normally be used for the investigation of other offences the investigating authorities should have a discretion to use that information for the purposes of a further investigation in exceptional circumstances only.''

Time after time in that passage, Lord Justice Swinton Thomas refers, as a judge in the Court of Appeal, to the importance of interpreting our intentions in Parliament. I am sorry about the relative emptiness of the Labour Benches, because what I have outlined goes to the heart of our reasons for line-by-line, clause-by-clause, sometimes even word-by-word scrutiny of Bills. Far from being the lawyers' nitpicking points that the Minister has complained about—usually when the Parliamentary Secretary has been out of the Room—our concerns are central. We are talking about the way in which the courts deal with exceptionally serious offences.

3.45 pm

Mr. Clarke: I have no objection to the kind of argument that the hon. Gentleman is now making. In fact, I think that it is the kind of thing that we should discuss all the time. My complaint is about the other kinds of debate that we have had, which take time away from debates like this one, about possibly one of the most important clauses in the Bill.

Mr. Hawkins: The Minister is clearly on the record as having attacked my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell), a former Attorney-General. One of his criticisms was that my right hon. and learned Friend was using lawyerly, nitpicking arguments. Extraordinarily, it now emerges that the Government will withdraw clauses 7 and 8—precisely the ones about which my right hon. and learned Friend made his detailed comments, for which the Minister attacked him in his absence.

Mr. Heald: Does my hon. Friend recall that the Parliamentary Secretary, who is taking a break at the moment, said, in relation to clauses 7 and 8:

    ``I know that hon. Members are desperate to string out our proceedings, but there are important provisions in the Bill that need to be debated.''?—[Official Report, Standing Committee F, 15 February 2001; c. 178.]

Subsequently, having complained like mad, the Government deleted those clauses from the Bill, because the points that we made were right. If they had done that in the first place, we should have saved an hour.

Mr. Hawkins: My hon. Friend is right. There is no doubt that, by his attacks on my right hon. and learned Friend the Member for North-East Bedfordshire, the Minister stands condemned. Most of his attacks were directed towards my right hon. and learned Friend's quite proper scrutiny of clauses that have now been withdrawn.

I am glad that, at least on the present occasion, the Minister, despite his often expressed anti-lawyer prejudice, concedes the importance of the issue that I now want to return to. I agree. It is one of the most important passages of the Bill. Improvements and changes are needed. One of our suggested safeguards is amendment No. 276, which bears directly on the matter to which the House of Lords has been giving such detailed scrutiny in the appeal decision to which I referred.

The matter is entirely to do with the liberty of the subject, and I imagine that the hon. Member for Southwark, North and Bermondsey will have something to say about it. Perhaps, like me, he has had professional experience of cases that depend on forensic scientific evidence. In my years in practice at the Bar, I had enormous respect for the work of forensic scientists. I am saddened by the frequency with which Members of Parliament without the relevant practical experience refer to forensic matters, thinking that the word ``forensic'' refers to the scientific side of things. Of course we should always use the term ``forensic science''. The use of the word ``forensic'' denotes the relationship of the science to the court—the forens—to be pedantic for a moment.

Amendments Nos. 277 and 278 may at first sight appear to be merely drafting matters, but they are matters of substance and they operate together. My argument comes back to the point made by the hon. Member for Southwark, North and Bermondsey in his last contribution to the previous debate. As he said, we need to ensure that safeguards are in place to prevent the appalling abuses being committed by the present dictatorship in Zimbabwe. What would be the position if a country where human rights were not being observed were to make a request? We believe that safeguards are needed.

I do not wish to detain the Committee unduly but, because the matter is so serious, the Government must consider the matter carefully. If they cannot accept our amendments, I hope that that they will at least concede that the question should be reconsidered between now and Report. The fact that the Minister intervened on me to agree that those matters are important, and that paragraph 186 and two other paragraphs of the explanatory notes dealing with part IV include a lot of detail about various cases, including the one that I referred to that had then been decided only by the Court of Appeal, a decision later reversed by the House of Lords, reinforces the seriousness of the matter.

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