Joint Committee on Human Rights Minutes of Evidence

Examination of Witnesses (Questions 80-99)

Thursday 22 May 2003


Q80  Mr Chidgey: Can I just ask you some specific questions about the DNA samples and data. I am sure you are as aware as anyone that information about a person's distinctive DNA pattern is particularly sensitive in that people with access to it could use it to identify not just the individual but also the aspect of that person's susceptibility, for example, to various diseases which could affect their ability to gain insurance or employment opportunities. The other point on this is with the advances in cloning technology, access to DNA profiles could be even more threatening. Clearly in the view of the Committee any access to this information requires particularly strong justification. I would like to ask you specifically, if the Bill is going to deal with the effect of the proposals to make this sensitive personal data relating to a large and ever growing number of people available via a national database to a large number of people and bodies, how will the accuracy of the database and access to it be controlled to ensure that any use of or access to the database would only occur only in circumstances where it is justified by reference to the criteria in Article 8.2?

Lord Falconer of Thoroton: The points you raise are incredibly important because the sensitivity of information held on people is very, very significant indeed and we need to be absolutely clear that proper standards are met. The Chief Scientist of the Forensic Science Service is the custodian of the national DNA database under the terms of a memorandum of understanding that he has entered into with the Association of Chief Police Officers who are the legal owners of the data. The custodian sets the standard of performance for laboratories carrying out analysis of samples for the purpose of submitting DNA profiles to the national DNA database, authorising such laboratories to submit profiles and monitoring their performance in the analysis and profiling of samples. The laboratories and the custodian are subject to the Data Protection Act 1988 and the database is registered with the Information Commissioner. Personal data held by the laboratories is kept in secure storage and is accessed only on the authorisation of designated personnel. It is probably not worthwhile for me to read all the details of the protections but it might be of value if I wrote to the Committee setting out in detail what the practical protections are. It is a very, very important issue and we are utterly at one on the need to provide proper protection both in relation to the security and the reliability of the data.

Q81  Vera Baird: Can we move on to double jeopardy, please, Minister. In our Second Report we were reasonably sanguine about the proposal to allow the retrial of certain offences. We did not feel that it collided, as it were, with human rights provisions and thought that the key to it was because the evidence had to be new.

Lord Falconer of Thoroton: Yes.

Q82  Vera Baird: It is really the amendments that have been proposed since to attack that that we are worried about. I think in clause 66 originally it talked about new and compelling evidence to trigger the possibility. If it was new it was not available or known to an officer or prosecutor at or before the time of the acquittal. It was pretty clear that it must be new. In the amendment it says that it is new, as it were, if it "was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related)". In other words, it would be possible to order a new trial to allow evidence to be adduced that time round which could have been, but was not, used in the original trial, which looks like a major shift from your original position. We are worried especially about Article 4 of Protocol 7.

Lord Falconer of Thoroton: It is not our intention to move away from the basic premise that you should only be able to have a retrial in the exceptional circumstances laid down by these provisions where it is new or newly discovered evidence, and by that I mean either it is something that happens after the event, namely a confession after the event, for example, or a DNA analysis that was not available before, or newly discovered in the sense it was around before though even with reasonable diligence it could not have been found. We have had great difficulty in trying to ascertain how you provide a sensible newly discovered test, ie something that was there but nobody could be blamed for not finding it. We believe that that is dealt with by the "it has got to be compelling" and the interests of justice test that come later, and we believe the way that we have done it meets your concerns, your perfectly legitimate concerns, about new or newly discovered being the basic test. We believe the courts will ensure that you cannot effectively have a retrial where it is as a result of a sloppy investigation in the first place that that evidence was not available, which I know is a concern of the Committee and was a concern of the Committee in the House when the Bill was being debated. We think this is a better and more effective way of doing that. It is the same aim, a better way of doing it. If you take a case where it depends quite significantly on scientific evidence, and I do not want to mention individual cases but you can think of quite a lot of cases at the moment, and a new analysis of a whole range of scientific material makes it clear what in fact happened, nobody can be blamed for not doing that analysis but it is a wholly new approach to the case, should that permit a retrial or not? We think that is quite a difficult question but we think let the courts decide on an individual basis.

Q83  Vera Baird: The difference, just to make it clear so I am sure I have grasped it, is that evidence in the original definition was new, if it was not available clearly or if it was not known to an officer or prosecutor already?

Lord Falconer of Thoroton: We were worried. How would that connect in with here are all the scientific facts available, bona fide scientists have analysed it this way, but, in fact, if you look at it again you can see very clearly what happened because of the subsequent analysis? Is that new or not? You could have very hard cases where it becomes utterly obvious what happened from a proper analysis, no sloppiness previously, bona fide scientists come to a particular view, it is just re-piecing together the pieces of the jigsaw. All the concerns that you have expressed are perfectly legitimate. We do not want it to be "I will do a bad job now and a good job later on", that is not what we want, but a proper analysis being done, which is a new way of looking at it, we want the courts to be able to consider whether that is an appropriate case for double jeopardy and we were worried that the previous draft did not quite do that. We are very conscious of the Human Rights Act. I hope that in the formulation I have given you on newly discovered I am explicitly seeking to put it in the way that the Convention requires.

Q84  Vera Baird: To cast the amendment in terms of simply it was not adduced?

Lord Falconer of Thoroton: Yes, because we are relying heavily on judicial discretion here.

Q85  Vera Baird: That is to open the potential category wider than you are describing you are going to rely on judicial discretion to apply only to the categories which you are describing?

Lord Falconer of Thoroton: Exactly. I recognise people's concerns about that. I make it explicit that it is to be done in accordance with the Convention. We believe that is how we have done it. We also believe that because it is so difficult to try and do it with precision in the way that it was done before that this will lead both to greater justice but also proper protection for defendants, because this is an area where there must be proper protection.

Chairman: We are going to move on to the Criminal Records Bureau.

Q86  Lord Bowness: Can I try and put it briefly because I know that time is getting on. The new Schedule that has been proposed and the new section 122A allows the Secretary of State to delegate his functions under the Police Act 1997 to a third party. I understand that the explanatory notes even give the example of a Public-Private Partnership. There is great uncertainty about what is or is not a public authority and we are concerned that anybody to whom the rights are delegated is a public authority because that public authority has the obligation to comply with the Human Rights Act. What steps are being taken to ensure that anyone to whom the functions are delegated will be a public authority within the meaning of the Human Rights Act? Bearing in mind that there is no limitation on delegation to somebody who may be outside the jurisdiction, and lots of data processing takes place outside the jurisdiction now, how can we be sure that the body to whom it is going to be delegated is subject to the jurisdiction of our courts?

Lord Falconer of Thoroton: First of all, your concern is a concern that we have had. We think the right way to approach this, and this is why we have done it, is that the body to whom the work had been delegated would be doing would be in effect performing a plainly public function. Under the Human Rights Act, even if you are a private company, if you are performing a public function you are a public authority for the purposes of the Human Rights Act and would, therefore, be subject to all of the duties conferred or bestowed, whatever that word is, under the Human Rights Act. We think the concern is a real one but because it is a public function that would be performed by the PPP company, for example, they would be treated as a public authority and all the relevant duties would apply. We think that concern is met that way. Obviously separate from the legal position, so the PPP company would be under the same duties, we would need to be very clear that whenever such a function was conferred there would be adequate protection in the contract between the state and the private company.

Q87  Lord Bowness: Can I just follow that up. Is it, in fact, your view and the Government's view that the definition of somebody carrying out public functions is the definition of a public authority in terms of the Act?

Lord Falconer of Thoroton: Yes. I say that a public authority is somebody who performs public functions. That is the way that we have approached it. The question of whether you are a public authority under the Act—you will all know this much better than I—you can be a public authority under the Act without being a public state organisation. This is not perhaps the area to talk about it but there are certain bodies which are private which are plainly providing public roles.

Q88  Lord Bowness: I do not claim to know this better than you do, I am seeking to ask the question but I thought there was great uncertainty still about what is and is not a public authority.

Lord Falconer of Thoroton: I see the officials of the Committee becoming interested in what I am saying at this particular point. We take the view that is the right approach and, having regard to the specifics of the CRB, we also believe that a private company to whom the function was delegated under section 122A would be performing a public function and would therefore be a public authority for the purposes of the Human Rights Act.

Q89  Lord Bowness: Would you be prepared to put that in the Act to that effect on the face of the Bill?

Lord Falconer of Thoroton: Can I take advice on this. I should put this in writing to you first of all so the precise parameters of what I am saying can be properly identified. I will repeat it when the Bill is going through the Lords because I think these ones were not debated at report in the Commons. That is the approach that we are taking.

Q90  Lord Bowness: Thank you very much for that. Can I just go on and ask you again about the Home Secretary's statement that he was going to introduce amendments that would mean the range of registered bodies which could obtain enhanced disclosure about people's criminal records would be extended. Perhaps I can just ask, if you have not done so, if you so intend to introduce these measures? Are you going to be able to ensure that people who seek to get that enhanced disclosure do so only when there is some particular pressing social need?

Lord Falconer of Thoroton: What we intend to do is amend to allow regulations to determine where an enhanced disclosure is required as opposed to a standard disclosure. Yes, we are going to go ahead with those amendments. The effect of the amendments are that it will have to be done by regulation so there would still be a parliamentary process. Secondly, we accept fully the point that you have made, enhanced disclosure should only be required where there is a legitimate social need. We regard the circumstances of where there is a legitimate social need as being where people are going to work with either vulnerable adults or children and before they work with those categories of people there is a proper check, not just on their criminal records but also on any information from local police forces. I accept the proposition that it should only be justified where there is legitimate protection required for children or vulnerable adults.

Q91  Lord Bowness: Can I go back to my original question. I am reminded I asked you about where the private provider was outside the jurisdiction and if, indeed, that situation arose how could you ensure that they are subject to the jurisdiction of the UK courts and, therefore, the Act?

Lord Falconer of Thoroton: It would never be possible to enter into an arrangement whereby a private provider performed public functions without the Secretary of State, who would be delegating the functions, not being satisfied that that provider was subject to the jurisdiction of the courts, both as a matter of practicality and as a matter of law. We would have to ensure before any such arrangements were satisfactory that the provider was subject to the jurisdiction of the court, both as a matter of practicality and as a matter of law.

Q92  Lord Bowness: How would that work with a provider that was actually within the European Union? You would not be able to preclude them from the jurisdiction surely, would you?

Lord Falconer of Thoroton: Sorry?

Q93  Lord Bowness: You would not be able to preclude them, for example, from bidding for a government tender?

Lord Falconer of Thoroton: No, you would not, but by being subject to the jurisdiction you can serve proceedings on them, the court can make orders in respect of them and there are effective means of enforcing them.

Q94  Chairman: Just to follow this through, Minister. There was a recent incident where Capita, a private company, had to pay a penalty under a government contract and it turned out that quite a bit of the data they used had been sent to India. How could that possibly be covered by the Human Rights Act when there is case law to show that some companies or charities which are fulfilling a public function in this country are not public authorities? How could you cover data sent to India?

Lord Falconer of Thoroton: It is not a delegation of any of the section 122A functions at the moment because that cannot be done, so the public function aspects cannot be delegated at the moment. What is going on in India under the Criminal Records Bureau is simply the inputting of information into computers. The public function aspect that I think Lord Bowness is talking about is actually looking at the PNC, which Capita do not do at the moment and cannot do at the moment because of the provisions of the Police Act 1997. Simply inputting data on to a computer, and the data they are inputting is application forms, is not a public function. I do not think it is right to put that as the example with which I have got to deal because most of the public functions that one is talking about will be those that are performed in this country. At the moment I cannot think of a detailed one where it would be outside the jurisdiction. I may not have answered that adequately. Can I come back on that one?

Chairman: Of course, we would be pleased to hear from you.

Q95  Baroness Whitaker: A magistrate posits a presumption in favour of bail, and that is Article 5 of the Convention, so looking at new clause 52 and then paragraph six of the Bail Act, it requires a court to refuse bail to an adult defendant who failed without reasonable cause to surrender, unless it is satisfied that there is no significant risk that he would fail to surrender again. Also clause 12 requires a court to refuse bail if the defendant was already on bail for another offence at the time of the alleged offence. Very briefly, my question is how do you find it compatible with the right to liberty under Article 5.1 to compel a court to remand a defendant in custody where he or she has failed once to surrender to bail and it cannot be said that there is no significant risk of a repetition? For instance, if we have a defendant who presents no significant risk to the public or perhaps their personal or family circumstances would make it disproportionate to remand in custody, perhaps a mother with young children, or a carer of a disabled person, is not their right to liberty being breached in this proposal?

Lord Falconer of Thoroton: It is not an irrebuttable presumption. The grounds on which bail can be refused at the moment include risk of reoffending and not turning up when required to do so by the court in accordance with the terms of the bail. We are, in effect, intending to say where you have failed to turn up in the past or where you have committed an offence whilst on this bail then because one of the purposes of remanding in custody is to prevent reoffending or to get them to turn up, normally that should be a very strong indicator that bail should be refused. It is not ruled out that you could be given bail, the court must consider it, but we are trying to send a signal that if you offend on bail, if you do not turn up, the norm should be that you will not get bail. Of course, if you can satisfy the reasons why you should get bail, then that is possible under the Bill.

Q96  Baroness Whitaker: So it is not strictly a requirement?

Lord Falconer of Thoroton: It is not an irrefutable presumption; it is rebuttable. We want, as it were, the main principles of the circumstances in which bail are given to be truly effective.

Q97  Baroness Whitaker: I understand that, the present grounds are very much the same, but you have changed the presumption, have you not, from in favour of bail to being against bail?

Lord Falconer of Thoroton: Absolutely right. We have said if you fail to comply with the terms of your bail, which necessarily involve turning up or not reoffending, then we see nothing wrong in principle in saying, "Right, you now justify why you should get bail."

Q98  Baroness Whitaker: You do not think that a presumption in favour of being locked up is a breach of the right to liberty under the Convention?

Lord Falconer of Thoroton: We do not think so, no, because we think the way the provisions are drafted sends the clearest possible signal that that is how we want the courts to react, but still giving them appropriate discretion.

Q99  Baroness Whitaker: There is only really one exception, is there not, which is at new clause 52 (6)(1) page 1427: ". . . unless the court is satisfied that there is no significant risk that, if released on bail (whether subject to conditions or not) he would fail to surrender to custody"?

Lord Falconer of Thoroton: Yes.

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