Joint Committee on Human Rights Minutes of Evidence


5. Letter from Lord Falconer, Minister of State, Home Office, to the Chair

ADDITIONAL POINTS RELATING TO THE EVIDENCE SESSION ON THE CRIMINAL JUSTICE BILL ON 22 MAY

When I appeared before the Committee on 22 May I undertook to write to you on several points relating to evidence of bad character, DNA samples and the Criminal Record Bureau amendments to provide clarification and further information.

EVIDENCE OF BAD CHARACTER

  The Committee was interested in the relationship between the provisions in the Bill dealing with a non-defendant's bad character and section 41 of the Youth Justice and Criminal Evidence Act, which restricts the admission of evidence of a complainant's sexual history in trials for sexual offences. In particular, the question was raised whether the Bill would make evidence covered by section 41 more admissible than is currently the position. I said that that was not our intention and mentioned that, following debate in Committee, an amendment has been moved on Report to make this clear. Clause 105(3) of the Bill (print of 21 May) now makes clear that the Bill's provisions do not affect the exclusion of evidence on other grounds, including under section 41 of the 1999 Act.

DNA SAMPLES

  The National DNA database was established in 1995 following amendment of the Police and Criminal Evidence Act 1984 by the Criminal Justice and Public Order Act 1994. It initially contained DNA profiles from the samples of persons suspected of, about to be reported for, charged with or convicted of a recordable offence (CJ samples) and DNA profiles from biological material from unsolved scenes of crime (crime scene samples). There are now just under 2 million CJ sample profiles and approximately 180,000 crime scene sample profiles on the database. There are about 3,000 matches a month found between the profiles of individuals and those from scenes from crime and if a biological sample is taken from a scene of crime there is a 40% chance of finding a matching profile from an individual on the database. As the number of CJ samples on the database increases so will the chances of identifying the individual whose DNA was found at athe scene of crime.

  Until May 2001, except in specified circumstances, where a person had provided a sample for analysis but was not prosecuted or was acquitted, there was a requirement for the CJ sample and the information derived from it to be destroyed. The Criminal Justice and Police Act 2001 removed this requirement (except for Scotland) so long as the sample was obtained lawfully in the first instance. To date, some 101,717 CJ sample profiles have been retained on the database that would previously have been removed. Each such record is identified to show that the person's record has been removed from the Police National Computer. If, as proposed under the provisions of the Criminal Justice Bill, a DNA profile is retained on the database in circumstances where the individual has been arrested but not charged, a similar marker may be added to indicate this fact.

  In the year following the changes contained in the Criminal Justice and Police Act 2001, approximately 400 offences were detected involving some 300 offenders using DNA profiles that would previously have fallen to be destroyed from the Database. These included three attempted murders, four rapes and a number of aggravated burglaries and serious assaults.

  Profiles have also been obtained from 4,525 persons who have voluntarily given a sample for DNA analysis and have given their written consent to the profile being added to the database. These will typically be persons who have taken part in a mass screening exercise where an offender is known to live in a particular area or to have other distinguishing features eg a link to a victim. These profiles are currently held on a separate spreadsheet pending an upgrade to the IT system to allow them to be added to the database with a marker to identify them as volunteer sample profiles. To date, speculative searching of these profiles against the databases has resulted in 38 matches with crime scene stains.

  The Chief Scientist of the Forensic Science Service (FSS) is the Custodian of the National DNA Database under the terms of a Memorandum of Understanding with the Association of Chief Police Officers who own the data. The Custodian sets the standards of performance for laboratories carrying out analysis of samples for the purposes of submitting DNA profiles to the national database, authorising such laboratories to submit profiles and monitoring their performance in the analysis and profiling of samples against a comprehensive framework of quality standards and key performance indicators. The provision of custodian services is also accredited to international quality standards and routinely monitored by the United Kingdom Accreditation Service and the British Standards Institute.

  The operation of the National DNA Database and management of the compliance with the Memorandum is overseen by the National DNA Database Board. This is chaired by the ACPO Chief Constable leading on forensic science matters (currently David Coleman, the Chief Constable of Derbyshire). It comprises regional representatives from the police service, members of the FSS as principal supplier of profiles to the database and representatives of the Custodian. A lay member from the Human Genetics Commission has also recently joined the Board to advise on ethical matters.

DNA profiles and the personal identification data associated with them are held by both the laboratories which analyse the samples sent to them and the Custodian. The laboratories and the Custodian are subject to the provisions of the Data Protection Act 1998 and their databases are registered with the Information Commissioner. Personal data is kept securely and is accessed only on the authorisation of designated personnel.

Information held on the database for the CJ samples consists of:

  (i)  the barcode number supplied with each DNA sampling kit;

(ii)  the arrest summons number from PNC;

(iii)  the person's name, gender, date of birth, and ethnic appearance;

(iv)  details about the force that took the sample;

(v)  details of the laboratory to which the sample was submitted for analysis;

(vi)  the sample type and test type;

(vii)  the DNA profile.

Under Section 64 of the Police and Criminal Evidence Act (as amended) 1984, retained DNA samples may only be used for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. Access to the information contained on the database is strictly controlled by the National DNA Database Custodian. Only Custodian staff have direct access and then only to the level required. Samples for profiling must be submitted via a relevant law enforcement agency and details of matching profiles from any speculative search against the database are only released to the relevant law enforcement agencies, or the forensic science laboratory if further work is required to assess the significance of the match.

The technology used to obtain DNA profiles for the database does not examine every single difference between people's DNA. It is restricted to looking at only specific areas of the DNA, known as short tandem repeats (STRs), which are known to vary widely between people by virtue of variations in their length. In total, 10 STRs are examined, each from a different chromosome, and for each STR there are 2 contributions, 1 from the mother and 1 from the father. Some STRs are more prevalent than others in different ethnic populations and these differences can be used to provide an indication of ethnic origin from the profile. A sex determination test is also carried out. Using the current method of analysis it is possible to say that where there is a full profile match between DNA found at a crime scene and a suspect, the probability of them not being from the same person is less than 1 in a billion.

The STRs form part of the non-coding region of DNA and the technique does not allow definitive determination of any medical condition, although it may provide an indication where this is due to chromosomal duplication (e.g. Kelinfelter's Syndrome; Down's Syndrome), or, less likely, gene duplication or translocation. This may be recognised by detecting 3 markers for an STR instead of the expected 2. However, only 2 markers are included in the DNA profile added to the National DNA Database and such medical indications cannot therefore be made from information on the Database.

A typical DNA profile on the database would consist of a string of paired numbers, each pair relating to a specific market (e.g. 14,17; 6,9.3; 13.16, 20,22; 29,31; 18,21; 17,19; 11,12; 14,16; 16,17; X,Y).CRB AMENDMENTS

Turning now to the Criminal Records Bureau, the Committee was concerned about the definition of a public authority in relation to delegation of public functions to non-Government bodies and whether this should be stated on the face of the Bill. They also wanted to know what safeguards there would be relating to functions carried out abroad and whether there were any current examples. As I indicated during the evidence session it is the Government's view that any person to whom the Secretary of State's functions under Part 5 of the Police Act 1997 were delegated would be a public authority for the purposes of section 6 of the Human Rights Act 1998. I would be content to repeat this view during the Lords debates on clause 298 and Schedule 29.

The Government would, however, be reluctant to include an express provision in the Bill that persons to whom functions are delegated under new section 122A of the Police Act 1997 are to be regarded as "public authorities" within the meaning of section 6(3)(b) of the 1998 Act. The approach taken by the Human Rights Act to the definition of "Public Authorities" was a matter of deliberate policy; and whilst it may be true that there are aspects of the case-law on the topic which remain to be clarified, it is likely that a person exercising functions under Part 5 of the Police Act 1997 would be regarded as public authorities when performing such functions. The proposed amendment would cast doubt on other categories of persons for whom no express provision has been made.

As to the issue of safeguards, these would be covered by the contractual arrangements between the Home Office and the company concerned. It is already the case that under the existing contract with Capita that certain data processing is sub-contracted to Hays Commercial Services Ltd which undertakes the work in India. Under the agreement between Capita and Hays the provisions of English Law—including the relevant provisions of the Data Protection Act 1998—apply. Similar safeguards would apply where any of the Secretary of State's functions under Part 5 of the Police Act 1997 were delegated to a PPP provider. Such contractual arrangements would be reinforced by the criminal offence created by new section 124A of the 1997 Act. Our expectation is that were any functions to be carried out abroad the contracting party would nonetheless have a legal presence in the UK and therefore subject to the jurisdiction of the UK courts. In any litigation arising over an alledged breach of the convention rights I would also expect the Secretary of State to be joined in any proceedings as an interested party.

I hope the above is helpful and that this clarifies the points that were raised with me last week.

30 May 2003


 
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