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Lord Alexander of Weedon: I rise briefly to support this amendment. The erosion of liberty and personal freedoms rarely takes place in a single bound. It tends to be a creeping process. It is easy to speak of any individual changing of the balance as something that continues the shaping of proportionality. At some stage the Government have to answer the question—what principle underlies the belief that it is right, without having general fingerprinting and sampling across the board, to keep the fingerprints of those people who are arrested but never charged? I have a suspicion that in this area proportionality tends always to move by degrees against individual freedoms. I hope that I am wrong, and I shall be interested to hear what the Minister has to say.

Lord Brittan of Spennithorne: I, too, support the amendment for the reasons already advanced. It seems to me that there is a case—it is not one I would support—for saying that such action should extend to the population at large or at random, or for any purpose that the police or others think appropriate. That is a case I would not support.

There is a case for saying that such samples should be retained only of those who have been charged or convicted. However, I can see no justification for treating people who have never been charged with an offence as being in a category different from the population at large. Members of the population at

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large are not subject to such samples being taken from them and retained against their wishes. Why, therefore, should someone who happens to have been arrested but not charged be treated in a different and more adverse way? There has been no explanation of that and I would not defend it.

Baroness Carnegy of Lour: I support entirely what my noble friend Lord Brittan said. I am not sure whether he is learned but he is very distinguished. There is a case, which many of us would not support, for all fingerprints to be on the database. I shall listen with great interest to what the Minister says in reply to my noble friend Lord Brittan. It seems extraordinary to treat separately those who have not been convicted just on the off chance that it might be handy for the government of the day at a future date. That should be resisted. It is an extraordinary idea and one that the Government should withdraw if they cannot explain it properly.

Baroness Anelay of St Johns: I support the amendment, to which I have added my name. As the noble Baroness, Lady Harris, of Richmond, said, it flows on from the debates we had on Monday. Like her, I shall not reopen the debate but the principles underlying it flow into today's debate.

The Government have not proved a case for retaining the evidence of fingerprints and DNA from those people who have crossed the threshold of a police station but were never charged or arrested. As the noble Lord, Lord Dholakia, said, we are not seeking to stop the police taking DNA and fingerprints from those people they think they will charge. It is a proper course to take in the exercise of tracking down whether a person should be charged. We are saying that we should not be creating a new subgroup of people against whom action was not subsequently taken but whose DNA, taken by so-called "non-intimate" samples of swabbing or fingerprints, has been retained.

My noble friend Lord Brittan commented that perhaps there is a case for a national database on the population at large. It is not a case that he would support and I suspect that many people would not do so. But if there is such a case, it is incumbent on the Government to set it out clearly and honourably and not try to move step by step towards it. As my noble friend Lord Alexander of Weedon rightly observed, there is sometimes a creeping process of eroding liberties and somehow one ends up with proportionality. One thinks one knows what is meant, then suddenly there is a completely different and unacceptable definition.

The Government must justify the position they have taken and we do not believe that they have done so as yet.

The Lord Bishop of Newcastle: I, too, am persuaded to support the amendment. However much the individual parts of the Bill have much to commend them—and they do—the cumulative effect must be

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considered. I worry that the power given to retain fingerprints and DNA samples indefinitely is part of a cumulative rebalancing against civil liberties.

I accept that DNA is an increasingly valuable tool in the fight against crime and that samples may be necessary to establish whether charges are to be brought. But I worry about the indefinite retention of the information, whether or not the person is charged or convicted of any offence. Is it appropriate or necessary to allow the state to retain such information from innocent persons, and to begin to create a universal DNA and fingerprint database? I believe that that is a matter for open public debate and if such a national database is judged to be appropriate and necessary it seems to me that everyone in the country should be compelled to provide samples.

There may be a strong case for holding everyone's DNA on file. If so, the case must be made openly and publicly and not be introduced bit by bit in what looks to me like stealth.

Baroness Scotland of Asthal: I thank all Members of the Committee who have participated in this short debate and I hope I shall be able to give the answers for which a number have called. The right reverend Prelate the Bishop of Newcastle and others have sought to suggest that this in an incremental approach by government who by stealth seek to in some way abuse improperly the civil liberties of those who come innocently into the system. I say straightaway that that is not the purpose or intent of the Government. The application is being made openly to the Committee to consider whether this should properly form part of the Criminal Justice Bill and we are now having a proper debate about it.

I must emphasise at the beginning that the advances we have made in DNA and fingerprinting are significant. We have the ability to use the data not just as a sword with which to pierce the criminality of those who would hide from us, but the opportunity to use the data as a shield to protect those who are innocent of any offence and are often wrongly accused. It is easy to alight on only the examples which have enabled us to convict and bring to justice those who are guilty of crime, but not to highlight sufficiently the large number of people who have been set free as a result of the data being available and capable of being utilised to their benefit and that of the public.

We read an example of that at the weekend. Many Members of the Committee will have read the case of a former sailor who spent 16 years behind bars for the murder of a barmaid and was cleared by the Court of Appeal on Thursday last week. That person remained in prison because he refused to accept his guilt and as a result could not take advantage of parole.

I very much hope that when noble Lords consider what I have to say they bear in mind that this is not simply a sword, but also a shield, and also that all those who have nothing to fear from having their fingerprints and DNA samples retained may come to find that it is

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of benefit. Having the information available can exclude people who might otherwise have been investigated. It is therefore important that the—

Lord Neill of Bladen: Is the Minister arguing that by keeping fingerprints the Crown confers a benefit on certain people? If so, perhaps the statute could say that one could have the option of having one's fingerprints retained indefinitely so that one may be a beneficiary under the scheme that the Minister has in mind.

3.30 p.m.

Baroness Scotland of Asthal: I did not say that there is a direct benefit, as the noble Lord suggests. I do not intend to deal with the matter at all facetiously; it is a very serious matter indeed. Often this is presented as all infringement and no opportunity or no benefit. I was simply highlighting that that is a very narrow way of looking at the use to which such data can and should properly be put. We are taking a balanced look at the information. It is important that we get it right. This is not a piece of sophistry; it may be of critical importance to those who come before our courts and are convicted improperly. It may also be important to victims and their families who see perpetrators go free. If we were to show a little courage, imagination and initiative, we may be able to stop certain criminal activities.

Lord Clinton-Davis: The issue is highly important. Have the Government considered the matter with the Law Society, the Bar Council, Justice and so on? Will the Minister give the Committee some idea of the consultations that have taken place?

Baroness Scotland of Asthal: Your Lordships will know that consultations took place on the whole Bill. Once I have explained the reasons why we have come to the conclusion that this is a proper stance to take, I shall answer my noble friend in greater detail. If I may, I would like to address the import of the amendment and the substance of it.

Lord Campbell-Savours: Will my noble friend confirm that the view of the lawyers on this matter is no more important than that of any other citizen?

Baroness Scotland of Asthal: Never let it be said that I suggest that lawyers are not ordinary citizens. I can assure your Lordships that there is parity of treatment.


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