1. Letter from Lord Falconer, Minister
of State, Home Office, to the Chairman
I am writing to give you advance sight of an
amendment we are tabling tomorrow for consideration at the Report
stage of the Criminal Justice Bill and which is intended to extend
police powers to enable them to take fingerprints and/or a DNA
sample from any person arrested for a recordable offence and detained
at a police station.
Where fingerprints can be taken electronically, and
that individual's fingerprints are already held on the NAFIS,
it will enable the police to confirm his identity whilst he is
in police detention. This would prevent those persons who seek
to evade justice through assuming a false identity to be properly
identified and, for instance, reveal if they were wanted on a
warrant or for questioning, whether they posed a threat through
violent warning signals, or needed medical care, an appropriate
adult or may attempt to harm themselves. This information would
also enable the appropriate treatment and environment to be provided
to the detained person to reduce risks to themselves and those
dealing with them.
The amendment will also allow for more fingerprints
and DNA profiles to be loaded onto the national databases which
will help in the detection and prevention of crime. The DNA profile
would be subject to a speculative search on the National DNA Database
to see whether it matches a crime scene stain and fingerprints
would also be checked against the fingerprint database in the
The Government believes that these measures
will be an important additional tool in the fight against crime.
Nevertheless, the Government also recognises that broadening police
powers pre-charge has significant civil liberties implications.
There may also be some concerns about building larger databases
of DNA information, particularly where it relates to people who
have not, and may not, be proceeded against for an offence. Whilst
I recognise all of these concerns, I would also ask you to accept
that any intrusion on personal privacy is propertionate to the
benefits in terms of the preventon and detection of crime.
The issue of proportionality and discrimination
in respect of the retention of fingerprints and DNA samples by
the police of persons who have not been convicted of any offence
has been tested in the Court of Appeal in the case of R v
Chief Constable of South Yorkshire (ex parte S and Marper).
S was a minor who was acquitted of a charge of robbery and charges
against Mr Marper were not proceeded with. Both had had their
fingerprints and a DNA sample taken from them when they were charged
and each asked the Chief Constable of South Yorkshire to destroy
them when the proceedings against them were finished. The Chief
Constable however decided to retain them as he is premitted to
do under amendments to section 64 of the Police and Criminal Evidence
Act 1984 made by Section 82 of the Criminal Justice and Police
Act 2001. The Chief Constable's decision was challenged by way
of judicial review under Article 8 (right to privacy) and Article
14 (right of non-discrimination) of the ECHR. The Court of Appeal
found that whilst there was some minimal interference with Article
8(1) the interference was justified under Article 8(2). The Court
also rejected the applicant's submission that they had been treated
in a discriminatory manner. You will recall that your Committee
originally expressed doubts about those provisions of the 2001
Act but eventually concluded that the provisions were compatible
with the ECHR.
The Government believes that the Court of Appeal's
decision in the S and Marper case supports its belief that
the broadening of police powers now proposed does not amount to
a breach of the Human Rights Act 1998. For completeness I should
note that the case will go to the House of Lords later this year.
I hope that your Committee will feel able to
support these important clauses.
25 March 2003