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Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

Volume 741: debated on Wednesday 5 December 2012

Motion of Regret

Moved By

That this House regrets that the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012 (SI 2012/2505) fails to comply with the judgment given on 4 December 2008 in S and Marper v United Kingdom and further regrets that the failure of the Secretary of State to exercise the power under Section 120(1) of the Protection of Freedoms Act 2012 to bring into force Chapter 1 of Part 1 of that Act perpetuates the likelihood of breaches of human rights under Article 8 of the European Convention on Human Rights.

My Lords, the Motion of Regret that stands against my name on the Order Paper is prompted by the hope that it will induce the Government to bring into effect Sections 1 to 25—that is, Chapter 1 of Part 1—of the Protection of Freedoms Act 2012. That Act received Royal Assent in May this year but there is no indication of a firm date for bringing Sections 1 to 25—the relevant sections—into effect.

The background to the importance of those sections is that they correct the present statutory powers of the police to retain on their database, potentially indefinitely, fingerprints and DNA material taken from individuals suspected of a relatively serious crime, notwithstanding that those individuals may never have been convicted, may have been acquitted, may not have been prosecuted or tried, for whatever reason, or in some cases may not even have been charged. However, if they were suspected of a crime, the police had the power to take this highly personal material from them—fingerprints and DNA samples, leading to a DNA profile—and to retain it on the database that they maintain to assist them in prosecuting and investigating crime.

Nobody doubts the huge value to the police of an extensive database of the sort that I have mentioned being compiled and kept. Yet the individuals who have never been convicted, and can therefore hold themselves out as being innocent of the crimes of which they were at one time suspected, naturally object to the retention of their details on the police file. The right of the police to do this is at the moment to be found in Section 64(1A) of the Police and Criminal Evidence Act 1984, which says in terms that the police may take and retain the fingerprints and DNA material of persons suspected of relatively serious offences. Individuals have objected to that and two cases have gone to the highest courts in the land.

The first of these two cases, S and Marper, went to the Appellate Committee of the House of Lords, as it then was. I do not have to declare an interest because I was not a member of the Appellate Committee that sat on that case. The Law Lords who did decided unanimously that the retention of the material of the two individuals, one of whom had been acquitted and the other never prosecuted at trial, was justified by the 1984 Act, as amended, because they had been suspected. The individuals took their complaint about this retention of those highly personal data about themselves to Strasbourg, saying that it was a breach of their right to respect for their private lives under Article 8 of the convention. The Strasbourg court agreed with them, disagreeing with the Law Lords.

The Strasbourg court held that the retention of this material, in circumstances where the individuals had never been convicted, was an interference with their right to respect for their private lives, and that something should be done about it. The court did not give them any remedy other than to find in their favour on that issue, and to indicate that within a reasonable time the United Kingdom should amend its law so as to avoid the possible repetition of similar breaches. That Strasbourg judgment was given in December 2008, which was of course in the time when the Labour Party formed the Government of the country. The Labour Party set about formulating revised guidelines for the exercise of the discretion in the 1984 Act’s provision. Those formulated guidelines were embodied in the Crime and Security Act 2010. However, the relevant provisions in that Act were never brought into effect because they were overtaken by the general election and the emergence of the coalition Government.

In the Queen’s Speech of 2010—I think it was in May—the coalition Government announced that they would look again at the guidelines in question and would formulate their own revised guidelines, which would be incorporated into their proposed Protection of Freedoms Bill. That was done and the guidelines, which are in Sections 1 to 25 of what became the Protection of Freedoms Act, were subject to being brought into effect by a statutory instrument to be made by the Secretary of State. Notwithstanding that Sections 1 to 25 contained elaborate and complex details governing the permitted use of material relating to people who had never been convicted, the guidelines were not brought into effect and no firm date for the making of the statutory instrument has, until very recently, been announced.

The second case also involved two applicants. One was acquitted and the other was never tried. I cannot remember what the case that was never tried was about. In the second case—the case that was tried—there was an allegation of rape, but at the trial the police offered no evidence on the rape charge; presumably the complainant had withdrawn his or her evidence, and so the accused was acquitted. In that case, the Supreme Court, which heard the final appeal in 2010, regarded as common ground that the House of Lords decision in the first case on the Human Rights Act point could not stand against the decision of the Strasbourg court. Whether that was the correct common ground I leave unanswered for the moment. That was the common ground, and I have heard nobody say that it was wrong. In the second case, the Supreme Court said that the Strasbourg court judgment, which declared the practice as contrary to the individual’s rights under Article 8, had to be respected.

Following that, new guidelines were formulated that were included in the Protection of Freedoms Act. However, those guidelines have never been brought into effect. The purpose of the Motion that stands in my name is to try to induce the Government to bring into effect those provisions and correct the present state of the law in the relevant respects. The present position, however, is that the Minister, the noble Lord, Lord Taylor of Holbeach, had discussions with me yesterday and today, and indicated that an announcement which he will be making as soon as I have sat down will deal with the problems and satisfy me. I am extremely grateful to him for the time he has spent on this and I am satisfied with his proposals. When he has said what I anticipate he will say, I shall invite your Lordships to give me leave to withdraw the Motion, which will have served its purpose.

My Lords, very briefly, I share the concerns of the noble and learned Lord, Lord Scott, about the order, which was commented on by the Select Committee on secondary legislation. This area of the law was thoroughly looked into some years ago by your Lordships’ Constitution Committee. The recommendations of the committee, contained in the second report of the 2008-09 Session entitled Surveillance: Citizens and the State, were broadly welcomed. Since that report Parliament has passed the Crime and Security Act 2010 and the Protection of Freedoms Act 2012. The provisions of the latter, dealing with the retention of DNA, have not yet been brought into effect, as the noble and learned Lord pointed out. However, the intentions of the Government and of Parliament have been made clear beyond peradventure.

It seems strange, therefore, that the Government have brought forward an order which has the effect of lengthening the period during which DNA may be retained by the police service, in circumstances which will no longer be lawful when orders under Part 1 of the Protection of Freedoms Act have been passed by Parliament. I hope, therefore, that the Minister will be able to give the House the assurances so precisely defined and advocated by the noble and learned Lord, Lord Scott.

My Lords, I welcome the thrust of the Motion of Regret from the noble and learned Lord, Lord Scott. It comes from someone who contributed five times during what became the Protection of Freedoms Act, so it is not a flash in the pan. I also look forward to the Minister’s detailed reply for the Government. I should like to make a point that to some extent has already been made: the point of substance in the noble and learned Lord’s Motion is to respect the rights of the citizen when considering DNA or fingerprint records, and I emphasise that.

Prior to the Minister’s comment, which the noble and learned Lord apparently welcomes, I would like to say that the Government have taken a big step forward in enacting the Protection of Freedoms Act 2012, which sets in place a system of deletion and destruction consistent with the Marper judgment, which has been referred to, and human rights obligations. It is clear to anyone who looks at how DNA records are apparently kept, though, that absolute care must be taken when dealing with the material. It is both highly personal to the individual from whom it is taken and an important tool in the detection of crime.

Time is needed, of course, to put in place the policies and procedures to give accurate effect to the legislation passed by Parliament. The DNA evidence from those who have been responsible for crimes and those who have not needs to be sorted, and I gather that that evidence is voluminous and there is a time element. I am happy, and I hope that the noble and learned Lord will be too, that the Government will, we hope, indicate that they will have the long-term position resolved by mid-2013, as I understand it—perhaps even sooner; that the updated Armed Forces policing regulations will follow; and that both will be delivered according to the timetable. I welcome the clarification that this Motion will, I hope, produce.

My Lords, unlike the noble and learned Lord, Lord Scott of Foscote, I do not have the advantage of knowing what the Minister is going to say in reply. Indeed, I did not even expect that the noble Lord, Lord Taylor of Holbeach, would be the Minister replying; I was under the impression that this was a defence issue.

The order that we are covering came into force on 30 October this year, just one month ago. It amends the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 by providing that biometric data taken from someone being investigated for a service offence by service police can be retained for up to four years but no longer, unless within that period the person is convicted of the service offence. The Protection of Freedoms Act 2012 amended the Police and Criminal Evidence Act 1984 and introduced different rules and requirements for the retention of biometric data taken from arrested people. However, the Armed Forces are not covered by the Protection of Freedoms Act.

PACE also only applied to criminal investigations being conducted by the civilian police. However, under Section 113 of the 1984 Act the Secretary of State can by order apply certain provisions of the 1984 Act to investigations conducted by the service police. This was done in relation to the taking and retention of biometric data by way of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009, which has since been amended by the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011, and again by the 2012 order, which we are discussing now.

The 2011 order amended the 2009 order by increasing from two years to three the time limits that apply under that order to the retention of fingerprints, samples and impressions of footwear, and the 2012 order amends the 2009 order to allow material taken on or after 31 October 2009 to be retained for up to four years from the date on which it was taken, unless during that period the person is convicted. For material taken before 31 October 2009, the four-year period runs from that date.

It seems that the Government regard this 2012 order as a holding measure, as the intention apparently is to introduce a new order once the relevant provisions of the Protection of Freedoms Act 2012 have been brought into effect, and that that new order will broadly replicate for service personnel the 2012 Act’s provisions on retention of biometric data for civilians.

As the report from the Secondary Legislation Scrutiny Committee sets out, the changes that have been made and are still to be made to the Police and Criminal Evidence Act 1984 arose from a ruling in 2008 by the European Court of Human Rights that the relevant provisions in Part 5 of PACE were in breach of Article 8 of the European Convention on Human Rights. Those provisions in Part 5 allowed for the indefinite retention of fingerprints and DNA samples when there had been no conviction. As a result, Part 5 of the 1984 Act was amended by the provisions in Chapter 1 of Part 1 of the Protection of Freedoms Act 2012. However, those provisions in the 2012 Act are not expected to be commenced before mid-2013.

The purpose of the 2009 order, and subsequent amending orders in 2011 and now 2012, was, we are told by the Ministry of Defence, to make interim provision that would be compliant with the European Court of Human Rights ruling and allow the service police to retain material until Part 5 of PACE was amended. The Secondary Legislation Scrutiny Committee has commented that the practical effect of continuing to bring forward these orders, extending the period for which data can be held, is potentially to enable the material to be retained indefinitely. The order that we are now discussing means that the interim provisions will be in place for at least five years after the European court gave its judgment, and even longer if there is further delay in commencing the relevant provisions of the 2012 Act. The committee has also questioned whether successive statutory instruments with the practical effect of potentially allowing the indefinite retention of material taken by service police can be considered compliant with the European court’s judgment.

These are all points which deserve a considered response from the Minister. When he replies, perhaps he could also say why the relevant provisions of the Protection of Freedoms Act 2012 are not coming into force until at least the middle of next year. In Committee on the Protection of Freedoms Bill, the then Home Office Minister rejected our amendments providing for the retention of DNA and fingerprint profiles for six years, a longer period than that proposed by the Government and now incorporated in the terms of the Protection of Freedoms Act. We were told that there was a need for balance between public protection and individual freedoms, and that the Government considered that they had got the balance right and we had got it wrong. One would have thought that after that the Government would have made every effort to bring into effect the relevant provisions of the Protection of Freedoms Act as soon as possible, not to find themselves in a position where they are putting forward an order that specifically provides for the retention of biometric data for a longer time than the Government said struck the appropriate balance and rather nearer the time in years that we were arguing was appropriate.

Why was it not felt right to make provision within the Protection of Freedoms Act 2012 for matters relating to the investigation of service offences, at least in relation to the taking and retention of biometric data if not to other areas, to be brought within the terms of Part 5 of the Police and Criminal Evidence Act 1984? Presumably, the situation at the moment is that if a member of the Armed Forces is being investigated by the civilian police, the provisions of the 1984 Act apply to the investigation directly, but that if that same member of the Armed Forces is being investigated by the service police then the 2009 order—as amended by the 2011 and 2012 orders—applies. Is there any reason why it is essential that this distinction continues to apply in all instances?

We understand the reasons why the noble and learned Lord, Lord Scott of Foscote, has drawn this order to the attention of the House. Whether or not one believes that the Government’s decision on what specific action to take to meet the ruling of the European Court of Human Rights was appropriately balanced, it is still relevant to ask why it will be at least just over three years after taking office, and five years after the ruling, before the Government implement their decision on how to comply with a judgment with which they are not in disagreement.

My Lords, I thank all noble Lords who have spoken. It is not often that a Minister thanks a Member of this House for drawing the House’s attention to a statutory instrument by means of a Motion of Regret, but I do indeed thank the noble and learned Lord, Lord Scott of Foscote, for bringing this matter to the attention of the House. It gives me an opportunity to update the House on this important issue.

I am sure that the noble Lord, Lord Rosser, will know that I would not intend any discourtesy. I understood that the usual channels were informing the Opposition that I would take this Motion, as I am the Home Office Minister responsible for DNA.

I assure the Minister that I do not regard it as a discourtesy. I had not picked it up—perhaps I did not listen as hard as I should have—but I am very pleased to see the noble Lord at the Dispatch Box.

I thank the noble Lord.

Perhaps I may begin by saying that the Government are deeply committed to protecting the privacy and human rights of its citizens. At the same time, they are committed to maintaining an effective and powerful database that protects the public and reduces crime. To this end, as noble Lords have pointed out, they introduced the Protection of Freedoms Act to ensure that innocent people’s DNA and fingerprints are no longer held on databases.

As my noble friend Lord Palmer of Childs Hill pointed out, this is a complex matter, and so to get it right involves quite a lot of technical application and detail. I have been much engaged, in my short time in the Home Office, in trying to make sure that this is all in place. I am pleased to be able to say that the preparatory work required before implementing the Act is substantially complete. I have now received advice on the timelines of the implementation of the Act, and will announce the full details of this to the House within the next few days by way of a Written Ministerial Statement. However, it may help the House if I give some indication of the detail involved.

We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days.

There has been some confusion because this interim statutory instrument, laid by my noble friend and tabled through the Ministry of Defence, appears to contradict the thrust of government policy by extending the period of DNA retention. However, this is an interim measure, and I hope to be able to reassure my noble friend Lord Goodlad, whose work in scrutinising this legislation has perhaps prompted the noble and learned Lord, Lord Scott, to bring this Motion to the House. I hope to be able to assure him that a further statutory instrument in consequence of the commencement of these provisions will be tabled by the Ministry of Defence to bring its police powers in line with civil police powers.

I hope that noble Lords can see that this particular debate occurs at a critical point in the process. Over the next few months we will see the Government’s commitment translated into action by the destruction of this material, which is held on innocent people and should not be in the hands of government. With that, I hope that the noble and learned Lord will be able to withdraw his Motion.

My Lords, I am grateful to the Minister, to the noble Lord, Lord Rosser, and to noble Lords who have spoken on this Motion.

One matter that I should have mentioned, and forgot to mention when I addressed the House a few moments ago, was that following the decision of the Strasbourg court in 2008, the then Labour Administration reacted, as a preliminary, by ordering the destruction of all data held relating to children under 10. That reaction was immediate, and the White Paper was produced shortly after that, indicating the reformulation of the guidelines to the use of the power contained in the 1984 Act, as amended.

In view of the statement made by the Minister, the purpose of my Motion has—as far as I am concerned—been achieved, and so I ask the leave of the House to withdraw it.

Motion withdrawn.