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Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013

Volume 748: debated on Tuesday 15 October 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013.

Relevant document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, the Government are committed to taking and retaining the DNA of people convicted of crime. This is particularly important for offences of a violent or sexual nature, where the transfer of DNA between victim and assailant makes the transfer of DNA more likely. Taking DNA helps solve historic cases and may deter future offending. The Government have supported wider powers to take DNA and fingerprints from those with past convictions. Armed with those powers, the police have carried out Operation Nutmeg, which involves taking DNA from those convicted of historic sexual and violent offences who were not sampled at the time.

As a result, DNA from more than 6,700 convicted offenders has been added to the DNA database. These include 1,494 people convicted of indecently assaulting a child, 304 convicted of gross indecency with a child, and 105 child rapists. However, the operation has brought to light an anomaly in the treatment of those convicted of sexual offences under past legislation compared with those convicted of equivalent offences under current legislation. This order addresses the anomaly and deals with a small number of other serious offences.

The need for the order arises from the way in which the Crime and Security Act 2010 gave the police powers to take DNA and fingerprints from those with past convictions if this had not been done at the time of the original arrest and conviction. This Act received Royal Assent in April 2010 and was brought into effect in March 2011. It created a list of qualifying offences. These are more serious offences, mainly sexual and violent.

The list of qualifying offences contains offences under current legislation, but not legislation which has been repealed. This particularly affects sexual offences, as the Sexual Offences Act 1956 was largely repealed and replaced by the Sexual Offences Act 2003, which came into effect in May 2004. So, for example, someone convicted of rape before 2003 has a conviction under the 1956 Act, but this is not a qualifying offence. However, someone convicted of rape in 2005 has a conviction under the 2003 Act, which is such an offence—hence the anomaly which this order seeks to address.

If people have past convictions for qualifying offences, the Act allows the police to take their DNA and fingerprints at any time if this was not done at the time of the original arrest and conviction. However, for those with convictions for other offences, this power lapsed two years after the Act was brought into effect—that is, in March 2013. The effect of this is that, since March, though there is a power to take DNA and fingerprints from a person with a 2005 conviction who was not sampled at the time, there is no such a power in relation to a person with a pre-2003 conviction. The order remedies this anomaly by adding sexual offences under repealed legislation to the list of qualifying offences. The order also puts those arrested or charged in the present day with sexual offences committed before May 2004, when the 2003 Act came into force, on the same footing as those arrested or charged with offences committed since then.

As noble Lords will know, under the new regime to be introduced by the Protection of Freedoms Act 2012 on 31 October, people arrested for or charged with, but not convicted for, qualifying offences may have their DNA and fingerprints retained for a limited period. In the case of those arrested but not charged, they may be retained for three years if the Biometrics Commissioner consents. In the case of those charged, they will be retained automatically for three years.

It can be seen that, as the law currently stands, these provisions will apply to a person arrested for or charged with a sexual offence committed after May 2004, which will fall under the 2003 Act. Noble Lords will realise that a person currently arrested for or charged with a sexual offence committed before May 2004 must be dealt with under the 1956 Act, because this is the Act that was in force at the time of the offence. So such a person cannot have their DNA and fingerprints retained for the additional three years if they are not convicted. By putting offences under the 1956 Act on the qualifying offences list, people currently arrested and charged with sexual offences will be subject to the same retention rules whenever the offence was committed.

The order also adds certain offences involving homicide, such as war crimes, infanticide and child destruction, to the list, for consistency with murder and manslaughter which are already qualifying offences. It also adds rioting and female genital mutilation because of the seriousness of those offences. This is a practical measure, as I hope that I have demonstrated, to remove some anomalies in the existing legislation which I hope will command the Committee’s general support. I beg to move.

I thank the Minister for his explanation of the terms and purpose this order. As he said, the rules relating to the retention of DNA samples by the police were changed under the Protection of Freedoms Act 2012 in the light of a European Court of Human Rights judgment. On this side, we felt that the changes pushed through by the Government went further than necessary. Currently, if a person is convicted, their DNA can be held indefinitely, except in a few specific types of case. Under the provisions of the 2012 Act that come into force at the end of this month, people arrested for, or charged with, qualifying offences but not convicted may have their DNA and fingerprints retained for a specified period. Those of people arrested but not charged may be retained for three years if the Biometrics Commissioner agrees. In the case of those charged, they will be retained automatically for three years. As the Minister said, qualifying offences are the more serious ones, which are mainly sexual and violent. As I understand it, the order ensures that offences under previous legislation that has now been repealed are included, so that biometric information can be taken where appropriate. The order provides also for those additional offences to be designated as qualifying offences, which addresses the issue of how long the biometric information can be retained. As the Minister said, the order adds further offences to the list of qualifying offences.

The issue that I will raise regards the actions that the Government may have been taking or not taking prior to the coming into force of the 2012 Act. It appears that police forces were told last year to start deleting DNA samples in order to comply with the provisions of the Protection of Freedoms Act 2012 that relate to the circumstances under which, and the length of time for which, such samples can be retained after this month when the provisions of the Act come into effect. However, the Government do not appear to have put into effect any interim arrangements to cover the fact that the appeals arrangements to the Biometrics Commissioner that the police can use when they do not think that it is appropriate to delete a sample in accordance with the provisions of the Protection of Freedoms Act 2012 were not in place, and do not come into effect until the end of this month.

Likewise, the arrangements for when the police feel that national security will be an issue if a DNA sample is deleted and so make their own determination not to delete such a sample do not come into effect until the end of this month. It appears that no interim arrangements were made to cover this situation, bearing in mind that the police were told last year to start deleting samples in accordance with the pending legislative requirements of the Protection of Freedoms Act. Under the 2012 Act, the police can make such a determination, which must then be reviewed by the Biometrics Commissioner. However, the powers of the commissioner do not come into effect until 31 October this year.

Apparently, the police have already deleted hundreds of thousands of DNA profiles and samples. A figure of 600,000 was mentioned. Why were they told to do so when the DNA retention arrangements were not in place? Or did Ministers have informal arrangements in place under which they would make a decision on whether the police could retain a DNA sample for longer than the time provided for in the 2012 Act, pending the coming into being of the Biometrics Commissioner and his or her statutory powers? Did Ministers make informal arrangements to address national security considerations by allowing the police to retain samples for longer than the time provided for under the 2012 Act, under which they would have to be deleted to comply with the terms of the Act and its provisions, which would take effect from 31 October 2013? As I understand it, the powers of the police to make their own determination in such cases, subject to review by the Biometrics Commissioner, do not come into effect until 31 October of this year.

When the order was discussed in the House of Commons last week, the Home Office Minister responding was asked if there were any examples of the police not being able to keep DNA samples when they wanted to. He replied that,

“the process for the implementation of the Protection of Freedoms Act 2012 … has been worked through closely with the police and other partners”,

and that he was,

“unaware of cases in which the police have expressed a desire to apply in this way. Indeed, the police clearly have the right from 31 October to make such an application to the Biometrics Commissioner”.—[Official Report, Commons, First Delegated Legislation Committee, 9/10/13; col. 8.]

I am not sure whether the answer to the question of whether there were any examples of the police not being able to keep DNA samples when they wanted to is yes or no, but it is to be hoped that the Minister will be able to throw some light on it since I am asking the same question of him.

The other interesting part of the reply from the Commons Minister was the statement that from 31 October the police clearly have the right to make such an application to the Biometrics Commissioner. That rather accepts that they do not have such a right until 31 October, which is precisely the point I am raising; namely, how have the police, faced with being told last year to start deleting DNA samples that cannot be retained when the terms of the Act come into force at the end of this month, been able to apply since last year for the retention or extended retention of samples which they deem it necessary to keep but which cannot be retained under the terms of the 2012 Act when it comes into force at the end of the month and when the procedure for enabling such applications to be pursued through the Biometrics Commissioner under the provisions of the Act do not come into effect until the end of the month? The effect of the Government’s actions appears to be that, for example, the police have been unable to retain or even apply to retain the DNA of someone arrested but not charged with serious offences such as rape, the sexual assault of a child or manslaughter since at least December 2012, and this government-created loophole lasts until the end of this month.

The Government had pledged that the police would be able to apply to the Biometrics Commissioner to retain DNA if, for instance, the victim is under the age of 18 or,

“the retention of the material is necessary to assist in the prevention or detection of crime”.

However, the mechanism for such appeals has not yet been brought into being by the Home Office, and rather than allowing the police to hold these data until the legislation has been implemented, the DNA records are apparently being deleted. Will the Minister indicate at what level within the Home Office the decision to proceed with the deletion of DNA records for those arrested but not charged with a qualifying offence was discussed and then made? Will he say how many police forces have ignored the demands to delete DNA samples in the interim period prior to the coming into force of the relevant provisions of the 2012 Act? Further, how many DNA records have been deleted, and what impact has this had on policing capability? Alternatively, will the Minister indicate that there is no truth at all in the matters I have raised? As regards the Home Office e-mail published by the Times as stating: “This record”—of someone arrested but not charged with rape—“will have been deleted as a part of the legacy deletions for stage 1a. As the individual was NFA’d and for legacy data, forces cannot apply to the Biometrics Commissioner for an extension, this will only happen from 31 October 2013”, will he indicate whether that was incorrect or was addressing a completely different and unrelated issue?

These are potentially quite significant issues around what has been happening during the interim period between the end of last year and the coming into force of the provisions of the Act. I accept that what I am saying may not be correct, but it is an issue that we on this side have raised before in the other place, and we do not seem to have had very specific answers to address our concerns. I hope that the Minister may be able to do so when he comes to reply.

My Lords, the noble Lord will know that the policy to delete the DNA records of innocent people is something that has been widely welcomed around the House and, indeed, by the Opposition. That work has been going on. It has created a gap which the noble Lord has pointed to; I have to acknowledge that. However, the Government and the police, in considering the management of the issue, have come jointly to the conclusion that there would be no retrospective applications to the Biometrics Commissioner. That is because to have done so would have required police scrutiny of the case file of every innocent person arrested for a qualified offence in the past three years. That is reckoned to be 180,000 case files. This was considered disproportionate to the circumstances which the new legislation is designed to address because, according to our knowledge of those files, it would have identified only a very small number of cases suitable for application to the Biometrics Commissioner. It would have significantly delayed the entire programme to delete innocent people from the databases. I do not think that the Government are seeking to make an apology for that decision, because we consider that Parliament’s wish was that the DNA of innocent people should indeed be deleted from the database.

Was it not also Parliament’s wish that there should be an appeal mechanism in existence before that happens? It does not come in until the end of this month.

Why did the Government not abide by Parliament’s wishes and not bring it in until the appeal mechanism was there, since Parliament wished that there should be one?

Because the deletion of DNA had been agreed by Parliament. The Government have been under considerable timetable pressure on that. As a Minister, I have been very much involved with the deletion of DNA records and that programme was under considerable pressure to be effected. We have had debates in the House on this matter, widely supported by the Opposition.

But was it not agreed by Parliament on the basis that there would be an appeal mechanism in place to which the police could refer cases if they had doubts about deleting them? I understand what the Minister is saying about the Government wanting to implement government policy in the form of legislation, but did that legislation not also provide for an appeal mechanism? That was a fundamental part of it.

I hope that I have reassured the noble Lord that the decision was taken, in conjunction with and with the agreement of the police, that this was the most effective way of implementing the policy, and of making sure that we implemented a policy on DNA deletion while ensuring that we provided proper and adequate facilities for the Biometrics Commissioner’s role to commence at the end of this month.

Motion agreed.