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Surveillance (Constitution Committee Report)

My Lords, I joined your Lordships’ Constitution Committee after the work had been done on this report, and therefore feel no inhibition whatsoever in agreeing what a valuable and powerful report it is, under the wise chairmanship of the noble Lord, Lord Goodlad. For the committee to produce a report that has attracted praise from across the range of opinion, uniting the organisation Liberty and the Daily Mail newspaper in a most unusual alliance, is a reflection of the quality of the work, the importance of the issues discussed and the urgent need for greater controls on state power. The topic to which I wish to draw particular attention today is that addressed in paragraphs 197 and 464 of the report. The report there recommends that the Government should, ""comply fully, and as soon as possible, with the judgment of the European Court of Human Rights in the case of S. and Marper v. the United Kingdom"," delivered on 4 December last year on the subject of the DNA database. That judgment held that this country is in breach of Article 8 of the European Convention on Human Rights because DNA profiles of persons arrested for, or charged with, a criminal offence but not subsequently convicted, are retained on the national DNA database for an unlimited period. The Government, to their credit, have accepted the judgment unreservedly and have announced that they will change the law to ensure compliance. The question of what should happen now arises in the context of your Lordships’ committee’s recommendation—with which the Government agree—namely, that this country should not adopt a universal DNA database for reasons of principle, given the privacy concerns, and for the practical reasons of cost and guaranteeing the security of the information. The issue therefore arises of the circumstances in which the DNA of persons arrested but not convicted of a criminal offence should be retained. In relation to this important matter the Government are, of course, correct to point out at page 8 of their response to the report of your Lordships’ committee that this is a context, like so many others under the convention, in which it is necessary to strike a balance between the rights of the individual and the need to protect the public. However, that balance must be struck with due regard to the point made at paragraph 196 of the committee’s report that DNA profiles provide the state with large amounts of highly sensitive information about the individual—information, ""that could, in the future, be used for malign purposes"." The European Court made the same point in concluding that the retention of DNA samples is a prima facie breach of the right to private life. Therefore, the Government need to justify very carefully the proposals set out in their consultation paper on how this country is to move forward in the light of the Marper judgment. I invite your Lordships’ consideration of three matters. First, I am puzzled about why the Government think that it is appropriate to retain for up to six years—this is now their proposal—the DNA profiles of adults who were arrested for, but not convicted of, an offence which was not serious, violent or terrorist related. In Scotland, as the European Court explained, there is no power to retain DNA material when a person is arrested but not convicted unless the alleged offence is serious. Can the Minister please explain to the House whether there is any evidence to suggest that the practice in Scotland has caused any detriment to the fight against serious crime in that country? We are talking about people who have no criminal convictions. Whatever the position in relation to those arrested for, but not convicted of, serious offences, the Government surely need the strongest justification for retaining the DNA profiles of adults who have no criminal record and who were arrested for a non-serious offence. Paragraph 6.5 of the Government’s consultation paper suggests that an earlier arrest for an alleged drugs offence—even if there is no conviction—may be linked to later offences of murder. If that is so, surely the proper response for the Government is to provide that an arrest for a drugs offence, even if there is no subsequent conviction, should mean that DNA samples may be retained for six years, rather than for them to propose that all DNA profiles may be retained for six years in relation to any case where a person is arrested but not convicted of a non-serious offence. Secondly, the Government also propose that there should be a 12-year period for retention of the DNA profiles of those arrested but not convicted in relation to serious, violent or terrorist offences. Again, this is much longer that the three-year period, plus a possible two-year extension if a sheriff consents, which applies in Scotland, as noted in the European Court judgment. The evidence presented in the consultation paper to justify a 12-year period is to my mind very weak. Can the Minister help the House on whether there is any evidence at all to suggest that this three-year period, plus the possible two-year extension in Scotland, has in practice caused any detriment whatever to the fight against serious crime in Scotland? Has any senior police officer in Scotland so suggested? The third and final point is that the consultation paper sensibly suggests that in exceptional circumstances the DNA profile that is retained should be destroyed before the expiry either of the six-year period or of the 12-year period if an application is made to that effect to an appropriate body. The Government propose that the application should be made to a chief constable. It is in my view very unsatisfactory indeed, given the important personal interests involved, that whether there are discretionary grounds for deletion of the DNA profile should be decided by a non-judicial body, the chief constable, subject only to judicial review. Will the Minister please consider recognising a right of appeal to an independent judicial body which would have power to require the deletion of the DNA profile? If I have been arrested but not convicted, and I object to my DNA profile being retained by the state, giving it access to personal and intimate information, and I think I have a strong argument that the arrest was unjustified—for example, because of mistaken identity—surely I should have the opportunity to ask an independent court or tribunal to decide whether my DNA profile should be retained for the six or 12-year period, or whether I should be treated in this respect like any other person who has no criminal convictions.