Counter-Terrorism Bill

My Lords, the inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching the DNA taken from a person with the DNA at or collected from the scene of a crime. We are legislating in Clauses 14 to 18, first, to put a counterterrorism DNA database on a firmer legal footing; secondly, to allow fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and, thirdly, to make it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database. The amendment would require the publication of national guidelines by the Secretary of State on the operation of the National DNA Database and ultimately the counterterrorism DNA database to which Clauses 14 to 18 refer. The guidance would include a procedure for requesting information held on the database and for requesting the destruction of any information held. I shall resist the amendment as such procedures already exist with regard to samples held on the National DNA Database. I shall set out my reasons for this first, before explaining why I resist the amendment, with reference to samples held on the counterterrorism sample database. I hope that it will illustrate some of the transparency referred to in the debate. The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can be obtained from a local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published. I turn to the destruction of samples held on the National DNA Database. The Criminal Justice and Police Act 2001 amended PACE to remove the requirement on the police to destroy samples and fingerprints taken from people who had been acquitted or against whom charges had been dropped or not proceeded with. The amendment in the 2001 Act arose from decisions in the Court of Appeal relating to two cases where compelling DNA evidence that linked one suspect to a murder and another to a rape could not be used and neither man could be convicted. This was because, at the time when the matches were made, both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles had been taken. The Criminal Justice Act 2003 then amended PACE so that samples and fingerprints could be taken and retained before charge from persons who had been arrested on suspicion of involvement in a recordable offence. Prior to that, DNA samples could be taken only from a person who had been charged with, informed that they would be prosecuted for, or found guilty of having committed a recordable offence. Only chief officers have the discretion to decide whether to remove records from the police national computer or other databases such as the National DNA Database. The matter of discretion is an operational one for the police force involved. The Association of Chief Police Officers has issued guidance for chief officers on the consideration of applications from individuals for the removal of personal information, including DNA samples, from police records. The guidance, known as the ““Exceptional Case Procedure””, is incorporated in ACPO’s Retention Guidelines for Nominal Records on the Police National Computer and will help to ensure national consistency regarding retention and deletion. It has been published on the ACPO website. It provides a business process for chief officers to follow when considering applications for the removal of records. The guidance makes it clear that it is expected that records and profiles that have been taken lawfully will be removed in exceptional cases only. The norm will therefore be to retain the profile and associated sample. However, each case has to be considered on its merits. What constitutes exceptional circumstances is ultimately a matter for the individual chief officer. The guidance states: "““Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance””." Only profiles and samples obtained in relation to terrorism and terrorism investigations will be held on the CT DNA database. A proportion of the database will contain samples recovered by covert and surveillance means, which have been obtained lawfully and with proper authorisation for the purposes of counterterrorist investigation and national security. Covertly obtained samples will account for approximately 2 to 5 per cent of the data on the counterterrorism database. Current operational activity indicates that no more than a few hundred samples per annum will be recovered and retained on the database. In order to protect counterterrorism investigations and national security from compromise, we would not wish to make the covertly acquired contents of the database public knowledge. Disclosure of who is held on this database would create a serious risk of compromising these investigations. Individuals who are under investigation would find this out and investigations would be compromised. I have made clear the procedures already in existence on the retention, use and destruction of fingerprints and samples. We are debating not the principles but the procedures. I know that there was talk of a much larger debate on DNA, but I do not think that this is the time to have that debate. There will have to be another opportunity for that. We can open up all sorts of issues. For example, the noble Earl, Lord Ferrers, said when we last debated this that he could see no reason why any innocent person would be concerned. This matter throws open all sorts of issues and that debate is beyond the context of the narrow provisions in the Bill. I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available. However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible, through pop-ups or whatever, for members of the public. On that basis, I ask that the amendment be withdrawn.