Crime and Security Bill

May I first declare an interest? I have practised in the family and criminal courts for more than 30 years as a solicitor and as a barrister. It is self-evident, to me at least, that the problems we have discussed today are real. The moot point is whether we have the right answers. Today's problems cannot be addressed effectively by eroding civil liberties, and there has been enough talk about the balance between the freedom of the individual and the all-important security of society. Of course that is important, and it should be as central to this debate as to any other, but many people believe that the scales have fallen too heavily on the side of the interests of the state, at the expense of guaranteed rights that we have recognised for centuries. Those rights and freedoms meant that we stood out as an example of a civilised system that provided for the interests of the individual alongside the interests of society or the state. That used to be the situation, at any rate. Recently, Amnesty International published a report on the state of the world's human rights in which the then secretary-general said that giving one group of people security at the expense of other people's rights is bound to fail, and that many anti-terrorist measures and laws have failed because they do not give that element enough consideration. They have, she said,""done little to reduce the threat of violence…and much to damage human rights and the rule of law."" The tension between this form of legislation and human rights has led to several recent cases in the Strasbourg Court. There are genuine concerns in this Chamber and there will be in the other place. I do not make these points simply to play politics; it is my sincere belief that there are some very bad and insidious parts of the Bill. I do not impute any wrong intentions to the Minister for Policing, Crime and Counter-Terrorism or to any of his colleagues. However, I believe that some of this legislation must be thought through a great deal before it can go through. Here is another crime Bill, a pre-election one. As always, it contains some sensible measures; tucked in with them, however, are measures that are not sensible and even insidious—a continuation of the sad trend to which I have alluded. But I should say that I welcome without qualification the proposed provisions on airguns. I also accept and appreciate without qualification the compensation for victims of terrorism abroad—indeed, I applaud it. We will have to see how the legislation on wheel-clamping works out, but I am pleased that the Government are recognising the problem. I shall now attempt to explain—hopefully in short order—why I do not think that the provisions on domestic violence are necessary. That is not to say that I underplay the problem of domestic violence. I practised in that area of law for many years and know how awful that problem can be. I agree in large part with what the hon. Member for Woking (Mr. Malins) said. It is my belief that there is sufficient provision to deal with what the Bill proposes to address. We do not need to introduce a plethora of new legislation; we should ensure that the current legislation is properly employed. That is an honest response to that aspect of the Bill. On fingerprints and samples, we know that the Government are seeking to address the judgment of December 2008, which held that""The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences"" breached the""right to respect for private life"" under article 8 of the European convention on human rights. I would say further that the right to life is an absolute right, although it can be limited in certain cases. This general case, however, has not been made out. Earlier, there was much talk about the preferable system in Scotland, which probably has the right balance. It is worthy of further consideration. It has been said before but I feel obliged to say it again: every person has the right to be presumed innocent until the opposite is proven, and acquitted persons must be treated in the same way. The national DNA database risks stigmatising people, as inclusion on the database leads to the perception that suspicions exist in relation to that person—as somebody said earlier, "no smoke without fire". The retention of samples and profiles of unconvicted people may be especially harmful in relation to children; currently, unconvicted children and minority ethnic people are hugely over-represented on the database. The proposed replacement measures in the Bill are really and truly only a marginal improvement on the existing regime. Those arrested but not charged or convicted may still have their DNA profile kept on the database for at least six years and as many as eight. In the view of Justice, retaining the DNA profile of an innocent person for six years is both excessive and unnecessary. The organisation opines that the Government have failed to follow the much more appropriate model in the 1995 Scottish legislation, under which the DNA of persons arrested but not convicted is destroyed following an acquittal or a decision not to charge. If they are enacted, the Government's proposals would replace the existing "blanket and indiscriminate" retention policy with one that is only slightly less sweeping and is still disproportionate. The other thing that I find a little concerning is that a chief police officer will make a decision on whether to extend that time, based on national security needs. I am not being disparaging of the police, less still of senior officers; my own brother is a fairly senior officer in north Wales. However, I do not think the police are necessarily qualified to decide on what is a security issue. As somebody said earlier in this interesting debate, the police are there to do their job and to do it in any way they can: they want to maximise convictions and to bring down crime rates, and that is to their credit. However, some elements within the police might be over-zealous in the way they go about it, and that is a problem. Under-18-year-olds arrested for a recordable offence but not convicted will have their fingerprints and DNA retained for three years unless the offence is a qualifying offence of a sexual or violent nature and the child is aged 16 or 17, in which case their fingerprints and DNA will be retained for six years. Neither of those more limited periods of retention applies if the chief officer for a particular police area determines that that is necessary for the purposes of national security. A determination to that effect can be made every two years, and there is no limit on the number of such determinations. Effectively, then, an unconvicted person's DNA could be retained indefinitely despite the European Court ruling of December 2008. Since then, the four Welsh police forces have added 23,778 DNA profiles to the database, and only 10 have been removed. That shows how difficult this is. I am sure we have all had experiences of trying to assist constituents who feel hard done by under this provision. It really is a disgrace, because it can genuinely affect people's lives in many different ways, including their job prospects. To put it in a simple form of words, it is not fair. Looking at the DNA regime in general, there is the whole notion of a person who has been arrested having a greater tendency to reoffend. Evidence from the Jill Dando Institute is not exactly evidence that one can heavily rely on. Mr. Justice Beatson, the outgoing president of the British Academy of Forensic Science and a High Court judge, has referred to research in this area as being less than convincing. He says:""The issues involved raise difficult scientific and technical questions, and the policy choices in this area also have constitutional and civil liberties implications. The need is for an objective, impartial and balanced assessment in which the public can have confidence. Bearing these factors in mind, I suggest that the issue is one on which, for most of the twentieth century, advice would have been sought from a Royal Commission made up of the leading experts in all the relevant disciplines or a body such as the Law Commission."" I do not accept the idea that a person who has been arrested is more likely to offend in future: that offends common sense. There are serious flaws in the Government's research and analysis. Frankly, this part of the Bill should go back to the drawing board. There are problems with the manner in which the new domestic violence protection notice is meant to be enforced, in that the offender and the person who has been offended against have a right to be heard by the superintendent in charge. There is no superintendent in the constituency that I represent, which covers an area that is 100 miles from north to south and 100 miles across. Need I say more than that this is balderdash in terms of practicality? It might work in an urban area, however.