Crime and Security Bill

My Lords, as the progress of this Bill has adequately demonstrated, legislating in the realms of crime and security can be a hazardous business at the best of times. In Holy Week, when Christians follow the fortunes of probably the most famous victim of injustice in the history of the world, I am emboldened to intervene where angels, let alone bishops, might fear to tread. Why is crime and security such a difficult area in which to legislate? First, in relation to crime and law enforcement, feelings seem to have an ambiguous relationship with facts. It has often been observed that even where there is clear evidence to indicate that crimes such as burglary or muggings on the street have significantly reduced in number, people’s anxieties and fear of crime simply go on rising. Secondly, and linked to this, is the very emotive nature of crime and punishment in the public imagination. We want felons to be apprehended and punished, but we are not always sure exactly how and why. Even when we know that punishments meted out on a routine basis seem to have little or no effect in terms of deterrence and reducing recidivism, we still want the police and judiciary to go on meting them out nevertheless. Thirdly, and more philosophically or even theologically, this is an area of governance where the subtle art, as we have heard this afternoon, of balancing the competing demands of liberty on the one hand and security on the other requires at least the wisdom of Solomon and calls on us to be, as Jesus put it, as wary as serpents and as innocent as doves. I am sure that your Lordships will agree that it would be ironic if Parliament, which legislates to protect the liberty of the citizen, became the legislature from which the citizen needed to be liberated. It would indeed be ironic if a Government who have done so much to promote racial equality ended up giving comfort to the evil agents of racial discrimination. It would indeed be ironic if the state, which has a duty to protect children, became the threat from which children needed to be protected. None of these would be the intended consequences of any Bill before our Parliament, but they could be the consequences that matter most to some of the most vulnerable people in our society. That is certainly the case with this Bill. Its good intentions are beyond dispute, but they may not be sufficient to mitigate its parlous unintended consequences. Let me return again to the cause of the liberty and rights of the individual citizen. Such liberty and such rights are not absolute. Law-abiding citizens must submit to certain constraints on their liberty in return for protection from those of a criminal tendency. However, as the noble Baroness said, such personal liberty must not be relinquished lightly. Presumption of innocence unless proven guilty is one such right that I am sure all of us here would hold to be sacrosanct and all but non-negotiable. I heard what the Minister said about the retention of DNA from those who have not been found guilty of a crime not being a punishment or a presumption of guilt. However, it does not feel that way. I declare an interest. A member of my extended family was arrested. After significant examination and, of course, after the taking of a DNA sample, it was discovered that it was a case of mistaken identity. She holds a strong sense of grievance against the system that retained her DNA. It will take a long time for her and those who supported her during that ordeal to feel any confidence in a system that has left her feeling punished and that a presumption of guilt is now obtaining against her. The retention of the DNA of people who have been arrested but not convicted is an issue that goes to the heart of our legal system, as has been said often enough. For all sorts of reasons that have been well rehearsed by the Information Commissioner, the European Court of Human Rights and organisations such as Liberty and Justice, the retention of such DNA for as long as six years seriously undermines the presumption of innocence as a fundamental principle of natural justice and it must be looked at again. Many of us will find it difficult to vote for this Bill if that clause stands part of it. I repeat: it would be ironic if Parliament, which legislated to protect the liberty of the citizen, itself became a legislature from which the citizen needed to be protected. Next, and related to the issue of the retention of DNA and fingerprint evidence, even from those against whom no conviction has been secured, there is clear evidence that black and Asian citizens are far more likely to be arrested than white people and that a greater proportion of those arrests result in a non-conviction than is the case for those not from minority ethnic backgrounds. This means that, for so long as this state of affairs obtains, the DNA profiles of minority ethnic people arrested but not convicted will feature to a disproportionate extent when statistics detailing such retentions are published and analysed. There will be no shortage of those anxious to use such statistics to generate hostility against ethnic minority groups, even though of course—it has been confirmed to us by the Minister today—these data will relate to the non-commitment rather than the commitment of crime. This cannot be the intended consequence of this legislation and it therefore needs to be looked at again. It would indeed be ironic if a Government who have done so much to promote racial equality ended up giving comfort to the agents of racial discrimination. By no means least, let us look at the impact of this Bill as drafted on children and young people. There is much to welcome here, especially Clause 24, which extends domestic violence protection notices and orders to include, "““the welfare of any person under the age of 18””." However, when it comes to the clauses on gang-related violence, to which the noble and learned Lord, Lord Lloyd, referred, there is a significant shift towards the criminalisation of minors. That will turn out to be too high a price to pay for tackling the very real problems consequent on the growth of gang culture in our cities and towns—and even across rural Lincolnshire. As with the presumption of innocence, so with the distinction between civil and criminal law: there is something here that sits at the heart of our legal system and, as we have heard from the noble and learned Lord, Lord Lloyd, to blur that distinction, especially in relation to minors, is a very serious matter indeed. The way in which anti-social behaviour orders operate has tended in that direction, and Clause 34 pushes us even further towards minors being exposed to forensic procedures which might be appropriate for adults but which fall well short of what our duty of care to children and young people requires of us. I repeat: it would indeed be ironic if the state, which has a duty to protect children, itself became the threat from which children needed to be protected. This Bill addresses major concerns relating to crime and disorder in our society and I am alert to the sense of urgency on the part of the Government to see measures enacted that will tackle criminal behaviour that threatens the security and well-being of our citizens. With some amendments along the lines that I have indicated in relation to presumption of innocence and the protection of children and ethnic minority groups, it can become a Bill fit for purpose. However, without such amendments, it will remain flawed and could ultimately prove self-defeating.