Thursday 22 May 2003

LORD FALCONER OF THOROTON

Q60  Vera Baird: Yes.

Lord Falconer of Thoroton: The judiciary would construe a provision of an Act of Parliament as having no meaning.

Q61  Vera Baird: It is otiose. I did not say it had no meaning; it is otiose. Their job is to apply the law, their job is to apply (d) therefore which says that it is admissible if it is evidence of a similar conviction.

Lord Falconer of Thoroton: You are saying—

Q62  Vera Baird: Let me finish.

Lord Falconer of Thoroton: Sorry, I apologise.

Q63  Vera Baird: You are saying it is admissible if it is evidence of a similar conviction, so they will say "That is Parliament's wish". In the next clause they put it in if it is relevant, in the next clause they put it in if it is agreed, in the next clause they put it in if it is probative. We can understand all those tests and we can apply discretion to those but if Parliament says "It just goes in because it is there", how can we then find that contrary to what Parliament is saying it would have an adverse effect on the proceedings to put it in because Parliament has just said that it is admissible?

Lord Falconer of Thoroton: That is a nonsensical reading of the Bill. It says if you get to the point that a conviction is similar or the same then it potentially can go in, but if the defendant objects then the judge must balance its relevance against its prejudicial effect. That is what the Bill says. You are saying "But the judges will just ignore the last bit". We have not drafted it with that intention in mind. We have made it absolutely clear that is how it should work and I believe that is the effect that will be given to it. You are obviously not as sanguine as I am.

Q64  Vera Baird: It is not about sanguinity, it is about the conversations that I have had. I have to say to you that with all the flourishes that you attach to the argument—

Lord Falconer of Thoroton: Sorry.

Q65  Vera Baird: —it is not clear what the purpose of (d) is, if it is not just to put them in automatically.

Lord Falconer of Thoroton: To avoid unnecessary legal debate in considering whether they satisfy 85(1)(e).

Q66  Vera Baird: I am going to ask you about 84 to ascertain one very important point, which is that the test in 82, which is applied in 84 to non-defendants, ie to witnesses, is wide enough to include as against the witness evidence of previous sexual behaviour. I have in mind, clearly, complainants in rape cases. In order to admit previous sexual behaviour now the hurdles in section 41 of the 1999 Youth Justice and Criminal Evidence Act have to be passed. Is there any suggestion that Clauses 82 and 84 together could offer a way around the provisions of section 41?

Lord Falconer of Thoroton: No, and it is most certainly not our intention to do that. If there was any fear that we had done that we would take such steps as are necessary to change that. That is certainly not our intention. We do not think that we have had that effect. Do you think that we have?

Q67  Vera Baird: This is just a worry that it might be used as a way around it.

Lord Falconer of Thoroton: That is certainly not our intention. Indeed, we thought we had made it harder through 84 to question witnesses on previous bad character than is currently the position.

Q68  Vera Baird: That may well be right. This is a Bill that is leaning towards the victims and witnesses and away from defendants. The concern is that if you have two sets of criteria that are applicable to the same factual position it might suggest that there is an alternative route.

Lord Falconer of Thoroton: I do not think we have had that effect. I have been passed a note saying we made an amendment on report to deal with the section 41 point which puts it beyond doubt, but if we have not then obviously we will do something about it. Perhaps I will write. I do not think there is a problem about it.

Q69  Vera Baird: There was an amendment on report? It obviously was not discussed. That is excellent.

Lord Falconer of Thoroton: It suggests that your concerns were well placed.

Vera Baird: That is because I mentioned it in Standing Committee with the much missed Hilary Benn.

Q70  Chairman: Minister, perhaps you will write to the Committee on the section 41 point. If we can move on now to provisions in the Bill which grant to the police the power to retain and use for data management purposes fingerprints and other samples from people who are not charged with any offence. It is obviously right to say that since 1984 the police have had the power to take fingerprints and samples without consent. I am sure it is agreed between us that in the intervening 19 years the procedural safeguards have been progressively relaxed to widen the circumstances in which fingerprints and samples and data derived from them can be retained. Of course, the Bill provides for the taking of fingerprints, which is widely defined to include the taking of impressions of bodily parts, and samples for DNA comparison into a routine process which is unrelated to the investigation of a particular offence. This raises Article 3 concerns about taking fingerprints and samples without consent and Article 8 concerns about the private life in respect of collecting and storing of personal data and allowing any person to have access to that data to use it for any purpose without the consent of the person to whom it relates. When we wrote to you about this you asked us "to accept that any intrusion on personal privacy is proportionate to the benefits in terms of the prevention and detection of crime". You went on to cite a case in the Court of Appeal, Marper v Chief Constable of South Yorkshire.

Lord Falconer of Thoroton: Is that the one about acquittals and DNA samples?

Q71  Chairman: We noted that it was a case concerning the retention of existing records rather than the taking of new samples and fingerprints and storage of the additional records which arise. These things do not happen in a vacuum, so on what basis is the Home Office making this proposal? In how many cases and what sort of cases is the collection of the fingerprints and samples and related data likely to make a significant contribution to the prevention and detection of offences?

Lord Falconer of Thoroton: You separate into two the potential human rights concerns. There are two practical reasons why we want to do it. First of all, where somebody is arrested before charge, being able to take a fingerprint or a DNA sample can assist in establishing the true identity of the person arrested. There are significant numbers of cases where somebody is arrested, gives a false identity, is then released because the identity cannot adequately be checked and it subsequently transpires that the person is not who he or she said they were and, as a result, further crimes are not prevented and the bringing of the defendant to justice for other crimes is not effected. That is one aspect of it. The other aspect of it is, is it right that we should keep fingerprints and DNA samples from people who are, under this provision, arrested but then not charged with anything? It would go into a fingerprint and DNA base and it would be of value in relation to fighting crime. Currently, for example, we keep the DNA of acquitted persons. The consequence of doing that is in the year following that change 400 offences were detected involving some 300 offenders from which DNA had been taken who were then acquitted. The second justification is that if you keep DNA and fingerprints from people who are not charged that will, to some extent, assist you in relation to the identification of who commits crimes which is of social value, as it were. Those are the two justifications for doing it. I have sought to give you the scale in relation to the samples kept from people who are acquitted where crimes have been detected. It does mean that completely innocent people will have had their fingerprints and their DNA taken but we think using that material to build up the DNA and fingerprint base is justified by the assistance it gives in identifying the person arrested and in fighting crime generally in the way that I have described by reference to what has happened in relation to those who have been acquitted.

Q72  Chairman: So what kinds of offences are we talking about here? Serious offences?

Lord Falconer of Thoroton: The DNA and fingerprints can only be taken from somebody who is arrested for an imprisonable offence, so that would set, as it were, a limit on the seriousness of the offence but it would mean, and I accept this, that you could be arresting somebody for a comparatively minor offence which does potentially attract imprisonment as a possible penalty, albeit that the offence is quite minor, but we think you have got to draw the line somewhere and that is the place to draw the line.

Q73  Chairman: There is a distinction really. You talked about "recordable offences" which are not imprisonable.

Lord Falconer of Thoroton: I think the test we have used is "imprisonable" because we think that is a higher test.

Q74  Chairman: In order for this to work as you describe it the database will have to be quite large. How many people's records will need to be accumulated before this database is likely to be any kind of tool in the prevention and detection of crime? Have you made an assessment of this?

Lord Falconer of Thoroton: The numbers I have given you in relation to the use of people's DNA in acquittal cases indicates that I am not sure it is necessarily the size of the database that determines how useful it will be. I have not got them at my fingertips but the numbers of people who were arrested and not charged for imprisonable offences were 300,000 in a year, that is arrested and not charged. Some of them will have been charged in relation to other offences, so it is not 300,000 additional DNA or fingerprint samples but some proportion of that number will be giving additional samples and fingerprints. That pool is a pool in respect of which matches will occur in the future. I cannot tell you how many matches will occur in the future but a judgment has got to be made as to whether it is worth doing, and we think it is.

Q75  Chairman: One of the things that has just been drawn to my attention is new clause 14 introduced by the Home Secretary that refers to the fact "The fingerprints of a person detained at a police station may be taken without the appropriate consent if—(a) he is detained in consequence of his arrest for a recordable offence . . ." and that is not an imprisonable offence.

Lord Falconer of Thoroton: I got that wrong, I apologise for that. I apologise, that is a recordable offence.

Q76  Chairman: So we are talking about offences which are not in any legal definition serious offences because a recordable offence is not a serious offence, is it?

Lord Falconer of Thoroton: Large numbers of recordable offences, most of them, will be serious offences in the sense that most of them will be imprisonable, but not all of them.

Q77  Chairman: On what evidence does the Government consider that these powers need to be generally available?

Lord Falconer of Thoroton: Because (a) for the identity aspect it allows the police who have arrested somebody to establish more clearly the identity of the person arrested and (b) it permits matching to go on in the investigation of crime subsequently. The figures I have given you in relation to the acquittal cases indicate that it is of assistance there and we believe that it will be of assistance in relation to increasing the pool, which I accept to some extent is an intrusion on privacy but we believe is justified in human rights terms by the benefit in fighting crime.

Q78  Chairman: Does the Government intend to give any advice about the necessity and proportionality tests when it comes to ensuring that there are sufficient safeguards in police stations to ensure that fingerprints and samples would not be taken where the collection would, on the face of it and on the facts of the case, not meet those tests?

Lord Falconer of Thoroton: The human rights tests?

Q79  Chairman: The tests of necessity and proportionality?

Lord Falconer of Thoroton: We only want it to be taken when it is necessary and proportionate. We think that in most cases it would be necessary and proportionate. In some cases it perhaps would not but in the vast, vast majority it would be necessary and proportionate because it is about identification or establishing a pool against which matching can occur for the purposes of the investigation of crime. Recordable offences equals imprisonable offences plus some 50 non-imprisonable offences specified in regulations. This is not any attempt to row back from the statement that I made but it means mostly imprisonable except for some rare regulatory offences. I apologise.