Chris Huhne

Crime and Security Bill: DNA Database

Speech delivered on Mon 8th Mar 2010

I wish to speak to new clauses 5 to 7, tabled in my name and those of my colleagues. I outlined our position on the DNA database on Second Reading, and my hon. Friends the Members for Carshalton and Wallington (Tom Brake) and for Winchester (Mr. Oaten) did so in Committee. We believe that only the DNA of people who have been convicted of a criminal offence should be on the database. There should be a primacy of the presumption of innocence over guilt. DNA should by all means be taken following an arrest but, if no subsequent conviction is achieved, the data relating to that person should be removed from the database on conclusion of the investigation or criminal proceedings. That should be a simple rule with no caveats, and no ifs or buts: a dividing line between innocence and guilt.

The amendments tabled by Chris Grayling and his colleagues represent a pragmatic compromise. There may be some doubt as to whether a two-year extension period is necessary; it may lead to function creep, whereby all samples are tacitly assumed to be kept for five rather than three years. On the whole, the Scottish model on which the Conservatives have based their amendments is not our first preferred policy, but it represents in our eyes-as one would expect, given that it was introduced in a Labour-Liberal Democrat Administration, in which the Justice Secretary was my esteemed colleague Lord Wallace of the other place-a much more palatable solution than the one proposed by the Government. If the Conservatives press their amending provisions to the vote, we would support them.

The Government have made no fundamental changes to their original proposals. They have made no compromises, although there have been token additions to deal with people convicted of offences overseas and to end the postcode lottery for removal from the database. Some of these are welcome. There should, of course, be a standardised approach to removal from the database and there can be no argument against having proper parliamentary oversight. The ends may not be to our liking, but the means must be as fair and as transparent as possible.

The Government amendments do not change the foundations of their approach to the DNA database, which is little more than a random hoarding of any data that they can get their hands on. The proposals, of course, still fail to address any of the concerns outlined in the European Court of Human Rights ruling in the case of S and Marper v. the United Kingdom about the “blanket and indiscriminate nature” of the database. How on earth can the Government suggest that these measures are “proportionate”, as they are required to be by the judgment?

The UK already has the largest DNA database in the world in proportion to our population, with the records of more than 5.5 million people on it, almost 1 million of whom have never been convicted of any crime; while almost one in two of all black men are on the database. There are real issues about the potentially counterproductive nature of a detection tool that is seen to be quite so discriminatory by ethnic group. It was interesting that James Brokenshire cited the extraordinary difference in the figures for people on the DNA database between the separate nations of this country alone. It becomes even more severe, of course, when ethnic minority figures are taken into account.

The number on the database would surely increase under the proposed system of keeping for six years the DNA of people who have not been convicted of any crime, yet more than 2 million people who were convicted before the database began are still not on it. All we get from the policing Minister is the charge that the Government’s proposals might lead to some convictions, but what about all the convictions that are not taking place because the Government have not introduced an effective system for catching up with people who are convicted, who should be on the database and whose presence on it has the support of every political party?

The effectiveness of the DNA database as a tool for fighting crime is without any doubt whatever. It is important; the police want it; we support it. It is telling that the database is, as the hon. Member for Hornchurch pointed out, clearly set at a point of diminishing returns.

The increase in the database is not leading to a corresponding increase in the number of crimes solved. In fact, there has been an enormous increase in the number of profiles held on the database from 2.1 million in 2002 to 5.6 million last year, but the number of detected crimes for which a DNA match was available-never mind whether or not it was pivotal in securing a conviction, which I suspect the right hon. and learned Gentleman is about to raise in his intervention-has fallen from 21,098 to 17,614 last year. Where is the proportionality called for by the European Court in this random accretion and increase in the DNA database coupled with a falling effectiveness and diminishing returns?

The Minister said that as long as one single case was brought to justice, such action would surely be regarded as sensible. As the right hon. and learned Gentleman knows, that is not a requirement in law. The law requires, and the European Court has spelt out, that measures taken by the state should be proportionate to the objectives of the state and the protection of the public.

Many years ago, before 1989 and the fall of the Berlin wall, I visited the Soviet union. An elderly lady would note all the times at which I went into or left my hotel room. If any member of the Soviet Government at the time had been asked whether that was a proportionate use of scrutiny, the response would have been that those with nothing to hide had nothing to fear, but I do not think-and I hope that the right hon. and learned Gentleman agrees-that we want such an intrusive state. It is simply not appropriate for the state randomly to acquire samples, and then profiles, of something as sensitive and as potentially intrusive into privacy as DNA on the basis of an arrest which may not lead to a conviction, as the person concerned may be entirely innocent.

The evidence provided by the Government to support the retention of the DNA of all innocent people for six years is an embarrassment to statistical science. The so-called evidence in the consultation paper was based on an extremely small sample of research carried out by the Jill Dando Institute of Crime Science, which its own director later noted was incomplete and based on data to which the institute was not given direct access. Further criticism came from none other than Professor Sheila Bird, a vice-president of the Royal Statistical Society, who said that the consultation had damaged public trust in statistics and misled the House. The Home Office really has a lot to answer for.

More recently, confusion seems to have reigned across all fronts. Numbers have been flying around in connection with examples which the Government say prove beyond doubt that the DNA of innocent people should be kept for six years. The Home Secretary tells us that in 36 cases the DNA of innocent people not convicted of any crime was pivotal to the solving of cases involving serious violence and sexual offences. On 19 February I tabled a parliamentary question asking for the details of these cases, but, nearly a month later, I have still not received a response. If the evidence was so fantastically compelling, why on earth is the Home Office unable to provide a written parliamentary answer giving the details?

Some consultation seems to be taking place among the officials. I certainly hope that it is, because in my view it is rather important for parliamentary questions to be answered in advance of debates on legislation. It is a dereliction of duty for the Home Office not to come up with an answer. One would have thought that the Home Secretary would be more than willing to share the information, given that he quotes that figure at every available opportunity. What is the reason for his sudden reluctance?

We have received letters from the Minister for Policing, Crime and Counter-Terrorism claiming to list five cases, but the number turned out to be only four owing to double counting. Another case, that of rapist Jeremiah Sheridan, has been cited by none other than the Prime Minister. In that case, DNA taken following Mr. Sheridan’s arrest for a minor offence in 2005 was later matched to crime-scene DNA from an offence committed in 1991. Nothing in my party’s proposals would prevent that from happening. Under our scheme, Mr. Sheridan’s DNA would have been taken at arrest in 2005 and held on the database until the decision was made not to proceed any further. During that time, officers would have been free to check his DNA for matches against cold-case samples held on the database. A match would have been made, and the original 1991 case would have been solved.

The really shocking aspect of the case of Mr. Sheridan is that the original cold-case DNA sample from 1991 was not uploaded to the database until a staggering 16 years later, in 2007, at which point it was matched to Mr. Sheridan’s. The failing here would not have been to have removed Mr. Sheridan’s DNA from the database when he was not convicted of a crime; rather, it was to wait 16 years to run the cold case data against the information on the database. I do not want to go over any more individual cases-as I have said, the enumeration of them has been singularly lacking from Justice Ministers and from the Home Department-save to say that of the millions of crimes committed each year, the Government struggled to come up with even five concrete examples to support their case.

Of more concern in terms of the evidence the Home Secretary recently told us was being peer reviewed is the Government’s constant conflation of re-arrest rates and conviction rates. I am not going to labour this point, because the hon. Member for Hornchurch made it very tellingly; I simply say that I entirely agree with his comments. The Government have come up with no evidence to convince me, and no evidence that should convince this House, that six years is a proportionate or necessary length of time to retain the DNA data of an innocent person, nor do I believe for an instant that the European Court of Human Rights will be persuaded. Were this sorry piece of legislation finally to reach the statute book, I believe it would be overturned again. Despite the positive aspects of the Bill-the latterly introduced measure to provide compensation to the victims of overseas terrorist offences, for example-Liberal Democrat Members cannot support these proposals, which loom so large over the remainder of the Bill.