Official Report: Minutes of Evidence

The Chairperson (Mr Ross): With us today to outline the new policy amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 are Maura Campbell, criminal justice development division; Graham Walker, speeding up justice and equality branch; Ian Kerr, policing policy and strategy division; and Gary Dodds, police powers and HR policy branch.

You are all very welcome. When you are ready, please brief us on the proposed amendments. We will then open up to questions.

Mr Ian Kerr (Department of Justice): Thank you, Chairman. Clauses 76A to 76D are proposed amendments to the biometric provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989, or PACE.

There are five amendments, four of which have been drafted and shared with the Committee. The remaining amendment is being drafted, but we will outline the policy intent behind it as well. In four of the five cases, the amendments are to address shortcomings identified through early experience of operating the corresponding provisions in England and Wales. The fifth is to bring within the retention framework a new discretionary disposal being introduced to Northern Ireland elsewhere in the Bill.

At present, PACE allows DNA sampling and fingerprinting of an arrested or charged person once only in an investigation. Provisions still to be commenced in the Crime and Security Act 2010 will confer power on the police to require a person to attend a police station for the purposes of having their fingerprints and a DNA sample taken, if those were not taken on arrest.
Clause 76A will amend PACE to allow police to retake fingerprints and a DNA sample in cases where an investigation has been discontinued and where the material originally taken has been destroyed in accordance with the new retention framework but the same investigation later recommences, perhaps because new evidence has emerged. The amendment will also extend to these arrangements the Crime and Security Act (CSA) power to require attendance at a police station. This power must be exercised within six months of the date of the investigation being resumed. It is subject to the same constraints as currently drafted.

Clause 76B adds a new article 63KA to PACE to reflect the introduction in Northern Ireland of prosecutorial fines by Part 3 of this Bill. We flagged this with the Committee during oral evidence at Committee Stage of what is now the Criminal Justice Act 2013. Where an individual is arrested in connection with a recordable offence and accepts a prosecutorial fine for committing the offence, we intend that his or her material may be retained for a period of two years, consistent with provisions already in the framework relating to penalty notices.

Clause 76C is to replace existing article 63N of PACE, which has been found not to achieve the intended policy outcome. As currently drafted, article 63N requires there to be a causal link between the taking of DNA fingerprints on first arrest and a conviction obtained following a later arrest for a different offence. At present, if, for example, an individual is arrested in connection with a burglary and their prints and sample were taken and, separately, they were arrested in connection with, say, domestic violence and convicted of that but not of the burglary, the legislation prevents the retention of the fingerprints and sample in connection with the conviction for the second, unrelated offence because the investigation of the first offence did not lead to the second arrest. Therefore, the material would have to be taken again on the second arrest, with the associated processing costs, in order to be retained. The substituted article 63N will make it clear that DNA and fingerprints taken from an individual may be retained on the basis of a conviction, irrespective of whether that conviction is linked to the offence for which the material was first obtained.

Article 63R of PACE disapplies the general destruction requirements from material to which other statutory regimes apply. One such regime is that in the Criminal Procedure and Investigations Act 1996, which sets out the disclosure duties of the prosecution and the defence in relation to criminal proceedings: for example, the prosecution must disclose to the defence any material that could undermine the prosecution case or be otherwise helpful to the defence. As currently drafted, article 63R applies to fingerprints and DNA profiles but not to DNA samples, which must be destroyed no later than six months from the date on which they were taken. This has been creating operational difficulties in cases where the sample becomes relevant as evidence in court proceedings, particularly samples used for purposes such as drug and alcohol use and violent sexual contact between suspects and victims. The amendment made by clause 76D disapplies the normal destruction rules for samples in cases where the sample is or may become disclosable under the 1996 Act but makes clear that the material cannot be used for any purpose other than in proceedings for the offence for which the sample was taken and must be destroyed once the Act no longer applies.

Finally, we intend to put forward an amendment to correct a gap identified in new article 63G of PACE, which makes provision for the retention of DNA and fingerprints taken from persons convicted of an offence outside Northern Ireland. As currently drafted, article 63G would not permit the retention of the DNA profile and fingerprints taken from a person in Northern Ireland on the basis of a conviction recorded against the person for a recordable, non-qualifying offence in England, Scotland or Wales.

At this point, Chair, I should maybe explain some of the terminology. We speak of a recordable offence, which, as members who have been through this with us before will know, is any offence for which an individual could conceivably receive a custodial sentence. A qualifying offence, on the other hand, is a serious sexual or violent offence, and the two definitions are used as thresholds for the application of different aspects of the framework. Anyone convicted of a recordable offence may have the material retained indefinitely.

In the absence of a conviction, if the offence for which they have been arrested and charged is a qualifying offence, the material may be retained for a limited period of three years with a possible further extension. That distinction in definitions is pertinent to the difficulty that we have here.

The difficulty in the provision has its origin in the treatment of convictions in overseas courts. We understand that when the provisions were being drafted, there was agreement that foreign convictions should be reckonable for retention purposes. However, there were concerns that persons might be convicted of a recordable offence in some countries on the strength of a lower standard of proof than would be required in domestic courts. A conscious decision was, therefore, taken to err on the liberal side and provide that, in respect of overseas conviction, indefinite retention would be permitted only in connection with a qualifying offence rather than a recordable offence. Inadvertently, when the legislation was being drafted, that higher threshold was applied to convictions in Great Britain, so the amendment will provide that a conviction in Great Britain for a recordable offence will be reckonable for the purposes of determining the period of retention of material taken in Northern Ireland.

That is as much as I have by way of introduction. We will now take any questions.

The Chairperson (Mr Ross): It all seems very complicated and not at all easy to decipher. I will start with a very basic question, in the hope that you have the information or can give some guidance. How many people living in Northern Ireland have their DNA on a database?

Mr Gary Dodds (Department of Justice): The figures from March 2014 are 123,000 profiles on the local DNA database and about 700,000 sets of fingerprints.

The Chairperson (Mr Ross): In both cases, how many of those individuals were not found guilty of an offence?

Mr Dodds: That is a good question. Under the new regime that we are planning to introduce in October, around 33,000 DNA profiles will be destroyed or deleted from the DNA database. Those are mainly profiles from people who have no previous convictions. The new rules require their destruction. Around 91,000 sets of fingerprints would also be destroyed when the new system is introduced.

The Chairperson (Mr Ross): Who is responsible for destroying those and under what supervision?

Mr Dodds: It is police material, so it will be the responsibility of the police and Forensic Science to ensure that whatever needs to be destroyed under the law will be destroyed.

The Chairperson (Mr Ross): I can understand why that would be a very useful tool to get future convictions for those who have carried out very serious crimes, such as sexual crimes, and crimes like burglaries. However, you said that it will also be used for those who have accepted prosecutorial fines. When we heard evidence on prosecutorial fines only a matter of weeks ago, it was emphasised to us that they would be for minor, lower-level offences, yet you are saying that such individuals would still have their DNA retained.

Mr Dodds: The police have a power to take DNA and fingerprints from anyone who has been arrested for a recordable offence. Some recordable offences will be subject to a prosecutorial fine once the Bill becomes law. In instances in which the police have taken DNA and fingerprints from someone who is arrested but subsequently accepts a prosecutorial fine, we have suggested that the DNA and fingerprints be held for a limited period of two years, which is consistent with the penalty notice provision already in statute.

Mr Kerr: It may be worth mentioning that, whilst they do not have prosecutorial fines in England and Wales, they do have them in Scotland, where the retention regime is five years for a situation in which the fine is awarded in connection with a qualifying offence and two years when it is awarded in connection with a recordable non-qualifying offence.

As you said, when we looked at it with the policy leads who were considering it at the time, we went through the 2013 Act, and they were clear that there would be no circumstances in Northern Ireland in which this disposal would ever be used in connection with a qualifying offence. Therefore, we have mirrored the Scottish retention period of two years.

Mr McCartney: I have a similar question: is this in addition to the prosecutorial fine?

Mr Kerr: Yes.

Mr McCartney: I remember the debate on the penalty notice. Would DNA retention form part of a person's records that could be accessed through an Access NI search?

Mr Kerr: No.

Mr McCartney: That would not be disclosed.

Mr Kerr: No, it is not remotely like a criminal record; it is anonymous.

Mr McCartney: Is that the case even in a wider search? I know, from the Association of Chief Police Officers, that it would not be disclosed as part of a straightforward search, but would the retention of DNA show up in any other search?

Mr Kerr: No.

Mr Douglas: Thank you for your presentation. Gary, you gave us the number of DNA and fingerprint records. How does Northern Ireland compare with the likes of England, Scotland, Wales or, indeed, the Republic of Ireland in percentage terms?

Mr Dodds: It is much smaller, of course. The national DNA database in England and Wales has close to five million DNA profiles. Some will be from Northern Ireland as it shares profiles with the national DNA database. That number has significantly reduced because the English have introduced their new rules, meaning that over a million profiles had to be deleted from the national database. In percentage terms, I think that the Northern Ireland profiles are for about 5% of the population.

Mr Kerr: When we were taking the Bill through, England and Wales were holding DNA profiles for about 10% of the population. Following the implementation of the new framework, they expect to lose about a fifth of those, which would bring that figure down to about 8%. In Scotland, it was about 6%. As Gary said, it is 5% in Northern Ireland, and we expect to lose about a fifth of those on implementation, so we should come down to 4% overall.

Mr Poots: I think that many people will be disappointed that there will be a reduction in DNA retention. The bottom line is that, if the legitimate authorities had my DNA or fingerprints, it would not concern me, because I do not intend to do anything wrong. The only people with something to fear from the civil authorities having their fingerprints and DNA are those committing crime.

I would want to ensure that the legislation is robust and strong and can maximise the level of DNA and fingerprint retention that we can achieve while remaining human rights compliant. I recognise that there were rulings from Europe, which is probably why you are losing quite a lot of that material.

Mr Kerr: The Marper judgement. Yes indeed.

Mr Poots: In what you propose, will we maximise the ability of the police to retain as many DNA profiles as possible?

Mr Kerr: DNA will be retained for anyone who is convicted. That is the bottom line, and that position will not change. In fact, the only change that is being made by the introduction of the new framework is that indefinite retention in the absence of a conviction will no longer be permitted.

Mr Poots: I think that you indicated that you will hold DNA for one particular crime but that it will not be applicable to another crime. Is that right?

Mr Kerr: Yes, in the way that the legislation is drafted at the moment, there is some mischief around the use of the words "leads to". This means that, if DNA is taken in respect of one offence but the individual is not convicted, unless the investigation of that offence led to the same individual being arrested for a subsequent offence — hence "leads to" — the DNA cannot be used in respect of the second offence. That was never the policy intention, and we are moving to remedy that in the amendments that we propose.

Mr Frew: Explain to me how you are remedying that. You have a DNA sample, a person goes through court and is found not guilty of a primary offence. That person is then investigated for a secondary offence and goes to trial.

Are you telling me that you cannot use that DNA sample for the second offence?

Mr Kerr: We can do that only if the second offence arose from the investigation into the first. If that is the case, that is possible at present, but that leaves us with the gap that we are seeking to address. I do not want to complicate the issue.

Mr Dodds: The problem that arose is that the draftsmen wanted to cover a situation where someone was arrested and their DNA and fingerprints taken and were matched in the database against a subsequent crime that the person had committed. The legislation allows for the material from the first offence to be used on an evidential basis to prosecute the person for the secondary offence — hence the causal link. If someone has been arrested for an offence that is not related to the first offence, we want the material for the first offence to be retained on the basis of the conviction for a secondary, unrelated offence. It is very complex.

Mr Frew: If someone is convicted, that sample is there forever and a day. Is that right?

Mr Kerr: The profile generated from it is, yes. The sample will be destroyed.

Mr Frew: That will be identifiable.

Mr Kerr: Yes.

Mr Frew: For instance, if you walk into a building that has been burgled or where someone has been assaulted or attacked, you can get DNA samples that connect to that primary source. Surely all that has done is identify a suspect.

Mr Dodds: That is correct, yes.

Mr Frew: Surely you would then take another sample from that suspect.

Mr Dodds: Not DNA. If DNA is taken in connection with one offence and there are pending arrests for the same individual for other offences, the DNA would not ordinarily be taken on each arrest event. Fingerprints are taken on each arrest event, but not DNA. We want the DNA for the first offence to be retained until an outcome is generated from any subsequent arrests that are unrelated to the first offence. If, for example, he has had four pending —

Mr Frew: There is a domino effect.

Mr Dodds: Yes, that is correct. If he is convicted after arrest number four, the police can retain the material from the DNA taken for the first arrest on the basis of a conviction for arrest number four. That is totally unrelated to the first offence, and that is where the legislation is incorrect.

Mr Frew: There is a blind spot.

Mr Dodds: There is, yes.

Mr Frew: Why can you not simply take a further sample?

Mr Kerr: You can, but there are processing costs associated with that. We are trying to keep the costs to a minimum and avoid the police having to take new samples and process them at additional cost.

Mr Frew: There are bound to be fundamentals here; excuse my ignorance. Why can we not retain DNA even if someone has been proven innocent?

Mr Dodds: That is the whole basis of why we have changed the law. The current law allows indefinite retention when someone's material is taken, irrespective of the outcome of that arrest event.

Mr Kerr: Essentially, it is in order to be compliant with the judgement of the European Court of Human Rights. That has been the driver.

The Chairperson (Mr Ross): Strasbourg has taken on civil liberty protection. There is also legislation in Westminster.

Mr Frew: I know that this is an argument or debate for another arena or forum, but dental records are available, are they not?

Mr Dodds: This legislation relates to DNA and fingerprints. I do not know about dental records

Mr Frew: I ask because, surely, in essence, what everyone wants is for criminals or people who commit an offence to be detected, detained and punished, and for justice to be served. I would be for giving any establishment that investigates law and serves justice all the tools and power to do that, within, of course, regulations and with the exercise of restraint. Surely, dental records, fingerprints and anything that can help detection are good. How big an impact will the destroying of samples have on crime detection?

Mr Dodds: The obvious impact of deleting quite a significant volume of profiles from the database is that there are fewer profiles on the database to create or generate subsequent matches from crime scenes in the future. It remains to be seen what impact that will have.

Mr Kerr: There is no doubt that there will be a loss of investigative capability as a result of this.

Mr Dodds: I think that we have to accept that, yes.

Mr Kerr: We have always known that.

Mr Elliott: Have we no choice?

Mr Dodds: None. We have to comply with the judgement and move away from what we have at the moment, which is a blanket and indefinite retention, to something that is much more structured and related to conviction and non-conviction.

Mr Frew: This is a broad, sweeping question: are you satisfied that everything within the amendments pushes that legal requirement to destroy to its limits —

Mr Kerr: Everything that we are doing within the amending provisions that we are introducing, with the possible exception of the new material moving to prosecutorial fines, is aimed at improving the existing provisions in the Bill, and improving them in the sense of plugging gaps in them so that material that would otherwise be lost, or thresholds that would not be met, will, in future, be met and recovered. It is refinement, but it is refinement in that direction. That is how I would characterise it.

Mr Douglas: I will ask two quick questions. I am not sure whether you will be able to answer the second. The first is on the National Crime Agency (NCA). You say that there will be a reduction of about one fifth in the figures. I assume that, with the operation of the National Crime Agency, there will be an increase in the number of people whose fingerprints and DNA are taken. Obviously, there will be more activity leading to the arrest of criminals and gangsters.

Mr Kerr: The NCA is another agency that will bring more resources to bear on criminal elements, and you would imagine that, as a result, there will be an increase in activity and in product for the biometric system.

Mr Douglas: Can the National Crime Agency introduce the taking of DNA and fingerprinting of, say, criminals originally from Russia or other international communities?

Mr Kerr: Where recordable offences have been committed in the UK, any of the law enforcement agencies operating in the UK that have powers of arrest will add such material to the database. We have provisions elsewhere in the legislation for the entry on to the database of material from persons convicted of offences overseas. We should be able to do that wherever they come from.

The Chairperson (Mr Ross): That is great. Thank you very much. We appreciate that.