§ 197 After Clause 135, insert the following new clause:
§ 'Body samples—Northern Ireland.
§ —. Schedule [Body Samples—Northern Ireland] shall have effect with respect to the taking of samples from persons in Northern Ireland in connection with the investigation of offences to which it applies.'
§ 2.15 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)
My Lords, I beg to move Amendment No. 197. I think that it will be for the convenience of your Lordships that I speak at the same time to Amendment No. 359.
The effect of the new clause and the related new schedule under Amendments Nos. 197 and 359 will be to replicate for Northern Ireland, with one modification, the statutory provisions for the taking of body samples from those persons suspected of serious offences which apply for England and Wales under the Police and Criminal Evidence Act 1984 (PACE 1984) and with which your Lordships are no doubt familiar.
This is one area of the ordinary law in Northern Ireland which is in much need of reform. At present the RUC has powers to take fingerprints and palmprints under the provisions of the Magistrates' Courts (Northern Ireland) Order 1981. But its powers to obtain other samples such as semen, tissue fluid, body swabs, hair roots, etc., are currently governed by the rules at common law and the lack of statutory provisions for the taking of body samples is proving a severe handicap in the circumstances in Northern Ireland.
It was originally the Government's intention to include these provisions for the taking of body samples in the Northern Ireland order which will replicate most of the PACE 1984 provisions. However, due to the extensive scope and complexity of that order, it will not come into effect, subject to parliamentary approval, until 1989.
I hope your Lordships will agree with the Government's view that there should be no avoidable delays in assisting the RUC in its arduous task of dealing with serious and violent crime. The Criminal Justice Bill provides a timely opportunity to bring the law in Northern Ireland in respect of the taking of body samples essentially into line with that in England and Wales significantly earlier than would be the case under the new PACE legislation.
I now turn to the detailed provisions of the two amendments, the substantive element of which is contained in the new schedule introduced under Amendment No. 359. The schedule, with two modifications to which I shall come, replicates for Northern Ireland the Police and Criminal Evidence Act 1984 provisions for the taking of body samples in England and Wales.
The power to take body samples relates only to persons suspected of being involved in serious 1648 offences. The serious offences listed in the new schedule, which include murder, rape, kidnapping, sexual offences against children and various firearms and explosive offences, are the same as the England and Wales legislation.
In addition, the first of the two modifications to which I referred earlier provides that the powers to take body samples under this schedule will also apply to a person arrested under Section 12(1)(b) of the Prevention of Terrorism Act 1984, which allows the police to arrest a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The arrest powers in the Prevention of Terrorism Act are used with nothing like the same frequency in England and Wales as they are in Northern Ireland. The Police and Criminal Evidence Act did not specifically mention those in relation to body samples since the definition of "serious arrestable offence" in Section 116 of that Act was considered sufficient for those purposes. But because of the importance of the PTA arrest powers in Northern Ireland, and because the situation there is so very different from that in England and Wales, the Government believe it is important to ensure that this amendment specifically includes the PTA arrest powers so that persons arrested under Section 12(1)(b) of the PTA come firmly within the scope of these provisions.
The new schedule follows the PACE 1984 legislation in making the distinction between intimate and non-intimate samples and in providing that a non-intimate sample may be taken without the suspect's consent but that an intimate sample may only be taken with the suspect's consent. The definitions of "intimate sample" and "other sample—normally known as a "non-intimate sample—are also in line with the PACE 1984 legislation with one exception. This is where we come to the second modification. The difference is that for Northern Ireland the definition of "other sample" or "non-intimate sample" includes a swab taken from the suspect's mouth. Because the taking of a mouth swab unavoidably results in the taking of saliva, for which a statutory basis is required, it has also been necessary to add a sample of saliva to the definition of non-intimate sample.
This difference is being made for DNA profiling reasons. I understand that DNA stands for deoxyribonucleic acid. No doubt your Lordships are aware of the progress that has been made in the field of DNA profiling. It is proving of great benefit to the police not only in positively identifying those persons involved in violent crime but also in eliminating from police investigations others suspected of these crimes.
Under the PACE 1984 legislation for England and Wales, all samples that can be guaranteed to provide sufficient DNA material, such as blood, semen and body tissue, are classed as intimate and cannot be obtained without the suspect's consent. I understand that unwillingness to give consent for the taking of intimate samples is not something which is causing problems in England and Wales at present, and that consent is normally forthcoming. However, this is not the case in Northern Ireland where among not only the terrorist organisations but also the perpetrators of the more serious non-terrorist crimes there is a more determined and systematic attempt to obstruct the RUC by denying it material which may be of forensic value.
1649 Major advances in DNA profiling techniques have been made in recent years, and research in this field has revealed that a mouth swab taken by rubbing the area between the lip and gum, which would only necessitate the opening of the suspect's lips, can provide a reliable means of providing material for DNA analysis. In the particular circumstances in Northern Ireland, where the RUC has not only to contend with the continuing terrorist violence, but also the Province's own share of other violent crimes against the person, the Government are convinced that it is in the interests of protecting the law-abiding public to provide the police with powers to take a mouth swab, if necessary, without the suspect's consent.
The new schedule also sets out the statutory rights of and safeguards for person from whom samples are required, and your Lordships may find it helpful if I explain these in more detail. First, no sample can be taken, whether intimate or non-intimate, except with the authorisation of an officer of the RUC of at least the rank of superintendent. Secondly, that authorisation can only be given if the authorising officer has reasonable grounds, first for suspecting the involvement of the suspect in one of the serious offences listed in the schedule and secondly for believing that the sample will tend to confirm or disprove the suspect's involvement. Those authorisations will of course be justifiable before the courts.
Thirdly, an intimate sample may be taken only with the suspect's consent and then, other than a sample of urine, only by a registered medical practitioner. And, fourthly, the schedule replicates other Police and Criminal Evidence Act 1984 provisions governing the destruction of samples obtained from persons acquitted of an offence, and those obtained from persons who were not connected with, or suspected of, involvement in an offence.
The Government will of course be issuing the Royal Ulster Constabulary with a code of practice on the taking of body samples, advance copies of which were placed in the Library of your Lordships' House on 14th July.
The specific safeguards in relation to the taking of body samples will be additional to the standard safeguards already available to all arrested persons under the existing Judges' Rules. In addition the safeguards for terrorist suspects include statutory rights of access to legal advice and to having a family member or friend informed of the arrest.
I hope your Lordships will agree that the legislation in Northern Ireland on the taking of body samples should be brought into line with that in England and Wales at the earliest opportunity.
The Government are convinced that the potential forensic value of the limited addition to the police power to take non-intimate samples as proposed in the new schedule before us this afternoon will be of significant benefit to the RUC in relation to the particular difficulties which they encounter in obtaining forensic evidence in their fight against serious and violent crime. I commend these amendments to your Lordships.
§ Moved, That the House do agree with the Commons in their Amendment No. 197.—(Lord Lyell.)1650
§ Lord Stallard
My Lords, I am informed that this is the best time for me to speak to my own Amendment, No. 359A, to which the Minister has referred. It gives me no joy to have to discuss these amendments on a Friday afternoon. I would far rather have been somewhere else on a Friday afternoon.
§ Lord Stallard
No, my Lords. I have had long discussions with Officers of the House at the highest level and I am informed that they would wish me to speak to Amendments Nos. 359 and 359A because it is for the convenience of the House that they should be linked with Amendment No. 197. I should then wait until the appropriate amendments come up for a vote and move the amendments formally at that stage with no further debate. As I understand it, that is the procedure.
My interest in this matter goes back a number of years. I should perhaps express an interest in that I have been, for as long as I have been able to breathe, involved in the Anglo-Irish problem. For a number of years I was the chairman of a Northern Ireland group in another place. I continue to maintain that interest and to scrutinise so far as possible everything that happens here or there and from time to time intervene if in my view something is being done which might worsen the situation in Northern Ireland, which is already grave enough. I take the view that the situation would be even worse if we were to do something such as is proposed in Amendment No. 197: it would make the situation more grim more or less by default.
I have listened to the Minister this morning, and I accept most of what he has said, except that it seems so glib. The measure goes through and that is that because it relates to Northern Ireland. They are all wild, villians, gangsters and God knows what, and therefore they deserve different treatment from the criminals on this side of the water! It is not as simple as that. That is far too simple. We ought not just to accept that therefore it goes by default.
I should like to take noble Lords back a little in time. This whole matter was first raised in correspondence from the Northern Ireland Secretary of State in his letter of 25th May to the chief opposition spokesman in the other place. In that letter the Secretary of State informed the opposition party (because I understand that he had informed the other parties as well) of his intention to table an amendment to the Criminal Justice Bill which would apply to Northern Ireland for consideration at the forthcoming Report stage in the other place.
The effect of the amendment was to bring on to the statute book in Northern Ireland essentially the same provisions about the taking of body samples from those suspected of serious offences as already subsists in England and Wales under the Police and Criminal Evidence Act 1984, as the Minister outlined. 1 am sure that noble Lords will understand that the fact that this matter was raised in correspondence after the Standing Committee had completed its procedure, and that it was intimated that the matter would be raised at Report stage, of necessity created some dissatisfaction, to say the least, as it always does 1651 whenever that procedure is used and whenever someone appears to be pushing in something after the Standing Committee has met.
That meant that the Standing Committee was not able to scrutinise the proposals. There was no chance of scrutinising them because they were considered at Report stage. Noble Lords will understand that it is a different procedure on Report in the other place and that procedure precludes some detailed discussion of such matters. So the dissatisfaction grew.
It was then that I became interested in the matter, because while dissatisfaction and concern in this country are bad enough, they are even worse when they occur in Northern Ireland. We have to take seriously that kind of suspicion. I felt that I ought to look further and examine the correspondence. It has grown. Recently letters have been passing backwards and forwards between the Secretary of State and the chief opposition spokesman. A couple of weeks ago the letters were released for publication. No doubt those noble Lords who are involved with Northern Ireland affairs have read the letters, as I have, and may be as perturbed and confused as I am.
In his letter of 25th May the Secretary of State intimated that it had been this Government's original intention to await the outcome of the consultation on the draft Northern Ireland order, to which the Minister again referred this morning. They had originally intended to await the outcome of consultation, but for reasons that he gave it would take too long to bring into effect because the consultation process would have to be carried out and there would have to be parliamentary approval and so on; moreover he quite rightly claimed, and I do not disagree with him, that the RUC needed some extra assistance in order to get its procedures correct—the Government had decided that the Criminal Justice Act, which was still on its way through Parliament, would provide the possibility of bringing the law on the taking of body samples in Northern Ireland into line with the law in England and Wales. It was a convenient vehicle which happened to be there at the time. It seemed to be thought that because it was Northern Ireland it would go through on the nod and that would be that.
However, it is not as simple as that and that is why I became somewhat concerned about the whole matter. It certainly means that it would be brought in significantly earlier than would otherwise have been the case. As I said, the Secretary of State stressed the importance of the RUC's need for this kind of legislation to be provided as soon as possible—and the Minister also stressed the importance of that this morning—in order to deal with serious and usually violent crime. We do not dissent in principle from that at all. But the Secretary of State concluded his letter of 25th May:We proposed to depart from the detailed England and Wales provisions in only one relatively minor respect. For DNA profiling reasons we are including in the category of non-intimate samples a swab taken from a person's mouth. This would not necessitate the opening of the mouth as the practice is to take such swabs from between the lip and the gum".The Minister has reinforced that today.
It was supported at that stage by the chief spokesman for the Opposition in the other place on 1652 the basis that the Secretary of State had said that it was only necessary to take such swabs from between the lip and the gum and it was not necessary to open the mouth any further in order to obtain sufficient material. On that basis he said that he was prepared to support the amendment and the schedule.
However, he pointed out to the Secretary of State that an article had appeared in the New Scientist which queried the accuracy of this method. It queried whether or not sufficient material would be obtained from this swab. There was a point of view that said that one would have to go further than a swab; one would have to open the mouth completely and put something in in order to obtain sufficient material for the test. He understood that that might mean scraping the inside of the mouth with a blunt instrument. If that were the case, it would appear that the Government had been wrongly advised. It was no longer a simple test of a swab of cotton wool between the lips without opening the mouth. This was pointed out to the Secretary of State. He was asked to confirm whether or not the test required taking a scraping from the inside of the mouth which would fall into the category of an intimate sample and mean that the person involved would have the right to refuse. That makes it a different kettle of fish altogether.
No confirmation was forthcoming at that point. The only reply from the Secretary of State was correspondence stating:I am sure you will be glad to know that the Northern Ireland Forensic Science Laboratory had already successfully tested the technique on members of its own staff, and proved that usable amounts of DNA material can indeed be extracted from swabs taken from the mouth. My point in writing to you and to party leaders on 25 May was to explain that by defining the mouth as non-intimate, samples could be taken from it without consent. But I also explained that our purpose was to obtain material for DNA analysis where appropriate".After stating that further details had been given in another place, the Secretary of State added:As we have made very clear, the technique simply involves the rubbing of the area between the lip and the gum with a sterile cotton bud. There is no question of 'scraping' the inside of the mouth because it is quite unnecessary".That is what he said. It was on that basis that there was some measure of agreement.
However, the articles continued to appear. The New Scientist picked up the correspondence, the discussions and the debates that had gone on. An editorial on 7th July stated:The House of Commons last week debated whether 'mouth swabs' could capture sufficient DNA for genetic fingerprinting. Douglas Hurd, the Home Secretary, told MPs that swabs provide enough DNA and that New Scientist was inaccurate in suggesting otherwise. Mr. Hurd was skating on thin ice in his assertion, but it is more than hurt pride that prompts us to defend our story. The debate over mouth swabs is important because the government intends to give to police officers in Northern Ireland the power to take mouth swabs, by force if necessary, from suspected terrorists and criminals. Lawyers will have a field day if there is any possibility of an argument over what police officers can and cannot do. It is therefore important to specify what type of instrumental invasion police officers can make on someone's mouth in their pursuit of samples".Again the article raised the question of the differences, asking,Does Stanley's description of the methodology accurately reflect what will take place in practice?".That further confused the situation for me. We had experts disagreeing on at least two occasions in a reputable journal about the efficacy of these tests as outlined by the Secretary of State and by the Minister and whether they would be sufficient. It seems that 1653 that inflames the concern. People assume that they are perhaps trying to pull a fast one, trying to insert the test into the non-intimate category and, having inserted it, they will find that they have to take more and more serious measures, making it an intimate search without the protection that that would normally be afforded to the suspect or the prisoner. That, as the Minister will be only too well aware, worries those who are concerned in Northern Ireland.
In view of that obvious difference of view as expressed in the articles and by government spokesmen, I felt that it was necessary to put down this group of amendments to tidy up the interpretation clause. Amendment No. 359B, for example, seeks to insert into the substantive amendment what I have just been saying about intimate samples, and the same applies to Amendment No. 359C. I am endeavouring to reassure those people who have expressed a fear that something beyond what they thought would happen might happen. If we can reassure people we should do so, in view of all the other difficulties that they have.
My amendments would limit the definition as "non-intimate" of a swab taken from the mouth to one taken from between the lips and the gums which does not involve the opening of the mouth. This is in line with what the Government have already said in another place. I cannot continue quoting what Ministers have said, but on a number of occasions they have said that this exercise would not mean opening the mouth. I therefore see no reason why that amendment should not be accepted.
§ Lord Kilbracken
My Lords, I believe my noble friend meant to say "without opening the jaws", rather than "without opening the mouth".
§ Lord Stallard
My Lords, I would find it difficult to open the mouth without opening the jaws, but I accept why my noble friend says. This is an awful argument to get into on a Friday afternoon, but my noble friend is probably right.
My amendments to paragraph 9 deal with destruction of samples. The Bill in its present form provides for the destruction of samples once it is clear the individuals have not been involved in the matters under investigation. What we wanted in our correspondence was confirmation that this also involves the removal from all records of the information and the results obtained from the tests. It would clearly be a nonsense simply to destroy the samples but to retain in the records the DNA profile of a person who is innocent. I have seen no confirmation or agreement that that is so in relation to these samples. My amendment seeks to bring those samples into line with what I understand is the position with fingerprints. I see no reason why they should not be brought in to the same legislation as fingerprints.
Finally I share the concern expressed by many involved and interested observers of the Anglo-Irish situation about the way these provisions would apply to those arrested under the Prevention of Terrorism Act. We have had many debates and discussions on that Act in the House, and noble Lords will be aware that the party to which I belong is pledged to repeal that Act. Therefore, we are not likely to encourage 1654 anything which would take it still further if, in the event, its life is limited.
We share that view in common with a wide range of responsible and careful organisations and individuals who have, on many occasions, expressed concern that arrests under Section 12 of the Prevention of Terrorism Act is often simply used for information-gathering purposes. There is a great deal of evidence to substantiate that. Those powers are applied unfairly to people with Irish connections. Those of us who are interested in the matter receive correspondence weekly and almost daily giving examples of this kind of picking up for information and releasing and so on.
The provisions as they stand allow for the building up of a large bank of information on people, the vast majority of whom are innocent of any crime. That can be substantiated. In my view, this would be a wholly unacceptable infringement on their civil liberties and my amendments take those concerns into acount.
§ Lord Monson
My Lords, perhaps I may ask the noble Lord, Lord Stallard, why we are discussing these amendments now rather than when we come to them.
§ Lord Stallard
My Lords, I have been discussing this matter since half past eleven this morning. We have finalised it and I shall not go into the matter again.
Perhaps I may continue. Since the tabling of these amendments I have discovered that the draft order to which I referred at the beginning of my remarks, which was to be laid and would take a year and therefore it was necessary to do this now so that the RUC would have the necessary powers, has now been made available for consultation. I have a copy. Of course, the consultation will take place during the Recess. It may surprise some people but it is not the best way to consult on this very important matter. The consultation period ends on 30th September and. as I understand it, that draft order in council would not be debated in this House. Therefore, unless I had tabled these amendments and provided an opportunity for this schedule and these clauses to be scrutinised, we should have had no further chance of discussion. Since there has not been another chance in the other place, I thought it was worth a Friday afternoon to look at the position because it is serious enough to many people who do not necessarily accept the instant views put forward by the Front Bench opposite on the need for this kind of legislation without any scrutiny.
I have attempted to outline the necessary safeguards to reassure all those people who have expressed grave concern about the procedures as well as the contents of the schedules as they stand. I hope that the Minister will be able to rethink the situation before we come to the amendments and decide to accept them.
§ Lord Morton of Shuna
My Lords, as we understood from the Minister that the intention is only to take a swab between the lip and the gum, I should have thought that there was a lot to he said for Amendments Nos. 359B and 359C.
1655 One can foresee that to allow a policeman to open a mouth to take a swab from anywhere within the mouth, which is what the Government amendment has suggested is a non-intimate sample, could be a fairly radical movement. No doubt the Minister will tell us where the mouth ends. Is the swab going right down the throat or where is it to go? Therefore, I should have thought that this amendment would be quite easy to accept if it is the Government's intention that it should be only between the lip and the gum, but if so it would be better to say so. Otherwise it is far more correct to say that the sort of forcing, which is perhaps what a dentist does, is an intimate transaction.
We also support Amendments Nos. 359D, E, and F. I should have thought that the only important record is the result of the test, not the wet swab which is the sample. Therefore, it is not the destruction of the sample which is critical but destruction of the result of the test, such as the Government have accepted under Clause 135 on the destruction of records relating to the fingerprints of people who from inquiries are shown to be not involved. Therefore, we support these amendments.
§ Lord Fitt
I rise briefly to support the reservations and fears expressed by my noble friend Lord Stallard. I am all too conscious that in such a debate it could be misinterpreted that in seeking to limit the powers of the police, one is in some way or other helping terrorism in Northern Ireland. I hope that my record in Northern Ireland and the support of my noble friend Lord Stallard will show that in no circumstances is that my intention or the intention of my noble friend Lord Stallard.
This week we have heard much both in this House and at the other end of the building, in the Palace of Westminster, about 1688, civil liberties, all that that alleged revolution brought about and its consequences for the citizens of the United Kingdom. There will be no argument that the 1688 revolution did not bring any benefits to Ireland. That is admitted by even those most rabid supporters of the alleged glorious and bloodless revolution of 1688. We still have the effects of that glorious and bloodless revolution every 12th July in Northern Ireland and with the 2,000 Orange marches which take place.
Therefore, in looking at these proposals by the Government, and taking into the account the remarks of my noble friend Lord Stallard, I hope that if we are to introduce laws in Northern Ireland they will be kept very much in line with legislation as it affects other parts of the United Kingdom. The more we depart from UK legislation, the more it will seem that Northern Ireland is a place apart; that Northern Ireland is different; that we must legislate purely and specifically for Northern Ireland; and the more it will be seen in Ireland that Northern Ireland is different. If Ireland really is different, those who want to create chaos and havoc by carrying on a campaign of terrorism will be justified in putting forward that point of view, particularly in the United States and in other parts of the world where the terrorists appear to be getting sympathy.
As regards the non-intimate search and this new forensic discovery of DNA, I have no doubt that in the first half-a-dozen cases that come before the courts where DNA samples are part of the evidence 1656 against an accused person we will have one expert saying that the evidence is all wrong and another expert saying that the evidence is all right. In murder cases we often have one psychiatrist saying that the accused is mad and the other saying that he is perfectly sane. There will be great controversy about the efficacy of these tests.
I must say at the outset—and the House will be aware of this—that people are now in prison, and have been sent to prison, on forensic evidence alone. I refer specifically to the Annie Maguire case where she and many other people were sent to prison purely and simply on forensic evidence. It must have been difficult for the jury to listen to the evidence put forward in that case. One can imagine a jury composed of laymen where DNA evidence is the main component and it being asked for a conviction. An ordinary jury composed of laymen would be absolutely nonplussed by listening to experts arguing about DNA. At the end of the trial the judge will say to the jury: "You have heard the evidence and I now invite you to find a verdict in conformity with the evidence". We have to be very careful about the introduction of new DNA methods.
I believe that the House will be well aware that over the past few years the RUC has been subjected to a good deal of criticism, some of which was justified but quite a good deal of it was completely unjustified. If we write into the legislation exactly what the RUC can and cannot do, it will be a protection both for the civil liberties of the individual and, just as important, a protection for the RUC. Over a number of years, and particularly over recent months, we have had totally unjustified criticism levelled at the RUC.
I realise that people including my noble friend will be opposing the introduction of DNA evidence. That opposition will be totally from the point of view of civil liberties. My noble friend wishes to protect the civil liberties of people in all parts of what is now called the United Kingdom. That is my point of view as well. There will be other people opposed to this legislation who are nothing other than IRA supporters. I do not believe that opposition to this legislation will be based upon a person accused of murder, burglary or rape. There is certainly no one in this House who will object to the DNA method being used in those circumstances.
When one enters the arena of the Prevention of Terrorism Act that is when controversy will arise. There will be people opposed to the use of DNA samples not because they are personally opposed to them, but because they believe that there may be some electoral disadvantage to them if they are seen to allow this legislation to go through without question. I believe that my noble friend has genuine reasons for expressing reservations in those two fields. Someone said earlier on that there are a great many big mouths in Northern Ireland and some of them happen to be Members of Parliament. That is well known in Northern Ireland. There is the question of what constitutes the mouth.
The other objection raised by my noble friend concerns the taking of swabs and when it is later found that the individual from whom they have been taken is not guilty of any offence. The swabs should be destroyed immediately because we do not wish to give the police the power to build up an arsenal of allegations against individual people. In his remarks 1657 today, and in the amendment which he will move later on, I believe that my noble friend has put I forward a very reasonable case in defence of the civil liberties of the people of Northern Ireland.
§ 3 p.m.
§ Lord Monson
My Lords, I am sorry that I was out of the Chamber at the time when the noble Lord, Lord Stallard, introduced his amendments, and so I missed his explanation as to why these amendments are being discussed now rather than later. As someone who, unlike the noble Lord, Lord Fitt, has been celebrating the Tercentenary of the Glorious Revolution, I strongly support the amendments tabled by the noble Lord, Lord Stallard; namely, Amendments Nos. 359B and 359C, while remaining open-minded about the other five amendments.
§ Lord Kilbracken
My Lords, I support my noble friend in his amendments and if he were to press them to a vote I would gladly follow him into the Division Lobby. There are two matters, one of which has been alluded to already, on which I feel that some clarification is necessary and I hope it may be possible for the Minister or for my noble friend to give it.
We keep hearing about swabs being taken from between the lip and the gum. My noble friend Lord Morton of Shuna, by a slip of the tongue, referred to a swab between the teeth and the lip. So far as I know, no part of the mouth exists between the lip and the gum, because the teeth intervene. If one looks it up in a dictionary one finds that the lips form the edges of the mouth—we all know where the lips are—whereas the gums are the firm fleshy integuments—that only means coverings—of the jaws and bases of the teeth. So no part of the mouth comes between the gums and the lips. It would therefore be perfectly possible for anyone undergoing this examination to claim that any search of the mouth was an intimate search and therefore was not permitted.
I understand that DNA analysis—genetic Fingerprinting—can be performed with a hair of the head, particularly if that hair has been pulled out by the root. I may be wrong, and that stage may not yet have been reached. However, I believe it has, and if not it shortly will be. If that is the case it will he possible already to obtain sufficient evidence to carry out DNA analysis by removing a hair of the head, which is a non-intimate search and would therefore he permitted.
§ Lord Harris of Greenwich
My Lords, there is no doubt that genetic fingerprinting is an exceptionally important development in the investigation of major crime. As the House will be aware, it has been demonstrated in a number of major criminal cases in this country, cases where if there had been an absence of evidence based on genetic fingerprinting there certainly would not have been a conviction. There is no doubt about the importance of the issue.
I agree with the noble Lord, Lord Stallard, on one point. It was exceptionally unfortunate that the Northern Ireland Office waited until the Report stage of the Bill in the House of Commons before introducing an issue as important as this. It simply created a climate of suspicion which may well be 1658 wholly unjustified. It was a serious error of judgment and many of us realise that, particularly those of us who recognise the value, importance and quality of the work done by the Royal Ulster Constabulary in Northern Ireland.
In moving the Commons amendment the Minister said that it is perfectly all right to do this because in Northern Ireland there are a number of terrorists who have learnt how to create as many difficulties as possible for the investigating authorities. He went on to argue that it is right to do this in Northern Ireland but not necessarily right to do it in the rest of Great Britain. I am not quite sure that I agree with that view. I find it difficult to understand why it would be right to give the police power to do this with a terrorist suspect in Belfast but wholly wrong to do it with a terrorist suspect outside Harrods. I am certainly not disposed to vote against the proposals because my noble friends and I want to do everything we can in the battle against terrorism. However, I think the House should recognise that it would be quite impossible for the Government to deny them in the future if they are approached by the police in Great Britain for these powers, given the fact that they are now giving authority of this kind to the police in Northern Ireland.
§ Lord Lyell
My Lords, I think that we have had a very thorough and detailed debate, not just on the new clause and the schedule which I introduced but also the amendments which have been tabled by the noble Lord, Lord Stallard. Indeed, he and many other noble Lords have entered into a most lively discussion. I trust therefore that I shall be able to answer most of the questions and queries which have been raised. Thankfully there are no major scientific problems for me to solve.
In his opening remarks the noble Lord, Lord Stallard, referred to the letter from my right honourable friend to his honourable friend. With the leave of the House, I shall not comment upon that correspondence because I hope that sufficient answers will emerge in the course of what I have to say about the amendments. I hope that that course will be convenient for him and for other noble Lords. Therefore perhaps I may reply to all the amendments at the same time. I hope I have the noble Lord's agreement on that.
§ Lord Lyell
My Lords, I am much obliged. In that case I shall try to do that, as well as replying to the other points which have been raised. The noble Lord, Lord Stallard, raised five points in the amendment. Amendment No. 359A deals with the question of suspects detained under the Prevention of Terrorism (Temporary Provisions) Act 1984. If we were to omit paragraph 5 from the schedule, that would have the effect of excluding persons who were arrested or detained under the terrorism provisions. That action would mean that persons suspected of certain serious crimes which are listed in the schedule would be subject to the new law— namely, the schedule before us today—but suspected terrorists or anyone who is arrested under the aegis of Section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 would not.
1659 In the circumstances of Northern Ireland—and I take note of the point made by the noble Lord, Lord Harris of Geenwich—I think that your Lordships will agree that it really would be quite absurd to deny the benefit of the advances in DNA profiling to the RUC in its fight against terrorism, let alone against the serious crimes which are listed in the schedule.
The noble Lord then went on to raise the issue of swabs and intimate and non-intimate samples, referred to in Amendments Nos. 359B and 359C. If I may, I shall deal with both amendments at the same time. In paragraph 6(1) the provisions in the two amendments would confine that part of the mouth which is defined in the schedule as "non-intimate" to the area between the lower lip and the gum.
In my opening remarks I sought to explain that DNA profiling can usually be obtained by taking swabs from the area between the lip and the gum—that is, upper or lower or in any particular area. The noble Lord, Lord Fitt, has temporarily deserted us, but I hope that we shall soon see him back. He pointed out that the shape and size of mouths vary. He was not necessarily thinking only of Northern Ireland. I believe that that is generally accepted by your Lordships.
Sometimes the area between the upper lip and the gum is the best place to take a swab for profiling; sometimes the area between the lower lip and the gum is better. Sometimes one side of the area between the lip and the gum may be more accessible than the other. I and my colleagues see no logic or justification in restricting the non-intimate area of the mouth in the way that the noble Lord has proposed. I am advised that such a restriction would make the provision completely unworkable.
I appreciate that the noble Lord and other noble Lords who have spoken, including the noble Lord, Lord Morton, who has perhaps also gone to obtain victualling, may wish to avoid giving the police the right to open the jaw without the suspect's consent. 1 said earlier that we do not consider that it will be necessary to open the jaw. I stress to the noble Lord, Lord Stallard, that the individual is already protected by the requirement that the police should use only reasonable force. I hope that your Lordships will agree that in a situation in which in each and every case that a mouth swab is obtained it could be necessary for the police to satisfy the courts that the degree of force used was reasonable in the circumstances will set a proper limit on the use of the provisions.
I shall move to the amendments moved by the noble Lord which deal with paragraph (9). Amendments Nos. 359D, E and F. Those amendments are intended to ensure that where samples have been taken from a person who is, in the event, not connected with a serious crime, they must be destroyed. That requirement is set out. The associated documents are also destroyed. We all share the noble Lord's concern on that point. I want to give him, and all noble Lords who have spoken on this mattter, an assurance that our practice will be to destroy both samples and DNA profiles in those circumstances. We should prefer to keep the legislative provisions in line with those applicable to 1660 the rest of the United Kingdom and to achieve the objective by administrative means. The assurance rests that the records and the sample will be destroyed.
I come to Amendment No. 359G, which relates to paragraph (9)(5). Amendment of paragraph (9)(5)(b) would have the effect of removing the exclusion from the destruction of samples provisions from persons arrested or detained under the terrorism provisions. That exclusion was introduced in Great Britain by the Police and Criminal Evidence Act 1984 on the grounds that terrorism and immigration were matters of such national importance that the police should be permitted to retain samples. In view of much of what has been said by the noble Lord, Lord Harris, and others, it would be inappropriate to remove that exclusion in Northern Ireland, which is the part of the United Kingdom where the terrorist problem is greatest.
At least two other queries were raised by your Lordships. I shall try to deal with them, First, the noble Lord, Lord Stallard, referred to confusion among the scientists. That is what I have in my note that he said and I expect that he will accept it. There has been confusion in scientific articles; for example in the New Scientist. There were some lengthy and interesting articles in the Lancet. Some of these articles have mentioned samples based on saliva, which is not relevant in this case except in passing, as I pointed out in my earlier remarks. Another of the articles somewhat gravely misquoted scientists from the Home Office.
However, I give an assurance to the noble Lord, Lord Stallard, and to your Lordships, that it is clear that the Northern Ireland forensic science laboratory is obtaining sufficient DNA material in many cases from swabs taken from between the lip and the gum. The results of all these tests will be published in due course. So I hope that the noble Lord, Lord Stallard, will appreciate and be able to enjoy reading the results in issues of learned journals which are no doubt to come.
The noble Lord, Lord Morton of Shuna, felt that he was satisfied or reasonably content with what was suggested in Amendments Nos. 359D, 359E and 359F. The noble Lord, Lord Kilbracken, asked me an etymological question about what constituted the gum and whether it included the teeth. I hope that the noble Lord will accept that DNA profiling will result from taking samples from between the lip and the gum. I understand that with samples taken in this way, if the swab touches the teeth, it will not in any way affect the results of the DNA profiling.
We are very grateful to the noble Lord, Lord Harris of Greenwich, for his forthright support for members of the Royal Ulster Constabulary. I hope that I have managed to alleviate the concern over what he termed the climate of suspicion. I stressed at the outset and now re-emphasise that the schedule before us today is virtually identical to the provisions in the Police and Criminal Evidence Act, but with two modifications dealing with the intimate and non-intimate samples and with the mouth.
There are two more detailed points on which perhaps I may swiftly wind up. The noble Lord, Lord Kilbracken, mentioned the hair sample. It is not clear that the taking of hair samples, which he rightly 1661 points out is permitted under the new provisions, will extend to removing hairs by their roots. I think that might be held to fall outside the terms of the new powers. I am given to understand—and no doubt we can discuss this later, perhaps in correspondence over science and scientific journals—that technically more than 12 hairs with tissue on the roots would be required for the purposes of DNA profiling.
The noble Lord, Lord Fitt, I believe, raised one particular point about DNA and tests. He grew quite eloquent about what juries would accept. I have records of at least eight cases in England and Wales where juries have returned verdicts—some guilty, some not guilty—as a result of DNA profiling. So it seems the juries are able to understand the results of DNA profiling if the process is explained in fairly simple terms. In Northern Ireland the first case involving DNA profiling to go through the courts was tried on 23rd June this year. The case was a rape and murder in East Belfast. It took place on 22nd October 1987 and the suspect was associated with semen recovered from the victim with a degree of certainty of one in 10 million. The defendant pleaded guilty to the offence and was sentenced to life imprisonment. That is the first case, but I know of many other cases in England and Wales with which 1 shall not weary your Lordships
I hope that I have set at rest the fears which were expressed by the noble Lord, Lord Stallard. In his opening remarks, he asked for reassurance. I hope that I have been able to reassure him that the powers which we seek in this schedule are not in any way out of order with the other powers which already exist, extremely successfully it seems, in England and Wales, as a result of the Police and Criminal Evidence Act 1984.
§ Lord Kilbracken
My Lords, before the noble Lord sits down may I ask him one question? He said that DNA analysis is possible on the basis of perhaps a dozen hairs, particularly if they are removed by the roots. Under paragraph (1)(a) of the proposed Commons amendment, a sample of hair other than pubic hair constitutes a non-intimate sample. If that sample can identify a person genetically, surely it should not be a non-intimate sample. There is no need to take swabs from the mouth if one just has to take out a dozen hairs of the head.
§ Lord Lyell
My Lords, I told the noble Lord that I had received technical advice. I also stressed in my concluding remarks that there was a certainty of one in 10 million, but that was taken from semen in a particularly ugly rape and murder case. I think it is a question of degrees of certainty.
Naturally in DNA profiling what the police and, I believe, every one of your Lordships would wish is to prove conclusively, so far as is possible, degrees of certainty. The information that I gave the noble Lord about the 12 hairs taken by the root and the material on the roots of the hairs is as I had it this morning. But it does not alter the thrust of my main argument.
§ On Question, Motion agreed to.