Comparison of Divisions: Commission for the Compact — New Clause 32 — Retention of samples following arrest — 19 May 2009 at 17:19 with Division No. 104 on 29 Apr 2009 at 15:49

'(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert-

"64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply-

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where-

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where-

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),

the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert-

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.".'.- (James Brokenshire.)

Brought up.

Question put, That the clause be added to the Bill.

The House divided: Ayes 154, Noes 352.

The majority of MPs voted in favour of the motion:^[1]

• This House
• regrets the Government's recent statement^[2] outlining the eligibility criteria for Gurkhas to reside in the United Kingdom;
• recognises the contribution the Gurkhas have made to the safety and freedom of the United Kingdom for the past 200 years;
• notes that more Gurkhas have laid down their lives for the United Kingdom than are estimated to want to live here;
• believes that Gurkhas who retired before 1997 should be treated fairly and in the same way as those who have retired since;
• is concerned that the Government's new guidelines will permit only a small minority of Gurkhas and their families to settle whilst preventing the vast majority;
• further believes that people who are prepared to fight and die for the United Kingdom should be entitled to live in the country; and
• calls upon the Government to withdraw its new guidelines immediately and bring forward revised proposals that extend an equal right of residence to all Gurkhas.

As a consequence, the alternative Government motion, which read:^[3]

• This House
• recognises that this Government is the only one since the Second World War to allow Gurkhas and their families settlement rights to the United Kingdom;
• notes that in 2004 the Government permitted settlement rights to Gurkhas discharged since 1997, following the transfer of the Brigade HQ from Hong Kong to the United Kingdom;
• further notes that under these rules around 6,000 Gurkhas and family members have been welcomed to the UK;
• acknowledges that the court judgement of September 2008 determined that the 1997 cut-off date was fair and rational, while seeking clarification of the criteria for settlement rights for those who retired before 1997;
• further notes that on 24 April the Government published new and more generous guidelines for the settlement applications of Gurkhas who retired before 1997;
• supports this revised guidance, which will make around 10,000 Gurkhas and family members eligible to settle in the UK;
• further notes that the Government undertakes actively to inform those who may be eligible in Nepal of these changes and to review the impact of the new guidance within 12 months;
• further notes that the contribution Gurkhas have made is already recognised by pensions paid to around 25,000 Gurkhas or their widows in Nepal that allow for a good standard of living there; and
• further notes that in the year 2000 Gurkha pensions were doubled and that, earlier in April 2009, in addition to an inflationary uplift of 14 per cent., those over 80 years old received a 20 per cent. increase in their pension.

... was never voted upon.

Although this extremely rare Government defeat in an opposition day motion is not binding (has no legal force)^[4] a Government minister made a statement later in the day to bring "forward the date for the determination of the outstanding applications to the end of May."^[5]

• [1] Christopher Huhne MP, House of Commons, 29 April 2009
• [2] Phil Woollas MP, Written Ministerial Statement, 29 April 2009
• [3] Phil Woolas MP, House of Commons, 29 April 2009
• [4] Home Secretary Jacqui Smith blamed for humiliating Gurkhas defeat in the Commons, Daily Mail, 30 April 2009
• [5] Phil Woolas MP, House of Commons, 29 April 2009