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This publication is available at https://www.gov.uk/government/publications/protection-of-freedoms-act-2012-dna-and-fingerprint-provisions/protection-of-freedoms-act-2012-how-dna-and-fingerprint-evidence-is-protected-in-law
1. Protection of Freedoms Act 2012: DNA and fingerprint provisions
The Protection of Freedoms Act 2012 came into force on 31 October 2013. Sections 1 to 25 of the Act cover DNA and fingerprint retention.
1.1 Why was the Protection of Freedoms Act introduced?
The Protection of Freedoms Act implements the commitment in the government’s coalition agreement to reform DNA and fingerprint retention so that only people convicted of an offence will have their fingerprint records and DNA profiles retained indefinitely.
The Act was brought in in response to the 2008 judgment of the European Court of Human Rights in the case of S and Marper v UK. In this case, the court ruled that the blanket retention of DNA profiles taken from innocent people posed a disproportionate interference with the right to private life, in violation of Article 8 of the European Convention on Human Rights.
1.2 What does the Protection of Freedoms Act do?
The Act strikes a balance between protecting the freedoms of those who are innocent of any offence whilst ensuring that the police continue to have the capability to protect the public and bring criminals to justice. The provisions are as follows:
1.2.1 DNA samples
A DNA sample is an individual’s biological material, containing all of their genetic information. The Act requires all DNA samples to be destroyed within 6 months of being taken. This allows sufficient time for the sample to be analysed and a DNA profile to be produced for use on the database.
The only exception to this is if the sample is required for use as evidence in court, in which case it may be retained for the duration of the proceedings, under the Criminal Procedure and Investigations Act 1996.
1.2.2 DNA profiles and fingerprints
A DNA profile consists of a string of 10 pairs of numbers (though this will be increasing to 17 in the near future) and 2 letters (XX for women, XY for men) to indicate gender. This number string is stored on the National DNA Database (NDNAD). It allows the person to be identified if they leave their DNA at a crime scene.
Fingerprints are usually scanned electronically from the individual in custody and the images stored on IDENT1, the national fingerprint database.
The retention periods for fingerprints and DNA profiles under the Act are the same and are given in the table below.
|Situation||Fingerprint and DNA Retention|
|Any age convicted (including given a caution or youth caution) of a recordable[footnote 1] qualifying[footnote 2] offence||Indefinite|
|Adult convicted (including given a caution) of a recordable minor[footnote 3] offence||Indefinite|
|Under 18 convicted (including given a youth caution) of a recordable minor offence||1st conviction: 5 years (plus length of any prison sentence), or indefinite if the prison sentence is for 5 years or more. 2nd conviction: indefinite|
|Situation||Fingerprint and DNA Retention|
|Any age charged with but not convicted of a recordable qualifying offence||3 years plus a 2 year extension if granted by a District Judge (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded[footnote 4])|
|Any age arrested for but not charged with a qualifying offence||3 years if granted by the Biometrics Commissioner plus a 2 year extension if granted by a District Judge (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded)|
|Any age arrested for or charged with a minor offence||None (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded)|
|Adult given a Penalty Notice for Disorder||2 years|
All DNA profiles and fingerprint records which were held on the NDNAD and IDENT1, along with all samples, which did not meet the requirements of the new retention schedule have now been destroyed.
1.2.5 Speculative searches
Where the retention framework above requires the deletion of a person’s DNA profile and fingerprints, the Act first allows a speculative search of their DNA and fingerprints against DNA and fingerprints obtained from crime scenes which are stored on NDNAD and IDENT1. Once the speculative search has been completed, the profile and fingerprints are deleted unless there is a match in which case they will be retained for the duration of any investigation and thereafter in accordance with the retention framework (e.g. if that investigation led to a conviction for a qualifying offence, they would be retained indefinitely).
As set out in the table above, for qualifying offences the Act allows chief constables to apply for extensions to the given retention periods for DNA profiles and fingerprints if deemed necessary for prevention or detection of crime.
1.2.7 Biometrics Commissioner
Section 20 of the Protection of Freedoms Act established the independent office of Commissioner for the Retention and Use of Biometric Material (‘the ‘Biometrics Commissioner’). The current Biometrics Commissioner is Alastair MacGregor QC.
Where an individual is arrested for, but not charged with, a qualifying offence, their DNA profile and fingerprint record will normally be deleted. However, the police can apply to the Biometrics Commissioner for permission to retain their DNA profile and fingerprint record for a period of up to 3 years. The application must be made within 28 days of the police decision not to proceed with a prosecution.
If the police make such an application, the Biometrics Commissioner would first give both them and the arrested individual an opportunity to make written representations and then, taking into account factors including the age and vulnerability of the victim(s) of the alleged offences, and their relationship to the suspect, make a decision on whether or not retention is appropriate.
If the Biometrics Commissioner agrees to allow retention, the police will be able to retain that individual’s DNA profile and fingerprint record for a period of up to 3 years from the date the samples were taken. At the end of that period, the police will be able to apply to a District Judge (Magistrates’ Courts) for a single 2 year extension to the retention period. If the application is rejected, the force must then destroy the DNA profile and fingerprint record.
Where the Biometrics Commissioner considers that the making, or renewal, of an application to allow retention is unnecessary, he has the power to order the destruction of the DNA profile or fingerprint record in question.
A ‘recordable’ offence is one for which the police are required to keep a record. Generally speaking, these are imprisonable offences; however, it also includes a number of non-imprisonable offences such as begging and taxi touting. The police are not able to take or retain the DNA or fingerprints of an individual who is arrested for an offence which is not recordable. ↩
A ‘qualifying’ offence is one listed under section 65A of the Police and Criminal Evidence Act 1984 (the list comprises sexual, violent, terrorism and burglary offences). ↩
A ‘minor’ offence is a ‘recordable’ offence which is not also a ‘qualifying’ offence. ↩
An ‘Excluded’ offence is a recordable offence which is minor, was committed when the individual was under 18, for which they received a sentence of fewer than 5 years imprisonment and is the only recordable offence for which the person has been convicted. ↩