1. Protection of Freedoms Act 2012: DNA and fingerprint provisions
The Protection of Freedoms Act gained Royal Assent on 1 May 2012. Sections 1 – 25 of the Act cover DNA and fingerprint retention. There is a timetable for bringing these sections of the Act into force.
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 material retained indefinitely. Currently material is retained indefinitely from anybody arrested – whether innocent or convicted.
The Act constitutes the UK’s response to the 2008 judgment of the European Court of Human Rights in Marper v UK. In that case, the court ruled that blanket retention of DNA 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 will the Protection of Freedoms Act do?
The Act aims to strike a balance between protecting the privacy and human rights of the public, and protecting them from crime by keeping the right people on the DNA and fingerprint databases. The provisions are as follows:
1.3 DNA samples
A DNA sample is an individual’s biological material, containing all of their genetic information, not simply the 20 numbers that make up the DNA profiles stored on the database. The Act requires all DNA samples to be destroyed within six 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.
In exceptional circumstances a court order can be made allowing longer retention of the DNA sample for use in complex court cases.
1.4 DNA profiles and fingerprints
A DNA profile consists of a string of 20 numbers and two letters 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.
|Occurrence||Fingerprint and DNA Retention|
|Adult – all offences||Indefinite|
|Under 18 – Qualifying offence*||Indefinite|
|Under 18 – Minor offence||First conviction: five years (plus length of any custodial sentence), or indefinite if the custodial sentence is five years or more.|
|Occurrence||Fingerprint and DNA Retention|
|Qualifying offence* - arrested and charged||Three years plus possible two year extension by court|
|Qualifying offence* - arrested not charged||Possible three years on application to Biometrics Commissioner (or Indefinite retention if hold a previous conviction for a recordable offence) plus two year extension possible|
|Minor offence - Penalty Notice for Disorder||Two years|
|Minor offence – arrested or charged||None – but speculatively searched|
*Qualifying offences are serious violent or sexual offences, terrorism offences and burglary offences.
1.7 Speculative searches
If a person is arrested but not convicted, the Act allows a speculative search of their DNA and fingerprints against crimes stored on the databases, to check if they match to any crime on the database. Once a speculative search has been completed, the profile and fingerprints are deleted.
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.
1.9 Biometrics Commissioner
The Act requires a Biometrics Commissioner to be appointed. In addition to assessing applications for extensions as above, the Biometrics Commissioner will have a general responsibility to keep under review the retention and use of DNA and fingerprints, including reviewing any applications for retention made on national security grounds. The first Biometrics Commissioner, Alastair MacGregor QC, has now been appointed and took the post on 4 March 2013.
2. Destruction of innocent people’s DNA and fingerprints
The act provides that if you have been arrested for a minor offence, but never convicted, any DNA and fingerprints taken from you by the police must be destroyed.
To aid the investigation of crime, every person arrested will have their DNA and fingerprints speculatively searched against the crimes stored on the national DNA and fingerprint databases before deletion.
The new law is not yet in force, because first DNA and fingerprints taken from innocent individuals in the past need to be destroyed. This will take some time to complete, but the process has now begun and will follow the timetable below:
2.2 December 2012: DNA samples
In December 2012 the destruction of DNA samples (the biological material which contains all of a person’s genetic information) began. DNA samples are being destroyed for all individuals, even those convicted of crimes, because of the sensitivity of the material and the fact that it is no longer needed once a DNA profile has been obtained. Destruction of DNA samples was completed on 31 May 2013.
To date (20 May 2013) 6,341,000 DNA samples have been destroyed.
2.3 January 2013: DNA profiles
In January DNA profiles (a string of 20 numbers derived from the DNA sample) began to be deleted from the National DNA Database. To date (20 May 2013) 1,136,000 DNA profiles have been destroyed.
2.4 May 2013: fingerprints
Destruction of fingerprints (hard copies and the electronic records on the national fingerprint database) will begin in May 2013.
Data on the number of fingerprints deleted will be available on this website.
2.5 September 2013: destruction complete
DNA sample destruction is already complete. By the end of September, all DNA and fingerprints which do not meet the criteria of the Act will have been deleted from the databases. The deletion process operates on a continuous cycle so that new material, or material which has newly reached an expiry date, will be destroyed as well.
Hard copies of fingerprints will take longer to destroy, as they are not part of any database, so police forces need to sort through their local records manually to ensure all relevant copies are destroyed.
Data on the composition of the National DNA Database once all DNA profiles held meet the criteria of the Act will be available on this website.
2.6 October 2013: laws officially come into force
Once all records held on the databases are in accordance with the new laws, the Act’s DNA and fingerprint provisions will officially come into force.