Stockpiling of innocents' DNA
The National DNA Database, set up in 1995, is a police database that currently holds the DNA of all people who have had their DNA taken after being arrested for a recordable offence.
Before 2001 DNA was only collected when a person was charged with an offence and was destroyed if the person was acquitted. This changed in 2001 to allow DNA to be kept indefinitely. In 2003 the law was changed again to allow DNA to be taken on arrest for a recordable offence (rather than at the point of charge).
Recordable offences include all offences that could lead to at least one year’s imprisonment as well as such other minor offences as begging and being drunk in a public place.
With around 5 million DNA profiles stored on the database it is the largest per capita DNA database in the world, second in size only to the USA.
The policy of indefinitely retaining the DNA of anyone arrested – but not necessarily convicted – has meant that hundreds of thousands of innocent people, including thousands of innocent children, have had their DNA permanently retained.
As a result the DNA database is highly discriminatory, with between half to three-quarters of young Black men having their DNA stored on the DNA Database. This is because of the higher number of arrests of Black people per head of population (but not a correspondingly higher number of convictions).
Marper v UK
In 2008, in a case that Liberty intervened in, the European Court of Human Rights in S and Marper v UK held that this blanket and indiscriminate retention policy breached the right to privacy under the European Convention on Human Rights.
In response to the judgment the Labour Government passed legislation to reduce the period that innocents’ DNA could be retained to six years for adults and three years, in most cases, for children. These reforms were never brought into force.
Reform under the Protection of Freedoms Act
In 2010, the newly elected Coalition Government pledged to make changes to the DNA retention regime. Changes were then included in the Protection of Freedoms Act 2012.
Under the new regime – which is not yet in force – DNA and fingerprints of individuals arrested or charged but not convicted of an offence will have to be destroyed, unless one of the exceptions in the Act is triggered. For example, where someone has been arrested but not charged with a serious offence their DNA can be retained for up to five years.
A newly created Commissioner for the Retention and Use of Biometric Material will provide oversight of extended retention.
The 2012 Act also provides for the destruction of DNA samples and profiles already retained under the current regime. Secretary of State guidelines will be issued once the relevant provisions come into force.
Once in force, the changes to the old blanket retention policy will be welcome. However, the numerous exceptions are of ongoing concern, allowing as they do for the DNA and fingerprints of innocent people to be retained for extended periods.
DNA Database Timeline
11 May 2001
The Police and Criminal Evidence Act (PACE) is amended so that DNA taken after arrest no longer had to be destroyed on acquittal or where proceedings were discontinued.
PACE is amended again to enable police to take DNA or fingerprints of anyone aged 10 or over who is arrested for a recordable offence.
Under the Serious Organised Crime and Police Act (SOCPA) all offences become arrestable offences casting the net for DNA sampling ever wider.
4 December 2008
European Court of Human Rights hands down judgment in the S and Marper v UK ruling that the UK’s policy of indefinite retention of DNA is in breach of the European Convention on Human Rights.
18 December 2008
Government publishes Policing and Crime Bill which contains clauses to allow for regulations to govern DNA and fingerprint retention. As the Bill makes its passage through parliament there is widespread cross-party opposition to the use of secondary legislation for an issue of such importance. Under the regulation power, parliamentarians would after only a 90 minute debate, have to accept or reject the regulations in their entirety with no opportunity for amendment.
Home Office launches consultation on future of DNA retention post S and Marper. Among other things the Government proposes that DNA of those arrested but not convicted is retained for periods of 6 and 12 years. The Government relies heavily on research from the Jill Dando Institute to justify these proposals. This research is subsequently widely contested in the scientific community.
Home Office consultation on DNA closes.
19 August 2009
Damian Green MP announces that the police have agreed to delete his DNA record following his widely controversial arrest relating to Home Office leaks.
25 September 2009
Spokesperson from the Jill Dando Institute announces on the Today programme that the Government’s proposals for DNA retention periods had a flimsy research basis at best. On the same day, Diane Abbott launches the first Liberty DNA clinic in an attempt to advise innocent young people in Hackney on how to have their DNA removed from the database.
19 October 2009
Home Office announces that the clauses in the Policing and Crime Bill which would allow for regulations on DNA retention are to be dropped from the Bill.
11 November 2009
Home Office announces plans to retain innocents DNA for six years. Innocent 16 and 17 years olds arrested for a serious crime will be treated the same as adults. All other children arrested but not convicted of any offence will have their profiles held for 3 years.
The Conservative - Liberal Democrat Coalition Government pledge to switch DNA retention to the Scottish model, which is based on allowing retention of DNA for those convicted or cautioned for serious offences such as sexual assault or violence.
The Protection of Freedoms Act is passed. While Liberty welcomes in principle changes to the old blanket retention policy, we remain concern about the numerous exceptions within the Act and the extended retention of DNA of those arrested but not charged or convicted.