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 it 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 imprisonment as well certain other minor offences such 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. Estimates vary, but it has been estimated that between a half and three-quarters of young black men have had their DNA stored on the DNA Database. This is because of the higher number of arrests of black people per head of population (and is not reflected in a correspondingly higher number of convictions).
S & Marper v UK and beyond
In 2008, the European Court of Human Rights, in S & Marper v UK (a case in which Liberty intervened), held that this blanket and indiscriminate retention policy breached the right to privacy under Article 8 of the European Convention on Human Rights (ECHR). The implications of this judgment were considered more recently in a case called Gaughran v Chief Constable of Northern Ireland. The Supreme Court held that the blanket retention of the DNA and fingerprints of persons convicted of a recordable offence was not necessarily unlawful. This was the case even though Mr Gaughran’s conviction was spent and had been for the offence of driving while under the influence of alcohol.
Reform under the Protection of Freedoms Act
In 2010, the then newly-elected Coalition Government pledged to make changes to the DNA retention regime. Changes to the system of DNA retention were introduced via the Protection of Freedoms Act 2012.
Under the new regime, which came into force in October 2013, the DNA and fingerprints of individuals arrested or charged but not convicted of an offence may now be destroyed. After what length of time this will happen, will depend upon the circumstances of the case and the age of the arrested person. For example, an adult or child arrested or charged but not convicted of a minor offence will have their DNA destroyed at the conclusion of the investigation. An adult or child arrested but not charged with a serious sexual offence can have their DNA retained for up to five years (three years with the consent of the Biometrics Commissioner, and a further two years upon successful application to court). Convictions for a recordable offence, on the other hand, permit the police to continue to retain the convicted person’s DNA indefinitely.
The Act also created the role of the Commissioner for the Retention and Use of Biometric Material (the Biometrics Commissioner), who provides oversight of extended retention.
The 2012 Act also provides for the destruction of DNA samples and profiles already retained under the current regime. The Biometric Commissioner’s 2015 annual report indicated that there has been progress in destroying these. A total of 7,753,000 DNA samples were reportedly destroyed by the Government in anticipation of the Protection of Freedoms Act 2012 coming into force, and a further 1.7 million DNA profiles and 1.6 million fingerprints were deleted following the Act’s coming into force. These changes to the old blanket retention policy are welcome. However, the numerous exceptions remain of ongoing concern, allowing as they do for the DNA and fingerprints of innocent people to be retained for very 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
The European Court of Human Rights hands down judgment in the S and Marper v UK case, ruling that the policy of indefinite retention of DNA of all arrested persons is in breach of the European Convention on Human Rights.
18 December 2008
The Government publishes the 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 (for 3 years in the first instance) of DNA for those charged but not convicted of serious offences such as sexual assault or violence.
The Protection of Freedoms Act is passed.
The Protection of Freedoms Act comes into force.
The Supreme Court hands down judgment in Gaughran v Chief Constable of Northern Ireland, holding that, notwithstanding the judgment in S & Marper, it is lawful for the police to retain indefinitely the DNA profile of anyone convicted of a recordable offence.