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DNA and Fingerprint Retention

Volume 499: debated on Wednesday 11 November 2009

I am announcing today proposals on a new retention framework for DNA and fingerprints to be introduced though primary legislation as soon as parliamentary time allows. I am also today publishing on the Home Office website and placing in the Library of the House the responses to the consultation exercise on earlier proposals published in May 2009. I will also be placing on the Home Office website at: www.homeoffice.gov.uk/documents/cons-2009-dna-database/ a review of the research carried out in this area.

The UK has been at the forefront of using DNA in the detection of crime for many years, and it has played a key role in the conviction of numerous individuals for the most serious of crimes over the years; some 832 matches to the national DNA database were made in cases of murder, manslaughter or rape in 2008-09 alone. The Government are determined that DNA and fingerprints should continue to play a key role in public protection and the prevention and detection of crime.

In December 2008 the European Court of Human Rights (ECHR) judgment in the case of S and Marper found that the blanket retention of DNA profiles and fingerprints indefinitely where there had been no conviction represented a breach of article 8 of the European convention on human rights.

The Government undertook to give effect to the judgment and to amend domestic law accordingly. We published proposals in May 2009 in a consultation paper “Keeping the Right People on the DNA Database”. The consultation period ended in August and some 500 responses, the majority from individuals, were received. We have considered those responses carefully before bringing forward the proposals below.

The retention of biometric data remain a sensitive issue. Such data help in the detection and conviction of criminals and may also be used for identification purposes outside the criminal justice context. There is less argument about the retention of biometric information in respect of those who have been convicted of a criminal offence than there is in respect of those who have been arrested and had their DNA and fingerprints taken but were not subsequently cautioned or convicted. Achieving the appropriate balance between privacy and public protection, in a way which satisfies the ECHR judgment, has been our objective.

Since the publication of the consultation paper we have sought to further the evidence base through additional research. The research lends support to the public protection case for retaining the DNA of those who have been arrested for but not convicted of criminal offences. It suggests that we can go some way to reduce the retention periods originally proposed without compromising public protection, indicating that the chance of re-arrest, following an arrest with no further action, of individuals with no previous convictions remains higher than the chance of arrest in the general population for six years following the initial arrest.

DNA Samples—The ECHR judgment highlighted the particular sensitivity of retaining DNA samples as distinct from the profiles taken from them that are held on the national DNA database (NDNAD). Although not required by the judgment, we continue to believe that there is scope for destroying samples not only of those arrested but not convicted and but also of those who have been convicted. We propose that samples should not be retained beyond a six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD. We do, however, propose to bring forward a power for the police to take a further sample should the defence of an accused person challenge the authenticity of the results of the analysis of the destroyed sample.

Convicted Adults—We propose the indefinite retention of DNA profiles of convicted adults in line with the consultation paper. This would also apply to people who are given a caution, warning or reprimand.

Unconvicted AdultsIn setting a proportionate retention period for the DNA profiles of unconvicted adults which does not compromise public protection, we have taken account of the improved evidence base and responses to the proposals in the original consultation paper. We propose a six-year retention period for the profiles of unconvicted adults, irrespective of the seriousness of the crime for which they were arrested. Although the ECHR suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate, the best available evidence indicates that the type of offence a person is first arrested for is not a good indicator of the seriousness of offence he might subsequently be arrested for or convicted of in future. As the retention of the DNA of innocent people is not punitive, but rather a measure to facilitate the detection of future offences, the Government therefore conclude it is appropriate to have a single retention period.

Juveniles—While the evidence base does not support shorter retention periods for juveniles, we have, in setting a proportionate retention regime for juveniles, whether convicted or unconvicted, given weight to the comments in the ECHR judgment on juveniles, the United Nations convention on the rights of the child and the responses to the consultation paper.

Convicted Juveniles — We propose that the DNA profiles of convicted juveniles should be retained indefinitely for serious offences, and for five years for the first minor offence, with indefinite retention for a second conviction. This recognises that for many young people involvement in crime in their teenage years is often an isolated and minor incident. However, we also recognise that, for some young people, involvement in crime in their teenage years is a strong indicator of risk of further criminal activity into adulthood. We believe, therefore, that a limited retention period for a single conviction, with indefinite retention in the case of any further conviction, strikes the appropriate balance.

Unconvicted Juveniles — We propose that, where 16 and 17-year-olds are arrested for but not subsequently convicted of a serious offence, their DNA profile would be retained for six years (as for adults), taking account of the ages at which peak offending occurs. For all other juveniles, we propose a three-year retention period for DNA of those who have been arrested but not convicted whatever the offence for which they were arrested, and at whatever pre-18 age they were arrested at. This corrects a possible anomaly with the original proposal, identified by consultation respondents, that an individual arrested at age 10 might have had their DNA retained for eight years, whereas someone arrested at age 17 might have had their DNA retained for only year. It also provides an appropriately more lenient approach to juveniles who are arrested but not convicted, compared with those who do receive a conviction.

Fingerprints (Adult and Juveniles)— We propose that, in all cases, the same regime should apply to the retention of fingerprints as for DNA profiles. The ECHR judgment implied that fingerprints were a lesser intrusion of privacy, but we are not aware of evidence that suggests we should propose a different retention policy.

Additional Powers—In line with our aim to ensure that the right people are on the database our proposals in this area will, as we set out in the May consultation document, include giving the police the power to take fingerprints and non-intimate samples without consent from UK nationals or residents convicted of specified serious offences abroad at any time; to remove the existing statutory bar (in the Criminal Evidence (Amendment) Act 1997) on taking non-intimate samples from persons convicted of serious offences before 10 April 1995 who have been released from prison; and to give the police the power to take non-intimate samples and fingerprints post-arrest where the initial sample has proved inadequate for analysis even though a person is no longer in police detention.

Destruction of DNA and fingerprints profiles before the end of retention period—Currently, chief officers may consider the exceptional destruction of DNA and fingerprints under the exceptional case procedure. We propose to introduce greater transparency by setting out in statute more clearly defined criteria where deletion would be appropriate. This should bring greater clarity to the public and also the police.

Governance—It is important that, in addition to putting in place the proportionate regime for the retention of DNA and fingerprints set out above, we are also able to promote public confidence in the operation of that regime. We therefore propose to strengthen governance arrangements by placing the national DNA database strategy board on a statutory footing and by introducing to it a wider independent membership.

Terrorism and National Security—Material taken under any regime (including the Terrorism Act 2000) would be able to be retained beyond the six-year point where there is a case for doing so on the basis of a case-by-case review on national security grounds. This would require a review by a senior police officer every two years—although data would be deleted if it became clear between reviews that its retention would no longer be necessary. The policy for juveniles would be similar but would take account of the differential treatment proposed for juveniles more generally.