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The retention of DNA samples and fingerprints – UK ‘œBig Brother’ state part 2

For those who read my previous blog, you will know that we were awaiting a landmark decision in DNA and fingerprint retention from the Supreme Court.

On the 18th May 2011, the Supreme Court gave their decision on R (on the application of C) (FC) v Commissioner of Police of the Metropolis.

At present, the Association of Chief Police Officers’ (ACPO) Guidance 2006 gives Chief Officers the discretion to delete information on the Police National Computer (‘PNC’) and to destroy DNA and fingerprints ‘in exceptional cases’.

However, in the case of S and Marper UK (2009) the European Court of Human Rights deemed this guidance to be incompatible with the Article 8, Right to Respect for Private and Family Life under the European Convention on Human Rights.

As a result of this Judgment the Supreme Court was asked to make a decision on what the appropriate remedy should be in these circumstances.

The Court was asked to consider making a declaration of incompatibility, a remedy available to them under section 6 of the Human Rights Act. They were also asked to consider quashing the current ACPO Guidance.

In respect of the retention of biometric data (i.e your DNA and fingerprints) and suspects’ photographs, a declaration was granted that the present ACPO Guidance is unlawful and Parliament was requested to produce revised guidelines within a reasonable time.

The Supreme Court confirmed that it would not grant any further relief at present until it becomes clear that neither ACPO nor Parliament would amend these guidelines and policies. This means that at present, there will be no orders by the Courts to destroy an individual’s DNA sample, fingerprints or photographic identification.

We therefore have no other option but to look to the progress of the Protection of Freedoms Bill. We are currently awaiting a date to be fixed for the report stage before the House of Commons. There are still a further seven stages before it is ready for the Royal Assent and the Bill becomes Law however.

If successful, it will create new framework for police retention of fingerprints and DNA data. This would mean that the samples must be destroyed if a person was not convicted of an offence unless;

1. They were arrested but not convicted for a “qualifying offence’, as defined under section 65A Police and Criminal Evidence Act 1984 (i.e murder, manslaughter, offences under the Sexual Offences Act amongst others) in which case it can be retained for up to 3 years;
2. They were arrested and charged with a minor offence and had previously been convicted for a recordable offence in which case it can be retained indefinitely.

If this Bill is enacted then a review will be conducted and all samples previously taken from individuals who had been arrested and/or charged but not convicted of an offence, will be destroyed on the coming into force of the Act. If the offence was a qualifying offence, then 3 years must have passed since the date the samples were taken before it can be destroyed.

Although we will need to wait some time for the Bill to be enacted it will hopefully give people peace of mind that change is coming.

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