Protection of Freedoms Bill
The Protection of Freedoms Bill was adopted as the Protection of Freedoms Act on 1st May 2012. This webpage covers the development of the Bill and is therefore of historic interest only.
The Protection of Freedoms Bill was published on 11th February 2011.
During Committee stage in the Lords, the minister Lord Henley confirmed that innocent people's Police National Computer (PNC) records would be removed at the same time as DNA and fingerprint records, as a matter of police policy. His statement about PNC records is here.
In late September 2011, new evidence was released about the number of individuals who might have their records taken off the database but then go on to commit future crimes. These figures have been cited in a misleading way by opponents of the Bill, because they fail to take account of how rarely crimes are solved by a 'cold hit' between a crime scene DNA profile and an individuals' DNA profile stored on the database. You can read GeneWatch's analysis of these figures here.
Has there been a U-turn on the Bill?
There have been reports in the press that the government is backtracking on the Bill and will not delete innocent people's DNA after all. In fact, the Bill still includes provisions to destroy all DNA samples within six months and to remove innocent people's DNA profiles from the database. However, there is a dispute about some of the data generated when the DNA samples are processed in the labs. Batch files created during this process contain information about the DNA profiles of groups of people, including some innocent and some guilty people, and the Forensic Science Service (FSS) has claimed it needs to keep them. Although the DNA profiles in these files are not searchable in the same way they are if they are on the database, an individual's profile could be tracked back to them using the barcode number stored in their PNC record. This problem could be solved by deleting the batch files and/or by deleting the PNC records at the same time as records on the DNA database are deleted.
Who will be affected by the Bill?
The Bill covers anyone who is arrested in England and Wales in the future. It also requires the Home Secretary to apply the same rules to delete DNA and fingerprint records from the estimated one million innocent people who already have their DNA and fingerprint records retained. However, it does not set a deadline for this.
Most of the Protection of Freedoms Bill does not affect people in Scotland or Northern Ireland. The exceptions are provisions which allow the retention and use of DNA records and fingerprints for counter-terrorism purposes. In addition, the Bill allows people convicted of serious offences (a list of 'qualifying offences' - see below) outside England and Wales to have their DNA and fingerprint records collected and retained indefinitely on the relevant databases.
What will happen to innocent people's DNA records and fingerprints?
- People who are arrested but then are either not charged or are acquitted of minor offences will have their records on the DNA database and fingerprints database deleted when charges are dropped or an investigation is complete.
- People who are charged with but not convicted of more serious offences (a list of 'qualifying offences') will have their records on the DNA database and fingerprints database deleted after 3 years unless the police apply for a further retention period of two years. The two-year extension will have to be approved by a court and both the police and the individual can appeal.
- People who are arrested but not charged with any of the same list of serious offences may have their records on the DNA database and fingerprints database retained for 3 years, if their records are included in an order issued by the Home Secretary and approved by a new Commissioner for the Retention and Use of Biometric Material. Again, the police may apply for a further retention period of two years. The two-year extension will have to be approved by a court and both the police and the individual can appeal.
- People suspected of terrorism offences or people detained at ports and borders under the Terrorism Act 2000, but not convicted of any offence, or who have had their DNA or fingerprints taken under the Counter-Terrorism Act 2008 (this mainly covers material collected covertly by the security agencies or supplied by foreign governments) will have their DNA records and fingerprints retained for 3 years. This can be extended for two years for reasons of 'national security' and these two-year extensions can be made repeatedly (see Exceptions for reasons of national security).
In all cases DNA profiles and fingerprints can be searched against all stored crime scene DNA profiles and fingerprints on the relevant databases before they are deleted.
What will happen to people convicted or cautioned for minor crimes?
People who are convicted of a single minor crime committed when they were under-18 will have their DNA records and fingerprints deleted after a certain length of time. Their records will be kept for five years, or for five years after the end of the sentence if they have been sent to prison. Adults convicted of, or cautioned for, a single minor crime will have their DNA records and fingerprints kept indefinitely. Under 18-year-olds who are convicted or given cautions, reprimands or warnings for multiple offences or for any qualifying offence (more serious offences) will have their DNA records and fingerprints kept indefinitely. Adults given fixed penalty notices will have their DNA records and fingerprints kept for two years.
What about people who give their DNA or fingerprints voluntarily?
People who are not arrested but give their DNA on a voluntary basis (including victims of crime) will not have their DNA profile entered on the database unless they give written consent. This can be withdrawn at any time.
Exceptions for reasons of national security
The police can decide to keep any person's DNA record and fingerprints for two years for reasons of national security, provided this is consistent with guidance issued by the Home Secretary and notified and agreed to by the Commissioner for the Retention and Use of Biometric Material. This two year period can be extended repeatedly with the approval of the Commissioner.
What about DNA samples?
All DNA samples will be destroyed once the DNA profiles stored on the database have been obtained from them (not later than 6 months after they were collected).
Are there restrictions on the use of retained DNA records?
Yes, but these remain quite broad. In addition to investigating a specific offence they include national security, "purposes related to the prevention and detection of crime", and identification of an individual (even if they are not suspected of a crime).
Is there any independent oversight to make sure the police follow the new rules?
The Commissioner for the Retention and Use of Biometric Material will oversee the retention of records from some people who are arrested but not charged with serious offences and for people whose records are kept for reasons of national security. The Bill makes it a legal requirement for the National DNA Database Strategy Board to oversee operation of the database and to publish the rules on its governance and an annual report. The Bill also makes it a legal requirement for the police to destroy those records they are not allowed to keep: this means they would be open to legal challenge if they did not follow the rules. Any individual can check if their records are on a database by making a subject access request under the Data Protection Act. The Bill also requires the police to destroy any copies of records at the same time as the originals: but this does not apply to copies held by others e.g. the security services.
What about other police records and photographs?
The most serious omission in the Bill is that there appears to be no provision for the deletion of police records of arrest (records on the Police National Computer, PNC) or photographs when people's DNA records and fingerprints are deleted. There is some tightening of the rules about when information (including non-conviction information) can be revealed to employers, but this does not restrict other uses e.g. by the police or by the US Embassy for visa applications. For example, anyone who has been arrested is no longer eligible for the US Visa Waiver scheme and is supposed to pay for a copy of their police record and apply for a full visa. PNC records used to be deleted within 42 days if an individual was acquitted or not charged, but all records are now kept to age 100.
Which offences count as serious?
'Qualifying offences' (offences that are counted as serious in the Bill) are those listed in Schedule 7 of the Crime and Security Act, plus robbery and assault with intent to rob.
This section of the Bill is expected to save 24.1 million pounds over ten years, mainly due to the destruction of DNA samples (which require expensive refrigeration to store).
- GeneWatch briefings
- GeneWatch Parliamentary Briefing: Protection of Freedoms Bill: Lords' Committee Stage 28th November 2011
- GeneWatch briefing: DNA database: analysis of offending figures 7th November 2011
- GeneWatch Parliamentary Briefing: Protection of Freedoms Bill: 3rd Reading 7th October 2011
- GeneWatch UK: Memorandum to the Protection of Freedoms Bill Committee
- GeneWatch Parliamentary Briefing: Protection of Freedoms Bill 25th February 2011
- Official documents and links
- House of Lords 2nd Reading: Protection of Freedoms Bill (8th November 2011)
- Home Office: DNA and fingerprints
- House of Commons: Protection of Freedoms Bill 3rd Reading
Home Office: DNA retention and statistics
Documents released on 23rd September 2011 as a result of a Freedom of Information request.
Coalition Agreement (11th May 2010)
Includes a commitment to adopting the protections of the Scottish model for the DNA database.
Protection of Freedoms Bill: Second Reading (1st March 2011)
The first debate of the bill by MPs.
Public Reading: Protection of Freedoms Bill
This Government website allows you to post your comments on the Protection of Freedoms Bill. The deadline for comments is Monday 7th March.
- Protection of Freedoms Bill 2010-11
- Home Office: Common sense approach to public protection proposed (11th February 2011)
- Home Office Press Release: Sweeping reforms to restore British liberties (11th February 2011)
- Civil Liberties Speech by Deputy Prime Minister (7th January 2010)
- Your Freedom (Government consultation)
- Press articles
- The Guardian: New DNA rules will restore public trust [Letter] (5th March 2011)
- Public Service: Government store DNA of over 6 million (4th March 2011)
- The Register: Privacy groups demand one commissioner to rule them all (3rd March 2011)
- The Register: ICO evidence raises Freedoms Bill data worries (3rd March 2011)
- BBC: How Protection of Freedoms Bill will work (1st March 2011)
- ITN: Government to curb DNA database (1st March 2011)
The Guardian: Relaxing DNA rules could reduce rape convictions, Labour warns (28th February 2011)
The GeneWatch response to this article is here.
- The Voice: Innocent black Brits may get their DNA removed from database (22nd February 2011)
- The Telegraph: The coalition's Freedom Bill is a blow against the snoopers and clampers (15th February 2011)
- 24dash.com: Freedoms Bill (13th February 2011)
- The Guardian: DNA profiles to be deleted from police database (11th February 2011)
- Daily Express: At last, victory over Labour's army of snoops (11th February 2011)
- The Guardian: Criminal checks on people working with children to be eased (11th February 2011)
- BBC: DNA profiles to be deleted from police database (11th February 2011)
- Daily Mail: DNA database purge: Victory for the Mail as records of 1m innocent people removed (11th February 2011)
- The Telegraph: DNA of up to a million to be wiped under Freedom Bill (11th February 2011)
- The Telegraph: Nick Clegg; we're restoring hard won British liberties (10th February 2011)
- The Independent: ID cards go up in flames in first step to tackle 'database state' (10th February 2010)
- Independent: A victory for civil liberties - and a challenge for Labour (10th February 2011)
- BBC: Deputy Prime Minister's Reform Speech (19th May 2010)
- External links
- House of Commons Library: Protection of Freedoms Bill (3rd November 2011)
- Straight Statistics: DNA retention analysis published at last (27th September 2011)
- The Information Commissioner's evidence to The Public Bill Committee On the Protection of Freedoms Bill (March 2011)
- House of Commons Library: Protection of Freedoms Bill
- Liberty: Second Reading Briefing on the Protection of Freedoms Bill
- Action on Rights for Children (ARCH): The Protection of Freedoms Bill Second Reading
- David Mery: Innocents to become less suspect
- Justice: 2nd Reading Briefing on Protection of Freedoms Bill
- Civil Society Advice Group: Protection of Freedoms Bill 28th February 2011
- Teacher Support Network: Criminal record checks and the Protection of Freedoms Bill 2011 (16th February 2011)
- Law Society: Protection of Freedoms Bill fails to measure up to rhetoric (14th February 2011)