Crime and Security Act 2010

The Crime and Security Bill was published in November 2009. It contained new Government proposals for both the collection and retention of DNA and fingerprints in England, Wales and Northern Ireland.

The Bill followed a consultation by the Home Office on whose records to keep on the DNA database, which received many critical responses, see here.

The Bill was adopted, with some minor amendments in April 2010, as the Crime and Security Act. However, the provisions on the retention of DNA databse and finerprint records in the Act were not brought into force following the election. Instead the Coalition introduced a new Protection of Freedoms Bill with much stricter rules on the retention of innocent people's DNA records and fingerprints. Section 5, parts of Section 6 and Section 7 of the Crime and Security Act 2010 will be brought into force on 7th March 2011.

Section 2 confers enhanced powers to take fingerprints and DNA samples. Section 3 creates similar powers in relation to qualifying offences committed outside England and Wales. Section 4 specifies the information that must be given on the taking of the material. Section 5 enables the police to use these fingerprints or samples to conduct speculative searches. Section 6 (which is commenced in part only) confers a power to require attendance at a police station for the purpose of taking fingerprints or samples. Section 7 sets out which offences fall within the definition of 'qualifying offence'.

The main provisions relating to DNA and fingerprints in the first version of the Bill are outlined below.

Collecting DNA and fingerprints from individuals

The Bill contains powers for fingerprints and DNA samples to be taken from anyone charged with or "reported for" any recordable offence, even if they are not in police detention or custody. DNA is already taken on arrest for any recordable offence, but only from individuals detained at a police station. The Bill would appear to allow collection on the streets or in the previously proposed short-term holding facilities ('supermarket jails').

The Bill also contains new powers for the police to collect DNA and fingerprints retrospectively from people with past convictions, cautions, reprimands or final warnings, including people convicted outside England, Wales and Northern Ireland.

The proposals are:

  • Individuals convicted, cautioned, given a reprimand or final warning for any recordable offence since 10th April 1995 may have their DNA and fingerprints taken at any time if their records are not already on the relevant databases.
  • Individuals convicted of certain serious offences before 10th April 1995 may have their DNA and fingerprints taken at any time if their records are not already on the relevant databases and they are in prison or detained under the Mental Health Act.
  • UK nationals or residents convicted of a serious offence (or found not guilty for reasons of insanity) outside England, Wales or Northern Ireland (whether or not they were punished for it) may have their DNA and fingerprints taken at any time if their records are not already on the relevant databases.

If the offence is not classified as a 'qualifying offence' (a list of serious offences given in the Bill) the police have powers to require attendance at a police station to give DNA and fingerprints for up to two years after the conviction, caution, reprimand or final warning, or, if later, the coming into force of the Bill. This means in practice, the police will have two years after the adoption of the Bill to collect DNA and fingerprints from anyone aged ten or above convicted, cautioned or given a reprimand or final warning for any recordable offence since 10th April 1995. Refusal to attend the police station will lead to arrest. If the offence is classified as serious, attendence at a police station may be required at any time. In addition, the proposals also appear to allow the police to take fingerprints and DNA whilst a person is not in police detention, with no time limit.

In all cases, an officer of the rank of inspector or above must authorise the collection of DNA and fingerprints only if s/he is "satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime". However, this does not appear to mean that the DNA sample or fingerprints should be needed to investigate a specific crime.

Uses and governance

There is no restriction on the current broad uses of retained DNA profiles and fingerprints, which include "purposes related to the prevention or detection of crime". For data collected from people suspected of terrorism offences or detained at ports and borders under the Terrorism Act 2000, and for people's whose DNA and/or fingerprints have been collected by the security services or obtained covertly overseas, this information can be used for identification purposes (i.e. surveillance) as well as matching to crime scenes.

The National DNA Database Strategy Board is put on a statutory footing, but not made more independent, and there is no independent appeals procedure against retention of data.

Destroying DNA profiles and fingerprints taken from individuals

The Bill contains new requirements for computer records of DNA profiles, fingerprints and footwear impressions to be destroyed in some circumstances. DNA profiles are a string of numbers based on parts of the sequence on each individual's DNA. DNA profiles are stored on the computer database known as the National DNA Database. Fingerprints are stored electronically on another computer database known as IDENT1.

The proposals also apply to DNA profiles held on the counter-terrorism database.

The proposals are:

  • Adults who are convicted of or cautioned for any recordable offence will have these computer records retained indefinitely.
  • Adults arrested but not convicted or cautioned will have these computer records retained for 6 years.
  • Under-18s convicted of, or given a caution, final warning or reprimand for, a serious offence, or more than one minor offence, will have these computer records retained indefinitely.
  • Under-18s convicted of, or given a caution, final warning or reprimand for, a single minor offence will have these computer records retained for 5 years.
  • 16 and 17 year olds arrested for a serious offence, but not convicted, cautioned or given a final warning, will have these computer records retained for 6 years.
  • Under-16s arrested but not convicted or given a caution, reprimand or final warning, will have these computer records retained for 3 years.
  • Persons given a control order will have these computer records retained for two years after the control order ceases to have effect.

In all cases, the clock will start again if someone is re-arrested, so an individual could still have their records kept indefinitely if they are arrested every 6 years, even if they are never convicted or cautioned.

In all cases, a Chief Constable can overrule the destruction of records if s/he determines that they need to be kept for "reasons of national security". The records will then be kept for two years, but this can be repeatedly extended.

The Bill makes no provision for the deletion of records of arrest, which are now kept indefinitely on the Police National Computer (PNC). It only covers the records on the National DNA Database (NDNAD) and fingerprint database (IDENT1).

Destroying DNA samples taken from individuals

DNA samples are usually mouth swabs, but can also be hairs or blood. They are currently stored in the private laboratories which analyse them for the police. The Bill requires these samples to be destroyed once the computerised DNA profiles obtained from them have been loaded on to the National DNA Database. This should be not later than 6 months after they have been taken.

Dealing with the backlog of innocent people's DNA records

The Bill will apply to anyone arrested in the future, but it also requires the Government to deal with the nearly 1 million records and samples stored from people who have no record of conviction, caution, charge or final warning. It requires the Home Secretary to make an order to destroy fingerprints, samples, DNA profiles and footwear impressions that should no longer be held under the new rules described above. However, the Explanatory Notes to the Bill state that "this exercise may take some time to complete". This requirement does not appear to apply to Police National Computer (PNC) records.

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