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UK: Protection of Freedoms Bill provides long-awaited reform of Labour's data retention regime (1)

01 March 2011

Thousands of innocent people are to be removed from the UK national DNA database, but alarmingly their records will still be held on the Police National Computer.

The coalition pledged in its Programme for Government to "adopt the protections of the Scottish model for the DNA database." [1] The Protection of Freedoms Bill, published on 11 February 2011, fulfils this pledge by introducing a system that is similar - but not identical - to that which operates in Scotland. [2] This is a welcome move, albeit overdue. It is over two years since the European Court of Human Rights ruled the UK's DNA retention regime to be illegal - a decision the UK is legally obliged to implement. The UK's DNA database is by far the largest in the world because it has a very low threshold for entry. Currently, anyone arrested in England and Wales for any "recordable offence" automatically has a DNA sample taken, regardless of whether charges are ever brought against them. These samples are permanently stored in the database. Under the new system this will no longer be the case. Its main features are:

* Adults convicted of any crime (be it minor or serious) will have their DNA profile retained on the national database indefinitely.

* Under-18s convicted of a serious crime (typically crimes of a violent or sexual nature) will have their DNA profile retained on the national database indefinitely.

* Under-18s convicted for the first time of a minor crime will have their DNA profile stored on the national database for five years plus the length of any custodial sentence. If they are convicted of a minor offence for a second time their profile will be retained indefinitely.

* Adults and under-18s arrested but not convicted of a minor crime will no longer have their DNA sample retained on the national database.

* Adults and under-18s arrested but not convicted of a serious crime will have their DNA profile retained for three years. After this time chief police officers will be able to apply to a District judge for a single two year extension.

* Individuals arrested but not convicted of a terrorist offence will have a DNA sample retained for two years if a chief police officer determines it to be necessary "on national security grounds." This "national security determination" must be made in writing and can be renewed every two years.

* Individuals arrested but subsequently given a fixed penalty notice - instead of being charged with a criminal offence - can have their DNA profile retained for two years.

* A new post of Commissioner for the Retention and Use of Biometric Material will be created. Among other things they will have the responsibility of reviewing "every national security determination" that is made or renewed.

The capacity to retain DNA samples of individuals given fixed penalty notices is an alarming development, but the new system is undoubtedly fairer than the one currently in operation. A large percentage of the estimated 1.1 million people on the DNA database without a criminal conviction will be eligible to have their record deleted immediately. Home office minister, James Brokenshire, committed to the removal of "hundreds of thousands of innocent people" from the database once the Bill becomes law later this year. He said: "We want to make sure that the guilty are put on it and the innocent are taken off." It is to be hoped that this sentiment is translated promptly into definitive action, although the explanatory notes that accompany clause 25 recognise that "this exercise may take some time to complete."

However, as Genewatch highlights, the Bill's greatest failing is that when an individual's DNA profile is removed from the database there will be no requirement for their record of arrest to be deleted from the Police National Computer (PNC). In the past PNC records were removed automatically after 42 days if the individual was not convicted, but since 2006 they have been held indefinitely on the basis that police need to be able to determine whether an individual has previously submitted a DNA sample. As Genewatch observes, "This justification no longer applies if new legislation requires a person's record on the DNA database to be deleted." Use of the PNC is widespread and frequent, and the Office of the Information Commissioner has warned of the stigmatising affect it can have on individuals, especially when applying for jobs if their potential employer conducts an enhanced criminal records check:

Given this level of access, the very existence of a PNC identity record created as a result of a biometric sample being taken on arrest could prejudice the interests of the individual to whom it relates by creating inaccurate assumptions about his or her criminal past when that record is accessed… The Information Commissioner believes that there is no justification for the police to continue to retain a PNC identity record which is linked to other biometric records that the police are required to delete having served their purpose. This engages concerns about compliance with the Fifth Principle of the Data Protection Act 1998. In the Commissioner's view the Bill should include clear provisions requiring the deletion of all such associated records when fingerprints and DNA are deleted. [3]

If, as it claims, the coalition is truly committed to the restoration of civil liberties it should not be content with merely fulfilling its legal obligation to implement the ECtHR's ruling. In recent years concern has been voiced over many aspects of the database. Ethnic minorities, children and individuals with mental health problems are all significantly overrepresented on it. The database's role has never been adequately debated in parliament and the absence of a formal legal footing has led to 'function creep.' [4] This has meant that a database of offenders has been allowed to evolve unchecked into one of suspects which currently consists of roughly 8% of the UK's population. [5] This is particularly worrying because under the Prüm Treaty, signed in May 2005 and subsequently incorporated into EU law in June 2007, member states share reciprocal access to each other's national DNA databases. The Human Genetics Commission, a government advisory body, has also questioned the 'forensic utility' of the database. [6] Statistically, there is evidence that despite a vast increase in the number of people being added to the database, the number of crime scene matches has fallen. [7] It would be unrealistic to expect the Protection of Freedoms Bill to address all of these issues, but it is important that the government acknowledges that many aspects of the UK's DNA retention regime still need to be addressed.

Max Rowlands

Further reading
- Six months on: An update on the UK coalition government's commitment to civil liberties (January 2011, pdf)
- Rolling back the authoritarian state? An analysis of the coalition government's commitment to civil liberties (June 2010, pdf)
- UK Government's "clumsy, indiscriminate and disproportionate" approach to DNA retention (December 2009, pdf)

Footnotes
[1] The Coalition: our programme for government, p. 11.
[2] Protection of Freedoms Bill, p.1.
[3] The Information Commissioner's evidence to The Public Bill Committee
[4] 'Function creep' is the expansion of the way in which information is collected and used for purposes that were not originally intended.
[5] National Policing Improvement Agency statistics
[6] Human Genetics Commission website
[7] The Register, 23.10.09