DNA retention and the Crime and Security Act 2010

The Crime and Security Act 2010, amending the scheme of DNA retention in England and Wales, was given royal assent earlier this month. Following from the decision in S and Marper v UK, as previously blogged about here and here, the UK was forced to revise its scheme of DNA retention in England and Wales.

The S and Marper decision prompted a lengthy consultation process by the Home Office, characterised by a reluctance to amend the law relating to the scope of the database. The consultation paper, Keeping the right people on the database: Science and public protection , ostensibly aimed “to provide a proportionate balance between protecting communities and protecting the rights of the individual”, although the lack of a robust rights-focus is noticeable throughout, while the rhetoric of risk avoidance and public protection is to the fore. The Home Office recommended the implementation of the S and Marper v UK decision through the destruction of DNA samples after six months, whether the individual goes on to be convicted or not; by permanent retention of DNA profiles after conviction; and retention for twelve years after arrest for a serious violent or sexual offence or terrorism-related offence and six years for other offences. These periods were chosen based on the likelihood of offending by people who have been arrested and not convicted, drawing on research included in Annex C to the paper which purports to show that 52% of re-offending happens within six years and two-thirds of re-offending happens within 12 years.

The Home Office emphasised that any change to the existing policy would “reduce the number of detections that DNA delivers, and will therefore have some adverse impact on public protection” and thus it aims “to minimise this risk while complying with the ECtHR ruling”. Although the paper admitted that the evidence for reoffending in more serious and violent cases is unclear, a longer retention period is “a commonsense approach given the more serious consequences of reoffending and therefore the damage that a missed detection would imply”. In fact, it’s unlikely that the European Court of Human Rights would have viewed the proposed twelve year retention period as proportionate, and the appeal to common sense in a document which purports to be scientific is notable. Indeed, there are major methodological flaws in the appended research paper, which lacks a control group, and which conflates criminality with suspicion of criminal behaviour.

After more than 500 responses to the consultation paper, the Crime and Security Bill was published, and after paliamentary debate was enacted in April 2010. The Crime and Security Act 2010, a wordy and repetitive piece of legislation which amends the Police and Criminal Evidence Act 1984, goes some way towards tightening the scheme of DNA retention, but is still deeply problematic in terms of the inroads it makes on the right to privacy of innocent arrestees.

However, before outlining the difficulties with the Act, it’s worth noting one positive development, namely that a DNA sample must be destroyed as soon as a DNA profile has been derived from it, or, if sooner, within six months of it being taken from an individual. Under the 2010 Act, when an adult is arrested or charged but not convicted his DNA profile may be retained for six years, and the clock restarts, so to speak, if the person is arrested or charged with a recordable offence before the material is required to be destroyed. Moreover, this rule applies only to adults who have no previous convictions or only one exempt conviction (i.e. a conviction for a minor offence committed when the person was aged under 18). Various periods of retention for profiles from arrestees are provided in the Act ranging from three to six years, depending on the age of the person and the nature of the alleged offence.

Whether these periods will be seen as ECHR compliant is debatable, although they do represent a more cautious approach than that originally proposed by the Home Office. In S and Marper the European Court favoured the Scottish approach which permits retention of DNA profiles only in relation to sexual or violent offences for a three year period, renewable for another two years. The revised English model differs by permitting retention for three years plus even if the arrestee is a minor, and for any recordable offence. This does not appear a great shift from the “blanket and indiscriminate” policy so criticised in Strasbourg.

Given that Ireland is in the process of debating legislation governing DNA collection and retention (see here and here), Scotland is expanding its scheme to encompass children being dealt with through the welfare-oriented Children’s Hearing System, and New Zealand and various States in the US now collect DNA from arrestees, we and colleagues in other jurisdictions will be watching closely how the developments in our closest common law neighbour are applied and interpreted, both in police practice and judicial consideration.