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.

DNA database developments in the UK

Following the European Court of Human Rights decision in the Marper case, the UK have been required to reconsider their approach to the holding of profiles on the DNA Database. The system which the ECHR rejected involved the indefinite holding of samples from suspects of crimes, unless authorisation for destruction was granted, which it rarely was. The previous UK plans, discussed here, proposed retention of samples for up to six years, without any limitations to serious offences.

It has been announced today that the Home Affairs Select Committee has rejected these proposals, arguing that there is no need to keep samples for more than three years, particularly when consideration is given to the low number of cases in which such DNA evidence is probative. This Committee states a maximum of three years should apply. The House of Commons will vote on the government proposals today and the Guardian reports that the House of Lords is expected to reject the proposals. It is also expected that a new agency will be established to determine when samples should be destroyed, removing this power from Chief Constables.

Again, given the on-going debates in Ireland, these debates will be watched intensly here.