On 11 February 2011 the government introduced the Protection of Freedoms Bill, which sets out proposals to adopt the protections of the Scottish model of DNA retention, to restrict the scope of the DNA database and to give added protection to innocent people whose DNA have been retained.
However, at this stage the current provisions under the Police and Criminal Evidence Act 1984 and accompanying code of practice D apply.
Current retention regime
When can the police take my DNA and fingerprints?
Currently the police can take these without consent if you have been arrested for, charged with, informed you will be reported for or convicted of a recordable offence.
How long can DNA be held for?
Currently DNA and fingerprints taken legally can be held indefinitely. Regardless of whether you have been convicted of an offence or not.
How do I get my DNA removed from the database?
Only police chief officers may consider the exceptional destruction of DNA and fingerprints under the exceptional case procedure. You need to write to your local police force to request them removed.
The Association of Chief Police Officers (ACPO) has issued guidance 'ACPO Retention Guidelines for Nominal Records on the Police National Computer' for chief officers on the consideration of applications for the removal of personal information, including DNA samples, from police records.
What is the government doing about the European Court of Human Rights judgment?
On 4 December 2008 the European Court of Human Rights (ECHR) delivered its judgment in the case of S & Marper. They found the blanket policy in England and Wales of retaining indefinitely the DNA and fingerprints of those innocent of an offence was in breach of article 8 of the European Convention on Human Rights. The government is committed to meeting the judgement and introducing a new retention regime that strikes the right balance between protecting the public and defending the rights of those innocent of an offence.
Protection of Freedoms Bill proposals
The following details relate to the Protection of Freedoms Bill, introduced on the 7 February 2011. As this has not yet been agreed by Parliament, these proposals are subject to change.
What if I am arrested for a minor offence, but not charged or convicted?
The provisions of the Protection of Freedoms Bill as introduced in Parliament provide that in the future these will not be retained at all.
What if I am arrested for, but not charged with a serious offence?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that the police will only be permitted to retain DNA and fingerprints in very tightly controlled circumstances. We will be establishing an independent commissioner to oversee DNA retention and they will make a decision whether retention is necessary, taking into account the age and vulnerability of victim of the alleged offence and their relation to the person arrested.
What if I am arrested for and charged with a serious offence, but not convicted?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that in these cases we propose to retain the DNA and fingerprints for three years, with the option of a single two-year extension by a court.
What if I am convicted of an offence?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that all adults convicted of any recordable offence will have their DNA and fingerprints retained indefinitely.
We are proposing a separate retention regime for those under 18 years of age who are convicted of an offence. Those convicted of a serious offence will have their DNA and fingerprints retained indefinitely. For those under 18 who are convicted of a minor offence their DNA will be retained for five years on a first conviction (plus the length of any custodial sentence) and then indefinitely following a second conviction.
Cautions for adults, and warnings and reprimands for those under 18 are treated as convictions for DNA and fingerprint retention.
For those who receive a penalty notice for disorder, we are proposing a two-year retention limit, as in Scotland.
Terrorist suspects who are not convicted of an offence will have their DNA retained for three years, with a renewable two-year extension on National Security grounds. The independent commissioner will be responsible for reviewing all terrorist suspect cases.
What about my original sample?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that all biological DNA samples will be destroyed within six months of being taken.
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