UK: Police can keep DNA of innocent people indefinitely (1)

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the law lords have set a dangerous precedent by backing the demands of the state over individual privacy

The highest court in the land, in the House of Lords, ruled on 22 July that DNA samples taken from people who are not charged with an offence or who are acquitted can still be held indefinitely by police.

The court was hearing two test cases. The first by a boy from Sheffield who was 11 years old when he was arrested for attempted burglary in 2001. His lawyers asked for his fingerprints and DNA samples to be destroyed after his acquittal. The second case involved a man from Sheffield who gave a DNA sample when he was charged with harassing his partner - the case never came to court as the couple came together again and the woman decided not to press charges.He asked the South Yorkshire police to destroy the sample and fingerprints.

Peter Mahy, the solicitor representing the two people, said he was surprised that four of the five law lords found no breach of privacy (under Article 8.1 of the European Convention on Human Rights). He said that his clients hope to challenge the judgement in the European Court of Human Rights.

In July the UK Forensic Science Service announced that the number of DNA profiles on the national database had reach two million.

A history of non-compliance by police leads to changes in law

Before looking at the judgement in this case it is worth taking a look at the history of police powers to take and retain DNA samples.

Under the Police and Criminal Evidence Act 1984 (PACE) police could take body samples (DNA from mouth swabs) where people were suspected of having committed a "serious arrestable offence". The same law stipulated, in PACE, Section 64, that DNA samples taken from a "person who is not suspected of having committed an offence or is not prosecuted or is acquitted of the of the offence, the sample must be destroyed" and "cannot be used in evidence against that person or for the purposes of any investigation of an offence".

The first change to the law on DNA came in the Criminal Justice and Public Order Act 1994 which removed the test of "serious arrestable offence" for the taking of samples without consent. Instead samples could be taken from; i) those "in police detention or held in custody" if there were "reasonable grounds for suspecting involvement of that person in a recordable offence" (a much lower standard); ii) any person charged with a recordable offence; and iii) any person convicted of a recordable offence.

Although the scope of the law was widened in 1994 it was still based on the simple proposition that if a person was innocent - never charged or found not guilty of charges brought against them then fingerprints and DNA samples taken should be destroyed.

The next change came in 2001 when the Criminal Justice and Police Act amended Section 64 of PACE to allow fingerprints and DNA samples to be retained indefinitely where they "were taken from a person in connection with the investigation of an offence".

This change was prompted because it transpired that many police forces were not complying with the law as it stood by failing to destroy the fingerprints and DNA samples of those not charged with any offence or who were acquitted.

In the run-up to the new Act the Prime Minister, Tony Blair said: "I believe the civil liberties argument is completely misplaced. This is using technology to catch criminals" (31.8.00).

However, according to a report prepared for Her Majesty's Inspector of Constabulary (HMIC) published in July 2000, "Under the Microscope", "urgent action" was needed to remove from the national database those who had been arrested but not charged and those who were subsequently acquitted. The report estimated that: "perhaps as many as 50,000 may be being held on the database when they should have been taken off". This estimate was based on a 20% non-conviction rate but the report then admitted that in reality the figure "f

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