18 June 2018
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"Delegations will find in Annex a note from the UK delegation providing clarification on concerns, which were raised by Member States during the discussion on the UK implementation of Prüm DNA data exchange."
The key area of "concern" raised is:
"the inclusion of DNA profiles from "suspects", i.e. those who are not convicted of a criminal offence in the UK."
The UK's argument
Six years after the Marper judgment (see below) the UK says:
"This is a complex retention regime that is based on age of the individual, the seriousness of the offence and the opportunity for the UK police to make an application to the Commissioner for the Retention and use of Biometric Material (Biometrics Commissioner). This means thatthe retention of individuals that are not convicted will be subject to limited retention within the law and this group constitutes around 3% of the total UK National DNA Database. The remaining 97% of the DNA profiles estimated at five million DNA profiles will be available for exchange within Prüm arrangements."
It goes on to say that the UK will by 2019-2020:
"facilitate availability of the vast majority of the DNA profiles from the UK DNA Database, we have established a separate database using the CODIS application and this will be used for the UK exchange of the 5 million DNA profiles."
The UK was part of Prüm when the Decision to start it was taken in 2008 then withdrew in December 2014 see Note from UK delegation: Article 10 of Protocol 36 of the Treaties - Additional information on the solution reached in respect of the Prüm and Probation measures (LIMITE doc no: 11057-14, pdf) and now wants to join again.
The UK's response to "concerns" over the contents of its DNA database states:
"The UK parliament has taken a position that only DNA profiles from individuals who are convicted will be exchanged through Prüm arrangements. Following the introduction of legislation in the UK to comply with the European Court Judgment in the case of S and Marper legislation referred to as the Protection of Freedoms Act 2012 was introduced that restricted the retention of DNA profiles from individuals who were not convicted."
The landmark S and Marper judgment (pdf) was delivered in December 2008 by the European Court of Human Rights (ECHR). In 2009 the previous Labour government introduced in the Crime and Security Bill a provision that innocent people who have been arrested, but never convicted of a crime, will have their DNA records stored on the national database for a period of six years. In 2012 the Coalition government brought in the Protection of Freedoms Act 2012 (PFA 2012) that "restricts" the retention of DNA profiles from individuals who were not convicted. 
DNA retention under the PFA 2012
DNA can be retained :
- where a person of any age "is charged but not convicted of a qualifying offence" (NDNAD Annual report 2015-2016, p.38, pdf) for three years minimum or:
"indefinite if the individual has a previous conviction for a recordable offence which is not excluded)"
- where a person of any age is "arrested but not charged" with a qualifying offence:
"Three years if granted by the Biometrics Commissioner plus a two year extension if ranted by a District Judge (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded."
- where a person of any age arrested for or charged with a minor office:
"None (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded)
- where a person over 18 is given a "Penalty Notice for Disorder":
A "qualifying offence" is that defined in Article 65A of the Police and Criminal Evidence Act 1984 - largely comprising of serious offences.
An excluded offence is:
"a recordable offence which is minor, was committed when the individual was under 18, for which they received a sentence of fewer than 5 years imprisonment and is the only recordable offence for which the individual has been convicted."
A "minor offence" is:
"a recordable offence which is not also a qualifying offence."
And a "recordable offence" is:
"one for which the police are required to keep a record. Generally speaking, these are imprisonable offences; however, it also includes a number of non-imprisonable offences such as begging and taxi touting. The police are not able to take or retain the DNA or fingerprints of an individual who is arrested for an offence which is not recordable."
This official description of a "recordable offence" is rather misleading, as observed in a European Parliament study: Cross-Border Exchange and Comparison of Forensic DNA Data in the Context of the Prüm Decision (pdf):
"recordable offence, includes inter alia being arrested for being drunk in a public space, or being arrested while participating in a demonstration that did not receive the approval of authorities. Considered like this, DNA database inclusion regimes are a highly political and politicized governance issue because they interfere and intervene in a state of laws power and citizens legal position."
While the Decisions were originally applicable to all EU member states, the United Kingdom subsequently exercised their right to opt-out from them effective 1 December 2014. However, the UK committed to assess their future participation and make a decision by 31 December 2015 on whether to rejoin the Decisions.On 22 January 2016 the UK notified the EU of its desire to resume participating in the Prum Decisions, which was approved by the Commission on 20 May 2016.
Of course the UK's request to rejoin may come to nothing as it is only open to EU Member Ststes.
UK DNA evaluation
Previously the Council circulated: Prüm/DNA data exchange evaluation of United Kingdom (UK) - Report of the evaluation visit (London, 17 January 2017) (LIMITE doc no: 5309-17, 3 February 2017, pdf) which makes no reference to the above issues.
Interestingly the chart: "Evaluation checklist on exchange of DNA data with the MPS" [Metropolitan Police Service] says one of the categories for exchange concerns:
"information to the Member State for Intelligence Purposes only, not for use within any legal proceedings."
 See: UK: Government's "clumsy, indiscriminate and disproportionate" approach to DNA retention by Max Rowlands
 See: BREXIT: UK position Papers: Technical Note: Security, Law Enforcement, and Criminal Justice (pdf): See footnote on p.13.
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