Can Police Retain DNA & Fingerprints?

If you have ever been arrested and had to provide your fingerprints or a DNA sample, you may want to know how long the police will retain your biometric information, especially where your arrest did not lead to charges or a conviction.

What are the rules in England and Wales on DNA and fingerprint retention by the police.

 

What biometric material do the police routinely take on arrest?

 

Following an arrest, an individual will usually be required to provide both a DNA sample and their fingerprints. Under the revised provisions of the Police and Criminal Evidence Act 1984, commonly referred to as PACE, the police don’t need permission to obtain this type of biological information from a person arrested in connection with a ‘recordable offence’.

A recordable offence is defined as an offence for which the police are required to keep a record. This includes all imprisonable offences, as well as some non-imprisonable offences.

The majority of arrests take place using the powers in PACE. However, individuals may also be arrested or detained under the Terrorism Act 2000, which provides a broadly equivalent retention regime in relation to DNA samples and fingerprint records as that under PACE.

 

DNA samples

 

A DNA sample is a sample of biological material that is generally taken from a mouth swab or head hair roots of the arrested person. DNA stands for deoxyribo-nucleic acid. This is the chemical that is found in virtually every cell in the body and it carries genetic information.

Where a mouth swab is taken, this involves a large cotton wool bud being rubbed inside the suspect’s cheek to loosen and collect skin cells. The sample is then placed in a sealed plastic tube and sent to an accredited laboratory, known as a forensic service provider, for testing. Alternatively, up to ten hairs with roots can be removed from the suspect’s head for analysis.

In either case, these non-intimate samples will contain genetic information that can be analysed to generate a DNA subject profile for that individual. This profile is almost unique, where the chance of two people having an identical profile is less than one in a billion.

 

Fingerprints

 

Fingerprints are usually obtained electronically on a fingerprint scanning device, although they can also be obtained by applying a black ink to the skin, where impressions of each fingertip and palms of both hands are recorded on a paper fingerprint form. An impression of all four fingers and both thumbs will also be taken simultaneously for each hand. This set of prints are collectively known as a ‘Tenprint’.

The skin surface found on the underside of the fingers and palms of the hands is made up of a series of lines known as ridges and furrows. It is generally accepted that this friction ridge detail is unique to each individual, even in identical twins, and will persist throughout the life of the individual without change, unless affected by injury.

Taking a Tenprint can help the police to confirm the identity of an arrested person. It also provides a basis for fingerprint comparison, where fingermarks recovered from crime scenes are searched against the Tenprints obtained from arrested persons to identify who touched the surface(s) the fingermarks were recovered from.

 

What do the police do with DNA & fingerprints?

 

DNA samples and fingerprints taken during the course of a criminal investigation are routinely stored in police databases. An individual’s fingerprint images are scanned onto the National Fingerprint Database (IDENT1), while their DNA profile will be held on the National DNA Database (NDNAD), linked to stored samples by a unique reference number.

IDENT1 provides the police with the ability to electronically store and search fingerprint records to manage person identity and compare fingerprints from individuals with fingermarks from unsolved crimes. IDENT1 currently holds the fingerprint records of over 8 million individuals, as well as over 2 million unidentified crime scene marks.

The NDNAD provides the police with thousands of DNA matches each year, either linking an individual to a crime scene, or a crime scene to another crime scene. Since it was established in 1995, it has become one of the largest forensic DNA databases of its kind in the world, holding over 6.5 million subject profile records and over 600,000 crime scene profile records.

Under the Protection of Freedoms Act 2012 (PoFA), which amended PACE, the DNA profile and fingerprints taken from arrested individuals can be searched against IDENT1 and NDNAD to see if they match any subject or crime scene profile already stored.

 

How long are DNA profiles & fingerprints kept on file?

 

PoFA includes detailed rules on how long the police may retain an individual’s DNA profile and fingerprints. Prior to the introduction of the DNA and fingerprint sections of PoFA on 31st October 2013, DNA and fingerprints from all individuals arrested for, charged with or convicted of a recordable offence were held indefinitely.

However, PoFA amended PACE to introduce a much more restricted retention schedule under which the majority of profile records belonging to innocent people are now destroyed.

Depending on the circumstances, a DNA profile and fingerprint record may either be retained indefinitely, held for 3-5 years and then destroyed, or destroyed immediately.

The length of time in which biometric information will be retained, if at all, will depend on whether the individual is charged and convicted, the age of the person at the time the offence was committed and the seriousness of the offence.

The retention periods for convicted individuals are:

 

a) Adults convicted of any recordable offence: indefinite retention period.

b) Individuals of any age convicted of a ‘qualifying offence’: indefinite retention period.

c) Individuals under 18 convicted of a first minor offence: 5 year retention period from the date the material was taken, plus the length of any custodial sentence imposed, or indefinite if the custodial sentence is for 5 years or more.

d) Individuals under 18 convicted of a second minor offence: indefinite retention period.

 

‘Convictions’ include cautions, reprimands and final warnings. A list of ‘qualifying offences’ are set out under PACE, but broadly cover serious violent, sexual and terrorist offences. A ‘minor offence’ is a recordable offence which is not also a qualifying offence, where the concept of a qualifying offence is used to distinguish between serious and less serious offences for the purposes of the DNA and fingerprint retention regime.

For qualifying offences where an individual is arrested but not convicted, or arrested and not charged, PACE allows chief constables to apply for extensions to the given retention periods for biological information if considered necessary for prevention or detection of crime.

The retention periods for an individual not convicted of an offence are:

 

a) Individuals of any age charged with but not convicted of a qualifying offence: 3 year retention period, plus an extra 2 years if granted by a District Judge, or an indefinite retention period if previously convicted for a recordable offence which is not excluded.

b) Individuals of any age arrested for but not charged with a qualifying offence: 3 year retention period, but only if granted by the Biometrics Commissioner, plus an extra 2 years if granted by a District Judge, or an indefinite retention period if previously convicted for a recordable offence which is not excluded.

c) Individuals of any age arrested for or charged with a minor offence: no retention period whatsoever, or an indefinite retention period if previously convicted for a recordable offence which is not excluded.

d) An individual over 18 given a penalty notice for disorder: 2 year retention period.

 

An ‘excluded offence’ is defined as a recordable offence which is minor, that was committed when the individual was a juvenile, for which they received a custodial sentence of less than 5 years, and is the only recordable offence for which the individual has been convicted.

Where an individual is arrested for, but not charged with, a qualifying offence, their DNA profile and fingerprint record will normally be deleted. However, an application can be made by the police to the Biometrics Commissioner for permission to retain their biometric information for a period of 3 years. The Biometrics Commissioner is the Independent Commissioner for the Retention and Use of Biometric Material appointed under PoFA.

The application must be made to the Commissioner within 28 days of the decision not to proceed with a prosecution, and can be made in circumstances where:

 

a) The alleged victim is under 18

b) The alleged victim is a vulnerable adult

c) The alleged victim is associated with the person to whom the retained material relates, or

d) The retention of the material is necessary to assist in the prevention or detection of crime.

 

Notice of such an application must be given to the person to whom the biometric material relates, and that person may make representations opposing the application. Where the Biometrics Commissioner considers that retention is unnecessary, they have the power to order the destruction of the individual’s DNA profile and fingerprint record.

 

Can a speculative search of police databases be undertaken?

 

A speculative search of the police databases using the DNA and fingerprints of an arrested person can be undertaken, but unless a match is found, or PoFA provides another power to retain them, such as where the person has a previous conviction, the DNA and fingerprints should be destroyed once the speculative search has been completed.

If there is a match, the DNA and fingerprints of the arrested person will be retained for the duration of any criminal investigation and, thereafter, in accordance with the biological material retention framework. For example, if the investigation leads to a conviction for a qualifying offence, the information would be retained indefinitely.

 

Can you get your DNA or fingerprints deleted from police databases?

 

The use of DNA and fingerprint evidence plays a vital role in bringing offenders to justice and has been responsible for the successful conviction of several offenders in a number of crimes.

Equally, it can not only be used to identify potential suspects, it can also be used to exonerate innocent individuals at an early stage in a serious crime investigation.

Still, the pursuit of justice is not regarded as justifying the indefinite retention of all biometric information taken from a person on arrest, especially where a person is not charged or convicted of any offence for which they were arrested.

The provisions of PoFA are designed to strike a balance here. PoFA will therefore allow the biometric data of convicted persons to be retained indefinitely, but it will also allow for the automatic deletion of DNA and fingerprint records belonging to those arrested but not charged with any offence, subject to certain exceptions.

Provided you have no previous convictions, you may also be able to have your biometric information removed sooner than normal even if you have been charged with, but not convicted of, a qualifying offence. This is known as early deletion, where consideration will be given to applications made on the basis of the specified grounds, including where the investigation was based on a malicious or false allegation, the arrested individual has a proven alibi or another individual is convicted of the offence, or where it’s in the public interest.

If your application is successful, this means that your DNA profile and fingerprint records will be permanently deleted from the police databases. However, expert advice should be sought from a legal specialist in the retention and destruction of DNA and fingerprints.

This is a complex area of law, for example, even where your biological information would otherwise fall to be destroyed, the police may still be able to argue for the lawful retention of that data on national security grounds. By seeking expert advice, you can maximise your chances of having your biological data deleted for good.