Since it was set up in 2005, the national DNA database has become one of the largest of its kind in the world. Built up by the police using their extensive powers under PACE to take DNA samples of those they arrest, some estimates suggest that the DNA of almost 10% of the population is recorded on the database. In addition, the police currently have the power to hold indefinitely photographs and fingerprints of individuals suspected of committing criminal offences.

The retention of such data of individuals who are either never charged, or who are charged but later acquitted, raises considerable privacy issues for those affected.

However, the Protection of Freedoms Act 2012 (“PFA”) and the effect of the recent High Court case of J & C will significantly change the situation.

DNA and fingerprints

The PFA will establish a presumption that DNA and fingerprints taken by the police must be destroyed unless one or more statutory exceptions applies, in which case the police may retain the material either for a specified period of time or indefinitely, depending on the circumstances.

For those who are arrested for, but not subsequently charged with, “minor offences”, including most offences of dishonesty, their DNA and fingerprints must normally be destroyed unless one of the statutory exceptions applies.

Likewise, for those arrested and charged but later acquitted of a “minor offence”, the rule will generally be that their DNA and fingerprints must also be destroyed unless a statutory exception applies.

By contrast, the police will have powers to retain the DNA and fingerprints of those arrested for, but not later charged with, “qualifying offences”, meaning certain violent, serious sexual or terrorist crimes. So, for example, if an individual is arrested for rape but the police subsequently decide not to take any further action, perhaps because the complaint was withdrawn, the police will be able to retain the individual’s DNA and fingerprints for three years. However, if the same individual had previously been convicted of a “recordable offence” – that is, one punishable with imprisonment - the police will in certain circumstances have the power to retain their DNA and fingerprints indefinitely.

Where the police have the power to retain DNA and fingerprints for three years, they will be able to apply to the Magistrates’ Court for a single two year extension.

Photographs

At present, the police may photograph a detainee at a police station with or without that person’s consent, but consent must be provided where a person voluntarily attends a police station. Where the police retain photographs, they may not use or disclose them except where related to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the enforcement of a sentence.

However, in the recent Judicial Review case, J & C, the High Court considered the legality of retaining for a substantial, or potentially indefinite, period the photographs of those arrested for, but not subsequently charged with, an offence following the conclusion of the purpose for which the photographs were taken. The Court concluded that such retention was in breach of Article 8 (right to privacy) under the European Convention of Human Rights, but allowed the police a reasonable period to revise their policy.