Currently, police officers can only take such samples once suspects have been charged with an offence. The samples are then added to the National DNA database, which currently holds 1.8 million samples.
But the Government's proposal, if accepted by Parliament, would allow samples to be taken at arrest and added to the database irrespective of a future charge. This means the legislation will permit the storing of profiles and samples of "innocents" – such as those arrested but subsequently released without charge, or those prosecuted and found not guilty.
According to the Home Office the move "enables officers to verify the identity of arrested suspects where their fingerprints have been taken before" – which prevents suspects escaping custody by providing a false identity. The ability to perform DNA matching from those arrested means that DNA found at crime scenes which have no connection with the arrest can be connected with the arrested person.
Home Office statistics show that the police make 1.3 million arrests, of which one million are brought before the courts. This means that 300,000 arrests per year (i.e. 30% of the one million prosecuted) are not brought proceeded with to the courts. Also, the statistics show that approximately one in three males and one in ten females under the age of 40 have a criminal record. Together, these statistics identify the eventual upper limit to the numbers of entries in the DNA database: close to half the male population and one in eight of the female population.*
Legitimacy in relation to the retention of such records will be determined by a case which is to be decided by the House of Lords, an appeal against last year's Court of Appeal ruling, which upheld a High Court ruling. That ruling said that the retention by the police of fingerprints and DNA samples of individuals who had been the subject of a criminal investigation but who had not subsequently been convicted of any offence was not incompatible with the Human Rights Act, which requires respect for private life.
The compatibility with human rights legislation arose because the sample was only used in relation to an offence (e.g. when matching DNA found at the scene of a crime). If the DNA did not match, the individual would not suffer interference with his private and family life, whereas if there was a match, the individual was a suspect in a crime, in which case interference would be justified.
Dr. Chris Pounder of Masons, the firm behind OUT-LAW.COM, and Editor of Data Protection and Privacy Practice, said:
"Databases on this scale change the nature of society. For instance, if a criminal were to deposit someone else's DNA sample at the scene of a crime, then that someone else might have to prove themselves innocent. Additionally, the procedure does raise questions about rehabilitation of offenders when details like this are retained - indeed, if 30% of those in the database relate to those who are not prosecuted, perhaps there should be a concept of rehabilitation of non-offenders."
Dr. Pounder continued:
"In my view, it is inappropriate for a Government to present such a major change without a proper public consultation process where all elements to this proposal could be considered."
On 12th September last year, at the British Association's science festival in Leicester, Professor Sir Alec Jeffreys, the founder of the DNA technique said that he now believed that the practice of storing the genetic profiles of suspects who have not been found guilty of a crime was a step too far. His radical solution is a national DNA database from the entire population held by a specially created body so that everybody was treated equally.
Dr. Pounder commented, "The Home Office scheme will result in a DNA database which goes a long way towards the scheme suggested by Professor Jeffreys, except that there is no statutory body which would independently monitor use of the database".
Details of Data Protection and Privacy Practice (and a free copy) can be found among our Data Protection, Freedom of Information and Human Rights Acts Services.
The text of the Criminal Justice Bill, not including this amendment, is here.
* Statistics showing that the police make 1.3 million arrests per year are in this PDF on the Home Office site.
Other Home Office statistics (on page 32), state that 1.86 million offences are committed but 838,000 are summary motoring offences (e.g. parking offences). This leaves 1,000,000 offences prosecuted in the Courts. If there are 1,300,000 arrests and 1,000,000 prosecutions it follows that there are 300,000 cases where those arrested are not proceeded with (e.g. not been charged, found innocent by the Courts). This is 30% on top of those who are prosecuted.
If we assume that over time (10-20 years) the one third of males have a criminal record will also have provided a DNA sample, and then add on the 30% figure for males arrested (30% of a third is a tenth), then the percentage of males on the database is 1/3+1/10= 13/30 of the whole or 44%. For females the figure is 1/10+3/100 or 13%.
Details of Professor Jeffreys comments are on this page of the BBC web site.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.