Part 1, chapter 1 of the Protection of Freedoms Act implements the commitment in the Government's coalition agreement to reform DNA and fingerprint retention.
This Government want to protect the privacy and human rights of its citizens, while maintaining effective databases that protect the public and reduce crime.
The Protection of Freedoms Act fundamentally changes the principles behind the operation of biometric databases. From being databases that collected DNA profiles and fingerprints from every person arrested and retained them indefinitely, they will now operate proportionately, considering guilt and innocence, the seriousness of the offence and the age of the individual. In this way, they can continue to operate effectively while providing far greater protection of civil liberties.
Implementation of the Act is not a simple matter. A large amount of work is needed to prepare police forces, forensic laboratories and national databases. Complex reprogramming of databases is required to ensure that each person's DNA and fingerprints are removed or retained correctly and at the right time. This work will be carried out thoroughly so that biometric material is not held unlawfully, and material needed to solve crime is not unnecessarily deleted.
Before the Act commences, it is necessary to destroy a significant amount of existing biometric material that the Act would not allow to be retained.
The first priority is the destruction of DNA samples. A DNA sample is an individual's biological material, containing all of their genetic information. The Government do not want to retain the complete genetic makeup of any of their citizens. Every DNA sample taken will be destroyed as soon as a DNA profile for use on the database has been obtained from it. Destruction of existing DNA samples will begin in December 2012 and be completed by May 2013.
DNA profiles, consisting of a string of 20 numbers and two letters to indicate gender, are stored on the National DNA Database (NDNAD). They allow a person to be identified if they leave their DNA at a crime scene but contain none of the person's genetic characteristics. The NDNAD and the Police National Computer (PNC) must both be reprogrammed to allow DNA profiles which may not be retained under the Act to be correctly identified and deleted. Deletion from the NDNAD of existing DNA profiles which do not meet requirements for retention will begin in January 2013 and be completed by September 2013.
Fingerprints are stored electronically on the national fingerprint database, IDENT1. IDENT1 and the PNC must both be reprogrammed to allow fingerprints which may not be retained under the Act to be correctly identified and deleted. Deletion from IDENT1 of fingerprints which do not meet requirements for retention will begin in March 2013 and be completed by September 2013. Following deletion of each IDENT1 fingerprint set, police forces will destroy any corresponding hard copies they hold.
The Biometrics Commissioner will be appointed in early 2013. The role of the commissioner will be to keep under review the retention and use of biometric material retained subject to the Act's provisions, and, in particular, to adjudicate on those cases where the police apply to retain material of someone arrested for, but not charged with a serious offence for a limited period or where a national security determination is made.
Once destruction of existing biometric material is complete and the necessary processes have been set up, legislative commencement will take place, no later than October 2013.
Developing the technology for a fully automated speculative search will take a few more months. A transitional measure will be provided to allow speculative searching and quality checks to be undertaken using existing technology. This will ensure Commencement is not delayed and matches to crimes are not missed while the final piece of work is completed.
The publication of this timetable demonstrates both the complexity of the work involved in implementing the Act and removing innocent people's DNA and fingerprints from our databases, and the Government's commitment to completing this work as soon as safely possible. [Emphasis added.]
The million plus innocents whose biometric material is being retained will be counting the days until September 2013. However, until the legislative commencement, the current procedure, the exceptional case process, is still in force; the Metropolitan Police Service made this very clear:
In line with the Supreme Court decision of 18th May 2011 in the cases of C and GC v The Commissioner, and based on legal advice, the MPS will continue to process exceptional case requests in accordance with the ACPO policy of 16th March 2006. We will do so until Parliament introduces a new legislative scheme.
So until then, if you believe your situation is exceptional, you may still want to request the chief constable of the force that arrested you to (re)consider your case (for practical tips, see Reclaim Your DNA.) If you succeed to have your case considered exceptional, your Police National Computer (PNC) record will be deleted as well as your DNA and fingerprints, there is no such promise in the Protection of Freedom Act's implementation timetable. As for photographs kept by the police, limit on their retention will likely have to wait for a test case to come to court.
In his timetable, the minister points out that 'Implementation of the Act is not a simple matter.' What he does not highlight is that this government could have started working on the tools necessary to implement this act earlier, and the police knew some changes would be needed from as far back as 2008 when judges unanimously ruled in S and Marper v. the UK in 2008:
that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
As the timetable does not specify a notification mechanism, for those innocents having been arrested, any celebration for not having personal data held by the police anymore and no longer being an honorary criminal will have to wait until next autumn.
In response to a withdrawn Motion of Regret moved by Lord Scott of Foscote (Crossbench) on 2012-12-05, Lord Taylor of Holbeach (Conservative), the Home Office Minister responsible for DNA responded:
[...] We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days. [...]
Some police forces have started 'early deletion of Deoxyribonucleic Acid (DNA) samples, fingerprint and Police National Computer (PNC) records relating to individuals whose arrest was found to be unlawful and/or based on mistaken identity.' The Metropolitan Police Service's 'Early Deletion Requests - Consideration for the deletion of DNA samples, Fingerprint, PNC Records and CSIS Photographic Images.' (pdf) was created on 2012-05-10. These early deletions are very limited as James Brokensire detailed on 2012-10-31 when answering David Davis questions about 'how many (a) DNA profiles and (b) biological samples have been deleted or destroyed since Royal Assent was given to the Protection of Freedoms Bill on 1 May 2012.':
39,799 DNA profiles were deleted from the National DNA Database between 1 May 2012 and 26 October 2012. 34,496 of the DNA profiles deleted were taken from individuals by UK law enforcement agencies, of which 17,945 were taken by England and Wales police forces. 5,303 of the DNA profiles deleted were recovered from crime scenes by UK law enforcement agencies, of which 4,795 were recovered by England and Wales police forces. The number of biological samples destroyed is not held centrally. Records are kept by the forensic service providers storing samples on behalf of police forces.
There's more than one million innocents on the National DNA Database (an estimated total of 1,083, 207 innocent individuals as of 2010-03-31 ). It would appear that they will have to wait a further ten months to no longer be honorary criminals suffering from the suspicion of being on all these police databases, but at least it's a deadline we can all hold the government to account.
For more relevant information, see my earlier post Protection of Freedom Act, a step forward for DNA retention.