Overlooked - Liberty
Overlooked - Liberty
Overlooked - Liberty
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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 69<br />
• The need to adopt the least intrusive method of taking bioinformation. If a mouth swab would<br />
suffice there is arguably no justification for the taking of a blood sample.<br />
• The need for particular sensitivity when taking DNA from victims and other vulnerable people.<br />
• The need for a clear explanation of the reason and legal power being used to take the sample.<br />
Guidance on the applicable rules on retention and use of the sample need to ensure that these<br />
issues are considered. At present Code D of the Codes of Practice issued under the Police and<br />
Criminal Evidence Act 1984 covers the regime allowing for the taking of DNA samples.<br />
Retention of Samples<br />
The Criminal Justice Act 2003 provides for the retention of DNA samples and profiles regardless of<br />
whether a person is prosecuted or cleared of an offence. It means that even if a person is never<br />
charged with an offence for which s/he was arrested his/her DNA will be retained on the Database<br />
indefinitely. A person who has had their DNA retained can apply to the police to destroy the sample<br />
but the police’s discretion to do so is not frequently exercised. This wide ranging power of retention<br />
is the reason the UK holds a far greater proportion of its population on its database than any other<br />
country. Powers of retention may soon be extended further so that arrest for any offence (rather than<br />
just recordable offences) will allow the taking of a sample. This is what seems to be implied in the<br />
Home Office consultation ‘Modernising Police Powers: Review of the police and Criminal Evidence<br />
Act (PACE) 1984’ which states, “The absence of the ability to take fingerprints etc in relation to all<br />
offences may be considered to undermine the value and purpose of having the ability to confirm or<br />
disprove identification and, importantly, to make checks on a searchable database aimed at<br />
detecting existing and future offending and protecting the public. There have been notable<br />
successes particularly through the use of the DNA database in bringing offenders to justice” 146 . The<br />
consultation does not specifically state the NDNAD when applying biometric retention for all arrests,<br />
using the slightly vague ‘fingerprints etc’. However the reference to the DNA database at the end of<br />
the paragraph is a strong indication of what ‘fingerprints etc’ might entail. If the power to take and<br />
retain DNA is expanded in this way it will mean that offences such as dropping litter might be<br />
included 147 . Should this occur, a wholesale expansion of the DNA database is likely.<br />
As described earlier, justification for retention is usually described in terms of a vague wider societal<br />
benefit through crime detection accruing from the taking of DNA. However many of the arguments<br />
in favour of the retention of DNA profiles of everyone arrested do not stand up to close scrutiny.<br />
There must be a rationale justifying the DNA retention of those who have been arrested but not<br />
charged or cautioned of an offence as opposed to retention from a random sample of the population.<br />
This rationale must be that retention from these people will result in an overall improvement in DNA<br />
use for the detection of crime as compared with random sampling. However, there does not seem to<br />
be any evidence to support this assumption. This was accepted by the Government on 9th October<br />
2006, when Home Office Minister Joan Ryan stated “As far as we are aware, there is no definitive<br />
data available on whether persons arrested but not proceeded against are more likely to offend than<br />
the population at large” 148 . As a consequence there does not seem to be any basis for distinguishing<br />
146<br />
http://www.homeoffice.gov.uk/documents/cons-2007-pace-reviewview=Binary at paragraph 3.33.<br />
147<br />
Dropping litter is an offence under S.87 Environmental Protection Act 1990.<br />
148<br />
8th October 2006, HC Deb, Col 491W.