The police DNA database for England and Wales is currently the largest DNA database in the world. It has in excess of 5 million profiles, including the profiles of many individuals who have been found to be innocent of any charges made against them. The rapid development of this vast database has inevitably fuelled debates about the rise of the Surveillance ‘Big Brother’ State. Most notably, concerns have been expressed that the database unjustifiably interferes with the individual’s right to privacy, particularly having regard to the retention of records relating to people who have not been convicted of any offence (there are at least 850,000 profiles of such persons on the DNA Database). Earlier this year, these concerns resulted in a judgment by the European Court of Human Rights that the existing approach to the retention of DNA data relating to unconvicted individuals was unlawful (Marper v UK – see also my earlier post on the Marper case). Concerns have also been expressed as to the disproportionate presence of individuals from ethnic minorities on the database, particularly young black men, and as to the resulting discriminatory potential which is effectively built into the system.

Two recent important developments suggest that the controversies surrounding the database are only likely to intensify in the coming months. First, the government has opted to use the Queen’s Speech to lay before Parliament a bill which contains a number of inevitably controversial provisions relating to the database (the Crime and Security Bill). Second, a government backed commission, the Human Genetics Commission (HGC) has today issued a report entitled ‘Nothing to Hide, Nothing to Fear?’ which criticises a number of aspects of the existing database system.

The following aspects of the Bill are particularly worthy of note:

·         The Bill contains provisions aimed at giving the police additional powers to take DNA samples from individuals who have been previously arrested for crimes but whose biometric has yet to be obtained. The effect of the provisions is that the police will be entitled to take biometric data from someone who may have been arrested some time ago and before the new provisions came into force (clause 2(1)). The provisions also afford the police new powers to take DNA samples from UK nationals or residents who have been convicted overseas of serious sexual and violent offences (clause 3(1)). These powers would equally apply to convictions occurring prior to the coming into force of the new provisions.

·         The bill also sets out a statutory framework for the retention and destruction of biometric material (including DNA samples, DNA profiles and fingerprints) that has been taken from an individual as part of the investigation of a recordable offence (clause 14). These powers were consulted upon in the Keeping the Right People on the DNA Database paper published in May 2009. In effect, the provisions envisage a somewhat more nuanced approach to the retention of data with retention periods for the various categories of data depending on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. Most notably:

o   the fingerprints and DNA of adults who are arrested but unconvicted will prima facie be retained for a period of 6 years

o   the fingerprints and DNA of adults who are convicted will be retained indefinitely

o   lesser retention periods apply to persons under the ages of 18 and 16 and, in respect of such minors the gravity of the offence will be in issue

o   chief constables are however afforded a power to determine that any retention period may be extended by up to two years for reasons of national security

o   all DNA samples must be destroyed six months after being taken.

·         The Secretary of State will be afforded powers to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point the legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material (clause 19).

·         The National DNA Strategy Board which already exists to oversee the operation of the database will be put on a statutory footing (clause 20).

It remains uncertain whether any of these provisions will make it onto the statute books in advance of the forthcoming general election. However, it must be said that the growth in police powers which would be afforded under the Bill does not sit particularly comfortably with the serious concerns as to the existing system identified in the report from the HGC. Those concerns include, not least, concerns about the disproportionate representation of members of ethnic minorities; the retention of data relating to unconvicted persons for any period of time and, further, the problems of function creep.