UK DNA database includes the innocent and wrongly accused under the Criminal Justice and Police Act 2001

News & Analysis
UK DNA database includes the innocent and wrongly accused under the Criminal Justice and Police Act 2001

The most significant amendment of the Criminal Justice and Police Act 2001 (hereafter 'CJPA') is the amendment to the circumstances in which samples may be retained. The Act allows for retention of samples even where charges are dropped or the individual is cleared of the offence. It also allows for such samples to be used for (future) purposes related to the detection and prevention of crime, both in the UK and abroad.

In relation to the taking of samples, the CJPA 2001 amends PACE by removing the need for a superintendent to authorise the taking of an intimate sample with consent or authorising the taking of a non-intimate sample without consent from an individual and substituting it with ‘inspector’.

The authorisation to conduct speculative searches of samples is expanded by allowing such searches to be conducted by a variety of law enforcement bodies in the UK and also “any person with functions in any country or territory outside of the United Kingdom which (i) correspond to those of a police force; or (ii) otherwise consist of or include the investigation of conduct contrary to the law of that country or territory, or the apprehension of persons guilty of such conduct”. This presumably allows for UK participation in an international DNA Database scheme. The power to conduct speculative searches is also expanded to allow a speculative search with samples that have not been obtained from an individual who has been arrested in connection with a recordable offence, provided they have consented in writing. This will encompass volunteer samples.

Of significant relevance to the DNA Database are the changes introduced by section 82 of the Criminal Justice and Police Act 2001. PACE required that samples and fingerprints taken from individuals who were cleared of an offence or against whom it was decided not to pursue prosecution and no caution had been given, must be destroyed (although this was later amended to allow for their retention provided they were not used in future investigations). The new legislation removes the two circumstances outlined above to automatically allow for the retention of all samples, even where charges are dropped etc., unless the individual is not suspected of having committed the offence. The definition of an individual who “is not suspected of committing an offence” is unclear. It is questionable whether this simply covers individuals, such as the police, who submit DNA samples to solve potential contamination issues with a scene of crime DNA sample, or whether it covers individuals who volunteer in mass DNA screening, who could arguably be considered as ‘suspects’.

Additionally, and for the first time, the legislation authorises the use of samples/profiles from non-convicted individuals for the future “purposes related to the prevention or detection of (any) crime, the investigation of an offence or the conduct of a prosecution”. This provision is also to apply retrospectively and therefore authorises the continued retention of samples that should have been destroyed, but were not, prior to entry into force of the Act.