Use of photographs, fingerprints, DNA samples and other samples taken at police stations
DNA and fingerprints - What to do (April 2011)
DNA and fingerprints - What the law says (April 2011)
Under the Police and Criminal Evidence Act 1984 (PACE), the police have wide powers to take photographs, fingerprints and body samples of persons without their consent where they had been charged with, or convicted of, a recordable offence. These powers have been considerably extended by amendments contained in the Criminal Justice Act 2003. Under the new powers, the police may also take fingerprints and body samples without consent where a person has been detained in consequence of an arrest for a recordable offence (before charge).
Fingerprints and DNA samples and profiles
Previously, fingerprints and DNA samples taken would have to be destroyed in the event of the person being acquitted, or if the charges were dropped or not pursued. Following amendments to PACE by the Criminal Justice and Police Act 2001, the police now have powers to retain fingerprints and DNA samples lawfully taken from any person - regardless of whether or not they are subsequently convicted of an offence. These records can then be held on databases, indefinitely. The police’s current policy is to keep the fingerprints, photographs and samples for the rest of the life of the individual, and only destroy them in exceptional circumstances. This is the same policy as they apply for the records of the arrest or charge (see Retention of your criminal records and other information). The fingerprints, photographs and samples should only be used for crime detection purposes.
The United Kingdom is the only member of the Council of Europe who expressly permits the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Liberty considers that this power is incompatible with the right to respect for private life under Article 8, and assisted two individuals to challenge the refusal by the police to destroy their fingerprints and samples after they were acquitted by the court, in one case, and after no charges were brought in another case. The case went all the way to the House of Lords, who held that there had been no violation of Article 8. The individuals applied to the European Court of Human Rights (ECtHR), and the ECtHR found in their favour.
In this important case (S and Marper v the United Kingdom [2008]), the ECtHR noted that DNA samples contain much sensitive information about an individual, including information about his or her health, and a unique genetic code of great relevance to both the individual and his relatives. The DNA profile (which is a code extracted from the DNA sample and contains more limited information) also contains sensitive personal information about the individual because it allows the identification of genetic relationships between individuals. In respect of fingerprints, the court found that although they did not contain as much sensitive information as DNA samples and profiles, fingerprint records constitute their personal which contain certain external identification features. For these reasons, the ECtHR found that the retention of the applicants’ samples, profiles and fingerprints all interfered with their rights under Article 8.
As mentioned above (see ARTICLE 8 – THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE) Article 8 is not an absolute right, and the state may interfere with an individual’s right to privacy where this is in accordance with the law and is justified as necessary and proportionate for a legitimate aim. However the ECtHR found that the indefinite retention of fingerprints and DNA samples and profiles of persons who have been acquitted of criminal offences, was a disproportionate interference with their right to privacy. The Court noted in particular the fact that the police may retain the irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender, and that the information is retained indefinitely whatever the nature or seriousness of the suspected offence, with only very limited possibility to have the information removed. The Court also noted that treating persons who had been acquitted or even who have never been charged with any offence in the same way as convicted persons undermined the presumption of innocence, because of the stigma of having this type of information stored in the database.
This judgment by the ECtHR does not make the UK law invalid. The judgment requires the UK Government to reconsider and change the law under which the DNA and other information about unconvicted individuals is permanently retained by police. At the time of writing the Government had launched a consultation on the matter.
If you are one of the 850 000 innocent people whose fingerprints and DNA have been retained by the police, you may wish to write to your local Chief Constable and request that your fingerprints and DNA samples be destroyed. If you have written previously and had your request rejected, you might want to consider writing again in light of the S and Marper judgment. However, there is still no guarantee that the Chief Constable will grant your request. It is quite likely that police forces will try to delay making decisions until the government decides what to do about the law. If you are refused this time, you can always request again later. Bear in mind that the guidance advises the police always to refuse a first request. You should therefore write back once you have received a first letter of refusal, insisting that they reconsider removing your records.
If the police still refuse to remove your records, you may want to consider seeking advice as to whether this refusal is challengeable on the grounds that it breaches your rights under Article 8.
Photographs
The power to take photographs of suspects and, thereafter, to retain these photographs for the prevention or detection of crime has recently been extended by amendments to PACE brought about by the Anti-Terrorism, Crime and Security Act 2001. Under a new section, Section 64A of PACE, the police have wider powers to take photographs, and to retain these photographs even where the suspect is subsequently released, not charged or acquitted of an offence. The retention of photographs was not at issue in the case of S and Marper, but it is certainly arguable that if the indefinite retention of fingerprints of persons not convicted of any offence on the records breaches Article 8, then so will the retention of photographs.
DNA and fingerprints - What the law says (April 2011)
Under the Police and Criminal Evidence Act 1984 (PACE), the police have wide powers to take photographs, fingerprints and body samples of persons without their consent where they had been charged with, or convicted of, a recordable offence. These powers have been considerably extended by amendments contained in the Criminal Justice Act 2003. Under the new powers, the police may also take fingerprints and body samples without consent where a person has been detained in consequence of an arrest for a recordable offence (before charge).
Fingerprints and DNA samples and profiles
Previously, fingerprints and DNA samples taken would have to be destroyed in the event of the person being acquitted, or if the charges were dropped or not pursued. Following amendments to PACE by the Criminal Justice and Police Act 2001, the police now have powers to retain fingerprints and DNA samples lawfully taken from any person - regardless of whether or not they are subsequently convicted of an offence. These records can then be held on databases, indefinitely. The police’s current policy is to keep the fingerprints, photographs and samples for the rest of the life of the individual, and only destroy them in exceptional circumstances. This is the same policy as they apply for the records of the arrest or charge (see Retention of your criminal records and other information). The fingerprints, photographs and samples should only be used for crime detection purposes.
The United Kingdom is the only member of the Council of Europe who expressly permits the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Liberty considers that this power is incompatible with the right to respect for private life under Article 8, and assisted two individuals to challenge the refusal by the police to destroy their fingerprints and samples after they were acquitted by the court, in one case, and after no charges were brought in another case. The case went all the way to the House of Lords, who held that there had been no violation of Article 8. The individuals applied to the European Court of Human Rights (ECtHR), and the ECtHR found in their favour.
In this important case (S and Marper v the United Kingdom [2008]), the ECtHR noted that DNA samples contain much sensitive information about an individual, including information about his or her health, and a unique genetic code of great relevance to both the individual and his relatives. The DNA profile (which is a code extracted from the DNA sample and contains more limited information) also contains sensitive personal information about the individual because it allows the identification of genetic relationships between individuals. In respect of fingerprints, the court found that although they did not contain as much sensitive information as DNA samples and profiles, fingerprint records constitute their personal which contain certain external identification features. For these reasons, the ECtHR found that the retention of the applicants’ samples, profiles and fingerprints all interfered with their rights under Article 8.
As mentioned above (see ARTICLE 8 – THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE) Article 8 is not an absolute right, and the state may interfere with an individual’s right to privacy where this is in accordance with the law and is justified as necessary and proportionate for a legitimate aim. However the ECtHR found that the indefinite retention of fingerprints and DNA samples and profiles of persons who have been acquitted of criminal offences, was a disproportionate interference with their right to privacy. The Court noted in particular the fact that the police may retain the irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender, and that the information is retained indefinitely whatever the nature or seriousness of the suspected offence, with only very limited possibility to have the information removed. The Court also noted that treating persons who had been acquitted or even who have never been charged with any offence in the same way as convicted persons undermined the presumption of innocence, because of the stigma of having this type of information stored in the database.
This judgment by the ECtHR does not make the UK law invalid. The judgment requires the UK Government to reconsider and change the law under which the DNA and other information about unconvicted individuals is permanently retained by police. At the time of writing the Government had launched a consultation on the matter.
If you are one of the 850 000 innocent people whose fingerprints and DNA have been retained by the police, you may wish to write to your local Chief Constable and request that your fingerprints and DNA samples be destroyed. If you have written previously and had your request rejected, you might want to consider writing again in light of the S and Marper judgment. However, there is still no guarantee that the Chief Constable will grant your request. It is quite likely that police forces will try to delay making decisions until the government decides what to do about the law. If you are refused this time, you can always request again later. Bear in mind that the guidance advises the police always to refuse a first request. You should therefore write back once you have received a first letter of refusal, insisting that they reconsider removing your records.
If the police still refuse to remove your records, you may want to consider seeking advice as to whether this refusal is challengeable on the grounds that it breaches your rights under Article 8.
Photographs
The power to take photographs of suspects and, thereafter, to retain these photographs for the prevention or detection of crime has recently been extended by amendments to PACE brought about by the Anti-Terrorism, Crime and Security Act 2001. Under a new section, Section 64A of PACE, the police have wider powers to take photographs, and to retain these photographs even where the suspect is subsequently released, not charged or acquitted of an offence. The retention of photographs was not at issue in the case of S and Marper, but it is certainly arguable that if the indefinite retention of fingerprints of persons not convicted of any offence on the records breaches Article 8, then so will the retention of photographs.
