Annex F: Fingerprints, samples and footwear impressions — destruction and speculative searches

Paragraphs 1 to 12 summarise and update information which is available at:

https://www.gov.uk/government/publications/protection-of-freedoms-act-2012-dna-and-fingerprint-provisions/protection-of-freedoms-act-2012-how-dna-and-fingerprint-evidence-is-protected-in-law

1. A DNA sample is an individual’s biological material, containing all of their genetic information. The Act requires all DNA samples to be destroyed within 6 months of being taken. This allows sufficient time for the sample to be analysed and a DNA profile to be produced for use on the database.

2. The only exception to this is if the sample is or may be required for disclosure as evidence, in which case it may be retained for as long as this need exists under the Criminal Procedure and Investigations Act 1996.

3. A DNA profile consists of a string of 16 pairs of numbers and 2 letters (XX for women, XY for men) to indicate gender. This number string is stored on the National DNA Database (NDNAD). It allows the person to be identified if they leave their DNA at a crime scene.

4. Fingerprints are usually scanned electronically from the individual in custody and the images stored on IDENT1, the national fingerprint database.

5. The retention period depends on the outcome of the investigation of the recordable offence in connection with which the fingerprints and DNA samples was taken, the age of the person at the time the offence was committed and whether the recordable offence is a qualifying offence and whether it is an excluded offence (See Table Notes (a) to (c)) , as follows:

Age when offence committed — Outcome — Retention Period

Any age — Convicted or given a caution or youth caution for a recordable offence which is also a qualifying offence — INDEFINITE

18 or over — Convicted or given a caution for a recordable offence which is NOT a qualifying offence — INDEFINITE

Under 18 — Convicted or given a youth caution for a recordable offence which is NOT a qualifying offence. — 1st conviction or youth caution – 5 years plus length of any prison sentence. Indefinite if prison sentence 5 years or more. 2nd conviction or youth caution: Indefinite

Age when offence committed — Outcome — Retention Period

Any age — Charged but not convicted of a recordable qualifying offence. — 3 years plus a 2 year extension if granted by a District Judge (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded)

Any age — Arrested for, but not charged with, a recordable qualifying offence — 3 years if granted by the Biometrics Commissioner plus a 2 year extension if granted by a District Judge (or indefinite if the individual has a previous conviction for a recordable offence which is not excluded)

Any age — Arrested for or charged with a recordable offence which is not a qualifying offence. — Indefinite if the person has a previous conviction for a recordable offence which is not excluded otherwise NO RETENTION

18 or over — Given Penalty Notice for Disorder for recordable offence — 2 years

(a) A ‘recordable’ offence is one for which the police are required to keep a record. Generally speaking, these are imprisonable offences; however, it also includes a number of non- imprisonable offences such as begging and taxi touting. The police are not able to take or retain the DNA or fingerprints of an individual who is arrested for an offence which is not recordable.

(b) A ‘qualifying’ offence is one listed under section 65A of the Police and Criminal Evidence Act 1984 (the list comprises sexual, violent, terrorism and burglary offences).

(c) An ‘excluded’ offence is a recordable offence which is not a qualifying offence, was committed when the individual was under 18, for which they received a sentence of fewer than 5 years imprisonment and is the only recordable offence for which the person has been convicted.

6. Where the retention framework above requires the deletion of a person’s DNA profile and fingerprints, the Act first allows a speculative search of their DNA and fingerprints against DNA and fingerprints obtained from crime scenes which are stored on NDNAD and IDENT1. Once the speculative search has been completed, the profile and fingerprints are deleted unless there is a match, in which case they will be retained for the duration of any investigation and thereafter in accordance with the retention framework (e.g. if that investigation led to a conviction for a qualifying offence, they would be retained indefinitely).

7. For qualifying offences, PACE allows chief constables to apply for extensions to the given retention periods for DNA profiles and fingerprints if considered necessary for prevention or detection of crime.

8. Section 20 of the Protection of Freedoms Act 2012 established the independent office of Commissioner for the Retention and Use of Biometric Material (‘the ‘Biometrics Commissioner’). For details, see https://www.gov.uk/government/organisations/biometrics-commissioner.

9. Where an individual is arrested for, but not charged with, a qualifying offence, their DNA profile and fingerprint record will normally be deleted. However, the police can apply to the Biometrics Commissioner for permission to retain their DNA profile and fingerprint record for a period of 3 years. The application must be made within 28 days of the decision not to proceed with a prosecution.

10. If the police make such an application, the Biometrics Commissioner would first give both them and the arrested individual an opportunity to make written representations and then, taking into account factors including the age and vulnerability of the victim(s) of the alleged offences, and their relationship to the suspect, make a decision on whether or not retention is appropriate.

11. If after considering the application, the Biometrics Commissioner decides that retention is not appropriate, the DNA profile and fingerprint record in question must be destroyed.

12. If the Biometrics Commissioner agrees to allow retention, the police will be able to retain that individual’s DNA profile and fingerprint record for a period of 3 years from the date the samples were taken. At the end of that period, the police will be able to apply to a District Judge (Magistrates’ Courts) for a single 2 year extension to the retention period. If the application is rejected, the force must then destroy the DNA profile and fingerprint record.

13. Footwear impressions taken in accordance with section 61A of PACE (see paragraphs 4.16 to 4.21) may be retained for as long as is necessary for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

14. When fingerprints, footwear impressions or DNA samples are taken from a person in connection with an investigation and the person is not suspected of having committed the offence, see Note F1, they must be destroyed as soon as they have fulfilled the purpose for which they were taken unless:

(a) they were taken for the purposes of an investigation of an offence for which a person has been convicted; and

(b) fingerprints, footwear impressions or samples were also taken from the convicted person for the purposes of that investigation.

However, subject to paragraph 14, the fingerprints, footwear impressions and samples, and the information derived from samples, may not be used in the investigation of any offence or in evidence against the person who is, or would be, entitled to the destruction of the fingerprints, footwear impressions and samples, see Note F2.

15. The requirement to destroy fingerprints, footwear impressions and DNA samples, and information derived from samples and restrictions on their retention and use in paragraph 14 do not apply if the person gives their written consent for their fingerprints, footwear impressions or sample to be retained and used after they have fulfilled the purpose for which they were taken, see Note F1. This consent can be withdrawn at any time.

16. When a person’s fingerprints, footwear impressions or sample are to be destroyed:

(a) any copies of the fingerprints and footwear impressions must also be destroyed; and

(b) neither the fingerprints, footwear impressions, the sample, or any information derived from the sample, may be used in the investigation of any offence or in evidence against the person who is, or would be, entitled to its destruction.

F1 Fingerprints, footwear impressions and samples given voluntarily for the purposes of elimination play an important part in many police investigations. It is, therefore, important to make sure innocent volunteers are not deterred from participating and their consent to their fingerprints, footwear impressions and DNA being used for the purposes of a specific investigation is fully informed and voluntary. If the police or volunteer seek to have the fingerprints, footwear impressions or samples retained for use after the specific investigation ends, it is important the volunteer’s consent to this is also fully informed and voluntary. The volunteer must be told that they may withdraw their consent at any time.

The consent must be obtained in writing using current nationally agreed forms provided for police use according to the purpose for which the consent is given. This purpose may be either:

DNA/fingerprints/footwear impressions - to be used only for the purposes of a specific investigation; or

DNA/fingerprints/footwear impressions - to be used in the specific investigation and retained by the police for future use.

To minimise the risk of confusion:

if a police officer or member of police staff has any doubt about:

how the consent forms should be completed and signed, or

whether a consent form they propose to use and refer to is fully compliant with the current nationally agreed form,

the relevant national police helpdesk (for DNA or fingerprints) should be contacted.

in each case, the meaning of consent should be explained orally and care taken to ensure the oral explanation accurately reflects the contents of the written form the person is to be asked to sign.

F2 The provisions for the retention of fingerprints, footwear impressions and samples in paragraph 15 allow for all fingerprints, footwear impressions and samples in a case to be available for any subsequent miscarriage of justice investigation.