RELEVANT LEGISLATION

Background

1.  The Police and Criminal Evidence Act 1984 ("PACE") provided that bodily samples could be taken from people who were suspected of having committed "serious arrestable offences" (for example rape or murder) and only where it was relevant to the offence under investigation. The development of DNA profiling provided an opportunity to apply the technique to crime detection. This required the law to be updated. The Criminal Justice and Public Order Act 1994 (the "CJ&PO Act") amended PACE to extend the circumstances in which bodily samples might lawfully be taken and made possible the operation of an effective National DNA Database (see below). PACE, as amended, also provides safeguards in respect of the circumstances in which DNA samples can be taken, retained and used.

  2.  As a result of the CJ&PO Act bodily samples may now be taken in broadly the same circumstances as fingerprints. Non-intimate samples (mouth swabs and hair samples) can be taken without consent from:

—  a person in police detention or a person held in custody, providing an officer of at least the rank of Superintendent authorises it to be taken. An officer may only give such authority if she/he has reasonable grounds for suspecting the involvement of that person in a recordable offence, and the sample will help prove or disprove his/her involvement;

—  any person charged with, or who has been informed that he will be reported for, a recordable offence, regardless of whether the sample is relevant to the investigation of a particular offence; and either she/he has not had a non-intimate sample taken in the course of the investigation of the offence or the non-intimate sample taken was either unsuitable or insufficient;

—  any person convicted of a recordable offence.

  The sampling process involves taking two mouth swab samples or, alternatively, a minimum of 10 hairs with roots.

  3.  An intimate sample may be taken from a person in police detention if a police officer of at least the rank of Superintendent authorises it to be taken, and if the appropriate consent is given. An intimate sample may be taken from a person not in police detention when at least two non-intimate samples have been taken which have proved to be unsuitable or insufficient. Consent is required before an intimate sample may be taken but adverse inferences may be drawn by a court if consent is withheld.

  4.  Sections 64(1) to (3) of PACE provide that where a sample is taken from a person in connection with the investigation of an offence and that person is not suspected of having committed the offence, or is not prosecuted, or is acquitted of the offence, the sample must be destroyed. Section 64(3B) further provides that the information derived from the sample cannot be used in evidence against that person or for the purposes of any investigation of an offence.

  5.  Samples which are required to be destroyed under sections 64(1) to (3) need not be destroyed if another person from whom a sample was taken as part of the same investigation is convicted of the offence. This allows for further analysis should the case subsequently be reviewed. However, the information derived from the sample cannot be used in evidence against that person or for the purposes of any investigation of an offence.

The National DNA Database

  6.  PACE provides for DNA samples to be taken, and the information derived, to be searched against records held by or on behalf of the police. This establishes the legal basis for the Database. The Forensic Science Service has been operating the National DNA Database on behalf of the Police Service since 1995. The police use the Database as an investigative tool in circumstances where they decide it would be appropriate to take DNA samples. Initially, the Association of Chief Police Officers (ACPO) advised police forces to take samples in cases of sexual crime, burglary or violence against the person. This decision reflected policy resourced limitations and the capacity of forensic providers to process DNA profiles for the database. The value of DNA profiling in solving volume crime is now becoming increasingly apparent. The database currently holds around a million criminal (the term should be taken as including "suspected criminal") and crime scene profiles. DNA profiles are retained in searchable form on the database only if a suspect is convicted or cautioned for a recordable offence, or if action against the individual is ongoing.

Response to Questions on which evidence was invited

  7.  The Forensic Science Service have provided evidence separately to the Select Committee [see p 39] on the National DNA database and other DNA databases which it holds such as the Police Elimination Database, the FSS Staff elimination database and other databases which support police investigations and research projects which they are currently undertaking. The FSS submission provides substantive answers to the specific questions raised in the call for evidence. Additional information is provided below.

Q1.  What current projects involve collecting of genetic information on people in the UK? What other projects are about to start? Are there collections of material (eg tissue samples) that could be used to generate database profiles?

  See FSS contribution.

Q2.  Why are these genetic databases being assembled? How are these activities funded? What practical considerations will constrain developments? Are there alternative ways of fulfilling the objectives?

  The National DNA Database has been in operation since 1995. It is proving to be a powerful tool in the investigation of crime. There have been over 113,000 matches to date, with a current average of 436 matches per week. These successes have been achieved despite the fact that the database has, over that time, contained the DNA profiles of only a fraction of the criminal population. The Government believes that investing in the database and ensuring that it is used to its full potential, offers substantial benefits in detection and, in time, reduction of crime (through deterrence). This view is supported by HM Inspectorate of Constabulary in their recent thematic report "Under the Microscope" [ISBN 1-84082-501-4].

  Last year the Prime Minister announced the start of a programme to increase the rate at which DNA profiles of criminals, and crime scene profiles, are added to the database. Some £34 million was invested in a two-year programme to double the rate at which samples were taken by the police and the resulting profiles added to the database. The programme began on 1 April this year. The money is being applied to reimburse forces for the cost of processing each qualifying sample. It is allocated on a "match funding" basis: forces are required to invest an equal amount from their own resources before qualifying for funding. This is designed to help ensure genuine additionality.

  The Government has recently announced the investment of a further £109 million new money to accelerate the expansion of the National DNA database to hold the profiles of the whole criminally active population (estimated at around three million people) by April 2004.

  There has been no change in the statutory basis for the taking of DNA profiles. The additional funding will enable the police to make better use of DNA profiling in the investigation of crime by enabling them to contribute more criminal and crime scene samples; thereby increasing the chances of obtaining matches between criminal and crime scene profiles.

Q3.  What is the genetic information that is being collected? How is it being stored and protected?

  See contribution from FSS.

Q4.  How do the organisations involved see their responsibilities regarding privacy; consent; future use; public accountability and intellectual property rights?

  The contribution from the FSS gives an account of the current situation. In July 1999 the Home Office published a consultation document "Proposal for Revising legislative measures on Fingerprints, Footprints and DNA Samples". The proposals which related to DNA were:

(i)  amendment of section 64 of PACE to permit the retention and use of DNA samples and the information derived from them with a volunteer's written consent;

(ii)  a power to retake DNA samples in the event of scientific failure inhibiting the production of a DNA profile or where the profile has been destroyed prior to analysis;

(iii)  statutory powers to check DNA samples, and the information derived from them, taken here against those from outside the jurisdiction, made explicit;

(iv)  lowering the authority level for authority for taking of samples from Superintendent or above to Inspector or above.

  Amendment to section 64 of PACE would allow DNA samples to be taken during "intelligence" or "mass" screens to be retained and used in other such investigations with the volunteers' written consent. This is not permitted within the current provisions of section 64 of PACE which provides that if a volunteer DNA profile is negative when checked against the specific crime scene profile then the sample must be destroyed once the due legal process surrounding the specific offence in question is completed. DNA profiles taken during intelligence screens are not entered onto the National DNA database. The proposed change would, in effect, allow for the creation of a voluntary DNA database.

  There have been two high profile cases, R -v- Weir and R -v- B, where the Appeal Court has ruled that DNA evidence was inadmissible in court because the defendants' DNA profiles had been retained on the database after the defendant had been acquitted of the offence for which the DNA sample was taken. The Home Secretary has announced that he is considering what steps need to be taken in response, including possible legislative changes to section 64 of PACE [Hansard 29 June 2000 WA 582W].

  In the HM Inspectorate of Constabulary report "Under the Microscope", HMIC found evidence that a number of forces were not adopting a rigorous approach to supplying the necessary information to enable DNA profiles to be removed from the database on the discontinuance of proceedings or the acquittal of suspects. They estimated that some 50,000 profiles that should have been removed had been retained. ACPO have written to all forces reminding them of the importance of adhering to the agreed protocols. Work is also underway to automate the process of notifying of acquittals through the establishment of a link between the PNC and the DNA database.

Q5.  How do they see their activities in the area of genetic databases developing in the future? What advances in sequencing, screening and database technology are they anticipating?

  See contribution from FSS.

Q6.  What lessons should be learnt from genetic database initiatives in other countries?

  The UK is a world leader in the development of DNA profiling and in the creation of a database which enables DNA profiles obtained from suspects to be matched with DNA profiles from crime scene stains. Crime does not respect territorial boundaries, however, and we are working with other European countries (through the EU Police Co-operation Working Group) to agree a common minimum set of DNA markers. This will enable sharing of DNA intelligence in the investigation of crime, subject to national laws.

Home Office
Science and Technology Unit

22 September 2000