The Council of Europe notes however that information is awaited on the detail of the new legislation and any interim measures envisaged. Given that the legislation criticised by the Court at the time of the judgment remains in force and the size of the database and number of individuals possibly affected, information on the implementation of interim measures is of particular importance in relation to both the current situation and the treatment of “legacy profiles”.
1) Crime and Security Act 2010: The new provisions envisaged the following powers of retention:
– Cellular samples: samples should not be retained beyond a six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD (section 64ZA).
– Adults: six-year retention period for the fingerprints and DNA profiles of adults arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZD).
– 16 and 17 year-olds: six-year retention period for the fingerprints and DNA profiles of minors aged 16 and 17 years arrested but not ultimately convicted of a serious offence (section 64ZG). For other recordable offences (lesser offences) the retention period shall be three years (section 64ZE).
– Under 16 year-olds: three-year retention period for the fingerprints and profiles of minors aged under 16 years arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZE and 64ZF). Although not evident in the text of the Act, the United Kingdom authorities have confirmed that steps have been taken to remove the records of children under 10 from the NDNAD, and such material will not be retained in the future
– Terrorism and national security: If the responsible Chief Officer determines that fingerprints or DNA profiles are to be retained for national security purposes, they need not be destroyed in accordance with the above retention periods for as long as the determination has effect (section 64ZK, see also clauses 17 and 18 of the Crime and Security Bill amending Schedule 8 of the Terrorism Act 2000). Such a determination has effect for a maximum of two years beginning with the date on which the material would otherwise be required to be destroyed, but may be renewed.
– Volunteers: Material which has been given voluntarily is to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless, among other reasons, the individual consents to its retention under section 64ZL (section 64ZB). Consent to retention of material under section 64ZL may be withdrawn at any time.
– Legacy profiles: Section 22 requires the Secretary of State to make provision for the destruction of material taken prior to the commencement of the relevant provisions of the Bill which would have been destroyed had those provisions been in force when the material was obtained.
– Review procedure: Under section 64ZI(5), material falling within sections 64ZD to 64ZH must be destroyed if it appears to the Chief Officer that (a) the arrest was unlawful; (b) the taking of the fingerprints, impressions of footwear or DNA sample concerned was unlawful; (c) the arrest was based on mistaken identity, or (d) other circumstances relating to the arrest or the alleged offence mean that it is appropriate to destroy the material. Section 23 requires the National DNA Database Strategy Board to issue guidance to chief officers on the early destruction of samples and DNA profiles.