Council of Europe assesses UK implementation of S & Marper judgment

In its Programme for Government of 20/05/2010 the new UK government stated that “We will adopt the protections of the Scottish model for the DNA database”. A more detailed proposal, including whether to bring into force any aspects of the Crime and Security Act as an interim measure is being considered. (see below)I t is anticipated that the coalition government will submit legislation to Parliament on DNA retention (based on the Scottish model) in Autumn 2010, anticipating that it will be brought into force by Autumn 2011. T

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.


2 Responses

  1. The possibility of bringing some DNA provisions of the Crime and Security Act 2010 into force was hinted at by the Ministry of Justice (when all the legal and legislative work about DNA retention is managed by the Home Office).

    Another possibility of forced change concerning DNA retention may come from the Supreme Court if a case the High Court recently granted permission to appeal directly to the SC goes there.

    I published more details and links to sources at

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