Civil Law Question & Answer

Question : Civil Law

What personal details such as name age, date of birth etc are the police allowed to retain about me and for how long if I am arrested but not charged or arrested, charged and charges are dropped before court, and given the recent European Court ruling should the police be able to hold any DNA for me if I have not been charged or convicted.

Answer : Civil Law

I am asked to advise Ms xxxxx xxxxxxxxxx (The Petitioner) with regard to the retention by Police Authorities of private and personal information, including genetic profiles, of persons who have been interviewed, detained, arrested or charged by police in connection with an offence. All charges in this advice are presumed to be withdrawn prior to prosecution.

The retention of an individual`s personal information by Police Authorities has long been a contentious one with law enforcement and civil liberties groups being diametrically opposed in their views. The Police, under PACE 1984 guidelines are required to remove from their files all records of a personal nature relating to innocent persons who have been interviewed in connection with an investigation. However, these guidelines are open to interpretation and it was not uncommon for Police Authorities to interpret them to their advantage.

In an attempt to shore up these guidelines THE DATA PROTECTION ACT (DPA) 1998 SETS out several principles governing how personal data should be processed. One of these principles deals with how long such data should be retained. Schedule 1(5) to the DPA provides that:

'Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.'

The DPA does not, however, set out any specific maximum (or minimum) retention periods for personal data. It requires a data processor to decide when the data is no longer necessary for its purposes and when it can be erased from the data controller's system.

Again a less than satisfactory response to the issue and one that leaves the Petitioner with one clear course of action that shall be discussed below. With regard to DNA profiles (and indeed fingerprints) current rules, under which everyone arrested has their genetic information stored indefinitely, were ruled unlawful by the European Court of Human Rights last year. Judges in Strasbourg said the policy of retaining all suspects' data was "blanket and indiscriminate". The proposal to scale back the DNA database and destroy samples comes after a landmark judgement by the European court of human rights last December that ruled the government was wrong to hold the DNA profiles - the genetic codes that identify individuals - of innocent people indefinitely.

DNA profiles of almost a million innocent people would need to be destroyed as part of a major overhaul of the police national database. They include, as in the Petitioner`s circumstance, people who have been arrested and never charged, and also those taken to court but found not guilty.

In fact, an estimated 800,000 of the 5.1m DNA profiles on the database belong to people in England and Wales who have no criminal conviction or indeed any other judgement against them such as a penalty or fine.

In response the government, in the form of Home Secretary Jacqueline Smith, promised to hold "urgent" consultancy talks aimed at implementing the ECHR ruling. In May of this year, Ms Smith agreed to implement the ruling but with provisos.

In reality this move has been received with some cynicism by civil liberty groups who see it as yet another delaying action fought by a government reticent to implement any ruling that impacts on the national DNA database.

There is however, one proven method in removing personal information, including genetic profiles, belonging to innocent persons held by police authorities. Issue a Letter before Claim notice to your local Chief Constable informing him of your intention to seek a Judicial Review with regard to the retention of your personal information by his force. Standard rebuttals will ensue but persistence in the form of follow up notices has a proven track record in these matters. Should you require, Lawyers4U provide a drafting service for persons who wish to instigate proceedings in such matters.

Return to top