The birth of the DNA database in the UK

Although DNA matching was first used to catch an offender in 1987, the Police and Criminal Evidence Act 1984 is instrumental in defining police treatment of suspects in the early stages of an investigation. Despite the fact that the Act has been amended on numerous occasions since its inception, analysis of the original legislation provides the starting point to map out the development and expansion of the circumstances in which samples containing DNA can be taken from individuals.

This early legislation severely restricted and placed safeguards on the ability of police to take samples. In brief, intimate samples could only be taken with consent and non-intimate samples (including hair samples) could only be taken without consent where the individual was suspected of a 'serious arrestable offence' and an officer of at least the rank of superintendent authorised the taking. Retention of the sample and the arising DNA fingerprint were also restricted to the person being convicted. If the individual was not convicted then the samples and fingerprints had to be destroyed.

Specifically, the Police and Criminal Evidence Act in 1984 (hereafter 'PACE') differentiated between intimate and non-intimate samples and outlined the circumstances within which each could be taken from a suspect. Section 62 of PACE governs the taking of ‘intimate samples’[1]. It requires that a police officer of at least the rank of superintendent authorises the sample to be taken[2] and in reaching this decision the officer must have reasonable grounds for suspecting involvement of the individual in a serious arrestable[3] offence and for believing that the sample will prove or disprove his involvement[4]. Significantly, however the taking of such a sample requires the consent of the suspect[5], although if this is refused without good cause then inferences may be drawn regarding this refusal at a later stage[6]. Intimate samples other than saliva or urine must be taken by a registered medical practitioner[7].

Section 63, governs non-intimate samples[8], which significantly does encompass hair samples other than pubic hair. It provides that non-intimate samples may only be taken without appropriate consent if the individual is in custody[9] and an officer of at least the rank of superintendent has reasonable grounds to suspect involvement in a serious arrestable offence and for believing the sample will prove or disprove involvement[10].

Section 64 requires that where an individual is cleared of an offence[11], the prosecution is not pursued and he is not cautioned for the offence[12] or he is no longer suspected of committing an offence[13], then any fingerprints and samples taken from that person in connection with the offence must be destroyed. It appears retention is permissible where the individual has been convicted of the offence for which the sample was taken. Additionally, the individual may request to be present at the destruction of samples or fingerprints[14].

In the decade that followed the entry into force of PACE, ground breaking advances were made in the use of DNA as an investigative tool which led to the publishing of the report, ‘Recommendations of the Royal Commission on Criminal Justice’ in 1993. The report recommended that a forensic DNA database be established with the objective aim of not only improving the information available to criminal investigators but also to ensure that innocent people were not being wrongfully convicted, as recent miscarriages of justice had reduced public confidence in the criminal justice system[15]. These recommendations led to amendments of PACE by the Criminal Justice and Public Order Act 1994.