UK Expands DNA Database through the Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 was the first serious expansion of the powers to take samples, particularly non-intimate samples – which included mouth swabs and saliva in addition to hair samples: both of which provide DNA information. Such samples could be taken without the consent of the individual if he is charged with a recordable[1] offence, a significant advance on the earlier requirement that the individual is charged with a 'serious arrestable offence'.
During the investigation of an individual suspected of a recordable offence, samples can be used in speculative searches against information held by the police. If an individual is convicted, then the practice of retaining their samples is maintained. However retention of any other individuals’ samples is amended to provide that unless the individual is not suspected of the offence (for example, a police officer who provided a DNA sample to eliminate contamination source) then such samples “need not be destroyed, although they may not be used for the purposes of any investigation of an offence."
Specifically, Part IV of the original Criminal Justice and Public Order Act (CJPOA 1994) covers police powers and amends various sections of PACE to widen the powers of police to take ‘body samples’. Section 54(3) significantly amends PACE with regard to the type of offence for which an intimate sample may be taken by substituting the phrase ‘recordable offence’[2] in place of ‘serious arrestable offence’. The ‘appropriate consent’ is however still required subject to the drawing of adverse inference at a later stage.
The powers to take non-intimate samples are expanded significantly. A non-intimate sample may now be taken from an individual with or without his consent if he is charged with arecordable offence or informed that he will be reported for such an offence (as opposed to a serious arrestable offence in PACE 1984) or has been convicted of a recordable offence after this statute has entered into force[3]. The previous condition that an officer of at least the rank of superintendent has reasonable grounds to believe the sample will prove or disprove involvement in the offence[4], although not repealed, does no longer appear to be relevant particularly if the individual has already been convicted.
DNA samples or the information derived from such samples, which have been taken from an individual who has been arrested on suspicion of involvement in a recordable offence, may be checked against other fingerprints, samples or the information derived thereof held by the police[5]. In addition, the circumstances within which fingerprints and samples are to be destroyed are also amended. The new provision asserts that in the circumstances described in PACE 1984 where the individual would ordinarily be entitled to the destruction of his fingerprints, samples or information derived from each, these “need not be destroyed”. However, the information derived from such a person shall not be used in evidence against that person or for the purposes of any investigation of an offence[6].
The definitions of intimate and non-intimate samples are also altered by CJPOA 1994. A dental impression is added to the definition of an intimate sample, however a swab taken from a person’s mouth is removed and re-categorised as a non-intimate sample. Saliva is also re-categorised from an intimate sample to a non-intimate sample[7]. As a result of CJPOA 1994 non-intimate samples can be taken without consent for any recordable offences.
The CJPO 1994 applied to individuals convicted after 10th April 1995. The next development of the DNA database was intended to address the fact that, “One significant group of people, however, has eluded being tested even though they are guilty of sex crimes and crimes of violence. These are people who were convicted before the Criminal Justice and Public Order Act 1994 became law”[8] and so the Criminal Evidence (Amendment) Act 1997 allowed its retrospective application.