Fingerprints, DNA and Policing Powers during COVID-19

Lockdown measures have now been extended by a further three weeks and may last until mid-June. So, you might be wondering what the mechanisms are behind such structures. How can the police force people to disperse from large gatherings? What in fact are large gatherings? What about leaving your home for anything other reason than essential travel? What penalties are in place? Well…Law is the answer, specifically Public Law. Broadly speaking public law governs the relationship between the individual and the state. Many Acts of Parliament fall into this category, none more so than those covering police powers, counter-terrorism powers and human rights.

Enter the Coronavirus Act 2020 and the conjoined Health Protection (Coronavirus Restrictions) (England) Regulations 2020. The Act and Regulations restrict an individual’s movement during the emergency period, specifying that no person may leave their fixed abode without reasonable excuse. Large gatherings, defined as being two people or more, are also banned for the duration of this emergency; again unless you can satisfy certain necessities.

Enforcement of these restrictions and penalties applicable are provided by an increase in current legislative powers brought about by the Police and Criminal Evidence Act 1984 (PACE). An officer is now permitted to arrest an individual without a warrant, in order to maintain public health and to maintain public order.

Arrestable offences have undoubtedly increased under these provisions. Should an individual, without reasonable excuse contravene a requirement under the regulations, they essentially commit a criminal offence. If an individual does not follow a direction given, or fails to comply with a reasonable instruction, they likewise commit an offence, and are liable on summary conviction to a fine, a maximum being £1000.

What is perhaps most interesting, is that section 24 of the Coronavirus Act 2020 goes further, without rationale, providing an extension to the time limits for the retention of fingerprints and DNA profiles.

The UK Parliament introduced the Protection of Freedoms Act 2012 which stated that all DNA and fingerprint samples taken from persons who are not convicted of a criminal offence should be destroyed. Prior to this Act, the UK had the largest database in the western world. Whilst PACE already allows for indefinite retention of those profiles taken from convicted individuals, and for up to three to five years of those merely charged, the Coronavirus Act 2020 allows for a maximum 12-month extension to these times.

It is far from clear why in these times would need to be extended in the first place given that Magistrates Court hearings in England and Wales are taking place remotely. The law already provides for retention beyond that of many other jurisdictions, so why the necessity?

There are pros and cons to retention; some solving old cold cases and bringing about justice for all. But the science is not 100% and can lead to unfairness and wrongful arrest. Your DNA/fingerprint profile belongs uniquely to you, but now it seems, increasingly to the authorities; kept on a computer system to which you have no control or access. This fact, conjoined with the ever-increasing use of computer algorithms, such databases hold enormous power, a gold-mine for national and international policing agencies. These can be used positively for fighting crime, but they come with huge risks to privacy. Mission creep can easily lead to such databased being employed in terms of racial profiling, medical history and psychological profiling.

Thankfully, the master-control-programme behind the increased measures, namely the Coronavirus Act 2020 and the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, have sunset clauses, bringing them to an abrupt end once this crisis has abated. The question remaining of course, have these measures inadvertently altered public perceptions regarding the relationship between collective security and individual privacy? Will the line spring back or stay overtly state supportive?

Dr Simon Hale-Ross is a Senior Lecturer in Law and Counter Terrorism Policing at Edge Hill University.


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