Background Retention of personal samples that are or may be disclosable
63.The Protection of Freedoms Act 2012 (“PoFA”) amended PACE to require that all samples taken from individuals (such as cheek swabs for DNA, blood, hair and urine) must be destroyed within six months. (This provision has not yet been brought into force fully.) This applies whether the samples were taken for the purpose of including the resultant profile on the National DNA Database or for evidence in court. It differs from PoFA’s treatment of all other evidence, where retention of evidence for court is governed by the Criminal Procedure and Investigations Act 1996 (“CPIA”) and its associated Code of Practice. During implementation of PoFA, concerns were raised by the CPS and the police that this requirement to destroy samples could jeopardise court proceedings because arguments about samples and the conclusions drawn from their analysis cannot be dealt with properly if they no longer exist. Section 146 therefore amends PACE so that samples which may be needed in court proceedings will be governed by the CPIA in the same way as other types of evidence – thereby enabling them to be retained during investigation and prosecution. If PoFA is brought fully into effect without this change, forces would have to seek court orders on an individual basis for retention of samples, which would be likely to result in a large number of applications for such orders, particularly in relation to serious cases. This would be procedurally cumbersome and would result in higher costs for the police and courts.
64.The amendment provides that once CPIA no longer applies, the sample must be destroyed, and prevents a sample retained under CPIA from being used other than for the purposes of any proceedings for the offence in connection with which it was taken.