How long can Police keep DNA samples and DNA profiles?

For those aged 17 years or older who have given a DNA sample1, the amount of time the police can keep the DNA sample and DNA profile generated from it depends in which of the five situations the DNA sample was obtained. In some instances a DNA sample may have to be destroyed immediately after a DNA profile is generated, yet in other situations it might be kept for two years. There are also different rules as to when DNA profiles are destroyed.2

Elimination sample

With an elimination sample, there are no specific rules around when the sample or profile should be destroyed, as this situation is not covered by the Criminal Investigations (Bodily Samples) Act 1995. In this situation, a person is volunteering their sample to Police in order to eliminate themselves from a police inquiry (or, if they are the victim, to distinguish their DNA from the DNA of the offender). Police should only hold onto the sample and profile for as long they reasonably need to under the Privacy Act 1993.

Suspect consent sample and suspect compulsion order

The rules for suspect consent samples and suspect compulsion order samples are the same. In those situations the law3 is that Police need to destroy the DNA sample and the DNA profile (sometimes referred to in the law as the “records of any analysis” or “information derived from an analysis of a sample of genetic material”) 24 months after the sample is obtained if Police have not, by that time, charged the person with an offence.4

If a person is charged with an offence, then the sample and profile must be destroyed either:

  1. if/when charges are withdrawn; or
  2. if/when the person is acquitted of the charge/s.

If a person is convicted, then their DNA sample will be destroyed but their DNA profile will be transferred to the  National DNA Profile Databank and not destroyed. In most cases, the DNA profile will be kept on the Databank forever.

Sample upon arrest or intention to charge

When a police officer has arrested someone or intends to charge them then the law says the DNA sample must be destroyed as soon as a DNA profile is generated. At that point the DNA profile will be loaded to the Temporary Databank. 5 The DNA profile must be destroyed two months after the sample is obtained, if the Police haven’t, by that time, charged the person with an offence.6 However, if the person is charged with an offence, then the profile must be destroyed either:

a) if/when charges are withdrawn; or

b) if/when the person is acquitted of the charge/s.

If a person is convicted, then their DNA profile will be transferred to the  National DNA Profile Databank and not destroyed. In most cases, the DNA profile will be kept on the Databank forever.

Databank request

With a Databank request, a DNA sample must be destroyed as soon as possible after a DNA profile is generated. A person’s DNA profile remains on the  National DNA Profile Databank until/if the person asks for Police to remove it from the Databank. However, if, after giving the DNA sample, the person is charged and convicted of an imprisonable offence, then the profile will not be removed from the Databank.  In most cases, the DNA profile will be kept on the Databank forever.

Whose profiles are on the Databank and how long do they remain on the Databank?

The  National DNA Profile Databank contains the DNA profiles of people convicted of certain, usually serious, criminal offences. In most cases, these DNA profiles will remain on the Databank forever. (In certain situations, mostly related to youth offenders, DNA profiles will remain on the Databank for 4 or 10 years).

Also on the Databank are profiles of people who consented to have their DNA profile added to the Databank. A person’s DNA profile remains on the Databank until/if the person asks for Police to remove it from the Databank. However, if, after giving the DNA sample, the person is charged and convicted of an imprisonable offence, then the profile would not be removed upon request but instead would remain on the Databank forever.

Footnotes

  1. When the police have obtained a DNA sample from children or young people, then, in most situations, the same rules about keeping DNA samples and profiles apply as they do for adults.
  2. In practice ESR destroy the samples, but Police is required by law to ensure that the destruction takes place.
  3. The law is the Criminal Investigations (Bodily Samples) Act 1995.
  4. A police officer could apply to the Court to extend this period.
  5. The law is the Criminal Investigations (Bodily Samples) Act 1995.
  6. A police officer could apply to the Court to extend this period.