Police use of emergency powers to retain DNA ‘responsible and proportionate’

Professor Fraser Sampson said he has seen nothing to indicate that the police have applied the provisions “in anything other than the manner intended – necessarily, temporarily and proportionately”.

Section 24 of the Act enabled the Secretary of State to make regulations allowing the police to keep fingerprints and DNA profiles for six months on grounds of national security when there was no other statutory basis for keeping them. The police could do so without carrying out a detailed review of the risk posed by an individual nor the making of a National Security Determination (NSD) by a chief officer.

The emergency regulations were introduced in March 2020 and following a formal request from counter-terrorism policing were extended for a further six months last October, expiring on March 24 this year.

Professor Sampson said the Government introduced the measures because, “due to the unprecedented pressure on policing resources caused by the coronavirus pandemic”, the police were unable to follow their normal processes.

“In the circumstances the police simply would not have the resources necessary to make NSDs in the normal way, which will result in biometrics that are of importance to national security being lost,” he said.

However, he added that a survey by the Law Society showed there was “significant public support for a complete return to the systems protecting their rights before the pandemic”.

Professor Sampson’s observations were made in a parliamentary report published last week examining the impact of the second set of regulations on the making of NSDs under section 24.

Having only come into office on March 1 this year,  Professor Sampson said his involvement had come at “the very end of the process established under the temporary provisions”.

However, he said his office has remained in regular contact with the Metropolitan Police Service Counter-Terrorism Command (CT Policing).

“I was greatly impressed with the level of commitment and focus that I encountered from the CT Policing team and also with their appreciation that these were short-term transitory provisions born of extraordinary circumstances following the conclusion of which a return to the conventional system would be instigated,” said Professor Sampson.

He added: “Without legislative intervention by the Home Secretary in the form of the extended regulations permitted under section 24, a considerable number of biometrics held by the police for reasons of national security that would otherwise have been properly retained under an NSD would have been lost.

“Indeed, the second set of regulations have allowed 491 biometrics profiles to be safeguarded and no biometrics which could have properly been considered for retention under the authority of an NSD were lost. Of the biometrics that were subject to section 24 extensions, 308 relate to cases which were originally extended under the first regulations, meaning that these biometrics can be held for up to 12 months before either an NSD is made, or a risk assessment concludes that it is not necessary and proportionate to retain them and they are destroyed.

“Nearly half of these possible NSD cases have already been fully risk-assessed by CT Policing in preparation for their return to business as usual.”

Police officers involved in preparing NSD cases require specialist training and security clearance which was one of the factors which necessitated the introduction of temporary section 24 powers, said Professor Sampson.

“At the outset of the period under review, CT Policing trained a group of officers to provide additional support to the National Digital Exploitation Service (NDES) team and this has allowed them to continue making some NSDs in the conventional way required by the Protection of Freedoms Act 2012 (PoFA), while also processing those cases that were subject to section 24 extensions earlier last year,” he said.

“The ‘second wave’ of the Covid-19 pandemic has, perhaps inevitably, meant a reduction in the number of cases which would ordinarily have led to an NSD decision being made and not all could be processed in time before the date by which the biometrics would otherwise fall to be deleted.

“The effect of these provisions has been a temporary ‘suspension’ of that element of my role established in the PoFA requiring examination of each NSD made and enabling, if the NSD does not meet the necessary legal requirements, the exercise of a power to order the deletion of those biometrics.”

Professor Sampson said data shows that throughout this six-month period chief officers have considered and granted a significant number of NSDs (307) in the normal way required by PoFA.

“I am therefore satisfied that the section 24 power has been used in a responsible and proportionate manner and only when scarcity of resources or time limitations meant that the biometrics of individuals assessed as presenting a real risk to national security might otherwise have been lost,” said Professor Sampson.

“Having taken up my post on March 1, 2021, my involvement in the NSD process has come at the very end of the process established under the temporary provisions.

“Unfortunately, it is not possible to assess the contribution that the biometrics retained under the section 24 power have made in terms of managing the risk presented by the individuals to whom they relate. This is because full risk assessments of many of these cases have yet to be completed, and also as routine tracking of each NSD case is not possible within the current case management system.

“For these reasons the number of those same biometrics which have been, or which will subsequently be, judged as falling below the legal threshold for an NSD cannot be known.

“What can be said is that, overall, the section 24 regulations have safeguarded biometric information identified as being of national security value, although this has necessarily come at the expense of temporarily retaining some material for an extended period which has later been assessed not to warrant further retention on grounds of necessity and proportionality.

“To that extent, in balancing the lawful interference with individual rights against wider considerations of national security during the extraordinary exigencies arising from the pandemic, the latter have been temporarily given limited additional weight in the way foreseen when Parliament passed section 24 of the Act.

“I have seen nothing to indicate that the police have applied the provisions in anything other than the manner intended: necessarily, temporarily and proportionately.

“It is difficult to see how, in all the circumstances, any less intrusive workable alternative would have been available, but there is evidence to show significant public support for a complete return to the systems protecting their rights before the exigencies of the pandemic. I am pleased to see from my second visit to the NDES team (in April) that the police and their partners in the NSD process have measures in place for a return to the established and enduring statutory process and my office will continue to support me as I for my part continue to work through a high volume of NSD cases over the next few months.”

Professor Sampson added: “While the outlook is now much brighter with the rollout of the Covid-19 vaccine programme being well underway, there nonetheless remains some uncertainty around the future impact of the virus and the need for correlative restrictions.

“It will therefore be important that CT Policing maintains some additional contingent resilience for this critical function.”