Correspondence

Letter from the Biometrics and Surveillance Camera Commissioner to Rt Hon Dominic Raab MP regarding section 63G powers

Updated 23 June 2023

The Rt. Hon. Dominic Raab, MP

Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice

Copied by email to:

Rt Hon Chris Philp, Minister for Crime, Policing, and Fire

Rt Hon. Dame Diana Johnson, Chair Home Affairs Select Committee

Sir Mark Rowley, Commissioner of Police for the Metropolis

9 March 2023

Dear Lord Chancellor

Use of police powers to retain the biometrics of arrested persons for domestic abuse and sexual offences

As Commissioner for the Retention and Use of Biometric Material, I am required under s21(1) of the Protection of Freedoms Act 2012 (the Act) to keep under review the retention and use by the police of DNA samples, DNA profiles and fingerprints for national security or other specified policing purposes in the investigation or prevention of crime.

The power

Through the Act, Parliament has provided chief police officers with a power^{[footnote 1]} to retain DNA and fingerprints of those individuals who have been arrested for certain qualifying offences (essentially domestic abuse, sexual offences, burglary and violence) but against whom no prosecution could be brought. The reasons for not being able to proceed to a prosecution are implicit within the legislation and usually arise where there is a close relationship between the suspect and the complainant, where the offence is of a sexual nature and therefore there is little independent witness evidence available, or where there has been intimidation or a fear of engaging with the prosecution process. All applications must come to my office and allow the suspect to make formal representations against retention. If approved, the application authorises the biometric material to be retained by the police for three years.

The effect of the power

Having dealt with many such applications during the course of my appointment, it seems to me that the broad effect of retention is threefold:

1. To assist the police with the prompt investigation of any subsequent offences particularly where the suspect has come to police attention on more than one occasion;

2. To provide a deterrent to the subject who knows that their DNA and fingerprints will be checked against crime scenes without the need for further arrest; and

3. To provide some positive outcome/reassurance for complainants where they are concerned about future offending by the subject but the decision on prosecution has not met the evidential test in the instant case.

The use of the power

In 2022, my office received 127 biometric retention applications from forces across England and Wales. The year before the number was 117. While the number of applications has remained fairly consistent over the past years, I believe the provisions are not being fully utilised by all police forces. The table below shows those forces making the greatest use of the power and those that have never made an application since the power became available.

Table – Comparative number of applications to the Commissioner since provisions came into force – most/fewest

	2013	2014	2015	2016	2017	2018	2019	2020	2021	2022
Total applications received of which:	1	126	123	136	108	76	65	113	117	127
MPS	1	121	103	65	50	14	11	54	58	51
West Yorkshire	0	1	6	11	13	15	8	7	8	19
Essex	0	0	0	5	0	2	9	6	12	15
Kent	0	0	1	7	10	8	0	3	1	1
Greater Manchester	0	0	3	0	0	0	0	0	0	0
West Midlands	0	0	0	0	0	0	0	0	0	0

As you can see, the Metropolitan Police Service (MPS) has accounted for around 50% of all applications and a few other forces have submitted a consistent yet relatively small number of applications. It should be noted that some very large and prominent forces, such as West Midlands Police and Greater Manchester Police have not used these statutory powers at all.

In order to address this and raise the level of awareness of the utility of the power in tackling high priority offence types my office worked with the MPS to deliver a national workshop in 2021 which while well attended, resulted in only a small increase in applications from more forces.

This year, in January and February 2023, my office received 26 applications and we expect to receive around 150 applications this year if this rate of submission continues.

The potential of the power

As highlighted in my recent annual report^{[footnote 2]}, a majority of these applications are made in connection with investigations of sexual abuse and violence against women. In 2022 the then Home Secretary made violence against women and girls, including domestic abuse and stalking, a part of the Strategic Policing Requirement reflecting the policy approach that violence against women and girls should be tackled with the same resolve as terrorism, serious and organised crime, and child sexual abuse^{[footnote 3]}. In that regard it is interesting to note that I receive on average 1300 applications from chief officers of police to retain DNA and fingerprints of individuals on the basis of the risk they present to National Security. Against that background the ratio of applications for high priority local policing retentions (under s.63G) when compared to National Security determinations is telling and one might reasonably expect there to be more of the former than the latter.

When applied effectively, the s.63G statutory powers appear to me to automatically meet several of the features recommended by Professor Betsy Stanko in her review for the MPS for investigating serious sexual offending^{[footnote 4]}. That is:

1. Investigate the suspect rather than the victim;

2. Target repeat offenders; and

3. Improve the data stored on investigations, particularly those that did not result in a charge (my emphasis).

During my appointment I have encouraged forces to view the s.63G power not only through a data management lens, but also through a crime detection/prevention lens. When a suspect – who will often have come to police attention on one or more previous occasions before the application is made - knows that their fingerprints and DNA profile are being retained by the police, that retention inherently holds a deterrent factor that may prevent potential future offending. While this effect will be difficult to measure it is a point that those forces using the retention power believe to be borne out by experience and I have raised the potential of the power when meeting with Ministers and by writing to the then Parliamentary Under Secretary of State (Minister for Safeguarding) Rachel Mclean MP in October 2021.

The future of the power

While I am pleased that chief officers’ use of powers under s.63G of the Police and Criminal Evidence Act 1984 is slowing improving, my impression remains that those provisions are underutilised. The application process is not resource intensive, is administratively straightforward and – perhaps most importantly - is clearly felt by a number of chief officers to be worth the effort in managing the relevant risks. It may be that the arrangements would benefit from further revision in the light of experience, for example the maximum retention period of three years may require extension in the same way as the statutory maximum period for retention on National Security grounds (which was recently extended from two years to five years^{[footnote 5]}).

I would therefore encourage you to consider the contribution of this statutory power to the criminal justice system generally and its potential in tackling domestic abuse and sexual offending in particular.

Yours sincerely

Professor Fraser Sampson, Biometrics and Surveillance Camera Commissioner

1. S.63G Police and Criminal Evidence Act 1984 ↩

2. Biometrics and Surveillance Camera Commissioner: Annual report 2021 to 2022 ↩

3. Tackling Domestic Abuse Plan ↩

4. ‘I know where the bodies are buried’: one woman’s mission to change how the police investigate rape, The Guardian ↩

5. by the Counter-Terrorism and Border Security Act 2019, Sched 2 para 19 ↩