The Scottish Government

This document is also available in PDF format

Dates

Issued: 15 July 2004 Topic: Pay and Conditions

Implementation: 25 June 2004

Impact: Immediate

Contact(s) for more information: Martin McDermott (Tel: 0131 244 2160)
George Vine (Tel: 0131 244 2155)
(at the above address)

Dear Colleague,

Purpose of the circular:

To draw attention to the provisions of Regulation 19 of the Police (Scotland) Regulations 2004 which require new recruits to the police service to provide a DNA sample as a condition of appointment.

Summary of contents:

Regulation 19 requires new recruits to the police service to provide a sample upon appointment (other than in cases of transfer between police forces) from which a DNA profile can be derived. The sample is to be taken for elimination purposes only and will be held on the Police Elimination Database. The sample or information derived from the sample will be kept separate from the samples or information provided in accordance with sections 18, 19 and 19A of the Criminal Procedure (Scotland) Act 1995 or section 56 of the Criminal Justice (Scotland) Act 2003 or otherwise lawfully taken and held by or on behalf of any police force or in connection with or as a result of an investigation of an offence. Samples and information derived from them will be destroyed when the officer providing the sample ceases to be a member of the force, except on transfer to another force.

Attached at Annex A is a protocol outlining the procedure for taking and storing DNA samples, this should be observed at all times by all police forces. A search of the Police Elimination Database is to be initiated only where the senior investigating officer or scientific support manager has a genuine belief that innocent contamination of scene of crime may have taken place.

Attached at Annex B is a standard letter addressed to new recruits which may be used to explain the need for a DNA sample

Martin McDermott
Police Division 1 .1

Annex A

NEW POLICE OFFICER RECRUITS TO PROVIDE A SAMPLE FOR THE

POLICE ELIMINATION DATABASE

Issue

The requirement for new police officer recruits to provide a sample for the Police Elimination Database to facilitate the elimination of accidental contamination by police personnel against DNA profiles obtained from CJ samples, crime scene stains and evidential casework, which have been loaded into the Scottish Police DNA Database at Dundee or the United Kingdom National DNA Database in Birmingham.

Content

This paper explains why new recruits to police forces in Scotland are required to provide a DNA sample to be held on the Police Elimination Database (PED). It also explains the procedure to be followed when providing a sample.

The purpose of obtaining DNA samples from all new recruits is to allow checking for potential accidental contamination by them against DNA profiles developed during crime investigation and submitted to the DNA Database. The legal implications of obtaining, processing and retaining DNA samples from new recruits are considered.

The requirement for new recruits to provide a sample to be held on the PED presumes any match on the PED will be an accidental contamination.

Need for the Police Elimination Database (PED)

Accidental contamination by police officers can be reduced using good practice and taking sensible preventative measures to ensure staff at crime scenes or in contact with victims or suspects, do not prejudice the integrity of a DNA court production. However, resulting from technological developments which have produced highly sensitive analytical techniques, the risk remains of a DNA profile either singly or as a component of a mixture being inadvertently contaminated (e.g. sneeze, cough, stray hair, etc.)

In these instances, an investigation may be misled by an accidental cross contamination by a police officer where the profile from the real offender has not been obtained. Whilst this will not lead to a wrongful conviction, it will at best delay and at worst prevent the real offender being identified. The need to discount accidental contamination by Police Officers is particularly crucial during serious crime investigations. A Senior Investigating Officer must have complete confidence the profile developed from the crime scene is that of the perpetrator particularly if a large scale Intelligence Led DNA Screen is likely to be undertaken.

The Legal Issues

Police (Scotland) Regulations 2004

Regulation 19 of the Police (Scotland) Regulations require that all members of a police force, except those members appointed following their transfer from another police force, shall on appointment and in accordance with the directions of the chief constable have a DNA sample taken as a condition of appointment.

Human Rights Legislation

There will be no breach of Article 8 of the European Convention on Human Rights should samples be provided as a condition of appointment.

Data Protection

Processing of DNA samples will comply with the requirements of the Data Protection Act 1998 (the 1998 Act).

Data held on the PED will be processed fairly and lawfully, and comply with the data protection principles sent out in Schedules 2 and 3 of the 1998 Act.

The processing of the data is necessary for the administration of justice.

Each new recruit will provide consent in writing to the processing of the data. Police forces will set out precisely the reasons for providing a sample, together with details of the testing procedures, profile recording, the circumstances in which the information is to be used, and the procedure governing disclosure of any test results. Should there be any proposal to vary the basis on which the data were to be held and processed; a further specific consent will be required from the data subject. Consent will not be assumed simply by notifying individuals of the proposed change.

In accordance with the fifth data protection principle, all profiles taken from police officers will be removed from the PED as soon as they leave the police force, unless they transfer to another force, expect where a case awaits trial. Any other existing sample(s) obtained from the leaving officer will be disposed of, and a record kept of the disposal.

In accordance with the sixth data protection principle, personal data will be processed in accordance with the rights of the data subject. In accordance with the seventh data protection principle, appropriate steps to guard against unauthorised or unlawful processing accidental loss or destruction of, or damage to, such personal data will be taken.

Procedure for Provision and Analysis of Samples

The police force will explain to the new recruit that the provision of a DNA sample is a condition of employment.

Each new recruit will be asked to read and sign a consent form before providing a sample.

Two buccal scrapes (non-intimate samples) will be supplied. It is intended both buccal scrapes will be submitted to the profiling process and when a successful profile is developed the second will be destroyed.

In instances of processing failure, replacement samples may be required from the relevant recruit.

Elimination Search Procedure

Elimination search procedure will be instigated only when requested by the Senior Investigating Officer (SIO) in the case or the Scientific Support Manager (SSM). The elimination procedure will consist of the comparison of a specific crime scene stain against a specific profile of a named member of staff where there is a genuine belief on the part of the SIO or the SSM that accidental contamination of the crime scene stain may have taken place. This procedure is currently adopted for fingerprints.

Database Management

The responsibility for the creation, management and security of the PED rests with the Dundee Database on behalf of ACPOS.

The PED is held separate and distinct from the criminal DNA Database housed within a secure environment at Database premises within Police Headquarters, Dundee.

All police officer profiles will be recorded showing the following detail:

Name

D.O.B.

ID Number (collar or their identification number)

Force

followed by their unique DNA profile reference number.

An audit trail of any additions, deletions and amendments will be maintained.

Removal of profiles from the PED

Police personnel DNA profiles will be removed from the PED immediately individuals leave the employment of the Police Service. It is the responsibility of the employing force to inform the Database when a member transfers from one force to another or leaves the Police Service. Database staff will confirm, in writing, to the Force the requested removal of the profile or change of employment details has been carried out. Where a staff member leaves the Police Service, the force will then confirm destruction of their profile to them in writing.

Annex B

Standard letter, for issue to new recruits, explaining the need and purpose for a DNA sample.

Dear --- (New Recruit),

Under Regulation 19 of the Police (Scotland) Regulations 2004, a new recruit is required, as a condition of appointment, to provide a DNA sample. The sample will be taken in accordance with the procedure outlined in the attached protocol and will be held on the Police Elimination Database (PED).

The taking of the DNA sample is purely for elimination purposes, and a senior investigating officer will be able to instigate a search of the PED only where there is a genuine belief that a crime scene may have been contaminated innocently.

Yours sincerely,

(Chief Constable)