Police have been ignoring laws which prevent them from using unlawfully retained biometrics data.
In his annual report (PDF) the Biometrics Commissioner noted that large numbers of DNA profiles and fingerprints were wrongfully held on national police databases – and therefore popped up as matches in police searches.
Due to these matches occurring against unlawfully held material, they are known as unlawful matches. The Home Office's existing guidance on such unlawful matches is contained in Section 63T(2) of the Police and Criminal Evidence Act 1984 (PACE), which says:
Material which is required to be destroyed … must not at any time after it is required to be destroyed be used … for the purposes of the investigation of any offence
Despite this, the commissioner noted that “a number of unlawful matches” occurred since the guidance came into effect – and that others have likely gone unnoticed – which “at least some forces are communicating … to the relevant investigating officers, albeit subject to caveats” such as:
This match is communicated for intelligence purposes only to generate further investigative lines of enquiry. It cannot be acted on in isolation and further enquiries will be required.
The commissioner reported: “Since it appears that the only possible reason for communicating such a match to an investigating officer – even 'for intelligence purposes only' – will be to assist his or her investigation of the relevant offence, it seems strongly arguable that forces which adopt this course are using unlawfully held biometric material in a manner which is contrary to s.63T(2)(b).”
Stating his concern that the lack of clarity may lead forces “to adopt different (and possibly unlawful) policies”, the commissioner said he had “raised these concerns with Home Office officials on a number of occasions since August of 2015.”
“I have yet to receive a substantive response to my enquiries and the relevant guidance remains unchanged” he reported. “In my view that guidance should be revised – and clearer and more precise guidance on this point should be issued – as a matter of some urgency.” ®