However, the existing law is clear that it's at the discretion of Chief Constables whether the DNA samples taken from unconvicted persons are retained or not. This is the purpose of s.64 of PACE (as amended by s.82 of the CJPA). The essential provisions of s.64 have been quoted in the Appeal Court case linked below. However, the 'killer' clause is para 51 of the Appeal Court judgement:
Section 64 as amended does not require the Chief Constable to retain any fingerprints or samples, which have been taken. He “may” do so. However, as is the case with any other statutory discretion this discretion has to be exercised to further the purpose for which it was conferred. Here that purpose is the prevention and detection of crime. Without casting any reflection on the individuals from whom the fingerprints or samples have been taken who are not still the subject of investigation or have been acquitted the statutory purpose will normally favour retention of the fingerprints or samples unless there are special circumstances justifying the Chief Constable making an exception.The ECHR judgement should dispel any doubts from the minds of the nation's Chief Constables as to whether retention of the fingerprints and DNA samples (and, one hopes, DNA profiles) of unconvicted persons is a proper exercise of their discretion; it is not.
Who will be the first Chief Constable to use their existing discretionary power to destroy DNA samples of unconvicted persons taken by their forces? Or are they all such pliant and unthinking tools of the Home Secretary that they will wait to be led as sheep?