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Review to strengthen forensics power to fight crime
24/09/2007
A leading forensics expert is to review the procedures for retaining the forensic data of those accused of sexual or violent offences in Scotland.
Professor James Fraser, head of Strathclyde University's Centre for Forensic Science and a former president of the Forensic Science Society, will examine options for enhancing the ability of the police to use forensic science in the fight against crime.
The police currently must destroy the fingerprint and DNA records of all suspects who are not convicted, except where a suspect is arrested or detained and criminal proceedings were raised against them for a sexual or violent offence. In these cases they have, since January, been able to delay the destruction of DNA records for a period of three years, or potentially longer with the agreement of a sheriff.
Following a commitment to look at the effectiveness of the legislative change implemented in January and examine further potential changes for consideration by the new Parliament, Ministers have now agreed the remit of that review.
Justice Secretary Kenny MacAskill said:
"The new Scottish government is committed to building on important reforms to the justice system that are already underway and we have pledged to look outside Parliament for fresh thinking.
"From tackling organised crime and drugs to dealing with violent and sexual offenders, we are working to achieve broad agreement on the common cause of building safer and stronger communities.
"Advances in technology have resulted in DNA and other forensic sciences playing an increasing role in the investigation and prosecution of crimes. That is a welcome development.
"However, while we rightly seek to protect the public from criminals, our citizens must also be protected from an over-intrusive state.
"We recognise that there remain differences of opinion and we believe there is merit in examining whether there are further changes to the regime that we can ask Parliament to consider.
"Our government has already made clear that we do not support the blanket retention of all forensic information taken from innocent people. We are not persuaded, for example, that it would generally be right for the police to keep fingerprints and DNA samples from everyone who is detained but not eventually convicted, or even prosecuted.
"The new review will focus on individuals who are prosecuted for violent and sexual offences, checking whether the procedures introduced in January are effective and examining also why it should be lawful to allow DNA records to be retained but to require fingerprint records to be destroyed.
"We have also asked Professor Fraser to review previous decisions to continue requiring the destruction of all forensics taken from youths who admit or are found to have committed sexual or violent offences - and who may therefore pose a future risk to others and perhaps to themselves - where they are dealt with through the Children's Hearing system rather than in the criminal courts.
"In all of this we want to encourage consensus among both elected members and the citizens of Scotland who look to us to protect their rights - be that their rights to safety or their rights to privacy."
Background:
Prof Fraser is a forensic scientist with 30 years experience. He has acted as an expert witness in a number of high profile criminal cases and as a consultant for a range of organisations including police forces, the Home Office and Her Majesty's Inspector of Constabulary. He is a past President of the Forensic Science Society, the professional body for forensic practitioners, Chair of the European Academy of Forensic Science and Associate Director of the Scottish Institute for Policing Research.
Forensic data must be obtained, retained, used and destroyed within the legislative framework agreed by Parliament. Existing legislation allows an individual's DNA data to be retained without consent in three broad circumstances:
- Permanently, following a criminal conviction
- Temporarily, if the person is charged but not convicted of a relevant violent or sexual offence*
- For so long as the person is part of an on-going investigation for which the DNA was taken and in relation to which he may eventually be prosecuted
*Initially for up to three years, after which an application must be made to a sheriff to retain for a further period. This power came into force in January this year: http://www.scotland.gov.uk/News/Releases/2007/01/29133555
Fingerprints, as distinct from DNA data, may be retained in only the first and third of these circumstances. For all young people who are dealt with through a Children's Hearing, DNA and fingerprint records currently must be destroyed as soon as possible following a decision not to institute criminal proceedings against them, regardless of whatever offence they admit or are found to have committed.
The remit of the review is:
To review the operation and effectiveness of the legislative regime governing police powers regarding the acquisition, use and destruction of forensic data in relation to:
- individuals who are prosecuted for a relevant sexual or violent offence, but not convicted (i.e. where criminal proceedings are instituted but conclude (a) prior to a verdict, or (b) with the accused being acquitted with a verdict of not guilty or not proven; or (c) with the accused being acquitted on grounds of insanity);
- and individuals who, in being dealt with by a children's hearing, accept that they have committed a relevant sexual or violent offence, or are found by a sheriff to have committed such an offence;
- and, taking account of the views of relevant stakeholders and available information and experience elsewhere, to identify proportionate options for reforming Scots law, by making appropriate provision for a delay in the destruction of such data, in order to enhance crime prevention and detection capability;
- and to report to the Scottish Government within 6 months.
On June 7 this year the First Minister signalled his willingness to review the issue of DNA retention. He told MSPs that this should be based on evidence and take account of concerns about civil liberties and indicated his wish for Parliament to come to a united conclusion.