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Strengthening Scotland's forensic regime

24/02/2009

DNA information will be held indefinitely by police only where a person has been convicted in the criminal courts, the Justice Secretary confirmed today.

Kenny MacAskill made the commitment as he outlined Scottish Government plans to strengthen police powers to retain temporarily DNA and fingerprint data taken from individuals arrested for alleged sexual or violent crime.

The Scottish Government intends to:

  • Provide a statutory framework for the use of forensic data
  • Extend existing powers for temporary retention of DNA data from adults prosecuted for, but not subsequently convicted of violent or sexual offences to fingerprint data
  • Introduce temporary retention of forensic data from children who have committed serious violent or sexual offences and are dealt with through the Children's Hearings system
  • Establish an expert working group to oversee changes to the governance arrangements for Scotland's forensic databases, and review the operation of existing and new powers. It will also consider which violent and sexual offences dealt with in the Children's Hearings System should result in temporary retention of forensic data

Mr MacAskill said:

"The development of forensic technology has significantly enhanced the powers of our police to detect and prevent crime.

"We are determined to ensure that the police and their law enforcement partners are equipped to provide the best evidence to bring the guilty to justice. But we must also ensure that the rights of the innocent are protected.

"We believe the only circumstances in which the state should have powers to keep DNA or fingerprint evidence indefinitely is where it has been taken from a convicted criminal.

"Our unique and celebrated welfare-based Children's Hearings System deals with child offending in a way that aims to turn children away from a future path of criminality and protects them from the public spectacle of court prosecutions. That is right.

"However, in a small number of cases where a young person within the Hearings System admits or is found to have committed a serious violent or sexual offence which may indicate a future risk of harm to themselves or others - and in particular to other children - we believe the forensic evidence should be retained for a limited period.

"The expert group I'm establishing will examine further how we define the offences that should fall into this category."

The Scottish Government is also considering the retention of forensic data taken from individuals who accept direct measures, such as fines and compensation orders, issued by procurators fiscal or the police.

Responses to a Scottish Government consultation were divided on whether forensic data obtained from people who subsequently accept direct measures issued by procurators fiscal should be retained - whether temporarily or indefinitely.

The Association of Chief Police Officers in Scotland and the Scottish Police Services Authority also called for the retention of forensic data taken from individuals who subsequently accept a police fixed penalty notice.

Mr MacAskill said: "Recent reforms to the summary justice system mean that cases of less serious but nonetheless criminal activity that were previously prosecuted through the courts are being dealt with more swiftly through fiscal direct measures or, for lower level offending, police fixed penalty notices.

"We want to consider carefully, working with Parliament, whether forensic data in such cases should also be retained and, if so, for how long.

"In reforming the law in this area, I want to maintain a balance that supports our law enforcement agencies in investigating and prosecuting crimes, while ensuring we don't unduly encroach on the privacy rights of those who have committed no offence.

"I'm grateful to Professor Jim Fraser for his review of the current forensics regime and to all those groups and individuals who contributed to our consultation, and to the legislation we will bring to the Parliament."

Existing legislation in Scotland allows an individual's DNA data to be retained without consent in three broad circumstances:

  • 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
  • Indefinitely, following a criminal conviction
  • Temporarily, if the person has criminal proceedings instituted against them for a relevant violent or sexual offence but are not convicted (retention is for three years, after which a Chief Constable can apply to a Sheriff for extensions of up to two years)

The first two categories, above, also apply to fingerprint and other physical data. The temporary retention provisions in the third category will be extended to apply to fingerprint and other physical data. The limited retention periods will also be extended to certain Children's Hearings cases, though the list of violent and sexual offences to which they apply may differ.

Ministers intend to use the forthcoming Criminal Justice and Licensing Bill to deliver the legislative aspects of the proposals.

An expert working group will also be established with a remit to progress work on governance, accountability and transparency, taking into account issues raised in Professor Fraser's review and in response to the consultation. The group will also oversee the development of the list of offences for the Children's Hearings provisions, as well as reviewing the operation of existing legislation and implementing the new provisions to be included in the Criminal Justice and Licensing Bill. The membership of the working group will be finalised soon. Police, Children's Hearings and civil liberties interests will be invited to participate.

The Scottish Government's proposals have been developed following a review by Professor Fraser, of Strathclyde University and a subsequent consultation, as well as in light of the recent judgement of the European Court of Human Rights in S & Marper v UK.

Professor Fraser is Director of the University of Strathclyde's Centre for Forensic Science, Chair of the European Academy of Forensic Science and a former president of the Forensic Science Society. He was asked by the Justice Secretary in late 2007 to review the procedures for the acquisition and retention of forensic data. His review report was published last September, together with a Scottish Government consultation on proposals and options arising from the review.

S & Marper v UK involved an unnamed boy ('S') and Michael Marper, both of whom provided DNA samples to police in England when arrested for suspected offences. Neither was subsequently convicted (acquitted and charges dropped, respectively) and sought the Court's ruling to have their DNA samples and records, which were being held indefinitely, destroyed. In December 2008 the European Court of Human Rights in Strasbourg ruled that the legislation in England and Wales which allowed for the indefinite retention of DNA and fingerprints from all those who are unconvicted, breached the ECHR. The current retention policy in Scotland in relation to those who are not convicted was considered by the Court and was regarded to be compliant with the ECHR.