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2. Background
Prints and samples taken from suspects
2.1 It is standard practice for the Scottish police to
take prints and samples (usually fingerprints and
DNA samples) from people during their
investigations into offences. They can take them from
anybody who they have arrested or detained on suspicion of
committing an imprisonable offence. Once they have taken
them, the police can check the prints and samples against
the databases (
e.g. to see if the suspects'
DNA or fingerprints had been found at
another crime scene) and add them to the databases for
future reference. However, if the person is not then
convicted of the offence, or is given an order of absolute
discharge, the prints and samples must be deleted from the
databases and destroyed.
2.2 On average, the police take around 3,000 - 3,500
DNA profiles every month in the course
of their investigations. As the police are required to
delete the
DNA profiles taken from those who are
not convicted, approximately 2,000 profiles (around 60% of
the total) are deleted every month. The picture is similar
for fingerprints. In 2004, 37,166 records were added to the
fingerprint database managed by the Scottish Fingerprint
Service. However, 21,493 records (58% of those added) were
deleted from the database that same year because the people
from whom they were taken were not convicted.
2.3 Not all of the deleted prints and samples are
deleted because the people they were taken from were
acquitted or charges against them were dropped. A large
proportion are in fact deleted because they were taken from
individuals who were given a disposal which is not a court
sentence (
e.g. Children's Hearings, Fixed Penalty
Notices and Procurator Fiscal fines). In the case of young
people who exhibit offending behaviour in particular, this
can mean that a series of profiles are taken from the same
person, but have to be deleted each time. Police forces
find this practice to be expensive and do not believe that
it is cost-effective.
2.4. Until recently, the legal position in England and
Wales was similar to that in Scotland. However, in 2001 the
law in England and Wales was changed (through section 82 of
the Police and Criminal Justice Act 2001) so that the
police there could retain prints and samples taken from
suspects whether or not the suspects were later convicted
of an offence. Since then a significant number of
DNA profiles that are only held because
of the change in the law have been linked with
DNA profiles recovered from crime
scenes. In addition, the House of Lords has considered an
English test case and ruled unanimously that the retention
of
DNA profiles without conviction is
compatible with the European Convention on Human Rights (
this point is discussed further in
section 4).
2.5 In the light of these developments we set out
proposals in
section 5 that would reform the
law on the retention of prints and samples in Scotland, to
enable the police here to retain all prints and samples
taken from those who are arrested or detained on suspicion
of committing an imprisonable offence whether or not they
are later convicted of that offence (this would be
essentially the same position as the one in place in
England and Wales).
Prints and samples taken voluntarily
2.6 Prints and samples can also be taken from people
voluntarily during an investigation into a specific offence
(
e.g. a sweep of all people in a particular
area to eliminate them from police enquiries). The person
they were taken from may limit their consent for the use of
their prints and samples to the investigation and
prosecution of that specific offence only. Prints and
samples taken in this way may be checked against
DNA and fingerprints taken from any
crime scene and may be retained by the police but only with
the written consent of the person from whom they were
taken. Otherwise they must be destroyed. If the person does
give consent for their samples to be retained, they have
the right to withdraw that consent in writing at any time.
The Executive has no plans at present to amend the law on
prints and samples given voluntarily.
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