Scottish Government
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Police powers to retain DNA
A consultation on police powers to retain DNA and fingerprint evidence was published today, alongside a report by forensic expert Professor Jim Fraser following his review of the existing regime.
The Scottish Government consultation includes proposals to:
- allow police to retain, at least for a limited period, forensic evidence taken from a suspect who is subsequently dealt with by a fiscal fine, compensation order or work order, rather than prosecuted through the courts
- Extend existing provisions allowing the temporary retention of DNA data from individuals charged with but not subsequently convicted of violent or sexual offences to include fingerprint data
- improve the governance, accountability and transparency of the collection, storage and retention of forensic evidence in Scotland and set out in statute the purposes for which DNA and fingerprint data can lawfully be used
Forensic evidence can be held permanently by police where anyone is convicted of a crime. However, samples taken from an under-16 when arrested or detained for an alleged offence must be destroyed if they are referred to the Children's Hearing rather than prosecuted in the criminal justice system.
Prof Fraser recommended police be allowed to retain such data if a child accepts they have, or is found to have committed serious violent or sexual offences.
The Scottish Government is seeking views on this proposal before deciding whether or not to accept it. The consultation asks whether retention in such cases should be permanent, as proposed, or for a limited period, or if all such samples should continue to be destroyed once a decision to refer to the Hearing is made.
Mr MacAskill said:
"I'm very grateful to Prof Fraser for his report and recommendations. Forensic evidence makes a valuable contribution to the investigation and detection of crime, helping law enforcement agencies prove guilt and clear the innocent.
"In helping police to maximise the benefits of technological advances in this area and to protect the public we must also protect the rights of innocent citizens from disproportionate intrusion from the state.
"That's why the Scottish Government has been consistently clear that we do not support the permanent holding of forensic data taken from individuals who have committed no offence. While remaining committed to that principle, we believe now is time for a wider public debate.
"As part of that debate, I believe we should consider whether police should be allowed to retain forensic evidence in a relatively small number of cases where a young person within the Hearings system admits or is found to have committed a violent or sexual offence which may indicate a further future risk to themselves or others.
"We remain open-minded on this particular recommendation by Prof Fraser. In seeking views on the issue, this Government remains firmly committed to the welfare principles of the Children's Hearing System, which has served Scotland's young people and our communities so well."
Existing legislation in Scotland 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 2007.
Professor Fraser is head of the University of Strathclyde's Centre for Forensic Science and a former president of the Forensic Science Society. He was asked by the Justice Secretary last autumn to review the procedures for retaining forensic data taken by police. His review report is published today, together with the Scottish Government response.
The consultation will run until November 21, 2008.
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