1.1. This consultation paper sets out the Government's response to Professor James Fraser's report on the 'Acquisition and retention of DNA and Fingerprint Data in Scotland', and seeks comments on proposals for legislation which the Government is minded to bring forward as part of a Criminal Justice and Licensing Bill early in 2009.
1.2 There is no doubt that forensic evidence obtained from DNA and fingerprints plays an important and increasing role in the investigation of crime. It is standard practice in Scotland, as in England and Wales and many other countries, for the police to take DNA samples and fingerprints from someone who is arrested or detained on suspicion of having committed criminal offences and such samples are routinely added to the respective DNA and fingerprint databases. If that person is subsequently convicted, his or her DNA samples and fingerprints may be retained indefinitely, subject to periodic weeding of records relating to old or minor offences.
1.3 However in relation to persons who are not convicted of an offence, DNA samples may be retained only in certain circumstances and for a limited period (see chapter 2 below) and fingerprint data may not be retained at all. This differs from the current position in England and Wales, where both DNA samples and fingerprint data once lawfully obtained may be retained indefinitely (although the powers to do so are currently the subject of a challenge to the European Court of Human Rights in the case of R v Marper).
1.4 The present arrangements in Scotland, which have only been in force since 1 January 2007, strike a balance between, on the one hand, the potential benefits of retaining DNA for future criminal investigations; and on the other, the civil liberties concerns about the retention of DNA and fingerprint data from persons who were arrested and detained on suspicion of having committed an offence but who were not ultimately convicted of that offence. There are also gaps which could be filled in the current arrangements: for example there are limited powers for the retention of DNA samples from persons proceeded against but not convicted of sexual or violent offences but none in respect of fingerprint data. Against this background, Professor James Fraser, the Director of the Centre for Forensic Science at Strathclyde University and Chair of the European Academy of Forensic Science, was asked to carry out a review with the following remit:
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:
1. 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);
2. individuals who, in being dealt with by a children's hearing, accept that they have committed a relevant sexual or violent offence, or who 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 temporary 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."
1.5 Professor Fraser's report and recommendations are published in full as an annex to this consultation paper and has been posted on the Scottish Government's website together with a companion document which contains the responses to his own consultation at: www.scotland.gov.uk/Consultations/Current
1.6 Professor Fraser made the following recommendations:
1. The current governance arrangements for DNA and Fingerprint databases in Scotland should be reviewed as a matter of urgency. Future arrangements should take into account good practice in scientific and ethical standards, efficient and effective management and independent oversight.
2. Sufficient information regarding the governance and management of forensic databases should be in the public domain to maintain transparency, accountability and public confidence in their use.
3. Given that fingerprints and DNA are used for common aims in criminal justice terms, their acquisition and retention in legal and procedural terms should be equivalent.
4. Current legislation regarding temporary retention of forensic data and samples from non convicted individuals should be retained. However, a national approach which coordinates policies and practices of police forces, SPSA, Crown Office and Procurator Fiscal Service ( COPFS) and other relevant agencies, is essential to achieve the aims of the legislation.
5. With the exception of assault (but including serious assault), children who accept they have committed a relevant sexual or violent offence (or who have been found to have done so by a Sheriff) should have DNA and fingerprint samples taken and retained permanently, in line with the law governing adults who are convicted of an offence. This should be based on the offence for which the case is disposed of as opposed to the original grounds for referral to the Reporter.
6. Children who accept they have committed an assault (or who have been found to have done so by a Sheriff), which is sufficiently serious, should have their DNA and fingerprint samples taken and retained permanently, in line with the law governing adults who are convicted of an offence. As an interim indication this would include children who have committed assaults currently categorised as 'grave' by the Reporter.
7. In relation to assault, further work and cooperation is required by relevant agencies ( e.g. Scottish Children's Reporter Administration ( SCRA), COPFS, and the Police Service) to develop an agreed framework for identifying children that may merit forensic sampling and retention on the basis of recommendation 6 above. The rationale for sampling should take into account the seriousness of the offence and issues of public protection in addition to the needs of the child.
8. The practice of taking forensic samples from children for offences other than relevant sexual or violent offences and whose samples cannot therefore be legally retained should be reviewed.
1.7 The Government is grateful to Professor Fraser for his report and recommendations, which reflect consultation with a wide range of stakeholders. The Government largely accepts Professor Fraser's analysis of the issues and his report and recommendations provide the starting point for the proposals set out in this consultation paper.