The final post in today’s carnival comes from Liz Campbell, of the University of Aberdeen, a regular contributor to the blog. You can read more about Liz on the Authors Page.

The law relating to DNA collection, retention, use and destruction in Scotland is contained in sections 18-20 of the Criminal Procedure (Scotland) Act 1995, as amended by the Criminal Justice (Scotland) Act 2003 and the Police, Public Order and Criminal Justice (Scotland) Act 2006. The enactment of the 1995 Act coincided with the establishment of the Scottish DNA database.  Section 18 allows bodily samples to be collected when a person has been arrested and is in custody or is detained, and reasonable force may be used (s19B). Although samples must be destroyed following a decision not to institute criminal proceedings or when proceedings do not end with conviction, retention is permitted after conviction, and also after prosecution but only for certain sexual or violent offences even if it does not lead to conviction (s 18A). In other words, retention after arrest alone will never occur, notwithstanding the perceived gravity of the suspected offence. In the instance of certain serious sexual or violent offences, indefinite retention is not allowed per se; the destruction date is three years following conclusion of proceedings, but a sheriff may grant an extension for no more than two years and nothing prevents recurring police applications to amend further the destruction date.

The Criminal Justice and Licensing (Scotland) Bill which is currently being debated does not change this scheme of DNA collection and retention from acquitted individuals. However, the Fraser Report on Acquisition and Retention of DNA and Fingerprint Data in Scotland (2008), proposed a power to take and retain DNA samples from children who are dealt with by the Children’s Hearings System (CHS) for certain serious offences. The CHS is the primary way in Scotland of dealing with young people who offend, although the ability remains to prosecute children for serious offences like murder and rape. The CHS is predicated on the view that children and young people who commit offences or are in need of care and protection have common needs, and although the sheriff courts remains the forum for the determination of the “grounds” for the hearing (where they were disputed), decisions regarding the action to be taken in the welfare interests of the child are the responsibility of the CHS.

The Bill will insert ss 18B and C into the 1995 Act to permit retention of samples from children referred to the CHS for sexual or violent offences for three years with possibility of extensions for two year blocks. The child must accept the ground of referral along with his parent/guardian, or a sheriff must find the ground of referral to the CHS to be established. Collection of the sample may involve reasonable force if necessary, and the sample may be held on the Scottish database.

Retention of a minor’s DNA after conviction is not in breach of the ECHR according to the Chamber of the European Court of Human Rights in W v The Netherlands (2009). However, in S and Marper v UK the Grand Chamber noted “the risk of stigmatization” in treating persons who have not been convicted in the same way as convicted persons. When the CHS deals with offence grounds for referral it does not determine a criminal charge (S v Miller 2001 SC 977). Yet the retention of children’s data essentially equates them with convicted criminals. Although the proposed time period echoes that for suspects rather than convicted persons as such, three years plus is unduly lengthy in relation to young people. Indeed in S and Marper the Court noted that that the retention of unconvicted persons’ data may be especially harmful in the case of minors “given their special situation and the importance of their development and integration in society”. The inclusion of children’s DNA in the database, even for a limited period, may lead to stigmatisation and to the labelling of the child as a criminal, which conflicts with the welfare principle articulated in s16 of the Children (Scotland) Act 1995. As more serious alleged offences by children are dealt with through the criminal courts, it is curious that the Bill will extend the scope of the database to encompass children who may have committed serious offences but who are sought to be dealt with in a measured and holistic way in the CHS. In essence, the measures relating to children appear disproportionate and may alter the nature of the CHS, by suggesting a closer nexus between its work and that of the criminal courts.

A further problematic aspect of s 59 concerns the breadth of offences involved, which include rape, murder, culpable homicide, fire raising, assault and reckless conduct causing actual injury. While the Government’s response to the Fraser Report felt that less serious assaults should not result in DNA sampling and retention in line with adults, this proviso is not in the Bill.