Scottish Government

THE ISSUES UNDER REVIEW

There are three main issues that arise from the terms of reference in relation to the effectiveness of legislation regarding forensic data. In this context 'forensic data' is information and evidence derived from fingerprints and DNA. For DNA it is important to distinguish the DNA sample which contains the genome of the individual from the data ( i.e.DNA profile) which derives from the sample.

The main issues can be summarized as follows:

1. Law and practice in relation to DNA and fingerprints varies. Is this situation appropriate or should the law be changed?

2. For those who are subject of proceedings for relevant sexual or violent offences but not convicted, is the current regime for temporary retention of samples appropriate and effective?

3. In relation to individuals who are dealt with by Children's Hearings for relevant sexual or violent offences, is the current situation appropriate?

I will deal with each of these issues in turn.

FINGERPRINTS AND DNA IN GENERAL

Those who expressed a view in the consultation considered that the acquisition and retention regime for fingerprints should mirror that of DNA. There were no contrary views to this expressed. Given that the primary purpose of fingerprints and DNA, the identification of individuals connected with criminal inquiries, is the same, it is logical that legislation and procedure should be equivalent. In my view inconsistent legislation is likely to constrain the potential value of forensic data.

RETENTION OF FORENSIC DATA FROM UNCONVICTED INDIVIDUALS

The second main aspect of this review relates to the acquisition and retention of forensic samples from individuals who are not convicted. The terms of reference on this matter relate specifically to the current legislation in Scotland i.e. the temporary retention for three years with the potential for extension on application to a Sheriff. The Scottish Government has rejected the possibility of permanent retention of forensic samples from non-convicted persons and this issue was specifically excluded as a matter for consideration in the present review. The questions that arise in relation to the temporary retention are as follows:

1. Is there support for this approach in general terms?
2. Is the period of retention appropriate and justified?
3. Given that the legislation is comparatively recent, is it effective?

In relation to the first question, there was extensive support in the consultation responses received. This included the views of police organizations and associations in addition to other agencies and individuals. Responses from independent groups were very positive with the Nuffield Council on Bioethics expressing the view that this approach was 'appropriate and balanced'. GeneWatch also responded in a similarly positive manner:

'The decision of the Parliament to limit the retention of DNA of innocent persons only to samples taken in relation to investigations into serious assault and crimes of a sexual nature and to further limit such retention to a period of three years (unless extended by permission of a Sheriff) was therefore welcomed by this office.'

Those who strongly supported this approach considered it to be more balanced and proportionate than permanent retention.

In terms of objective evidence to support a three year period, data are limited and difficult to interpret. It is important to establish the numbers of potential individuals involved. The category of individuals is those who have been subject to criminal proceedings (including those terminated prior to trial) for relevant sexual or violent offences and have not been convicted (for whatever reason). This would not include individuals who have been previously convicted for an offence for which DNA or fingerprints could be sampled and retained as data will already be stored. In other words this group mainly contains individuals coming to court for the first time and individuals who have previously been tried but not convicted for offences other than relevant sexual or violent ones. The number of individuals involved is likely to be comparatively small. For example, in 2005 around 50,000 individuals were convicted of at least one offence in Scotland. Of these individuals, just under 3000 had previously been prosecuted but not convicted, of a relevant sexual or violent offence ⁹. This number is likely to contain a significant percentage of individuals who had previous convictions and may therefore already have DNA or fingerprint samples taken and retained. It is therefore an overestimate of the actual number who would have their DNA sample retained for three years under the current legislation.

Approximately 5,000 individuals were proceeded against in the courts in 2000 for a sexual or violent offence (mainly assault) but were subsequently not convicted of that offence. Of these individuals, just under half were subsequently convicted of another offence within 1 year, 60% within 3 years and about 65% within 5 years ¹⁰. These data are also likely to contain a significant proportion of individuals with previous convictions. Notwithstanding, they are consistent with general criminological data on re-offending behaviour (irrespective of conviction) in that any repeat offending is likely to take place within a comparatively short period.

In forming a view on this issue I have taken into account the above data as a general guide, the numbers of individuals likely to be involved, that the offences are serious and that there is support from a broad range of stakeholders. In my opinion, the sampling and retention of forensic data for a three year period, from individuals subject to proceedings for relevant sexual or violent offences but not convicted, is in principle, appropriate. However, this view is subject to a caveat which is explained below.

The final question on this issue is whether this legislation is being effectively used. Data from the SPSA indicates that at 1 December 2007 there were a total of 440 personal DNA profiles held under this legislation which comprised 29 profiles for relevant sexual offences and 411 for violent crime. At that date, none of these profiles had recorded a match with any profiles from crime scenes. SPSA go on to state that only five of the eight police forces in Scotland have submitted DNA from individuals under this legislation and that the vast majority of the DNA profiles (74%) derive from a single police force with the remaining 26% spread throughout the four remaining forces. It appears therefore that at the present time, sampling of individuals under this legislation is providing no identifiable benefits to the administration of justice, despite the resources being used. It is important to note that the legislation is comparatively recent (commenced 1 January 2007). In my opinion the temporary retention of forensic samples and data supported above, can only be justified if this legislation is used effectively.

INDIVIDUALS WHO ARE DEALT WITH BY CHILDREN'S HEARINGS

The third main aspect of this review relates to sampling and retention of DNA and fingerprints from individuals dealt with by Children's Hearings. Scotland has a distinctive approach to children in criminal justice terms. Although the age of criminal responsibility (8 years) is low, considerable efforts are made to prevent children entering the criminal justice system at an early age. The mechanism for dealing with children who come to the notice of the authorities is the Children's Hearing. The primary aim of a Children's Hearing is the welfare of the child. This system was initiated in 1968 ¹¹ and is now incorporated in the Children (Scotland) Act 1995 ¹². If an incident occurs, for example a child has suffered abuse or neglect, they are referred to a Children's Reporter. The role of the Reporter is to investigate the incident and form a view as to what is in the best interests of the child. Children may also be referred to the Reporter on offence grounds i.e. on the suspicion or belief that they have committed an offence. In most instances children are referred to the Reporter by the police (typically around 87%) but only a minority of these referrals is on offence grounds ¹³. In 2006/07, the majority of children (44,629) referred to the Reporter were referred for care and protection ¹⁴. Of the total number of children referred that year, 16,490 (29%) were referred on offence grounds. Although the total number of children referred has steadily increased in the past 10 years, the number referred on offence grounds has remained relatively stable, with the figure for 2006/07 being fairly typical. A child who has been referred on offence grounds but does not accept this, may be further referred to a Sheriff to determine if there is sufficient evidence to support the allegation. The legal status of this disposal is somewhat ambiguous. Strictly speaking such a finding by a Sheriff is not a criminal conviction, although in certain circumstances ( e.g. disclosure) it may be treated as such. For convenience and for the purposes of this review I will use the term 'offence' and where necessary qualify this. The finding of the Sheriff is then referred back to the Children's Hearing for further consideration.

Children can also be jointly referred to the Procurator Fiscal where the alleged offence is sufficiently serious. The decision whether to proceed with a Children's Hearing or in the criminal courts is made jointly by the Reporter and Procurator Fiscal and takes into account the particular circumstances of the child, the seriousness of the offence and the nature of the evidence available. There is specific guidance from the Lord Advocate regarding such decisions ¹⁵. I understand that an extremely small number of children are prosecuted in the criminal courts but have been unable to establish the number. In terms of forensic data sampling and retention these individuals are treated in line with other individuals who are prosecuted in the criminal courts.

CHILDREN AND 'RELEVANT SEXUAL OR VIOLENT OFFENCES'

This review focuses exclusively on the subset of children who are reported for relevant sexual or violent offences as defined by the Criminal Procedure (Scotland) Act 1995 as amended. A further qualification is that only children who accept these grounds of referral or are found by a Sheriff to have committed such offence fall under the terms of reference of this review. It is important to distinguish the number of children and the number of offences. The number of offences referred to the reporter in 2006/07 was 30, 173. The vast majority of these offences will be minor and therefore are not relevant to this review.

Information and data were provided to the review by SCRA and this is included in the companion document to this report. These data must be interpreted with care for a number of reasons. SCRA do not record information on all relevant sexual or violent offences. It is also important to distinguish the grounds for referral and the outcome of the case. In only a proportion of cases will the offence following disposal of the case be the same as the original one. For example, a child who is reported for 'rape' may in the end be dealt with by a Children's Hearing either because there was insufficient evidence to support this allegation or because the allegation was without foundation. Alternatively, there may be a lesser offence, such as Lewd and libidinous practices that the child may accept. Data collected by the SCRA does not record this change and therefore data on disposals (as opposed to referral grounds) are not available. SCRA record data on 40 specific offences and classify all offences outside these categories as 'other'. The 'other' category accounts for around 10% of all referrals on offence grounds. Data on the number of referrals for relevant sexual or violent offences, extracted from SCRA data are shown in Table 1 below.

The largest category of relevant sexual or violent offences is that of assault but it must be noted that this captures a wide range of offending behavior from minor to more serious. Assaults are categorized by Reporters in terms of their gravity in three classes: high, moderate and low. However, these data are incomplete and in over half the cases the gravity of assault is not recorded. Notwithstanding, 605 children (26% of referrals for assault) were referred for assaults that were subjectively considered to be of high gravity.

Although the vast majority of offending is minor the data for assault suggests that a significant proportion is more serious. It is also likely to be the case that many of the victims of such offences children who are in need of protection.

In summary, data on children who accept they have committed a relevant sexual or violent offence, or who have been found to have done so by a Sheriff, are not directly available. However, the indications are that that the numbers of children involved in such offences is comparatively small.

Table 1: Children referred to the Reporter for relevant sexual or violent offences in 2006-07

ACQUISITION AND RETENTION OF DNA AND FINGERPRINTS FROM CHILDREN

A range of views was expressed in the consultation on this issue. There was general support for the sampling of children who accept that they have committed a serious sexual or violent offence or who have been found to have done so by a sheriff. A minority view opposed the extension of sampling (for any individuals) as a matter of principle. There was also acceptance that in certain circumstances (generally the seriousness of the offence and for public protection) there was justification for forensic samples to be taken and data retained from children. Furthermore, a general view was expressed that a very small proportion of children pose a risk to the public and therefore forensic sampling would be appropriate.

The following extract from the GeneWatch response to the consultation clearly summarizes this:

'…GeneWatch UK recognises that a very small number of children dealt with in the children's hearing system may pose a risk to society, and that retaining their DNA could enable them to be identified more quickly should they commit a serious future offence such as rape, for which DNA evidence may be relevant. '

Views were also expressed that any sampling regime should be proportionate, not infringe the rights of children, and not fundamentally undermine the distinctive ethos of Children's Hearings and their primary focus on welfare.

In relation to children, the following data were available from the Scottish DNA database. As at 1 April 2008, a total of 4,712 DNA profiles of persons 16 years and under were recorded on the database of which 269 (approximately 6%) were retained permanently due to conviction. An additional 4258 persons had reached 17 years, of which 934 (approximately 22%) of these persons were shown to have DNA retained due to conviction

Combining these figures indicates that the number of individuals on the database under the age of 18 years at that time was 8970 and that approximately 13% of these profiles were from convicted individuals. Although comparative data for this precise date was not provided, more recent figures (9 June 2008) show that there were profiles from 8458 individuals under the age of 18 on the Scottish DNA database, which is 3.6% of the database population ¹⁶ of the total. Of these profiles, 1203 (1.9% of the database population) were permanently retained following conviction.

In addition to the desire to maintain a welfare based approach, there are other important factors that must be considered in relation to sampling and retaining forensic data and samples from children. In forming a view I have taken into account the likely numbers of children involved, the seriousness of the offences, the fact that there is either an acceptance or determination by a Sheriff, and the need for public protection.

It is my opinion that children who accept or are found by a Sheriff to have committed a relevant sexual or violent offence (excluding assault but including serious assault) should be the subject of forensic sampling and retention in line with adults. Given that most assaults committed by children are minor it would not be appropriate to sample all children in this category. However, further work is needed to identify children where the assaults may be sufficiently serious to merit forensic samples being taken and retained. As an initial guide those assaults categorized by the Reporter as high gravity would be appropriate in my view.

From the data provided by SPSA it is clear that large numbers of samples of DNA and (and possibly fingerprints) are taken from children but these will never be retained since individuals dealt with by Children's Hearing are not convicted. It is unclear what offences these samples are being taken in relation to and what benefits if any are being derived from this practice. This sampling practice should be reviewed in light of the other recommendations in this report.