Scottish Government

ANNEX A

SUMMARY OF THE SCOTTISH GOVERNMENT'S PROPOSALS

• Retention periods for DNA samples: No change to the current powers contained in s18A of the Criminal Procedure (Scotland) Act 1995. On that basis, DNA samples will continue to be retained from all convicted persons indefinitely (in practice these records are deleted according to Scotland's criminal records weeding policy), but would be retained from unconvicted persons only if proceedings were raised against them for a relevant sexual or violent offence. Such DNA samples will be retained for a period of 3 years, and the relevant Chief Constable would then have discretion to apply to a Sheriff for extensions of up to 2 years at the end of each period.
• Retention periods for Fingerprints: Bring the law on the retention of fingerprints taken from unconvicted persons into line with DNA retention provisions. Fingerprints and other relevant physical data ⁶ will be retained from unconvicted persons only if proceedings have been raised against them for a relevant sexual or violent offence. Such data will be retained for a period of 3 years, and the relevant Chief Constable will then have discretion to apply to a Sheriff for extensions of up to 2 years at the end of each period.
• Children's Hearings: No new powers will be sought to take DNA and fingerprints on the basis that existing powers under section 18 of the Criminal Procedure (Scotland) Act 1995 are sufficient. We will seek a power to retain for three years DNA, fingerprints and other relevant physical data already taken under existing powers where a child is referred to a children's hearing on a ground of committing a relevant sexual or violent offence and accepts (along with a relevant adult) that they have committed such an offence or is found to have done so by a sheriff. Each Chief Constable will have the discretion to apply to a Sheriff for extensions of up to 2 years at the end of each period of retention. The list of offences will be developed with interested parties and prescribed in secondary legislation.
• Governance, accountability and transparency: The purposes for which DNA, fingerprint and other physical data can lawfully be used will be set out in statute in the forthcoming Criminal Justice and Licensing Bill as follows:
  • related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or
  • related to the identification of a deceased person or of the person from whom the material came
  This will clarify the purposes for which these data can be used. A working group will be established with a remit to progress work on governance, accountability and transparency, taking into account issues raised in response to the consultation. This group will also oversee the development of the list of offences for the Children's Hearings provisions, as well as reviewing the operation of existing legislation and implementing the new provisions to be included in the Criminal Justice and Licensing Bill.

• Direct measures issued by Procurators Fiscal: We are further considering our approach to the retention of DNA and fingerprints in cases dealt with by direct measures issued by Procurators Fiscal. Following the issues raised by the Association of Chief Police Officers in Scotland and the Scottish Police Services Authority, we also intend to consider the retention of DNA and fingerprints in relation to police fixed penalty notices. In both cases, we consider that any powers to retain should only apply where DNA and fingerprints have already been taken at the point when the person was initially arrested and detained or in custody. Any proposals would seek to maintain an appropriate balance between the effective investigation and prosecution of crime and the rights of the individual.