The DNA database in Scotland
The law on the collection and retention of DNA and fingerprints in Scotland is significantly different from that in England, Wales and Northern Ireland. The Scottish Government has consulted much more on what the law should be, and has sought to achieve a balance between the benefits of using DNA to solve crimes and the negative impacts on people's rights if their details are stored indefinitely on a database. The European Court of Human Rights referred to Scotland's approach as "particularly significant" in its judgment in the Marper case.
In May 2006, the Scottish Parliament voted to reject a proposal to allow the police to store all DNA taken on arrest permanently (which would bring Scottish law in line with English law). Instead, they agreed to expand police powers to retain some DNA from innocent people, but only in specific circumstances. MSPs voted to allow retention of DNA from some adults charged with but not convicted of violent or sexual offences for 3 years, after which the police must apply to a Sheriff if they want to keep the DNA sample and information for a further 2 years. They rejected amendments which would have allowed DNA to be taken from children accused of sexual offences and kept permanently.
The law which allows temporary retention of DNA after acquittal in some circumstances is available here, and the relevant offences are listed here. The law gives individuals a right of appeal against any decision made by a Sheriff to retain their DNA for longer than three years after acquittal.
The 2006 decision followed a consultation held in 2005.
GeneWatch provided a number of briefings to MSPs and gave evidence to the Justice 2 Committee. Commenting on the outcome of the vote Dr Helen Wallace of GeneWatch said;
"Scotland has sent a strong signal to London today that blanket retention of all DNA by the police poses an unacceptable threat to civil liberties. England and Wales are isolated internationally as the only countries where DNA can be kept permanently from thousands of innocent people, including children. This practice has done little to solve crime and has instead lost public trust in police use of DNA ".
However, GeneWatch remains concerned that many people convicted of relatively minor offences in Scotland could have their DNA kept for life and that the law fails to restrict uses of the samples or information derived from them. Both DNA profiles (the string of numbers used for identification purposes) and DNA samples, which contain more sensitive genetic information, are being be retained.
In 2007, First Minister Alex Salmond announced a review of DNA retention in Scotland (the Fraser review). This review was "predicated on the basis that DNA will be retained only in specific circumstances and that blanket retention of DNA is unacceptable in the relationship between the citizen and the state". In September 2008, the Scottish Government published the Fraser report and its response and held a consultation on its proposals.
The outcome of the consultation was published in February 2009 and included new plans to strengthen the safeguards for DNA and fingerprints collected in Scotland. A summary of the proposals is here.
The Scottish Government then set up the Forensic Data Working Group to progress its proposals. The Group's papers are published online. Its initial work has focused on making recommendations regarding the circumstances in which children who have their cases heard by Scotland's Children's Hearings System can have their DNA records retained.
The Criminal Justice and Licensing (Scotland) Act was adopted in June 2010.
Forensic Data Working Group (Scotland)
GeneWatch comments on Scotland's Criminal Justice Bill
28th April 2009
Acquisition and retention of DNA and fingerprint data in Scotland: Consultation report (24th February 2009)
Submission to the Scottish Government's DNA consultation
21st November 2008
Fraser Report: Acquisition of DNA and fingerprint data in Scotland
Scottish Government Consultation on DNA and fingerprints (23rd September 2008)