DNA database debateEuropean Court: Scottish DNA database system is "fairer and proportionate"

For more than two years, Scottish police forces have been able to retain the DNA of anyone arrested but not convicted of a sexual or violent offense for an initial three-year period. If chief constables have intelligence that the individual poses a potential risk of offending, they can apply to a sheriff to have the DNA retained for a further two years. DNA samples from people arrested but not convicted of any other offenses, however, are routinely destroyed in Scotland, a situation which contrasts with other parts of the United Kingdom.

The BBC’s Mona McAlinden reports that when the DNA database was launched south of the Scottish border in 1995, the only details that could be stored belonged to convicted criminals. The law changed in 2004. From 2004, the DNA profiles of everyone arrested for a recordable offense in England, Wales, and Northern Ireland were kept on the database, regardless of whether they were charged or convicted. At present there are about 4.5 million profiles on record.

In 2008 the European Court of Human Rights ruled the U.K. database — apart from in Scotland — was illegal. The court said that holding the profiles of innocent people “could not be regarded as necessary in a democratic society.”

It ruled this level of retention was “blanket and indiscriminate” (in response, the Home Office said today that DNA profiles of up to 850,000 innocent people would be removed from the database. Details of those cleared of crimes — or never charged — will still be held for six years, or even twelve years in cases of serious violent or sexual offenses; see story elsewhere in this issue).

The European Court considered the system in Scotland “fair and proportionate.” The Scottish model was developed following a review by Professor Jim Fraser, director of the Strathclyde University’s Center for Forensic Science. Following the Home Office announcement, he said the central question was whether holding samples for twelve years was “proportionate.”

“When I addressed the issue in Scotland it was very difficult to come to a firm conclusion that three years was the period,” he said. “What I concluded was that it was a reasonable period because most offenders — if they are offenders, and if they do re-offend - will probably offend within a two or three-year period and that was on the basis of data which was specific to Scotland.”

He called for a similar examination to take place in other parts of the United Kingdom to look at the issue of proportionality. “I would like to see the evidence to justify the 12-year period,” he added.

The Scottish government said it had proposed more changes to the law “to strengthen the regime further.” This includes introducing the temporary retention of forensic data from children who have committed serious violent or sexual offenses and are dealt with through the Children’s Hearings system.

The government spokesman added: “Clearly any legislative changes must be properly balanced to ensure they safeguard the rights of individual citizens, while also providing police with effective and proportionate powers to further protect our communities.”