14 DAY TRIAL // A new law passed by the Scottish Parliament allows police to collect and store DNA for children older than 8, who were found guilty of a sexual or violent offense. The data will be retained for three years, but this period can be extended in special cases.
Called the Criminal Justice and Licensing (Scotland) Act, the new legislation makes several changes to the forensic data retention regime. One of the new powers given to the authorities is the temporary retention of DNA for children who committed serious offenses.
The law only covers children aged 8 to 17 found guilty for violent and sexual offenses through the Children's Hearings System. The legislation also requires a group of experts to determine which offenses warrant DNA collection from juveniles.
"The powers to retain DNA, fingerprints and other physical data from children, for a limited period, are new. The DNA can be taken from a child who is arrested or detained, referred to a children’s hearing and either the child (and a relevant adult who is responsible for that child) accepts that he or she committed a relevant sexual or violent offence or the matter is referred to a sheriff who finds this to be the case," a Scottish Government spokesperson told OUT-LAW.
Under normal circumstances the data will be retained for three years, after which it will be erased from the system. However the retention period can be extended by two years for an unlimited number of times, at the request of a sheriff. "The new powers recognise the risk that such children may pose to other children and the wider general public," the spokesperson stressed.
DNA profiling is seen as a serious privacy violation by civil rights groups, especially in England, where a person's DNA can be retained indefinitely, even if they were acquitted. In a ruling against the UK government on this issue, the European Court of Human Rights commented that "The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales […] [The] respondent State had overstepped any acceptable margin of appreciation in this regard."