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Scotland allows collection of children's DNA

3 years plus possible extensions

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Police in Scotland will be able to collect and store the DNA of children as young as eight for the first time under a law just passed by the Scottish Parliament.

Children who commit sexual or violent offences can have their DNA and other forensic data collected and stored for three years. That can be extended by successive two-year periods by application to a sheriff, a spokesman for the Scottish government said.

The Criminal Justice and Licensing (Scotland) Act, which contains the measures, was passed last week by the Scottish Parliament and awaits Royal Assent.

The new powers relate only to children who are referred to a children's hearing over allegations and either admit them or are found to have committed the acts complained of.

"The powers to retain DNA, fingerprints and other physical data from children, for a limited period, are new," said the Scottish government spokesman. "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.

"The new powers recognise the risk that such children may pose to other children and the wider general public," he said. "The children from whom data will be collected could be aged 8 to 17 inclusive."

The Act also outlines the time period for which the information can be kept, the spokesman said. “Where appropriate, forensic data will be retained for 3 years with the possibility of extension on a 2-year rolling basis, on application to a sheriff. Provisions in the [Act] ensure that forensic data from children will not be retained inappropriately," he said.

Scotland has been held up as a model for England and Wales to follow on what DNA to gather and store, and how.

The practice in England and Wales of collecting DNA data on anyone arrested for an offence whether or not they are subsequently found guilty or ever even charged was found by the European Court of Human Rights to be incompatible with citizens' privacy rights.

The Court said that the "blanket and indiscriminate" collection of profiles was a "disproportionate interference with the applicants' right to respect for private life", as guaranteed by the European Convention on Human Rights, it said in 2008.

The last government said in response to the ruling that it would keep some DNA records for 12 years but delete most after six years.

In Scotland DNA collected from those arrested but not found guilty of a crime is erased, except in the case of some sexual offences.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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