Anger at plan to keep child crime DNA

Published on Saturday 3 April 2010 20:18

A NEW law that will place children as young as eight on a DNA database aimed at preventing crime has been slammed by a legal expert.

The Scottish Criminal Justice and Licensing Bill now before parliament will allow the details of children accused of sexual or violent offences to be put on a database for up to three years, even if they go through the Children's Hearing System rather than the criminal courts.

But, writing in the Edinburgh Law Review, Professor Liz Campbell, a lecturer at the school of law at Aberdeen University, says that if the new law goes ahead, children could be stigmatised by being treating as criminals even when they have not been convicted of an offence.

Further pressure on MSPs to vote down this section of the bill has also come from Scotland's Children's Commissioner, who said including eight-year-olds on a DNA database was "unacceptable".

Although the hearing system does have the power to punish troubled children, it was set up primarily to help them.

Campbell will argue in her article, to be published next month, that such a measure is "disproportionate" and "may affect the essential ethos of the Children's Hearing System as a whole".

Her report says: "The inclusion of children's DNA in the database, even for a limited period, may lead to stigmatisation and to the labelling of the child as a criminal".

Campbell said the Scottish approach to retaining DNA is better than that south of the Border, but warns retaining the genetic fingerprint of such young children would be a retrograde step.

"In England, at the moment, if someone is arrested, their DNA is taken and kept on file indefinitely. Scotland is not going down that route – it's only for people arrested for serious or sexual offences.

"But the bill does include children who go through the hearing system. The hearing system is a uniquely Scottish thing that shows children have the scope to change. It's supposed to be more moderate and holistic – this is going to bring them into the realm of criminal law."

Campbell admits some legislators may see the retention of DNA as a small price to pay if it helps protect the wider population from becoming victims of crime.

"Some people have no problem with the state having DNA," she said. "But this is discriminating, it's labelling people in a certain way.

"There may be an argument made for convicted adults, but in circumstances where people have not been convicted, it labels, and you can't take it back. The state has this information on laptops that can be left on a train."

The new law, if passed, will also apply to children being tried in adult courts. Children as young as eight can be prosecuted in adult courts in Scotland – although the bill proposes raising that age to 12 – if their crime is serious enough.

Supporters of the bill point out that the holding of DNA would only happen in the most serious of cases. But including children going through the hearing system, as well as criminal courts, has led some experts to question how widely used the data might eventually be.

Tam Baillie, Scotland's Commissioner for Children and Young People, said: "The current proposal on automatic DNA retention is unacceptable. It could see a child as young as eight, and guilty of nothing more than a playground scuffle, have their DNA retained – even when they pose little threat to others.

"A child can be referred to the hearings system because they are vulnerable, not necessarily because they have committed a grave offence, so automatic retention is clearly not appropriate. Further, it flies in the face of the principle of the highly successful hearings system – that is, to treat children as children with needs and not just focus on the criminal act. The hearings system can and does deal with serious offenders very effectively, in a way that is in the public interest and in the best interests of children."

He has called on the Scottish Justice Committee, which is currently debating the bill, to clarify exactly what "trigger offences" would lead to a child's DNA being retained.

The wide-ranging Scottish Criminal Justice and Licensing Bill, which was introduced to the Scottish Parliament in March 2009, includes new laws on sentencing, community punishment, organised crime, prisoners, the rights of victims and witnesses, and disclosure in courts.

Bill Aitken MSP, convener of the justice committee, said: "The retention of children's DNA is a difficult question and I will have to consider the matter very carefully.

"Clearly, if it is introduced, this will be used in a very small number of cases – a handful, at most, in a year."