'Keep DNA of innocent and guilty alike'

Key points

• DNA samples for all those arrested under new plans

• Information to be kept whether person is guilty of anything or not

• Grave reservations are voiced about scheme

Key quote

"The implications for civil liberties are very severe. We would have to have absolute assurances and categoric guarantees about the civil rights position before we could agree to it" - Kenny MacAskill, SNP MSP

Story in full

SCOTTISH ministers are considering controversial new powers to permanently store fingerprint and DNA samples taken from anyone arrested for an imprisonable offence - even if they are found not guilty or not taken to court.

Cathy Jamieson, the Justice Minister, will announce that the Executive is looking into the idea after a meeting of the Scottish Cabinet tomorrow, but she was warned last night that she would face fierce opposition inside and outside parliament.

The impetus for the change has come from the Home Office, which introduced a similar change in the law for England four years ago, and from the police, who believe it would help to catch more criminals.

Anybody who is arrested for a serious offence anywhere in the UK has to provide a sample of DNA and their fingerprints. In Scotland, this evidence must be destroyed by police if the suspect is released without charge or is not convicted of an offence. However police in England can keep all DNA and finger- print evidence to build up a database.

That DNA database has about two million entries and police claim it has allowed them to arrest about 200 more criminals since the law came into force in April last year.

Jack McConnell, the First Minister, and the Executive are considering changing the law in Scotland to bring it into line with England and to allow police to build a similar DNA database.

Since the law changed in England, senior police officers in Scotland have frequently lobbied ministers to get them to look at the legislation and, with the Executive's proposed Police Bill likely to start its parliamentary progress in the autumn, this was seen as the ideal time to hold a public consultation on the issue.

An Executive spokeswoman said: "We are not taking a position on it, but it is coming more and more to our attention that we should look at it."

She added: "We had representations from the police - they see merit in it because they see what has happened down south with an improved clear-up rate."

The suggestion that any such change might be made provoked a furious reaction last night from civil rights campaigners and opposition politicians. Rosemarie McIlwhan, the director of the Scottish Human Rights Centre, said it was an issue that civil rights' campaigners would fight hard to resist. She said: "If the government could do so, everyone of us would have our fingerprints taken and DNA samples taken and put into a database.

"In Scotland, if you have not committed a crime, there is no legal basis for the government to get your DNA and we would be very worried if they tried to change that.

"It has very serious implications for human rights and we would challenge this if it came before parliament."

A spokeswoman for the Association of Chief Police Officers in Scotland confirmed that police were pleased with the Executive's decision to consider changing the law. But she refused to be drawn on any pressure which police might have put on ministers.

She said: "We welcome the opportunity to debate the proposals to retain fingerprint and DNA samples and will consider carefully our position on the matter."

Colin Stagg, who was arrested and had his DNA analysed in 1999, for the 1992 murder of Rachel Nickell, was later acquitted. He would have expected his DNA sample to be destroyed on his release, but under new plans the police have the right to keep it indefinitely.

The Liberal Democrats are particularly worried about any such change and senior party figures warned that Mr McConnell might provoke a major split within the coalition Executive if he tried to force the plans through the parliament.

The proposals have come up before the Scottish Cabinet before and during that initial discussion the three Lib Dem ministers present expressed their grave reservations about the scheme.

A Lib Dem source said that ministers were aware of the strong arguments being put forward, but they would have to be absolutely convinced that human rights were not being eroded before they could sign up to the proposal.

Any change to the law does not fall within the scope of the partnership agreement to which the Lib Dems and Labour signed up. This means that neither party has to support the move and it is understood that, because of Lib Dem opposition, the Executive will take a "neutral" position on the proposal, waiting until the results of the consultation exercise are collated before making a decision.

Some Labour MSPs are likely to have reservations but most will probably back the change, if that is what ministers want.

Donald Gorrie, a Lib Dem MSP, signalled the likelihood of fierce backbench opposition from his party when he said: "I would need a lot of persuading and my starting position would be against such a proposal."

The Scottish National Party and the Conservative Party are also opposed to any change in the law.

Kenny MacAskill, for the SNP, said: "The implications for civil liberties are very severe. We would have to have absolute assurances and categoric guarantees about the civil rights position before we could agree to it. Otherwise we will have the details of innocent people placed into a database, which could be used and abused."

Annabel Goldie, for the Tories, said: "I am anxious to see the full details of the Executive's proposals. I do have concerns about individual civil liberties. There is a danger, for example, that those who freely offer DNA samples in an investigation might be more reluctant to come forward in future."


IN 2001, the Labour government changed the law for England and allowed the police to retain all DNA samples and fingerprints from anybody arrested for an imprisonable offence, even if they were later released.

The change was prompted by two high-profile cases that had to be thrown out or quashed because police had failed to destroy DNA samples taken from earlier investigations.

The first involved a man who was charged with raping a woman aged 66 in her London home.

A DNA profile taken from the victim was put on the national database and was matched to a saliva sample taken when the man was arrested for burglary a year later.

But in August 1998 he was acquitted of burglary because the sample taken from him should have been destroyed. The Appeal Court judges said he could not be found guilty because the sample that led detectives to the man was taken when he faced other charges of which he was never convicted.

The second was the case of Michael Weir, who was convicted of the murder of Leonard Harris, 79, in 2000 on the basis of blood samples taken during a drugs investigation that was discontinued.

The police were found to have used evidence that should have been destroyed. As a result, Weir's conviction was quashed by the Court of Appeal, although the Law Lords said later that this was "contrary to good sense".

This led to a decision to legislate and a section was put into the Criminal Justice and Police Act of 2001 and the new rules came into force in April last year.

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