Hansard

Amendment 409 seeks to establish a way of differentiating between low-level and serious assaults. The aim is to ensure that the powers to retain forensic data from children that are included in new sections 18B and 18C, which section 59 inserts into the 1995 act, are confined to assaults at the more serious end of the scale.I support the principle behind the amendment—we do not want to retain the DNA of children who are involved in playground scuffles, after all—and we are considering how that can best be achieved. The cabinet secretary wrote to you, convener, on 8 April, setting out progress in developing the list of offences that will trigger retention, and explaining the issues around assault that James Kelly’s amendment highlights.Early discussions of the forensic data working group, which the cabinet secretary set up to take forward proposals arising from the Fraser review, and to make recommendations on the implementation of the DNA provisions in the bill, established that the principal reporter’s definition was not the preferred option. There are, however, definitions used by the police and the Crown Office and Procurator Fiscal Service that could be applied. As we are working on the issue in conjunction with relevant stakeholders, I ask James Kelly whether he is prepared to withdraw amendment 409 on the understanding that we will identify a means of addressing the issue separately. I will, of course, keep the committee up to date on developments.By removing the requirement for the destruction of forensic data after three years, James Kelly’s amendments 410 to 412 appear to introduce the indefinite retention of forensic data from children who accept that they have committed a serious sexual or violent offence, or are found to have done so, in the course of a children’s hearing. Again, it seems that the amendments seek to bring Scotland into closer alignment with the new retention rules introduced by the Crime and Security Act 2010 in England and Wales. Under those arrangements, the forensic data of children aged 10 and upwards who are convicted of one serious offence or of two minor offences within a specified period can be retained indefinitely. Although Mr Kelly’s amendments apply only to the serious sexual and violent offences that will be covered through the existing bill provisions, I believe that indefinite retention is a step too far. With the right support, a child might not continue to pose a risk of offending throughout their adult life. Although I believe that it is right for children’s forensic data to be retained for a limited period in relation to the more serious offences, retention should be extended beyond that period only if the child continues to pose a risk. I do not believe that Mr Kelly’s amendments support that principle, and I do not want to undermine Scotland’s justice system by introducing measures that are at far greater risk of a successful challenge under the ECHR.Scotland has a unique approach to dealing with the majority of children who offend, which is through the children’s hearings system. In contrast to England and Wales, where all children who have committed offences are taken to court, in Scotland, except in the most serious of cases, we have a system that focuses on supporting the child to change his or her behaviour. Other provisions in the bill seek to ensure that all children under the age of 12 are dealt with in that way and I believe that that is the right approach.I come now to Robert Brown’s amendments 380, 381 and 382. Although I very much doubt that it is Robert Brown’s intention, there might be a technical issue with amendment 380 because there is a risk that, as drafted, it could be interpreted to allow for the indefinite retention of the forensic data of children who meet the retention criteria. That is because it removes from the bill the provision that requires forensic data to be destroyed within three years unless the chief constable applies to have that period extended. Amendment 380 gives chief constables discretion about whether to make the application to a sheriff to extend retention. As there is no requirement to make an application to a sheriff under the amendment, if the police decide not to make such an application, it could be argued that any forensic data that have been retained under proposed new section 18B of the 1995 act do not have to be destroyed and can be held indefinitely. I am pretty sure that that is not Robert Brown’s intention. I will move on to address what I think that his amendments seek to achieve.The provisions in proposed new section 18B of the 1995 act allow for automatic retention for an initial period of three years in relation to serious sexual and violent offences. Robert Brown’s amendments seek to introduce an approach that requires a sheriff to assess individually each child who has committed a serious sexual or violent offence in order to make a ruling on whether their forensic data should be retained for the initial three-year period.I can identify with the intentions behind James Kelly’s amendments at one end of the scale and Robert Brown’s amendments at the other, but I believe that the provisions in the bill steer a balanced middle course between those two sets of amendments. We decided at an early stage to move from the suggestion that there should be indefinite retention to ensuring that there was sufficient differentiation between the retention of data from children who accept that they have offended or are found by a sheriff to have offended and the retention of data from adults who are convicted of an offence.The provisions of the bill as introduced were developed following careful consideration of the issues arising from Professor Jim Fraser’s review and our subsequent consultation. The recommendation in Jim Fraser’s report was that there should be indefinite retention of data from children who are found by a children’s hearing to have committed a sexual or violent offence. However, having considered the responses to our consultation and the issues that were raised by the S and Marper v the United Kingdom judgment, we took on board the points that were made about the need to consider children’s rights carefully in the development of our retention policies. As a result, the provisions seek to retain automatically for an initial period of three years forensic data only from children who are found by a children’s hearing to have committed a serious sexual or violent offence. Thereafter, as Robert Brown said, a chief constable must apply to a sheriff for further extensions, which can be up to two years. In response to Mr Brown’s query about how those applications would be dealt with, I suggest that it would be for the police to make the submission and for the judge to decide whether to grant the extension. As I said, I imagine that the criteria would include the extent to which a child continued to pose a risk. That is fairly straightforward.The Cabinet Secretary for Justice wrote to you, convener, setting out the sexual and violent offences to which the provision will apply. I have already addressed issues around assault in relation to James Kelly’s amendment 409. The fact that retention will be automatic does not, in my view, make the provisions in proposed new sections 18B and 18C of the 1995 act disproportionate. What is important is that the principles that are applied to the power for automatic retention are proportionate and balanced. That will be achieved by ensuring that the retention is triggered only in relation to serious offences and that it is time limited. I am concerned that, instead of bringing greater fairness, Robert Brown’s amendments would involve the child in a court process and place a greater burden on the police and the courts.Let us not pretend that children who commit serious sexual and violent offences pose no risk to others. Indeed, it is widely accepted that the victims of such offences are often other children. Those children have rights, too—the right to feel safe in the knowledge that their assailant has been identified and that their behaviour is being addressed and the right not to become victims in the first place. Let us also acknowledge that, with the correct support, many children can and will turn their lives around before they become adults. For that to happen, it must first be possible to identify that they committed the offence. Those who no longer pose a risk beyond the initial retention period should no longer have their forensic data retained. If the court decides that a child continues to pose a risk to the public, it will be possible to extend the retention period beyond the initial three years.We have a strong tradition of protecting children’s rights in Scotland, and our children’s hearings system is unique in its focus on supporting the child. I believe that the provisions in the bill strike the right balance between the rights of the child and public safety; therefore, I cannot support James Kelly’s amendments 410 to 412 or Robert Brown’s amendments 380 to 382.Amendment 545 would amend new section 18B, which section 59 of the bill inserts into the 1995 act. The amendment seeks to adjust the date from which the three-year period of retention starts. At present, the bill provides that the period should be calculated as starting from the date on which the child accepts having committed, or is found to have committed, a relevant offence. Amendment 545 would change the starting point of the three-year period to the date on which the offence was committed. Therefore, the overall time for which the DNA was retained would be shorter, because the starting date would be moved forward to include the time between the commitment of the offence and the point at which it was accepted. However, amendment 545 would be extremely difficult to implement in practice. It is not always possible to confirm the exact date on which offences were committed. It is also unclear how amendment 545 would work if a child was referred to a children’s hearing for a historical offence that met the retention criteria but had been committed more than three years before the child’s appearance at the hearing. In such a case, it appears that any forensic data taken from the child could not be retained because three years would already have lapsed since the commission of the offence. Furthermore, sexual offences often involve conduct that happens on a number of occasions on different dates. Amendment 545 does not account for what the date of destruction should be in those scenarios. For those reasons, the date when a child accepts having committed, or is found to have committed, a relevant offence is a clearer, more consistent and more reliable trigger point.Amendment 546 would complicate the process by which a sheriff may grant an application to extend the retention period for forensic data that are taken from, or provided by, children who have been referred to a children’s hearing. The amendment provides that, before granting such an application, the sheriff must be satisfied that it meets one of a number of criteria that are to be set out in regulations that are to be made by the Scottish ministers. Subsection (6) of new section 18B, which the bill inserts into the 1995 act, already provides for the Scottish ministers to make an order prescribing relevant sexual or violent offences for the purposes of section 18B. That new section sets the basis for the retention of data and provides that forensic data are to be retained only from those who have committed the most serious offences. When the police apply to a sheriff for an extension to the retention period, the justification behind the application may relate to operational policing matters, which will differ in each application made. It is impracticable to specify a list of criteria that a sheriff should consider that would apply in each case.For those reasons, it is unnecessary and cumbersome to require the development of regulations that set out criteria that are to be applied when considering the extended retention of forensic data. The police are experienced in assessing risk and presenting such cases to the court, just as courts are experienced in weighing the arguments and facts that are presented to them in coming to a decision. Therefore, we do not support amendments 545 and 546.Amendment 483 is a minor amendment to subsection (7) of new section 18B. The amendment will correct a cross-reference to new section 18C of the 1995 act, which is also inserted by section 59 of the bill.Amendment 485 is a technical amendment linked to amendment 486. New section 18B of the 1995 act grants the power to retain data from children who have been referred to a children’s hearing on the grounds of a relevant offence. Amendment 486 provides that public indecency can be specified as a relevant sexual offence only if it is clear in the referral to the children’s hearing that there was a sexual element to the offence. Although it is unlikely that such an offence would trigger retention of data from children, the proposed change is required because the list of relevant offences applicable to children that is to be made by order of the Scottish ministers is to be drawn from the list of offences in section 19A(6) of the 1995 act.Amendment 487 will insert new subsections (4A) and (4B) into new section 18C of the 1995 act. Subsections (4A) and (4B) will provide the sheriff principal with the power to make an order to extend retention if the sheriff principal accepts an appeal from a chief constable under section 18C(4) against the sheriff’s original decision not to extend retention of forensic data from a child. That will bring the process for extending retention into line with the terms of section 18C(3), which specifies the power for a sheriff to make an order setting a new destruction date. The new destruction date that is set by the sheriff principal must not be more than two years later than the previous destruction date.Amendments 488 and 489 are technical drafting amendments that will replace the term “expired” with the term “elapsed” in describing the period for bringing appeals under new section 18C of the 1995 act. That is for consistency with existing section 18A of the 1995 act.15:00 Amendment 491 also ensures consistency with terminology that is used in section 18A of the 1995 act. Amendment 492 is a technical amendment to the definition of “relevant chief constable” in new section 18C(8) of the 1995 act. This is a drafting change that has no effect on the purpose of the provision. Amendment 493 is a tidying-up amendment that removes section 59(2), which is no longer required, in light of amendment 478. I am nearing the end, convener.