Subordinate Legislation
Retention of Samples etc (Children’s Hearings) (Scotland) Order 2011 (Draft)
The purpose of agenda item 4 is to allow the committee to take evidence on an affirmative instrument: the draft Retention of Samples etc (Children’s Hearings) (Scotland) Order 2011. As noted in paper 3, the instrument relates to a provision in the Criminal Justice and Licensing (Scotland) Act 2010 that was discussed in some detail during the passage of the bill.
I welcome Fergus Ewing MSP to his third appearance this morning. With the minister, from the Scottish Government, are Keith Main, policy manager; Aileen Bearhop, principal policy officer; and Carolyn Magill, principal legal officer in the legal directorate. I understand that the minister wishes to make a short opening statement.
I am grateful for the opportunity to discuss the draft Retention of Samples etc (Children’s Hearings) (Scotland) Order 2011 with the committee. The order is an important part of the package of measures on DNA and other forensic data agreed in the Criminal Justice and Licensing (Scotland) Act 2010. The majority of that act’s provisions relate to samples taken from adults who are dealt with through the court system. As committee members will recall, for children’s hearings we recognised that it may not be appropriate for DNA and other forensic data to be retained for the full list of sexual or violent crimes that is set out in section 19A(6) of the Criminal Procedure (Scotland) Act 1995.
The instrument specifies the particular sexual and violent offences where samples may be retained following a children’s hearing. In doing so, it responds directly to concerns that were set out in the committee’s stage 1 report on the Criminal Justice and Licensing (Scotland) Bill in 2009. The committee recognises, as does the Government, that this is a very sensitive area—I will not pretend otherwise. However, I want to reassure the committee on a number of counts. We are clear that the majority of children—in fact, the vast majority—who are referred to hearings can and should be dealt with without any requirement to retain forensic samples. As I said to the committee last year:
“we do not want to retain the DNA of children who are involved in playground scuffles”.—[Official Report, Justice Committee, 27 April 2010; c 3016.]
I should also stress that we have no wish to stigmatise children or affect their lives for years to come. One of the great strengths of Scotland’s children’s hearings system is that early and appropriate intervention can help a young person to address their issues and become a responsible member of Scottish society. However, sadly, there is a small number—a very small number—of youngsters who commit serious sexual or violent offences. The legislation recognises that fact, as it must. We estimate that the provisions relating to samples would affect up to 100 children a year. That estimate was based on more than 15,000 children being referred to the hearings system on offence grounds in 2006-07.
The purpose of the order is to specify which offences will trigger the retention of samples where a child has been referred on offence grounds and the child and their relevant adult—mostly a parent—accept those grounds, or the grounds are established by a sheriff. The order lists those offences that we consider to be the more serious sexual or violent offences. As such, we believe that it provides an appropriate balance between the needs and rights of the individual child and the need to protect the wider public.
To help achieve that balance, the 2010 act built a number of safeguards and conditions into the process. First, only forensic data that have been taken from a child who is arrested or detained under suspicion of committing an offence can be retained. Secondly, the child would need to be referred to a children’s hearing on the grounds of having committed a relevant sexual or violent offence—that is, one of the offences prescribed in the order. Thirdly, a child and their relevant adult—a parent or guardian—must accept that the child has committed the offence that forms the grounds of referral or, where the matter is referred to a sheriff, he or she makes such a finding.
I should reassure the committee that we are developing, with the help of our stakeholders, detailed guidance on the new measures for reporters, panel members, the police and other stakeholders. In addition, we will continue to work with stakeholders to keep the list of offences under review.
I am sure that committee members will have questions on the issues that are raised by the draft order, but I believe that the response that we have produced today is proportionate, which was the requirement that the committee suggested we should comply with. I am happy to answer questions.
The list of offences is clearly stated in article 2 of the order. Do members have questions?
Yes. I was one of those who had concerns about the process. However, the bill having gone through in the form that it did, the minister seems to me to have made a fair stab at identifying the offences. I have one or two questions that seek clarification on minor points with regard to a couple of the offences. The offence of indecent assault is mentioned in article 2(e). The minister might agree that that offence could range from significant charges down to something that is relatively minor. Has any account been taken of that?
Certainly, I accept that in relation to assault in general, and to serious assault, there is a gradation in the degree of severity from very minor to pretty serious. We considered that matter generally in consultation with the Crown Office and Procurator Fiscal Service. We took the definitions of serious assault from the COPFS scale, which is used by the police, who will continue to report offences on the basis of the available evidence and the identified crime, as per normal procedures. For example, retention of samples would not be triggered in relation to assault or assault to injury within the COPFS scale.
I hope that that indicates that we recognise the point that Robert Brown makes. The offence of assault covers conduct of a wide range of seriousness, and that has been taken into account in formulating the statutory instrument on the basis of the advice that we have received from the Crown Office substantially.
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In terms of the violent offences, article 3(b) contains the offence of
“uttering a threat to the life of another person”.
I am not sure whether that, in itself, is a cognomen—a named offence—as opposed to threatening behaviour. One can imagine a situation in which, whether they mean it or not, someone threatens another person by saying, “I’ll kill you” and that kind of thing. Does that not cover a wide variety of circumstances? Is it a common offence? Is it an offence with which people are charged very often?
I do not have statistics to indicate the prevalence of that crime or offence. The list is very long and I wanted to ensure that it was comprehensive. I did not want us to omit offences or crimes that are rarely libelled; therefore, I sought and obtained an assurance that, on the basis of the best information that we received from our legal advisers and the relevant authorities, that has not been the case.
The main justification for including or not including an offence in the list of offences for which a young person’s DNA can be retained is whether there is a high risk of their future offending. What is the purpose of retaining DNA? If there is not a high risk of future offending, what would be the purpose of its retention? If there is a high risk of future offending, there is a need to retain DNA, as there is with adults. Whether or not there was a high risk of future offending was, we felt, an appropriate criterion on which to determine the list of offences. That is, broadly speaking, the basis on which we proceeded after having obtained advice from a working party comprising all stakeholders, some of whom we recognised as having principled concerns about the legislation or as being opposed to it. Robert Brown, in particular, will be aware of that.
I have a question on the list of offences. Lists always attract questions from someone. Article 2(i)(iv) refers to section 2 of the Criminal Law Consolidation (Scotland) Act 1995, which relates to the offence of intercourse with a step-child. How can that be an offence that is committed by a child? Can you explain that to me a wee bit?
I suppose that it is possible to be a parent at an early age.
Surely, minister, the point is that it is possible to be a step-parent at a much earlier age than that at which one could become a parent.
That is true. That is a fair point, which I would adopt as my own in answering this unexpected line of questioning.
I remind myself as well as members that the hearings include 16 to 17-year-olds, which raises the bar a little bit in respect of the grouping of people who could be either step-parents or parents. We are talking about a small number of children whom we expect to be affected at all. The subset of those who commit that particular offence will be vanishingly tiny—we certainly hope so.
The crimes that were included in the list were those in respect of which, however unlikely it was that they would be committed by a young person, a high risk of future offending would justify what would be seen otherwise as the unjustified measure of retaining DNA samples from children. The safeguards in respect of retention are clear. There is automatic destruction after three years unless an application is made to a sheriff, and the Scottish Police Services Authority holds the records as confidential matters. There are a series of safeguards that I hope we all accept are appropriate.
I am grateful to Cathie Craigie for raising the issue.
If the instrument deals with young people up to the age of 17, it is possible that the offence could happen. In law, someone could not have a step-child unless they were married.
It is a question of arithmetic rather than the law. There being no further questions, we proceed to item 5, which is formal consideration of the motion to approve the instrument that we considered under the previous item. I ask Mr Ewing to move the motion formally.
Motion moved,
That the Justice Committee recommends that the Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011 be approved.—[Fergus Ewing.]
Motion agreed to.
That concludes the public part of the meeting.
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Meeting continued in private until 13:14.