Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

4th Report, 2011 (Session 3)

The draft Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011

Remit and membership

Remit:

To consider and report on (a) the administration of criminal and civil justice, community safety, and other matters falling within the responsibility of the Cabinet Secretary for Justice and (b) the functions of the Lord Advocate, other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Bill Aitken (Convener) (until 22 February 2011)
Robert Brown
Bill Butler (Deputy Convener)
Cathie Craigie
Nigel Don
James Kelly
Stewart Maxwell
Dave Thompson

Committee Clerking Team:

Andrew Mylne
Anne Peat
Andrew Proudfoot
Christine Lambourne

The draft Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011

The Committee reports to the Parliament as follows—

1. The draft Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011 was laid on 18 January 2011 and referred to the Justice Committee as lead committee.

The draft instrument

2. The draft Order is made under provisions inserted into the Criminal Procedure (Scotland) Act 1995 by section 80 of the Criminal Justice and Licensing (Scotland) Act 2010. The purpose of the instrument is to list the relevant sexual and violent offences which will trigger the retention of DNA samples, fingerprint data and other relevant physical data from children who are referred to a children’s hearing and either accept that they have committed that offence, or are found by a sheriff to have done so.

Scrutiny by the Subordinate Legislation Committee

3. The draft Order was considered by the Subordinate Legislation Committee on 27 January 2011, which agreed that no points arose (7th Report, 2011).¹

Scrutiny by the Justice Committee

4. The draft Order was considered by the Justice Committee on 8 February 2011.² The Minister for Community Safety, Fergus Ewing MSP, outlined the context for the instrument, saying he recognised that retaining samples from children was “a very sensitive area”. He expected that samples would be retained from only about a hundred of the children – numbering around 15,000 each year – who are referred to a children’s hearing. In his view, the draft Order “provides an appropriate balance between the needs and rights of the individual child and the need to protect the wider public”.

5. Mr Ewing was then questioned on the list of offences.

6. The Minister was first asked whether any account had been taken of the fact that the offence of indecent assault, mentioned in article 2(e), could range from significant charges down to something that is relatively minor. In response, he explained that the inclusion of “serious assault” as a relevant offence meant that—

“retention of samples would not be triggered in relation to assault or assault to injury within the COPFS scale.”³

7. However, in a subsequent letter to Robert Brown MSP,⁴ the Minister clarified that, while the legislation enabled violent offences (including assault) to be distinguished according to their degree of seriousness, this flexibility was not available in relation to sexual offences, and that as a result, “all grades of indecent assault will trigger the retention of forensic data”.

8. Asked about the offence of “uttering a threat to the life of another person”, contained in article 3(b), the Minister said he did not know how often people were charged with this offence, but said his priority had been to ensure that all offences were included, however unusual, where they indicated a high risk of future offending.⁵

9. Asked to explain the offence of intercourse with a step-child, referred to in article 2(i)(iv), the Minister reminded members that hearings included 16 to 17‑year‑olds and that it is possible to be a step-parent at a much earlier age than that at which one could become a parent.

10. There being no further questions, the Minister then moved motion S3M‑7742 recommending approval of the instrument. The motion was agreed to without debate or dissent.

Recommendation

11. Accordingly, the Justice Committee recommends to the Parliament that it approve the draft instrument.