Report No. 271
5.17 Evidential, jurisdictional and procedural matters required amendment in the Criminal Procedure (Scotland) Act 1995 to:
- allow challenges to certain evidence relating to fingerprints and similar data where this is contained in certificate form;
- allow DNA samples to be taken by swabbing by a constable without authorisation from a senior officer;
- allow the police to retain DNA and fingerprints given voluntarily and with the consent of the person giving the sample ;
5.18 Section 55 of the Criminal Procedure (Scotland) Act 1995 is amended to remove the requirement to obtain authorisation from an inspector before a police constable can exercise compulsory powers to take a DNA sample by mouth swab, without force. This is achieved by amending sections 18, 19, 19A and 19B of the 1995 Act which contain the statutory powers to obtain samples of DNA for analysis purposes. Section 18 applies where a person has been arrested and is in custody, or has been detained under section 14 of the 1995 Act. Sections 19 and 19A apply where a person has been convicted of an offence, although 19A covers only those offenders convicted of a sexual or violent offence as defined in sub-section (6). Section 19B details circumstances where a constable may use reasonable force while obtaining samples.
5.19 The statutory provision allows the police to use such samples and prints, taken with consent, in the investigation of an offence or offences. This puts on a statutory footing the current practice where the police takes samples or prints with consent and check them against evidence from a scene of crime, for example mass DNA screenings in a geographical area. It also provides the police with authority, in certain circumstances, to retain the samples and prints for use in subsequent investigations whereas presently they would be destroyed at the conclusion of the investigation in connection with which they were obtained.