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Police, Public Order and Criminal Justice (Scotland) Bill: Stage 3

– in the Scottish Parliament at 2:15 pm on 25th May 2006.

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Resumed debate.

Photo of Murray Tosh Murray Tosh Conservative 2:55 pm, 25th May 2006

Before resuming proceedings on group 12, I inform the chamber that, given the number of members who wish to speak to the amendments, I propose under rule 9.4.8A(c) of the standing orders to extend the time limit for this section of the debate on group 12 by 20 minutes, which means that the debate must end no later than three hours and 15 minutes after stage 3 proceedings commenced. Thereafter, I will be minded at an appropriate point, of which I shall advise members, to accept a motion from any member under rule 9.8.5A of the standing orders to extend the final deadline set out in the timetabling motion by 10 minutes. If that motion is agreed to, a minimum of 20 minutes will be available to debate groups 13 to 19 and the debate on the motion to pass the bill is likely to be reduced from one hour to 50 minutes.

I will advise on any restrictions to speaking times when members' requests to speak appear on my screen.

Photo of Bill Aitken Bill Aitken Conservative

Paul Martin and, to some extent, Bill Butler, inadvertently presented us with a bit of a dilemma. We have debated a number of important principles. The first was child and personal protection; the second was the presumption of innocence; and the third was the basic argument about civil liberties and how they affect the investigation of crime.

It is decidedly unfortunate, to say the least, that the matter has been dealt with in this manner. Had the amendments been considered by the appropriate committee, there would have been much more time for measured and considered debate. Evidence could have been introduced that might have persuaded people one way or the other. At the 11th hour and 55th minute, however, we are presented with a bit of a dog's breakfast.

Photo of Hugh Henry Hugh Henry Labour

To be fair to Paul Martin, he brought his substantive amendment to the committee at stage 2 when there was a full discussion. I took from what he said this morning that the amendments that we are debating today come from further deliberation on and consideration of what was said at stage 2. Bill Aitken seems to suggest that we add another stage to the parliamentary procedure.

I will clarify a point raised by Bill Aitken and others this morning about application to the sheriff.

Subsection (5) of the proposed new section that amendment 207 would insert in the Criminal Procedure (Scotland) Act 1995 states that the process is one of "summary application", which is an existing form of civil court procedure set out in the summary application rules that apply to a number of civil court procedures. The rules set out in detail the process of application and include provisions for notification and participation of all parties. The person whose DNA is under consideration would therefore have the opportunity to make their case.

Photo of Murray Tosh Murray Tosh Conservative

I will give you another three minutes, Mr Aitken.

Photo of Bill Aitken Bill Aitken Conservative

Thank you, Presiding Officer.

The minister made a helpful intervention and I take the point that Paul Martin is having another go at something that failed at stage 2. It would still have been greatly preferable had the matter been subject to more measured consideration.

I will go through the amendments, starting with Bill Butler's amendment 200, which proposes that persons who are subject to risk of sexual harm orders should also be subject to the provisions that he proposes today.

To reiterate something that I said when we debated the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, persons who are subject to an RSHO have not been convicted by a criminal court, so they should be entitled, like everyone else, to a presumption of innocence, albeit to a limited extent. In fact, amendment 200 would effectively reduce the level of protection that such persons are due through the presumption of innocence, which is not acceptable.

Photo of Bill Aitken Bill Aitken Conservative

I am short of time, so I ask Mr Butler to make it quick.

Photo of Bill Butler Bill Butler Labour

I thank Bill Aitken for taking the intervention.

I do not follow what his concern is with regard to amendment 200. The amendment's provisions would allow DNA samples, fingerprints and any information deriving from them to be destroyed once the individual concerned was no longer subject to an RSHO. The principle was conceded in the 2005 act.

Photo of Bill Aitken Bill Aitken Conservative

I am still not particularly happy, but I will move on to Paul Martin's amendments on the implications for children.

As has been rehearsed in the chamber often, the way in which we deal with youth criminality is somewhat different from how we deal with adult criminality. Those who are convicted—in inverted commas—by the children's panel are not subject to a criminal conviction. In that sense, I doubt whether Paul Martin's proposals are compliant with ECHR recommendations and strictures. If a youngster is charged with a serious sexual offence such as rape, the offence would have to be indicted in the High Court; if the offence was of lewd and libidinous behaviour, it would have to go to a sheriff and jury court, which is appropriate—we have no problem with that. The procurator fiscal and the reporter must decide where such cases go. However, no such cases should go to a children's hearing until after conviction, when the presiding judge would require to take advice from the children's panel as to the eventual disposal of the case. Frankly, what Paul Martin proposes would be a serious departure from the normal judicial process; the circumstances would arise only when there was such a mis-marking of the papers that the case did not go before a solemn court.

Photo of Murray Tosh Murray Tosh Conservative

Can you be brief, Mr Aitken?

Photo of Bill Aitken Bill Aitken Conservative

Paul Martin's amendment 206 also refers to people who have been acquitted by a court. If a person has been acquitted, they are innocent under the law. What he proposes is that, although they are innocent, the same strictures should apply to them as would apply in the event of conviction. That is certainly not acceptable.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

This is a complex set of amendments and we have all tried our best to understand the full implications of them. It is passing strange that amendment 207 is the only one that we are contemplating supporting that proposes no process by which an application would be made to retain DNA. Amendments 204 and 205 relate to youngsters who accept that they committed a crime—amendment 205 relates to circumstances in which the sheriff provides a determination of the facts that leads to the view that the child supported a crime.

Every amendment in this group makes provision for a way of going forward, but amendment 207 makes no provision for a sheriff to intervene, except in narrow circumstances. After three years, if—and only if—the chief constable seeks an extension to the three-year limit, there would be a process of involving the sheriff to decide whether the retention period could be extended for two more years.

Of course, amendment 207 covers sexual and violent offences, but it does not need to cover sexual offences at all. If someone appears before a court and ends up without a conviction, that is precisely the circumstance in which it would be appropriate and desirable, on public policy and fairness grounds, for an application to be made to the court for an RSHO. The defendant would be represented at the hearing and there would be an opportunity for their DNA to be retained.

No similar order applies in relation to violent offences, and to that limited extent discussion of amendment 207 is justified. However, the trouble is that amendment 207 provides the wrong answer to the problem. If we think that, for public safety reasons, the DNA of non-convicted violent offenders should be kept on record, we should introduce an order that is analogous to the RSHO and provide for a hearing at which it could be argued that, notwithstanding the fact that the person had been found not guilty—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I am curious about the member's reference to "non-convicted violent offenders". Will he explain what he means?

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I withdraw the remark, which was a slip of the tongue. I thank the member for drawing the matter to my attention. I should have said, "non-convicted accused". I am glad that people are paying attention.

The key point is that amendment 207 would provide for the retention of people's DNA without there being any court involvement.

There are 24 Paul Martins in Glasgow. What if the wrong one was lifted? When he appeared in court, the first witness would say that the accused was the wrong Paul Martin, but under amendment 207 the wrong Paul Martin's DNA would be retained. The good news is that there appears to be only one Jeremy Purvis in Galashiels, so at least he will not be subject to the same risk.

Photo of Colin Fox Colin Fox SSP

It seems that Paul Martin's central argument—[ Interruption. ] I will continue when members are ready.

Photo of Colin Fox Colin Fox SSP

Paul Martin suggests that the retention of DNA samples from millions of people will help to solve crimes and enable the police to eliminate people from inquiries and home in on suspects far more quickly and effectively. I am sure that all members understand his motivation for lodging the amendments in the group.

However, Paul Martin was present when the Justice 2 Committee heard evidence that the outcome that he seeks is unlikely to be achieved by the approach that he proposes. When the committee took evidence on the impact of adding to the national database substantial numbers of innocent people—who might not have been charged with a crime, let alone convicted of one—we were told that there is no basis for the expectation that crimes would suddenly be solved as a consequence.

Paul Martin bases much of his case on the Home Office report, "DNA Expansion Programme 2000-2005: Reporting achievement". However, the report indicates that in 2004-05 the number of crimes that were detected using the DNA database fell, despite the fact that 124,347 people who had been arrested but not charged or convicted had been added to the database in the previous year.

The success of the database in crime detection is determined largely by the number of DNA profiles that are collected at crime scenes and not by the number of profiles that are taken from individuals at police stations. That is a fact. It is also a fact that the likelihood of matching a DNA profile from a crime scene to a profile taken from an individual has not significantly increased during the past three years, despite an increase in profiles on the database from two million to three million during that period. It is also a fact that only 0.35 per cent of crimes were detected using DNA profiles in 2004-05—the same percentage as in the previous three years. The facts do not back up Paul Martin's case because, as he knows, the vast majority of crimes are committed by repeat offenders, whose DNA is already in the system. DNA cannot be easily detected at most crime scenes.

In his remarks, Paul Martin appeared to suggest that he will not move his amendments, with the exception of amendment 207. However, amendment 207 is based on the same arguments as his other amendments in the group and represents the thin end of the wedge. The approach in amendment 207 suggests that it is okay for people who are charged with but not convicted of sexual offences to be added to a permanent database, but it is not okay for other people to be added to the database. That is a dangerous road to go down.

Paul Martin's proposals to add innocent people to a national database would have serious and dangerous consequences. In effect, samples could be added to the database on the whim of a police constable. At present, one in three black men is on the existing database. Paul Martin refuses to accept that profiles should be held for only a specific period, as happens at present. During stage 2, the minister told the Justice 2 Committee that the Executive's position was that voluntary DNA sampling would continue, that people could withdraw their consent at any time and that the samples would be destroyed if a person was not convicted. I want to know whether the minister stands by that view.

In evidence to the Justice 2 Committee, it was suggested that, rather than the Scottish Parliament following the example of England and Wales, England and Wales should follow Scotland's example and have a voluntary system under which people can withdraw consent at any stage and samples are destroyed if a person is not convicted. Dr Helen Wallace of GeneWatch UK has said:

"The lesson from England and Wales is that blanket permanent retention of DNA from innocent people does little to solve crime and instead reduces public trust in police use of DNA."

I will oppose any amendment that Paul Martin moves during the debate.

Photo of Pauline McNeill Pauline McNeill Labour

We should be cautious about changing the law to allow the retention of DNA samples as a matter of principle. The argument about whether we should make the change rests on whether the evidence suggests that, by doing so, we will be able to tackle serious crime better. Colin Fox said that there is no evidence for that, but I have seen recent statistics from England and Wales that show that changes similar to those that are proposed here have affected the crime clear-up rate to a great extent. Those who promote the changes must persuade members that they will make a difference. That is how I will decide how to vote on the issue. From what I have seen so far, I am predisposed to supporting the move to a degree.

In Glasgow recently, a young officer asked for a voluntary swab in a minor case of breach of the peace, which led to the discovery that the offender was also the suspect in a murder case. Evidence exists of a connection between minor offences and more serious ones. However, I seek assurances on the issue. First, if we expand the DNA database to include suspects or those who are involved in criminal proceedings, no inference whatever should ever be drawn from the existence of someone's DNA on the database. I need a cast-iron assurance on that. Secondly, we must also ensure that there are appropriate safeguards on the storage of DNA. It is important that we get an assurance from ministers on that if we are to proceed with the changes.

I support Bill Butler's amendment 208. The Parliament debated risk of sexual harm orders when we considered the Protection of Children and Prevention of Sexual Offences (Scotland) Bill—Bill Aitken mentioned that earlier. The risk of sexual harm order is a far-reaching provision. It has always been my view that, in agreeing to it, we were at the outer edge of the Human Rights Act 1998, although I believe that the measure is proportionate. I draw the Parliament's attention to the issue because, if we are to go that bit further, as amendment 208 proposes, we need to know that we are already on the edge. I whole-heartedly supported risk of sexual harm orders, but there may be cases in which a person who is subject to such an order has not been convicted in a court of law. Under Bill Butler's amendment 208, a person who is subject to a risk of sexual harm order and who has not been tried in a court of law could have their DNA sample retained. I have thought about that and, as I said, I believe that, although the measure is proportionate, we are at the outer edges of the Human Rights Act 1998.

We should be cautious about making changes—the case has to be made for any change. It is also important to take stock of where we are and how we do things. Amendment 208 may be within the confines that are imposed by the Human Rights Act 1998, but we should know that, if we agree to it, we will probably reach our outer limits in that respect.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat 3:15 pm, 25th May 2006

I simply point out to Bill Aitken that a neutral Scottish Executive consultation paper asked all these questions last year. With regard to Colin Fox's point, it is interesting to note that GeneWatch UK does not oppose amendment 207, although it opposes other amendments in Paul Martin's name, on the basis that

"The amendment recognises that there may be some carefully justified exceptions where the police could benefit from keeping some DNA profiles longer on the Database."

We can make one of two choices today: we can go down the route of the UK Government in England and Wales, in which the DNA and fingerprints of anyone arrested or detained on suspicion of having committed an offence can be kept by the police forever, regardless of whether they were prosecuted or convicted; or we can take a proportionate, limited and targeted approach that does not reduce civil liberties.

There are a small number of reasons why the arguments used to support amendment 206 are flawed. First, Paul Martin wants to bring us into line with England and Wales. In its evidence to the Justice 2 Committee, the Human Genetics Commission asked that England and Wales should be brought into line with Scotland. The DNA database has expanded hugely in recent years, from 2 million in 2002-03 to 3 million in 2004-05, but GeneWatch UK told us that only 0.35 per cent of crimes were detected by DNA evidence. Detections have not increased by a third in the way in which database entries have.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I would like to give way, but time is limited. I appreciate the sincerity with which Paul Martin has debated this issue, both in committee and in the chamber.

Claims about crimes being solved have to be viewed carefully. Many members have suggested that crimes have been solved, when in fact there has merely been a match on the database, not a prosecution. Furthermore, the Home Office has estimated that only 49 per cent of DNA matches lead to a detection and that only half of detections lead to a conviction. However, we do not and cannot know how many convictions have come about purely as a result of DNA evidence.

The Home Office has not been proportionate, because the database can be used for research purposes. As Colin Fox said, almost a third of all black men in England and Wales have been entered on the database. However, we can move forward proportionately, through the limited power for the police to retain the profiles and samples only of those prosecuted for a violent or sexual offence, and then only for three years, after which those profiles and samples must be deleted or there must be an application to a sheriff for an extension. Why three years? In relation to reoffending, we know that the proclivity is to do so within three years. The intelligence officer in the police division would retain the case files of an acquitted person and information about the offence, not so that they can be prosecuted again, but because the information is useful for police purposes. That is existing practice. On acquittal of offenders such as those outlined in amendment 207, the police will treat the case as an open case and therefore will retain the information.

Parliament should reject amendments 204 to 206 but accept amendment 207. The main reason why the SNP seems to be opposed to amendment 207 is that there is no automatic application to a sheriff. I ask the SNP to consider that, in some cases of the type that the amendment refers to, the police already automatically retain the information as intelligence under the authority of an intelligence officer in a division. Under amendment 207, an appeal to the sheriff principal will be possible.

On ECHR issues, the House of Lords judged that the English and Welsh system was proportionate. However, that judgment is being appealed because of the potential misuse—or use—of the database for research purposes.

Amendment 207 is targeted, proportionate and does not reduce civil liberties. Ultimately, it allows the correct use of DNA, which can be a valuable tool in protecting our communities.

Photo of David Davidson David Davidson Conservative

A basic tenet of Scots law is that someone is presumed innocent unless proven guilty. I am afraid that keeping the DNA of a person who is found not guilty is a total contradiction of those fundamental beliefs.

Why should some innocent people have their civil liberties and human rights eroded when the majority have theirs protected? This move would be compromise par excellence—it does nothing other than make a mess of understanding innocence and guilt. There is a clear division: if we offer protection, we have to extend it to all innocent people or to no one at all.

Some of the amendments that we are discussing have been past the Justice 2 Committee in one form or another, and they did not receive support for a variety of reasons. One or two members might have sat on the fence because they felt that they did not have enough detail, and I do not argue with the position that they took.

Bill Butler's amendments would allow DNA to be taken from individuals who are subject to a risk of sexual harm order. Persons subject to such an order are not convicted criminals because it is a civil order. If the facility outlined in the amendments was made available, it might discourage the prosecution of offenders. Additionally, if someone presents a danger to the public, surely the Crown has a duty to prosecute them and lock them away if they are found guilty, rather than put them under a civil order. It almost sounds as if we want a second bite, should we be unable to get the evidence to put away someone who we believe is guilty. That raises questions about the way in which prosecution is handled.

Paul Martin's amendments 204 and 205 worry me because they seem to assume that children's hearings are a court of law. If a youngster is involved in a particular activity, it might not be their fault; they might be the innocent victim of something that has happened to them at home, for example. That is a flaw in the amendments. If someone who is under the age of 16 commits a serious sexual offence, they can be prosecuted in the adult courts. If that happened and they were found guilty, it would be fair enough to store their DNA.

On amendment 207, there is another question about the burden of proof. Why should the police keep on record for three years the DNA of someone who has been proved not guilty of an offence? That is what the court system is about and we have to have confidence that the court system produces the correct results. There is a risk that people who want to volunteer their DNA will be frightened to come forward in case there is an accident with their DNA. For example, someone might happen to go through a particular building at the wrong time and leave fingerprints at a crime scene. It would be like the paperboy delivering papers with gloves on in case they touch someone's door handle—

Photo of David Davidson David Davidson Conservative

We have to eliminate uncertainty and get confidence in the system. We have to have safeguards that protect liberty and individuals' rights.

Paul Martin has said on television and in the committee that everyone should be on the database. Therefore, I do not understand why he is going for the compromise that is evident in his amendments. Either he believes in what he says or he does not.

Photo of Paul Martin Paul Martin Labour

Will the member give way on that point?

Photo of David Davidson David Davidson Conservative

I do not think that I can. Presiding Officer, I will happily let Mr Martin in if he responds to that point.

Photo of Murray Tosh Murray Tosh Conservative

I cannot give you any more time, Mr Davidson.

Photo of David Davidson David Davidson Conservative

In that case, I think that I have said enough.

We are very concerned and are still waiting for clarity, particularly from the minister. It has been helpful for the minister to come back to the issue at stage 3, but I am not swayed by the arguments on the amendments.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

When we approach this group of amendments, we have to consider them all individually because there is a wide range of options before us. There are also a number of basic questions that have to be answered before we decide whether to support the amendments or not.

I turn to Bill Butler's amendments on retaining the DNA of people who are subject to risk of sexual harm orders. We have to ask some questions. Has there been a threat? If there was no threat, no risk of sexual harm order would have been put in place. Has the process been gone through? Yes. Are there checks and balances in the system? Yes. Are civil liberties protected? Yes—they are protected by the process. What is the purpose of the amendments? They seek to close a loophole. Once those questions have been asked and answered, it is clear that we should support the amendments. I congratulate Bill Butler on seeking to close that loophole through lodging his amendments. We will support them.

I move on to Paul Martin's amendments and start with amendments 204 and 205. The same questions have to be asked about them. If child or person under the age of 18 is found guilty of an offence that would, had the offender been 18 or over, have resulted in retention of the offender's DNA, should that DNA be destroyed or not retained just because the offender is under 18? The answer is that it should not. Has a threat been identified? Yes. Has a process been gone through? Yes. Amendments 204 and 205 would provide a three-step process, which would involve the children's panel, the principal reporter, the chief constable of the area in which the offence is supposed to have taken place and a sheriff. It seems to me that the amendments would provide a legitimate process to establish that there is a threat.

In the case of amendment 205, the child offender has put up his hands, admitted his guilt and accepted the grounds of referral. Frankly, if the offender accepts the grounds of referral and it is clear that due process has been gone through, it is equally right that we should close the loophole so that the DNA of under-18s who have been involved in such activity will be retained because they are a threat. It is entirely reasonable to do that.

Amendment 206, however, is a completely different type of amendment. We should ask the same questions about it as we asked about the previous amendments. Has a threat been identified? No. The amendment would result in retention of DNA samples of everyone regardless of their guilt or otherwise. Does the amendment provide a process? No—retention would apply to everyone. Does it provide checks and balances? No it does not. Would civil liberties be protected? No, they would not; the DNA of everyone who was arrested for an imprisonable offence would be retained, which is not acceptable.

The purpose of amendment 206 is not to close a loophole but to move us down the road of having a DNA database of everybody irrespective of their guilt or otherwise. That is an unacceptable move. Throughout history, every totalitarian state and police state has said, "If you have nothing to hide, you have nothing to fear."

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

Sorry—I have less than a minute.

I do not believe that that is acceptable in a free and democratic country such as Scotland.

Much the same arguments apply to amendment 207. Does the person pose a threat? No. The person has been found not guilty and has been cleared of the offence, or the case has collapsed. If the case has collapsed and there is reason to believe that the person was involved in such a crime, people could apply for a risk of sexual harm order. If such risk is established, the person's DNA can be retained; otherwise, the person should go free and there is no reason to retain their DNA. Does amendment 207 provide checks and balances? No. There would be no right of appeal, and the process would be automatic. As soon as the process had started, the person's DNA would be retained irrespective of the outcome of the case, even if—as Stewart Stevenson pointed out—the wrong Paul Martin was standing in the dock.

The purpose of amendment 207 is to take us down the road towards retaining every DNA sample. Paul Martin said so this morning and he said so in press interviews this week. That is its purpose, but there is no logic to it. The amendment is unacceptable. Also, if we agree that people's DNA should be retained if they are a risk, it makes no sense to retain it for only three years. Why would we retain the DNA for only three years if the person has been identified as a risk to society? That makes no sense.

If the Liberal Democrats support amendments 206 and 207—it is clear that they will—they should change their name before someone sues them under the Trade Descriptions Act 1968. They are certainly not a liberal party if they support such illiberal views today.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

And keeping the DNA of kids for life is?

Photo of Marilyn Livingstone Marilyn Livingstone Labour

I am pleased to be able to contribute to today's debate. I support the amendments in the name of the minister and Bill Butler. However, I will confine my limited time to speaking to amendment 207 in the name of Paul Martin, which seems to have caused a bit of controversy today.

As many members know, I convene the cross-party group for survivors of childhood sexual abuse. I say to David Davidson that, having discussed the retention of DNA, the group does not believe that the principle of being innocent until proven guilty would be jeopardised. The retention of DNA samples and profiles relates more to the gathering of intelligence and the task of solving crimes.

Photo of Paul Martin Paul Martin Labour

I clarify that 198,000 DNA profiles would previously have been removed. From among those profiles, there have been 88 murders of innocent members of the public, 45 attempted murders of innocent members of the public and 116 rapes of innocent members of the public.

Photo of Marilyn Livingstone Marilyn Livingstone Labour 3:30 pm, 25th May 2006

As I said, we believe that the retention of DNA is about deterring and solving crime. My cross-party group is in favour of the protection of innocent people, but we really need to look at the balance on this issue.

In the interests of ensuring some consistency and of preventing offenders from escaping notice, there must be similar powers on both sides of the border. There is considerable disquiet about the low level of convictions for sexual offences, especially in cases of historic childhood sexual abuse. The proposed measures could improve clarity in such cases.

As the minister and Paul Martin have said, the House of Lords has concluded that the proposed measures would not contravene the European convention on human rights. They would be of advantage to the police and to those who are already on the sex offenders register, in that time would not be wasted on calling in all known past offenders for questioning when a sexual crime was committed. The measures could avoid time wasting and unnecessary harassment for all concerned.

There is evidence to support the case for early intervention, as the cross-party group in which I am involved has heard on many occasions, particularly in relation to sexual offences. That evidence shows that serious sexual offending can be prevented with support and counselling, which could stop behaviour escalating to the most serious sexual offences. We must take all the steps that we can to prevent such behaviour. I ask Parliament to consider very seriously its decision on amendment 207, which is in the name of Paul Martin and which I believe—with the safeguards that Paul has outlined and that the minister has clarified for us—is sensible, balanced and proportionate, and which I think will help to protect the innocent.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I will focus on amendments 206 and 207. For the benefit of Stewart Maxwell, I point out that the Liberal Democrats are against keeping DNA samples indefinitely against the will of people who have been found innocent or whose case has not come to trial. A person is either innocent or not. We cannot have a new category of law for people who we do not like the look of and decide that, even if their peers on a jury acquit them of any crime, we can keep their DNA for all time. That is simply unacceptable in a modern liberal society.

Labour MSPs such as Paul Martin and Marilyn Livingstone clearly have no scruples about including law-abiding people on the police database. If the Labour Party wants to have a major database of our citizens' DNA, let its members say so, instead of trying to create one by the back door. Thank goodness the Labour Party's writ in Scotland does not run unfettered, and that the draconian and authoritarian measures that have been implemented in England—which amendment 206 would make the rule in Scotland—are not being implemented here. In marked contrast to the draconian approach that has been adopted by the Labour Party in England, here in Scotland, DNA will be retained only for a limited time, having been taken from people against whom the procurator fiscal has decided, on the basis of the evidence, to take proceedings for sexual and violent offences.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

The fact that amendment 206, like amendment 207, is in the name of Paul Martin is somewhat bizarre. I would like to think that reason has taken hold of Paul, but I somehow do not think so. If it was left to Paul Martin and his Labour Party colleagues, there is no doubt that we would not be debating amendment 207, but arguing about against yet another authoritarian measure. Thank goodness for coalition politics in Scotland and for the fact that such a measure will not be supported by MSPs today.

I have heard that the Labour Party is likely to return to such a proposal in its manifesto for next year's elections. I sincerely hope so. If it does, I believe that the people of Scotland will reject it, as I believe Parliament will when amendment 206 is put to the vote later today. In my view, amendment 207 is a balanced step forward in the fight against sexual and violent crime and in the fight to protect our liberties, including the liberty of the innocent citizen to be free from interference by the state. Labour Party MSPs such as Paul Martin have shown us that we must ever be vigilant against an overpowerful state—against an overpowerful Government interfering in the affairs of law-abiding people.

If I am lucky enough to be re-elected by the voters of West Aberdeenshire and Kincardine next year, I will not support any future Executive that seeks to support the contents of amendment 206. I am sure that we will reject it today, just as I am sure that the people of Scotland will reject it if the Labour Party is daft enough to put it in its manifesto for next year's election.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Mr Rumbles has shown yet again that the Liberals are prepared to put the partnership before their principles. The Tories commented on the importance of convictions. We have supported the risk of sexual harm orders. In our society, there is a small minority of people who have not been convicted of a crime but who we know have a propensity to commit serious and dangerous actions against individuals. We would be neglecting our duty if we did not seek to take action against them. We have to balance their rights with the protection of our society. Thankfully, we are talking about a small minority of people, but they do not conform to the normal rules of engagement to which other members of society conform. Whether that is because they are sociopathic or psychopathic, we have to deal with them as a different and separate category. We fully support Bill Butler and his amendments.

The minister and Jeremy Purvis bandied about the point that they have the support of GeneWatch but, in fact, they quoted Miss Wallace's letter selectively. When I spoke to her earlier this week, she made it clear that GeneWatch does not support Paul Martin's amendments. Those members should have spoken to Miss Wallace before they claimed to have her support.

I turn to Paul Martin's amendments 206 and 207, which we believe would undermine fundamentally the relationship between the citizen and the state. We, as a legislature, have an obligation to punish the guilty, but we also have a responsibility to protect the innocent, which is where the amendments go awry. Of course victims have rights, but so do ordinary citizens who do not commit offences. We have to balance those rights.

Photo of Rt Hon Jack McConnell Rt Hon Jack McConnell Labour

Will Mr MacAskill respond to the point that Marilyn Livingstone and Paul Martin made, which was that DNA retention frees the innocent as well as convicting the guilty?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I do not believe that DNA retention exculpates people in that manner. If someone who has neither been convicted of an offence nor had imposed on them a risk of sexual harm order—which would disclose that they had a propensity to commit such an offence—does not have the right to challenge a position or to put their viewpoint, the system is fundamentally undemocratic. The Liberal Democrats might be prepared to lie supine before the authoritarian Big Brother tendencies of new Labour, but the Scottish National Party is not. The approach to identity cards and the drive by the Home Office towards an almost totalitarian state are fundamentally wrong.

We get the policing that we deserve. We have to have co-operation and the good citizen has to be encouraged to co-operate. Law and order cannot be dealt with simply by the professionals, whether sheriffs, the judiciary or the police. If people will not report crime or testify in court, our democratic and judicial systems will break down. We have to maintain the fundamental balance between the citizen and the state. The individual citizen gives rights to the state. I say to Mr McConnell that the fundamental difference between the Scottish National Party and new Labour is that we believe that the citizen has rights and cedes powers to the state. Unlike the Conservatives, we believe that there is such a thing as society, but we do not believe that the state has in every instance the right to dictate what individuals do. The Executive's view of where it seeks to take Scotland is fundamentally undemocratic and will damage the innocent people in our society, as well as everybody else.

Photo of Murray Tosh Murray Tosh Conservative

I remain concerned about the time and I am conscious of the fact that the minister spoke at the beginning of the debate on this group, but if he requires to put points on the record, I am prepared to give him a short opportunity to do so.

Photo of Hugh Henry Hugh Henry Labour

Pauline McNeill asked about inferences from the presence of DNA on a database. I assure her that absolutely no inference will be drawn from the presence of DNA on a database. An innocent person has nothing to fear from having their DNA kept on a database. As the First Minister said, that can help to clear someone of a crime. Furthermore, if a person's DNA suggests that they have been at the scene of a crime, it does not automatically mean that they are guilty; rather, it gives them an opportunity to clear their name.

Photo of Hugh Henry Hugh Henry Labour

No, thanks.

It is worth saying, however, that people are convicted because of the use of DNA. Today, doubts have been cast on the validity and value of DNA sampling. However, the Farah Noor Adams murder in Glasgow was cleared up by the existence of a DNA sample that had been randomly taken from someone for another purpose. The murder of an old woman in Maryhill was cleared up by the use of DNA. DNA sampling works and is proven to work. No one has any cause to fear it.

Pauline McNeill asked for assurances in relation to storage. There are secure facilities and a limited number of people have access to that database. I guarantee that the DNA storage facilities are exceptionally sound—

Photo of Alex Neil Alex Neil Scottish National Party

Like the fingerprint storage facility?

Photo of Hugh Henry Hugh Henry Labour

There has been no recorded incident of DNA being stolen or misused. The DNA that we are talking about using, from a limited number or people, will sometimes make a big difference, as Paul Martin and others have suggested.

Kenny MacAskill is right to raise the issue of rights. People in society have rights, but people in society have nothing to fear from the use of science connected to DNA. However, on the subject of rights I must say that although people in wider society have rights, so do the victims of violent and sexual crimes. I know whose rights I want to protect when it comes to helping those people, helping to prevent crime and helping to solve crime.

Photo of Bill Butler Bill Butler Labour

This has been a serious debate on complicated issues. People have spoken passionately and frankly about how they feel and have, with a few exceptions, done so in a way that was to the point and not idiosyncratic. Those who are idiosyncratic have made themselves known; I do not think that I need to say any more about them.

I am grateful for the support of the Executive and almost all the other parties for the amendments in my name. I still hope that Bill Aitken and David Davidson will change their minds about the proposals.

I emphasise that the purpose of a risk of sexual harm order is to protect children from harm and that the order will be obtained only if it appears to the bench that a person is engaged in sexually inappropriate conduct with, or in the presence of, a child. As Stewart Maxwell said, it is a proportionate preventive measure, there is a process that must be gone through and safeguards are built in.

The effect of my amendments would be that the police will be able to take and retain the prints and samples of anyone in Scotland who is subject to an RSHO. However, it also provides that any DNA samples and fingerprints and any information that derives from them must be destroyed when the individual is no longer subject to an RSHO.

Photo of Bill Butler Bill Butler Labour

I am sorry, but I do not have time.

With those assurances, I hope that the Conservatives will change their minds and support the amendments in my name. I believe that they will close an unintended loophole, are proportionate and do not conflict with the ECHR. On that basis, I ask for the support of all of my colleagues.

I thank Paul Martin for lodging his amendments, which has allowed us to discuss the complicated and serious areas that they deal with. For the record, I point out that in England and Wales the increased retention of DNA of unconvicted people has led to profiles being linked to 10,754 offences, many of which have been serious. I accept that GeneWatch's figures contradict that, but I feel that there has been too much assertion and not enough evidence on both sides to allow us fully to go in the direction that Paul Martin has proposed. As a result, I remain unconvinced about most of Paul Martin's amendments.

That said, I am convinced that Paul Martin's amendment 207 represents a focused, reasonable and proportionate compromise. I feel that the proposal to retain DNA for a prescribed number of years in certain specified circumstances and with any extension in that respect requiring the police to go before a sheriff for determination—I am glad that the minister clarified that matter—contains enough reasonable safeguards. As Pauline McNeill said, the provision is on the outer limit, but I believe that it is just within that limit. On that basis, I hope that members are able to support amendment 207.

This good debate has, in the main, shown Parliament to be a mature and responsible body. We should now go to the vote.

Photo of Murray Tosh Murray Tosh Conservative 3:45 pm, 25th May 2006

The question is, that amendment 208 be agreed to. Are members agreed?

Members:

No.

Division number 2

For: Adam, Brian, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Fabiani, Linda, Finnie, Ross, Fox, Colin, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McFee, Mr Bruce, McMahon, Michael, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Goldie, Miss Annabel, Harvie, Patrick, Johnstone, Alex, McGrigor, Mr Jamie, McNeil, Mr Duncan, Mitchell, Margaret, Petrie, Dave, Scott, Eleanor, Scott, John

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 91, Against 16, Abstentions 0.

Amendment 208 agreed to.

Amendments 196 to 198 moved—[Bill Butler]—and agreed to.

Amendment 161 moved—[Hugh Henry]—and agreed to.

Amendment 199 moved—[Bill Butler]—and agreed to.

Amendment 162 moved—[Hugh Henry]—and agreed to.

Amendment 200 moved—[Bill Butler].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 200 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Adam, Brian, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Fabiani, Linda, Finnie, Ross, Fox, Colin, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Campbell, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watt, Ms Maureen, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Aitken, Bill, Ballard, Mark, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Goldie, Miss Annabel, Harvie, Patrick, Johnstone, Alex, McGrigor, Mr Jamie, Mitchell, Margaret, Petrie, Dave, Ruskell, Mr Mark, Scott, Eleanor, Scott, John

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 92, Against 17, Abstentions 0.

Amendment 200 agreed to.

Amendments 201 to 203 moved—[Bill Butler]—and agreed to.