(1)This section applies where a person has been arrested and is in custody F1....
(2)A constable may take from the person [F2, or require the person to provide him with, such relevant physical data] as the constable may, having regard to the circumstances of the suspected offence [F3or the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003)] in respect of which the person has been arrested F4..., reasonably consider it appropriate to take [F5from him or require him to provide, and the person so required shall comply with that requirement].
[F6(3)Subject to [F7subsections (3A) and (4)] below [F8and [F9sections 18A to [F1018G]] of this Act], all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) [F11or (6A)] below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.]
[F12(3A)(3A) Subsection (3) does not apply to—
(a)relevant physical data taken under subsection (2) from, or provided under that subsection by, a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), and
(b)any sample, or any information derived from a sample, taken under subsection (6) or (6A) from a person arrested under such a power (but see section 18H).]
(4)The duty under subsection (3) above to destroy samples taken under subsection (6) [F13or (6A)] below and information derived from such samples shall not apply—
(a)where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or
(b)where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of [F14the Police Service of Scotland] in relation to the person.
(5)No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—
(a)in evidence against the person from whom the sample was taken; or
(b)for the purposes of the investigation of any offence.
(6)A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—
(a)from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material;
(b)from a fingernail or toenail or from under any such nail, a sample of nail or other material;
(c)from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material;
(d)F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F16(6A)A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.]
F17(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F18(7A) For the purposes of this section and [F19, subject to the modification in subsection (7AA), sections 18A to 19C] of this Act “relevant physical data” means any—
(a)fingerprint;
(b)palm print;
(c)print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body;
(d)record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.
[F20(7AA)The modification is that for the purposes of section 19C as it applies in relation to relevant physical data taken from or provided by a person outwith Scotland, subsection (7A) is to be read as if in paragraph (d) the words from “created” to the end were omitted.]
(7B)The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.]
(8)Nothing in this section shall prejudice—
(a)any power of search;
(b)any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or
(c)any power to take [F21relevant physical data] or samples under the authority of a warrant.
Textual Amendments
F1Words in s. 18(1) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(1)(a); S.S.I. 2017/345, art. 3, sch. (with art. 4)
F2Words in s. 18(2) substituted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(i); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)
F3Words in s. 18(2) inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(2)
F4Words in s. 18(2) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 28(1)(b); S.S.I. 2017/345, art. 3, sch. (with art. 4)
F5Words in s. 18(2) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(a)(ii); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)
F6S. 18(3) substituted (retrospective to 1.8.1997) by 1998 c. 37, ss. 119, 121(2), Sch. 8 para. 117(2)
F7Words in s. 18(3) substituted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(3)
F8Words in s. 18(3) inserted (1.1.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 83(1), 104; S.S.I. 2006/607, art. 3, Sch.
F9Words in s. 18(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F10Word in s. 18(3) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 6(2) (with s. 97); S.I. 2013/1814, art. 2(k)
F11Words in s. 18(3) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 101, 104, Sch. 6 para. 4(2); S.S.I. 2006/432, art. 2(g)(h)
F12S. 18(3A) inserted (25.1.2018) by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), art. 2(2)(a)(f), Sch. 5 para. 1(4)
F13Words in s. 18(4) inserted (1.9.2006) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 101, 104, Sch. 6 para. 4(2); S.S.I. 2006/432, art. 2(g)(h)
F14Words in s. 18(4)(b) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)
F15S. 18(6)(d) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(a)}, 89; S.S.I. 2003/288, art. 2, Sch.
F16S. 18(6A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. {55(2)(b)}, 89; S.S.I. 2003/288, art. 2, Sch.
F17S. 18(7) repealed (17.11.1997) by 1997 c. 48, ss. 47(1)(c), 62(2), Sch. 3; S.I. 1997/2694, art. 2(2)(a)(d)
F18S. 18(7A)(7B) inserted (1.8.1997) by 1997 c. 48, s. 47(1)(d); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)
F19Words in s. 18(7A) substituted (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F20S. 18(7AA) inserted (1.8.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(2)(c), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F21Words in s. 18(8)(c) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 30; S.S.I. 2011/178, art. 2, sch.
Modifications etc. (not altering text)
C1S. 18 applied (with modifications) (19.2.2001) by 2000 c. 11, ss. 41, 53, Sch. 7 para. 6, Sch. 8 para. 20(1); S.I. 2001/421, art. 2
C2S. 18 applied (with modifications) by 1994 c. 33, s. 138(2)(2A)(6)-(9) (as substituted (15.7.2011) by The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011 (S.I. 2011/1739), art. 1(2), Sch. 2 para. 2(3)(4) (with art. 6(2)))
C3S. 18 applied (with modifications) (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 42 (with s. 25(9)); S.I. 2020/792, reg. 2(g)
C4S. 18 applied (with modifications) (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 18 (with s. 97, Sch. 6 para. 2); S.I. 2023/1272, reg. 2(a)
C5S. 18(3)-(5) applied (17.12.2001) by 2001 asp 13, s. 17, Sch. 4 para. 7 (with s. 29); S.S.I. 2001/456, art. 2
C6S. 18(3) modified (2.4.2020) by The Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) Regulations 2020 (S.I. 2020/391), regs. 1, 4(3)(a) (with reg. 5)