[F2(1)This section applies to—
(a)relevant physical data taken or provided under section 18(2), and
(b)any sample, or any information derived from a sample, taken under section 18(6) or (6A),
where the condition in subsection (2) is satisfied.]
(2)That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom [F3the relevant physical data was taken or by whom it was provided or, as the case may be, from whom] the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.
(3)Subject to subsections (9) and (10) below, the [F4relevant physical data, sample or information derived from a sample] shall be destroyed no later than the destruction date.
(4)The destruction date is—
(a)the date of expiry of the period of 3 years following the conclusion of the proceedings; or
(b)such later date as an order under subsection (5) below may specify.
(5)On a summary application made by the [F5chief constable of the Police Service of Scotland] within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.
(6)An application under subsection (5) above may be made to any sheriff—
(a)in whose sheriffdom the person referred to in subsection (2) above resides;
(b)in whose sheriffdom that person is believed by the applicant to be; or
(c)to whose sheriffdom the person is believed by the applicant to be intending to come.
(7)An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.
(8)The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.
[F6(8A)If the sheriff principal allows an appeal against the refusal of an application under subsection (5), the sheriff principal may make an order amending, or further amending, the destruction date.
(8B)An order under subsection (8A) must not specify a destruction date more than 2 years later than the previous destruction date.]
(9)Subsection (3) above does not apply where—
(a)an application under subsection (5) above has been made but has not been determined;
(b)the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or
(c)such an appeal has been brought but has not been withdrawn or finally determined.
(10)Where—
(a)the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought;
(b)such an appeal is brought and is withdrawn or finally determined against the appellant; or
(c)an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant,
the [F7relevant physical data, sample or information derived from a sample] shall be destroyed as soon as possible thereafter.
(11)In this section—
F8...
“relevant sexual offence” and “relevant violent offence” have [F9, subject to the modification in subsection (12),] the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.]
[F10(12)The modification is that the definition of “relevant sexual offence” in section 19A(6) is to be read as if for paragraph (g) there were substituted—
“(g)public indecency if it is apparent from the offence as charged in the indictment or complaint that there was a sexual aspect to the behaviour of the person charged;”]
Textual Amendments
F1S. 18A inserted (1.1.2007) by Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10), ss. 83(2), 104; S.S.I. 2006/607, art. 3, Sch.
F2S. 18A(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F3Words in s. 18A(2) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F4Words in s. 18A(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(c), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F5Words in s. 18A(5) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(4)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)
F6S. 18A(8A)(8B) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(d), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F7Words in s. 18A(10) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(e), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F8Definition in s. 18A(11) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 12(4)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)
F9Words in s. 18A(11) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(f)(ii), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)
F10S. 18A(12) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 77(3)(g), 206(1); S.S.I. 2011/178, art. 2, sch. (with art. 4)