Sections 6, 7 and 8: The retention service
33.The retention service consists of the storage of evidence collected during a forensic medical examination under a health board’s examination service. The nature of the storage will depend on the item being stored. The retention service does not include the analysis of samples or other information – such analysis will only take place following the transfer of the evidence to police.
34.The purpose for which evidence is being stored is set out in section 6(2). The purpose is closely aligned with the purposes for which forensic medical examinations may be carried out, as set out in section 2(3).
35.As mentioned in paragraph 22 above in connection with section 2(3), the victim might not proceed to undergo a full physical medical examination in all cases. As already noted, section 17(3) makes clear that things can be “evidence” even where this happens and section 18(2) ensures that references to the need for an examination (such as that in section 6(2)(a)) are adjusted in such cases. Section 18(3) and (4) further clarifies that, in such cases, sections 6 to 8 are nevertheless to be read as if a forensic medical examination has taken place.
36.A victim who self-referred for a forensic medical examination may make a request under section 7 that certain stored items (that is, items which were worn or otherwise present during the incident which gave rise to the examination, such as underwear) be returned to them. The Act does not give victims a right to request other types of stored evidence from the health board (for example, samples).
37.Section 7(3) sets out a limited number of cases in which requests for the return of stored items must be refused by the health board. Where the health board is not satisfied that the requested item belongs to the victim or considers that there are safety reasons why the requested item cannot be returned, the health board must explain the reason for the refusal to return the item to the victim. The health board must also refuse to return a requested item if there is an overlapping police request for the transfer of the item under section 9 (that is, if the police request is made before the request for the item to be returned is made or if the police request is made after that request but before the health board has returned the item to the victim). The health board does not require to inform the victim of the reason for the refusal to return the item in this case (as a police request for the transfer of the item under section 9 can only be made, in a self-referral case, where the victim has reported the incident which gave rise to the examination to police – so the victim will already be in contact with the police in such cases13). If none of these reasons for refusing to return the requested item apply, the health board must comply with the request and return the item to the victim as soon as reasonably practicable.
38.Victims who have self-referred can request the destruction of all forms of stored evidence(14) relating to their forensic medical examination under section 8(1)(a) (if, for example, they subsequently decide not to report the incident to the police). If a victim does decide to report the incident to police, any evidence being stored under the retention service will be transferred to the police following the making of a police request under section 9. If neither of these things happens, the evidence will be destroyed after a specified period of time, which will be set by the Scottish Ministers in regulations made under section 8(1)(b).(15) This does not mean that the incident cannot be reported to the police after this time, just that the evidence will no longer be available for use in relation to such a report.
39.A 30 day “cooling-off period” applies following the victim making a request for the destruction of evidence under section 8(1)(a). The victim can withdraw the request during that period, in which case the evidence will continue to be stored under section 6 rather than destroyed at the end of the 30 day period (see section 8(2)(a)). Further requests for destruction can be made (and withdrawn). The making (and withdrawal) of a request for evidence to be destroyed does not have any impact on the period specified under section 8(1)(b).(16) If a request made under section 8(1)(a) is not withdrawn, the evidence is destroyed at the end of the 30 day period.
40.Section 8(2)(b) and (3) to (5) provide for what is to happen if a police request for evidence to be transferred under section 9 is made just before or just after evidence is due to be destroyed under section 8(1) (whether by virtue of the expiry of the 30 day period following the making of a request under section 8(1)(a) or the expiry of the period specified under section 8(1)(b)). If, at the time whichever of those periods is relevant in a particular case expires, the evidence is still in the health board’s possession despite a request under section 9(2) having been made before the period expired, the health board must not destroy the evidence under section 8(1) (but must instead comply with the request for transfer under section 9(2), as required by section 9(3)). And, if a request under section 9(2) is made after the expiry of whichever of those periods applies but before the evidence has actually been destroyed, the health board again must not destroy the evidence under section 8(1), but instead comply with the request under section 9(2) (although this does not apply if the destruction of the evidence is already in train and it is not reasonably practicable to stop it).
See also section 3I of the Victims and Witnesses (Scotland) Act 2014, which makes provision about the return to victims of property held by various persons (excluding health boards) for the purposes of a criminal investigation.
But note that medical records are not “evidence” if they were created entirely for health care reasons – see section 17 (subsection (2) in particular) and the discussion of that section in paragraphs 59 to 62 below. Requests under section 8 therefore do not extend to such records (and request for such records to be destroyed would instead fall to be dealt with under general NHS Scotland information governance arrangements).
Regulations made under section 8(1)(b) will be subject to the affirmative procedure. Again, the power includes power to make ancillary provision of various types. Transitional or saving provision might, for example, be required in order to set out what is to happen to evidence already stored if the period for which evidence is to be held is increased or decreased. The Forensic Medical Services (Self-Referral Evidence Retention Period) (Scotland) Regulations 2022 (S.S.I. 2022/89) provide for the retention period, on implementation, to be 26 months beginning with the day on which the forensic medical examination under section 2(2)(b) takes place (although the fact that the period is set in regulations means that it could change in future – the Act provides for the period to be set in this way specifically in order to allow it to be changed in light of experience if necessary).
In particular, if a request for destruction is made under section 8(1)(a) fewer than 30 days before the period specified under section 8(1)(b) is due to expire, then the evidence will be destroyed by virtue of section 8(1)(b) at the end of the period specified under that section, rather than the expiry of the 30 day period provided for in section 8(1)(a). It follows that, in such a case, it will not be possible to withdraw a request made under section 8(1)(a) after the expiry of the period specified under section 8(1)(b).
