Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021

2021 asp 3

The Act: Section by Section

Section 11: Examination of under-age person under section 2(2)(b)

45. This section makes provision to cover the possibility of a health board discovering, following a forensic medical examination having been carried out on a self-referral basis, that the victim was, at the time of the examination, under the self-referral age at that time specified in section 2(2)(b). Subsection (2) provides that things done by the health board up to the point where the health board discovers the victim’s true age remain valid, as well as ensuring that the health board can continue to store any evidence collected under section 6 (despite the examination not technically having been carried out by virtue of either section 2(2)(a) (due to there having been no police referral) or (b) (due to the victim being under the self-referral age)).

46. Following discovery of the victim’s true age, the victim cannot request the return of items of evidence under section 7 and section 8 no longer applies – so the victim cannot request destruction of the evidence held by the health board under section 8(1)(a), and the duty on the health board to destroy the evidence at the end of the period specified under section 8(1)(b) falls away (subsection (3)). By virtue of subsection (4), any requests for return of items of evidence under section 7 or for the destruction of evidence under section 8(1)(a) which are outstanding at the time the victim’s true age is discovered must not be complied with (except where destruction of the evidence is already in train and cannot reasonably practicably be stopped).

47. In practice, it is expected that evidence would only require to be stored for a short period under section 6 following discovery of the victim’s true age. This is because the health board would be likely to immediately report the situation to the police and, given the seriousness with which any report of a sexual offence (or of harmful sexual behaviour by a person under the age of criminal responsibility) against a child would be treated, the evidence then quickly requested by the police under section 9(1)(c).