Criminal Procedure (Scotland) Act 1995

• Citation: 1995 c. 46
• Sections: 978

Section 1 Judges in the High Court.

(1) The Lord President of the Court of Session shall be the Lord Justice General and shall perform his duties as the presiding judge of the High Court.

(2) Every person who is appointed to the office of one of the Senators of the College of Justice in Scotland shall, by virtue of such appointment, be a Lord Commissioner of Justiciary in Scotland.

(3) If any difference arises as to the rotation of judges in the High Court, it shall be determined by the Lord Justice General, whom failing by the Lord Justice Clerk.

(4) Any Lord Commissioner of Justiciary may preside alone at the trial of an accused before the High Court.

(5) Without prejudice to subsection (4) above, in any trial of difficulty or importance it shall be competent for two or more judges in the High Court to preside for the whole or any part of the trial.

Section 2 Fixing of High Court sittings.

(1) The High Court shall sit at such times and places as the Lord Justice General, whom failing the Lord Justice Clerk, may, after consultation with the Lord Advocate, determine.

(2) Without prejudice to subsection (1) above, the High Court shall hold such additional sittings as the Lord Advocate may require.

(3) Where an accused has been cited to , or otherwise required to attend, a diet to be held at any sitting of the High Court, the prosecutor may, at any time before the commencement of the diet or, in the case of a trial diet, the trial , apply to the Court to transfer the case to a diet to be held at a sitting of the Court in another place ; and a single judge of the High Court may—

(a) after giving the accused or his counsel an opportunity to be heard; or

(b) on the joint application of all parties,

make an order for the transfer of the case.

(3C) The judge may proceed under subsection (3) above on a joint application of the parties without hearing the parties and, accordingly, he may dispense with any hearing previously appointed for the purpose of considering the application.

(4) Where no diets have been appointed to be held at a sitting of the High Court or if it is no longer expedient that a sitting should take place, it shall not be necessary for the sitting to take place.

(5) If in any case a diet remains appointed to be held at a sitting which does not take place in pursuance of subsection (4) above, subsection (3) above shall apply in relation to the transfer of any other such case to another sitting.

(6) For the purposes of subsection (3) above—

(a) a diet shall be taken to commence when it is called; and

(b) a trial shall be taken to commence when the oath is administered to the jury.

Section 3 Jurisdiction and powers of solemn courts.

(1) The jurisdiction and powers of all courts of solemn jurisdiction, except so far as altered or modified by any enactment passed after the commencement of this Act, shall remain as at the commencement of this Act.

(2) Any crime or offence which is triable on indictment may be tried by the High Court sitting at any place in Scotland.

(3) The sheriff shall, without prejudice to any other or wider power conferred by statute, not be entitled, on the conviction on indictment of an accused, to pass a sentence of imprisonment for a term exceeding five years .

(4) Subject to subsection (5) below, where under any enactment passed or made before 1st January 1988 (the date of commencement of section 58 of the Criminal Justice (Scotland) Act 1987) an offence is punishable on conviction on indictment by imprisonment for a term exceeding two years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding two years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding two but not exceeding five years .

(4A) Subject to subsection (5) below, where under any enactment passed or made after 1st January 1988 but before the commencement of section 13 of the Crime and Punishment (Scotland) Act 1997 (increase in sentencing powers of sheriff courts) an offence is punishable on conviction on indictment for a term exceeding three years but the enactment either expressly or impliedly restricts the power of the sheriff to impose a sentence of imprisonment for a term exceeding three years, it shall be competent for the sheriff to impose a sentence of imprisonment for a term exceeding three but not exceeding five years.

(5) Nothing in subsection (4) above shall authorise the imposition by the sheriff of a sentence in excess of the sentence specified by the enactment as the maximum sentence which may be imposed on conviction of the offence.

(6) Subject to any express exclusion contained in any enactment, it shall be lawful to indict in the sheriff court all crimes except murder, treason, rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act) and breach of duty by magistrates.

Section 4 Territorial jurisdiction of sheriff.

(1) Subject to the provisions of this section, the jurisdiction of the sheriffs, within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores and anchoring grounds in or adjoining such sheriffdoms and includes all criminal maritime causes and proceedings (including those applying to persons furth of Scotland) provided that the accused is, by virtue of any enactment or rule of law, subject to the jurisdiction of the sheriff before whom the case or proceeding is raised.

(2) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.

(3) It shall not be competent for the sheriff to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land.

(4) The sheriff shall have a concurrent jurisdiction with every other court of summary jurisdiction in relation to all offences competent for trial in such courts.

Section 5 The sheriff: summary jurisdiction and powers.

(1) The sheriff, sitting as a court of summary jurisdiction, shall continue to have all the jurisdiction and powers exercisable by him at the commencement of this Act.

(2) The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence—

(a) to impose a fine not exceeding the prescribed sum;

(b) to ordain the accused to find caution for good behaviour for any period not exceeding 12 months to an amount not exceeding the prescribed sum either in lieu of or in addition to a fine or in addition to imprisonment;

(c) failing payment of such fine, or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act;

(d) to impose imprisonment, for any period not exceeding 12 months.

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(4) It shall be competent to prosecute summarily in the sheriff court the following offences—

(a) uttering a forged document;

(b) wilful fire-raising;

(c) robbery; and

(d) assault with intent to rob.

Section 5B National jurisdiction for callings of custody cases in a sheriff court

(1) A calling of criminal proceedings in the sheriff court to which subsection (2) or (3) applies may be dealt with—

(a) in any sheriff court in Scotland, and

(b) by a sheriff of any sheriffdom.

(2) This subsection applies to a calling of criminal proceedings in which the person who is the subject of the proceedings is appearing from custody—

(a) having been arrested by a constable in connection with the matter to which the proceedings relate, and

(b) without having subsequently—

(i) been released from custody, or

(ii) had a court authorise the person’s continued remand in custody.

(3) This subsection applies to a calling of proceedings on petition in which—

(a) the person who is the subject of the proceedings is appearing from custody after a court authorised the person’s remand, and

(b) the hearing is not able to be held in that court due to the closure of the court building by reason of emergency or other special circumstances.

(4) If more than one person is the subject of the proceedings, the reference in subsection (2) or, as the case may be, (3) to the person who is the subject of the proceedings is to be read as referring to any of them.

(5) It is for the Lord Advocate or the procurator fiscal to determine in which sheriff court a calling to which subsection (2) or (3) applies is to be taken.

(6) Where proceedings have come before a sheriff court by virtue of subsection (1), and are proceedings to which subsection (2) applies, the proceedings may continue to be dealt with—

(a) in the same sheriff court, and

(b) by a sheriff of any sheriffdom.

(7) The ability for proceedings to be dealt with by virtue of subsection (6) comes to an end as follows—

(a) in the case of summary proceedings, insofar as the proceedings relate to a charge in respect of which the accused person has tendered a plea of not guilty which has not been accepted by the prosecutor, the proceedings cannot continue to be dealt with by virtue of subsection (6) after the end of the diet at which that plea was tendered,

(b) in the case of proceedings on petition or indictment—

(i) insofar as the proceedings relate to a charge in respect of which the accused person has tendered a plea of not guilty which has not been accepted by the prosecutor, the proceedings cannot continue to be dealt with by virtue of subsection (6) after the end of the diet at which that plea was tendered,

(ii) the proceedings cannot continue to be dealt with by virtue of subsection (6) after the committal of the accused person until liberation in due course of law,

(iii) the first diet, and any proceedings which follow on from it, cannot be dealt with by virtue of subsection (6).

(8) Insofar as the ability to deal with proceedings by virtue of subsection (6) is not brought to an end by subsection (7), proceedings may continue to be dealt with by virtue of subsection (6) until their conclusion.

(9) For the purposes of subsection (6), proceedings on petition and any subsequent proceedings on indictment are to be treated as the same proceedings.

Section 5C National jurisdiction for cases in a sheriff court after failure to appear

(1) This section applies where—

(a) a calling of criminal proceedings has come before a sheriff court by virtue of section 5B(1), and

(b) the proceedings are in respect of an accused person’s failure to attend a diet in summary proceedings or proceedings on indictment (“the principal proceedings”).

(2) If the principal proceedings are proceedings on indictment, the court may deal with them until the end of the diet in which the calling mentioned in subsection (1)(a) takes place.

(3) If the principal proceedings are summary proceedings, they may be dealt with—

(a) in the same sheriff court, and

(b) by a sheriff of any sheriffdom,

unless, and until the end of the diet at which, a plea of not guilty is rejected.

(4) Despite subsections (2) and (3), the court may pass a sentence or otherwise dispose of the principal proceedings only where—

(a) evidence has not been led in the principal proceedings, or

(b) the court considers that for it to pass a sentence or otherwise dispose of the case would be in the interests of justice.

(5) For the purposes of subsection (3), a plea of not guilty is rejected where—

(a) the accused person—

(i) tenders a plea of not guilty, or

(ii) confirms that the person is adhering to a previously tendered plea of not guilty, and

(b) that plea is not accepted by the prosecutor.

Section 5D Further provision about national jurisdiction of sheriff courts

(1) A sheriff has jurisdiction for all cases which come before the sheriff by virtue of section 5B or 5C.

(2) A procurator fiscal for a sheriff court district has—

(a) power to prosecute or, as the case may be, represent the interests of the prosecutor in any case that comes before the sheriff court of that district by virtue of section 5B or 5C,

(b) the like powers in relation to such cases as the prosecutor has for the purposes of other cases that come before the sheriff when exercising criminal jurisdiction.

(3) For the purposes of sections 5B and 5C—

(a) a sheriff may, in every sheriffdom, without the need for further commission, exercise the jurisdiction and powers that attach to the office of sheriff in relation to criminal proceedings,

(b) paragraph (a) applies accordingly to any other member of the judiciary, so far as that member has the jurisdiction and powers that attach to the office of sheriff in relation to criminal proceedings.

(4) This section, and sections 5B and 5C, are without prejudice to—

(a) any other provision in this Part, and

(b) sections 34A and 137C.

Section 5E Interpretation of sections 5B to 5D

In sections 5B to 5D of this Act, “ criminal proceedings ” means any proceedings in which a sheriff court is exercising criminal jurisdiction including in particular—

(a) proceedings on petition,

(b) proceedings on indictment,

(c) summary proceedings,

(d) ancillary proceedings, such as proceedings in respect of—

(i) breach of bail,

(ii) non-payment of a fine or other monetary penalty,

(iii) breach of an order of a court, or

(iv) failure of an accused person or a witness to attend a diet.

Section 6 JP courts: constitution and prosecutor .

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(2) The jurisdiction and powers of the JP court shall be exercisable by a summary sheriff or by one or more justices, and no decision of the court shall be questioned on the ground that it was not constituted as required by this subsection unless objection was taken on that ground by or on behalf of a party to the proceedings not later than the time when the proceedings or the alleged irregularity began.

(3) All prosecutions in a JP court shall proceed at the instance of the procurator fiscal.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The authority of the procurator fiscal to prosecute in JP courts is without prejudice to the authority of any other person to take proceedings there in pursuance of section 43 (prosecutions and penalties) of the Education (Scotland) Act 1980 (c. 44).

(6) In this section, “ justice ” means a justice of the peace.

Section 7 JP courts: jurisdiction and powers .

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(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Except in so far as any enactment (including this Act or an enactment passed after this Act) otherwise provides, it shall be competent for a JP court to—

(a) try any common law or statutory offence which is triable summarily;

(b) make such orders and grant such warrants as are appropriate to a court of summary jurisdiction;

(c) do anything else (by way of procedure or otherwise) as is appropriate to such a court

4 It shall be competent, whether or not the accused has been previously convicted of an offence inferring dishonest appropriation of property, for any of the following offences to be tried in the JP court —

(a) theft or reset of theft;

(b) falsehood, fraud or wilful imposition;

(c) breach of trust or embezzlement,

where (in any such case) the amount concerned does not exceed level 4 on the standard scale.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The JP court shall, without prejudice to any other or wider powers conferred by statute, be entitled on convicting of a common law offence—

(a) to impose imprisonment for any period not exceeding 60 days;

(b) to impose a fine not exceeding level 4 on the standard scale;

(c) to ordain the accused (in lieu of or in addition to such imprisonment or fine) to find caution for good behaviour for any period not exceeding six months and to an amount not exceeding level 4 on the standard scale;

(d) failing payment of such fine or on failure to find such caution, to award imprisonment in accordance with section 219 of this Act,

but in no case shall the total period of imprisonment imposed in pursuance of this subsection exceed 60 days.

(7) Without prejudice to any other or wider power conferred by any enactment, it shall not be competent for a JP court , as respects any statutory offence—

(a) to impose a sentence of imprisonment for a period exceeding 60 days;

(b) to impose a fine of an amount exceeding level 4 on the standard scale; or

(c) to ordain an accused person to find caution for any period exceeding six months or to an amount exceeding level 4 on the standard scale.

(8) The JP court shall not have jurisdiction to try or to pronounce sentence in the case of any person—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) brought before it accused or suspected of having committed within its jurisdiction any of the following offences—

(i) murder, culpable homicide, robbery, rape (whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9)), rape of a young child (under section 18 of that Act) , wilful fire-raising, or attempted wilful fire-raising;

(ii) theft by housebreaking, or housebreaking with intent to steal;

(iii) theft or reset, falsehood fraud or wilful imposition, breach of trust or embezzlement, where the value of the property is an amount exceeding level 4 on the standard scale;

(iv) assault causing the fracture of a limb, assault with intent to ravish, assault to the danger of life, or assault by stabbing;

(v) uttering forged documents or uttering forged bank or banker’s notes, or offences under the Acts relating to coinage.

(9) Without prejudice to subsection (8) above, where either in the preliminary investigation or in the course of the trial of any offence it appears that the offence is one which—

(a) cannot competently be tried in the court before which an accused is brought; or

(b) in the opinion of the court in view of the circumstances of the case, should be dealt with by a higher court,

the court may take cognizance of the offence and commit the accused to prison for examination for any period not exceeding four days.

(10) Where an accused is committed as mentioned in subsection (9) above, the prosecutor in the court which commits the accused shall forthwith give notice of the committal to the procurator fiscal of the area within which the offence was committed or to such other official as is entitled to take cognizance of the offence in order that the accused may be dealt with according to law.

Section 7A National jurisdiction for callings of custody cases in a JP court

(1) A calling of criminal proceedings in a JP court to which subsection (2) applies may be dealt with—

(a) in any JP court in Scotland, and

(b) by a justice of the peace, summary sheriff or sheriff of any sheriffdom.

(2) This subsection applies to a calling of criminal proceedings in which the person who is the subject of the proceedings is appearing from custody—

(a) having been arrested by a constable in connection with the matter to which the proceedings relate, and

(b) without having subsequently—

(i) been released from custody, or

(ii) had a court authorise the person’s continued remand in custody.

(3) If more than one person is the subject of the proceedings, the reference in subsection (2) to the person who is the subject of the proceedings is to be read as referring to any of them.

(4) It is for the procurator fiscal to determine in which JP court a calling to which subsection (2) applies is to be taken.

(5) Where proceedings have come before a JP court by virtue of subsection (1), the proceedings may continue to be dealt with—

(a) in the same JP court, and

(b) by a justice of the peace, summary sheriff or sheriff of any sheriffdom.

(6) Insofar as proceedings relate to a charge in respect of which the accused person has tendered a plea of not guilty which has not been accepted by the procurator fiscal, they cannot continue to be dealt with by virtue of subsection (5) after the end of the diet at which that plea was tendered.

(7) Insofar as the ability to deal with proceedings by virtue of subsection (5) is not brought to an end by subsection (6), proceedings may continue to be dealt with by virtue of subsection (5) until their conclusion.

(8) For the purposes of this section and section 7B, the jurisdiction and powers of the JP court are exercisable by a sheriff.

Section 7B National jurisdiction for cases in a JP court after failure to appear

(1) This section applies where—

(a) a calling of proceedings has come before a JP court by virtue of section 7A(1), and

(b) the proceedings are in respect of an accused person’s failure to attend a diet in criminal proceedings (“the principal proceedings”).

(2) The principal proceedings may be dealt with—

(a) in the same JP court, and

(b) by a justice of the peace, summary sheriff or sheriff of any sheriffdom,

unless, and until the end of the diet at which, a plea of not guilty is rejected.

(3) Despite subsection (2), the court may pass a sentence or otherwise dispose of the principal proceedings only where—

(a) evidence has not been led in the principal proceedings, or

(b) the court considers that for it to pass a sentence or otherwise dispose of the case would be in the interests of justice.

(4) For the purposes of subsection (2), a plea of not guilty is rejected where—

(a) the accused person—

(i) tenders a plea of not guilty, or

(ii) confirms that the person is adhering to a previously tendered plea of not guilty, and

(b) that plea is not accepted by the procurator fiscal.

Section 7C Further provision about national jurisdiction of JP courts

(1) A JP court has jurisdiction for all cases which come before it by virtue of section 7A or 7B.

(2) A procurator fiscal for the area of a JP court has—

(a) power to prosecute or, as the case may be, represent the interests of the prosecutor in any case that comes before the JP court of that area by virtue of section 7A or 7B,

(b) the like powers in relation to such cases as the procurator fiscal has for the purposes of other cases that come before the JP court.

(3) For the purposes of sections 7A and 7B, a justice of the peace, summary sheriff or sheriff may, in every sheriffdom, without the need for further commission, exercise the jurisdiction and powers that attach to the office of justice of the peace.

(4) This section, and sections 7A and 7B, are without prejudice to—

(a) any other provision in this Part,

(b) section 137CC, and

(c) section 62 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

Section 7D Interpretation of sections 7A to 7C

(1) In sections 7A to 7C of this Act, “ criminal proceedings ” means any proceedings in which a JP court is exercising jurisdiction including in particular ancillary proceedings, such as proceedings in respect of—

(a) breach of bail,

(b) non-payment of a fine or other monetary penalty,

(c) breach of an order of a court, or

(d) failure of an accused person or a witness to attend a diet.

(2) For the purposes of sections 7A to 7C, sections 61 and 63 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 apply in respect of a sheriff as they apply in respect of a summary sheriff.

Section 8 Sittings of sheriff and JP courts .

(1) Notwithstanding any enactment or rule of law, a sheriff court or a JP court —

(a) shall not be required to sit on any Saturday or Sunday or on a day which by virtue of subsection (2) or (3) below is a court holiday; but

(b) may sit on any day for the disposal of criminal business.

(2) A sheriff principal may in an order made under section 28(1) of the Courts Reform (Scotland) Act 2014 prescribe in respect of criminal business not more than 11 days, other than Saturdays and Sundays, in a calendar year as court holidays in the sheriff courts within his jurisdiction; and may in the like manner prescribe as an additional court holiday any day which has been proclaimed, under section 1(3) of the Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(3) A sheriff principal may prescribe not more than 11 days, other than Saturdays and Sundays, in a calendar year as court holidays in the JP courts within his jurisdiction; and he may . . . prescribe as an additional holiday any day which has been proclaimed, under section 1(3) of the said Banking and Financial Dealings Act 1971, to be a bank holiday either throughout the United Kingdom or in a place or locality in the United Kingdom within his jurisdiction.

(4) A sheriff principal may in pursuance of subsection (2) or (3) above prescribe different days as court holidays in relation to different sheriff or JP courts .

Section 9 Boundaries of jurisdiction.

(1) Where an offence is committed in any harbour, river, arm of the sea or other water (tidal or otherwise) which runs between or forms the boundary of the jurisdiction of two or more courts, the offence may be tried by any one of such courts.

(2) Where an offence is committed on the boundary of the jurisdiction of two or more courts, or within the distance of 500 metres of any such boundary, or partly within the jurisdiction of one court and partly within the jurisdiction of another court or courts, the offence may be tried by any one of such courts.

(3) Where an offence is committed against any person or in respect of any property in or on any carriage, cart or vehicle employed in a journey by road or railway, or on board any vessel employed in a river, loch, canal or inland navigation, the offence may be tried by any court through whose jurisdiction the carriage, cart, vehicle or vessel passed in the course of the journey or voyage during which the offence was committed.

(4) Where several offences, which if committed in one sheriff court district could be tried together , are alleged to have been committed by any person in different sheriff court districts, the accused may be tried for all or any of those offences—

(a) under one indictment or complaint before the sheriff of any one of the districts; or

(b) under one complaint in the JP court for any one of the districts.

(5) Where an offence is authorised by this section to be tried by any court, it may be dealt with, heard, tried, determined, adjudged and punished as if the offence had been committed wholly within the jurisdiction of such court.

Section 9A Competence of justice's actings outwith jurisdiction

It is competent for a justice, even if not present within his jurisdiction, to sign any warrant, judgment, interlocutor or other document relating to proceedings within that jurisdiction provided that when he does so he is present within Scotland.

Section 10 Crimes committed in different districts.

(1) Where a person is alleged to have committed in more than one sheriff court district a crime or crimes to which subsection (2) below applies, he may be prosecuted in the sheriff court or JP court of such one of those districts as the Lord Advocate determines.

(2) This subsection applies to—

(a) a crime committed partly in one sheriff court district and partly in another;

(b) crimes connected with each other but committed in different sheriff court districts;

(c) crimes committed in different sheriff court districts in succession which, if they had been committed in one such district, could have been tried together .

(3) Where, in pursuance of subsection (1) above, a case is tried in the sheriff court or JP court of any sheriff court district, the procurator fiscal of that district shall have power to prosecute in that case even if the crime was in whole or in part committed in a different district, and the procurator fiscal shall have the like powers in relation to such case, whether before, during or after the trial, as he has in relation to a case arising out of a crime or crimes committed wholly within his own district.

Section 10A Jurisdiction for transferred cases

(1) A sheriff has jurisdiction for any cases which come before the sheriff by virtue of—

(a) section 34A or 83 of this Act; or

(b) section 137A, 137B, 137C or 137D of this Act.

(1A) The jurisdiction of a JP court includes jurisdiction for any cases which come before it by virtue of section 137CA, 137CB or 137CC of this Act.

(2) A procurator fiscal for a sheriff court district shall have—

(a) power to prosecute in any cases which come before a sheriff of that district by virtue of a provision mentioned in subsection (1) above; ...

(aa) power to prosecute in any cases which come before a JP court of that district by virtue of a provision mentioned in subsection (1A) above;

(b) the like powers in relation to such cases as he has for the purposes of the other cases which come before that sheriff when exercising criminal jurisdiction or (as the case may be) before that JP court .

(3) This section is without prejudice to sections 4 to 10 of this Act.

Section 11 Certain offences committed outside Scotland.

(1) Any relevant person who in a country outside the United Kingdom does any act or makes any omission which if done or made in Scotland would constitute the crime of murder or of culpable homicide shall be guilty of the same crime and subject to the same punishment as if the act or omission had been done or made in Scotland.

(2) Any relevant person employed in the service of the Crown who, in a foreign country, when acting or purporting to act in the course of his employment, does any act or makes any omission which if done or made in Scotland would constitute an offence punishable on indictment shall be guilty of the same offence and subject to the same punishment, as if the act or omission had been done or made in Scotland.

(2A) Any relevant person who in a country outside the United Kingdom does any act which—

(a) constitutes an offence under the law in force in that country, and

(b) if done in Scotland would constitute the crime of assault,

is guilty of the same crime and subject to the same punishment as if the act had been done in Scotland.

(2B) For the purposes of subsection (2A)(a), an act punishable under the law in force in the country is an offence under that law however it is described in that law.

(2C) The condition specified in subsection (2A)(a) is to be taken as satisfied unless, not later than such time as may be prescribed by Act of Adjournal, the accused serves on the prosecutor a notice—

(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in the accused's opinion satisfied,

(b) setting out the grounds for the accused's opinion, and

(c) requiring the prosecutor to prove that the condition is satisfied.

(2D) But the court, if it thinks fit, may permit the accused to require the prosecutor to prove that the condition is satisfied without the prior service of a notice under subsection (2C).

(2E) In proceedings on indictment, the question whether the condition is satisfied is to be determined by the judge alone.

(2F) For the purposes of subsections (1) to (2B)—

“ country ” includes territory;

“ relevant person ” means a person who is a United Kingdom national or is habitually resident in Scotland;

“ United Kingdom national ” means an individual who is—

a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

a person who under the British Nationality Act 1981 is a British subject, or

a British protected person within the meaning of that Act.

(3) A person may be prosecuted , tried and punished for an offence to which this section applies—

(a) in any sheriff court district in Scotland in which he is apprehended or is in custody; or

(b) in such sheriff court district as the Lord Advocate may determine,

as if the offence had been committed in that district, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that district.

(4) Any person who—

(a) has in his possession in Scotland property which he has stolen in any other part of the United Kingdom; or

(b) in Scotland receives property stolen in any other part of the United Kingdom,

may be prosecuted , tried and punished in Scotland in like manner as if he had stolen it in Scotland.

(5) Where a person in any part of the United Kingdom outside Scotland—

(a) steals or attempts to steal any mail-bag or postal packet in the course of its transmission by post, or any of the contents of such a mail-bag or postal packet; or

(b) in stealing or with intent to steal any such mail-bag or postal packet or any of its contents commits any robbery, attempted robbery or assault with intent to rob,

he is guilty of the offence mentioned in paragraph (a) or (b) as if he had committed it in Scotland and shall be liable to be prosecuted, tried and punished there without proof that the offence was committed there.

(6) Any expression used in subsection (5) and in the Postal Services Act 2000 has the same meaning in that subsection as it has in that Act.

Section 11A Conspiracy to commit offences outwith Scotland

(1) This section applies to any act done by a person in Scotland which would amount to conspiracy to commit an offence but for the fact that the criminal purpose is intended to occur outwith Scotland .

(2) Where a person does an act to which this section applies, the criminal purpose shall be treated as the offence mentioned in subsection (1) above and he shall, accordingly, be guilty of conspiracy to commit the offence.

(3) A person is guilty of an offence by virtue of this section only if the criminal purpose would involve at some stage—

(a) an act by him or another party to the conspiracy; or

(b) the happening of some other event,

constituting an offence under the relevant law ; and conduct punishable under that law is an offence under that law for the purposes of this section however it is described in that law.

(3A) In subsection (3) above, “the relevant law” is—

(a) if the act or event was intended to take place in another part of the United Kingdom, the law in force in that part,

(b) if the act or event was intended to take place in a country or territory outwith the United Kingdom, the law in force in that country or territory.

(4) Subject to subsection (6) below, a condition specified in subsection (3) above shall be taken to be satisfied unless, not later than such time as High Court may, by Act of Adjournal, prescribe, the accused serves on the prosecutor a notice—

(a) stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in his opinion satisfied;

(b) setting out the grounds for his opinion; and

(c) requiring the prosecutor to prove that the condition is satisfied.

(5) In subsection (4) above “ the relevant conduct ” means the agreement to effect the criminal purpose.

(6) The court may permit the accused to require the prosecutor to prove that the condition mentioned in subsection (4) above is satisfied without the prior service of a notice under that subsection.

(7) In proceedings on indictment, the question whether a condition is satisfied shall be determined by the judge alone.

(8) Nothing in this section—

(a) applies to an act done before the day on which the Criminal Justice (Terrorism and Conspiracy) Act 1998 was passed, or

(b) imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.

Section 12 Instructions by Lord Advocate as to reporting of offences.

The Lord Advocate may, from time to time, issue instructions to the chief constable with regard to the reporting, for consideration of the question of prosecution, of offences alleged to have been committed ....

Section 13 Powers relating to suspects and potential witnesses.

(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence at any place, he may require—

(a) that person, if the constable finds him at that place or at any place where the constable is entitled to be, to give the information mentioned in subsection (1A) below and may ask him for an explanation of the circumstances which have given rise to the constable’s suspicion;

(b) any other person whom the constable finds at that place or at any place where the constable is entitled to be and who the constable believes has information relating to the offence, to give the information mentioned in subsection (1A) below .

(1A) That information is—

(a) the person's name;

(b) the person's address;

(c) the person's date of birth;

(d) the person's place of birth (in such detail as the constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e) the person's nationality.

(2) The constable may require the person mentioned in paragraph (a) of subsection (1) above to remain with him while he (either or both)—

(a) subject to subsection (3) below, verifies any information mentioned in subsection (1A) above given by the person;

(b) notes any explanation proffered by the person.

(3) The constable shall exercise his power under paragraph (a) of subsection (2) above only where it appears to him that such verification can be obtained quickly.

(4) A constable may use reasonable force to ensure that the person mentioned in paragraph (a) of subsection (1) above remains with him.

(5) A constable shall inform a person, when making a requirement of that person under—

(a) paragraph (a) of subsection (1) above, of his suspicion and of the general nature of the offence which he suspects that the person has committed or is committing;

(b) paragraph (b) of subsection (1) above, of his suspicion, of the general nature of the offence which he suspects has been or is being committed and that the reason for the requirement is that he believes the person has information relating to the offence;

(c) subsection (2) above, why the person is being required to remain with him;

(d) either of the said subsections, that failure to comply with the requirement may constitute an offence.

(6) A person mentioned in—

(a) paragraph (a) of subsection (1) above who having been required—

(i) under that subsection to give the information mentioned in subsection (1A) above ; or

(ii) under subsection (2) above to remain with a constable,

fails, without reasonable excuse, to do so, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale;

(b) paragraph (b) of the said subsection (1) who having been required under that subsection to give the information mentioned in subsection (1A) above fails, without reasonable excuse, to do so shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 14 Detention and questioning at police station.

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Section 14A Extension of period of detention under section 14

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Section 14B Extension under section 14A: procedure

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Section 15 Right of persons arrested or detained to have intimation sent to another person

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Section 15A Right of suspects to have access to a solicitor

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Section 16 Drunken persons: power to take to designated place.

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Section 17 Right of accused to have access to solicitor.

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Section 17A Right of person accused of sexual offence to be told about restriction on conduct of defence: arrest

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Section 18 Prints, samples etc. in criminal investigations.

(1) This section applies where a person has been arrested and is in custody ....

(2) A constable may take from the person , 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 or the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003) in respect of which the person has been arrested ..., reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement .

(3) Subject to subsections (3A) and (4) below and sections 18A to 18G 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) or (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.

(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) or (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 the 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7A) For the purposes of this section and , 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.

(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 relevant physical data or samples under the authority of a warrant.

Section 18A Retention of samples etc. : prosecutions for sexual and violent offences

(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 the 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 relevant 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 chief 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.

(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 relevant physical data, sample or information derived from a sample shall be destroyed as soon as possible thereafter.

(11) In this section—

...

“ relevant sexual offence ” and “ relevant violent offence ” have , 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.

(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;

Section 18B Retention of samples etc. where offer under sections 302 to 303ZA accepted

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2), and

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2) The conditions are—

(a) the relevant physical data or sample was taken from or provided by the person while the person was in custody in connection with the offence or offences in relation to which a relevant offer is issued to the person, and

(b) the person—

(i) accepts a relevant offer, or

(ii) in the case of a relevant offer other than one of the type mentioned in paragraph (d) of subsection (3), is deemed to accept a relevant offer.

(3) In this section “ relevant offer ” means—

(a) a conditional offer under section 302,

(b) a compensation offer under section 302A,

(c) a combined offer under section 302B, or

(d) a work offer under section 303ZA.

(4) Subject to subsections (6) and (7) and section 18C(9) and (10), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(5) In subsection (4), “ destruction date ” means—

(a) in relation to a relevant offer that relates only to—

(i) a relevant sexual offence,

(ii) a relevant violent offence, or

(iii) both a relevant sexual offence and a relevant violent offence, the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(b) in relation to a relevant offer that relates to—

(i) an offence or offences falling within paragraph (a), and

(ii) any other offence,

the date of expiry of the period of 3 years beginning with the date on which the relevant offer is issued or such later date as an order under section 18C(2) or (6) may specify,

(c) in relation to a relevant offer that does not relate to an offence falling within paragraph (a), the date of expiry of the period of 2 years beginning with the date on which the relevant offer is issued.

(6) If a relevant offer is recalled by virtue of section 302C(5) or a decision to uphold it is quashed under section 302C(7)(a), all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after—

(a) the prosecutor decides not to issue a further relevant offer to the person,

(b) the prosecutor decides not to institute criminal proceedings against the person, or

(c) the prosecutor institutes criminal proceedings against the person and those proceedings conclude otherwise than with a conviction or an order under section 246(3).

(7) If a relevant offer is set aside by virtue of section 303ZB, all record of the relevant physical data, sample and information derived from a sample must be destroyed as soon as possible after the setting aside.

(8) In this section, “relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (9), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

(9) 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 relevant offer (as defined in section 18B(3)) relating to the offence that there was a sexual aspect to the behaviour of the person to whom the relevant offer is issued;

Section 18C Section 18B: extension of retention period where relevant offer relates to certain sexual or violent offences

(1) This section applies where the destruction date for relevant physical data, a sample or information derived from a sample falls within section 18B(5)(a) or (b).

(2) On a summary application made by the chief 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.

(3) An application under subsection (2) may be made to any sheriff—

(a) in whose sheriffdom the appropriate person 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.

(4) An order under subsection (2) must not specify a destruction date more than 2 years later than the previous destruction date.

(5) The decision of the sheriff on an application under subsection (2) may be appealed to the sheriff principal within 21 days of the decision.

(6) If the sheriff principal allows an appeal against the refusal of an application under subsection (2), the sheriff principal may make an order amending, or further amending, the destruction date.

(7) An order under subsection (6) must not specify a destruction date more than 2 years later than the previous destruction date.

(8) The sheriff principal's decision on an appeal under subsection (5) is final.

(9) Section 18B(4) does not apply where—

(a) an application under subsection (2) has been made but has not been determined,

(b) the period within which an appeal may be brought under subsection (5) 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) 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 (5) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed, or, as the case may be, the appeal is withdrawn or determined.

(11) In this section—

“ appropriate person ” means the person from whom the relevant physical data was taken or by whom it was provided or from whom the sample was taken,

“ destruction date ” has the meaning given by section 18B(5),

...

Section 18D Retention of samples etc. taken or provided in connection with certain fixed penalty offences

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2), and

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A),

where the conditions in subsection (2) are satisfied.

(2) The conditions are—

(a) the person was arrested ... in connection with a fixed penalty offence,

(b) the relevant physical data or sample was taken from or provided by the person while the person was in custody in connection with that offence,

(c) after the relevant physical data or sample was taken from or provided by the person, a constable gave the person under section 129(1) of the 2004 Act—

(i) a fixed penalty notice in respect of that offence (the “main FPN”), or

(ii) the main FPN and one or more other fixed penalty notices in respect of fixed penalty offences arising out of the same circumstances as the offence to which the main FPN relates, and

(d) the person, in relation to the main FPN and any other fixed penalty notice of the type mentioned in paragraph (c)(ii)—

(i) pays the fixed penalty, or

(ii) pays any sum that the person is liable to pay by virtue of section 131(5) of the 2004 Act.

(3) Subject to subsections (4) and (5), the relevant physical data, sample or information derived from a sample must be destroyed before the end of the period of 2 years beginning with—

(a) where subsection (2)(c)(i) applies, the day on which the main FPN is given to the person,

(b) where subsection (2)(c)(ii) applies and—

(i) the main FPN and any other fixed penalty notice are given to the person on the same day, that day,

(ii) the main FPN and any other fixed penalty notice are given to the person on different days, the later day.

(4) Where—

(a) subsection (2)(c)(i) applies, and

(b) the main FPN is revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocation.

(5) Where—

(a) subsection (2)(c)(ii) applies, and

(b) the main FPN and any other fixed penalty notices are revoked under section 133(1) of the 2004 Act,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the revocations.

(6) In this section—

“ the 2004 Act ” means the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8),

“ fixed penalty notice ” has the meaning given by section 129(2) of the 2004 Act,

“ fixed penalty offence ” has the meaning given by section 128(1) of the 2004 Act.

Section 18E Retention of samples etc. : children referred to children's hearings

(1) This section applies to—

(a) relevant physical data taken from or provided by a child under section 18(2); and

(b) any sample, or any information derived from a sample, taken from a child under section 18(6) or (6A),

where subsection (3), (4) or (5) applies.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) This subsection applies where—

(a) in relation to a children’s hearing arranged in relation to the child under section 69(2) of the 2011 Act , a section 67 ground is that the child has committed an offence mentioned in subsection (6) (a “relevant offence”),

(b) the ground is accepted by the child and each relevant person in relation to the child under section 91(1) or 105(1) of that Act, and

(c) no application to the sheriff under section 93(2)(a) or 94(2)(a) of that Act is made in relation to that ground.

(4) This subsection applies where—

(a) in relation to a children’s hearing arranged in relation to the child under section 69(2) of the 2011 Act , a section 67 ground is that the child has committed a relevant offence,

(b) the sheriff, on an application under section 93(2)(a) or 94(2)(a) of that Act, determines under section 108 of that Act that the ground is established, and

(c) no application to the sheriff under section 110(2) of that Act is made in relation to the ground.

(5) This subsection applies where, on an application under section 110(2) of the 2011 Act in relation to the child—

(a) the sheriff is satisfied under section 114(2) or 115(1)(b) of that Act that a section 67 ground which constitutes a relevant offence is established or accepted by the child and each relevant person in relation to the child, or

(b) the sheriff determines under section 117(2)(a) of that Act that—

(i) a section 67 ground which was not stated in the statement of grounds which gave rise to the grounds determination is established, and

(ii) the ground constitutes a relevant offence.

(6) A relevant offence is such relevant sexual offence or relevant violent offence as the Scottish Ministers may by order made by statutory instrument prescribe.

(7) An order under subsection (6) may prescribe a relevant violent offence by reference to a particular degree of seriousness.

(8) Subject to section 18F(8) and (9), the relevant physical data, sample or information derived from a sample must be destroyed no later than the destruction date.

(9) The destruction date is—

(a) the date of expiry of the period of 3 years following—

(i) where subsection (3) applies, the date on which the section 67 ground was accepted as mentioned in that subsection,

(ii) where subsection (4) applies, the date on which the section 67 ground was established as mentioned in that subsection,

(iii) where the section 67 ground is established as mentioned in paragraph (a) of subsection (5), the date on which that ground was established under section 108 of the 2011 Act or, as the case may be, accepted under section 91(1) or 105(1) of that Act, or

(iv) where the section 67 ground is established as mentioned in paragraph (b) of subsection (5), the date on which that ground was established as mentioned in that paragraph,

(b) such later date as an order under section 18F(1) may specify.

(10) No statutory instrument containing an order under subsection (6) may be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

(11) In this section—

“the 2011 Act ” means the Children’s Hearings (Scotland) Act 2011 (asp 1) ,

“grounds determination” has the meaning given by section 110(1) of the 2011 Act ;

“ relevant person ” has the same meaning as in section 200(1) of the 2011 Act except that it includes a person deemed to be a relevant person by virtue of section 81(3), 160(4)(b) or 164(6) of that Act ;

“relevant sexual offence” and “relevant violent offence” have, subject to the modification in subsection (12), the same meanings as in section 19A(6) and include any attempt, conspiracy or incitement to commit such an offence.

“section 67 ground” has the meaning given by section 67(1) of the 2011 Act ;

“statement of grounds” has the meaning given by section 89(3) of the 2011 Act .

(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 section 67 ground relating to the offence that there was a sexual aspect to the behaviour of the child;”

Section 18F Retention of samples etc. relating to children: appeals

(1) On a summary application made by the chief 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.

(2) An application under subsection (1) may be made to any sheriff—

(a) in whose sheriffdom the child mentioned in section 18E(1) resides;

(b) in whose sheriffdom that child is believed by the applicant to be; or

(c) to whose sheriffdom that child is believed by the applicant to be intending to come.

(3) An order under subsection (1) must not specify a destruction date more than 2 years later than the previous destruction date.

(4) The decision of the sheriff on an application under subsection (1) may be appealed to the sheriff principal within 21 days of the decision.

(5) If the sheriff principal allows an appeal against the refusal of an application under subsection (1), the sheriff principal may make an order amending, or further amending, the destruction date.

(6) An order under subsection (5) must not specify a destruction date more than 2 years later than the previous destruction date.

(7) The sheriff principal's decision on an appeal under subsection (4) is final.

(8) Section 18E(8) does not apply where—

(a) an application under subsection (1) has been made but has not been determined;

(b) the period within which an appeal may be brought under subsection (4) 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.

(9) Where—

(a) the period within which an appeal referred to in subsection (8)(b) 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 (4) against a decision to grant an application is determined in favour of the appellant,

the relevant physical data, sample or information derived from a sample must be destroyed as soon as possible after the period has elapsed or, as the case may be, the appeal is withdrawn or determined.

(10) In this section—

“ destruction date ” has the meaning given by section 18E(9); and

...

Section 18G Retention of samples etc : national security

(1) This section applies to—

(a) relevant physical data taken from or provided by a person under section 18(2) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023 ),

(b) any sample, or any information derived from a sample, taken from a person under section 18(6) or (6A) (including any taken by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023 ),

(c) any relevant physical data, sample or information derived from a sample taken from, or provided by, a person under section 19AA(3),

(d) any relevant physical data, sample or information derived from a sample which is held by virtue of section 56 of the Criminal Justice (Scotland) Act 2003, and

(e) any relevant physical data, sample or information derived from a sample taken from a person—

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii) under the authority of a warrant.

(2) The relevant physical data, sample or information derived from a sample may be retained for so long as a national security determination made by the chief constable of the Police Service of Scotland has effect in relation to it.

(3) A national security determination is made if the chief constable of the Police Service of Scotland determines that is necessary for the relevant physical data, sample or information derived from a sample to be retained for the purposes of national security.

(4) A national security determination—

(a) must be made in writing,

(b) has effect for a maximum of 5 years beginning with the date on which the determination is made, and

(c) may be renewed.

(5) Any relevant physical data, sample or information derived from a sample which is retained in pursuance of a national security determination must be destroyed as soon as possible after the determination ceases to have effect (except where its retention is permitted by any other enactment).

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 18H Retention of samples etc. : extradition

(1) This section applies to—

(a) relevant physical data taken under section 18(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 section 18(6) or (6A) from a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003).

(2) All record of any relevant physical data, all samples and all information derived from such samples must be destroyed as soon as possible following the final determination of the extradition proceedings.

(3) The duty under subsection (2) to destroy samples taken under section 18(6) or (6A) and information derived from such samples does not apply where the circumstances in paragraph (a) or (b) of section 18(4) apply to the sample or information (and where such circumstances apply, the restrictions in section 18(5) apply to the sample or information retained).

(4) For the purposes of this section, extradition proceedings are finally determined—

(a) if the person is extradited, on the day of the extradition,

(b) if the person is discharged and there is no right of appeal under the Extradition Act 2003 against the decision which resulted in the order for the person’s discharge, when the person is discharged, on the day of the discharge,

(c) where the person is discharged at an extradition hearing or by the Scottish Ministers under section 93 of the Extradition Act 2003—

(i) if no application is made to the High Court for leave to appeal against the decision within the period during which such an application may be made, at the end of that period,

(ii) if such an application is made and is refused, on the day of the refusal,

(d) where the High Court orders the person’s discharge or dismisses an appeal against a decision to discharge the person—

(i) if no application is made to the High Court for permission to appeal to the Supreme Court within the 28 day period starting with the day of the High Court’s decision, at the end of that period,

(ii) if such an application is made to the High Court and is refused, and no application is made to the Supreme Court for permission to appeal to the Supreme Court within the period of 28 days starting with the day of the refusal, at the end of that period,

(iii) if such an application is made to the Supreme Court and is refused, on the day of the refusal,

(iv) if permission to appeal to the Supreme Court is granted, but no appeal is made within the period of 28 days starting with the day on which permission is granted, at the end of that period,

(v) if there is an appeal to the Supreme Court against the High Court’s decision, on the day on which the appeal is refused, is abandoned or is upheld with the effect that the person is discharged,

(e) if an appeal to the Supreme Court is upheld with the effect that the person is discharged, on the day of the decision to uphold the appeal.

(5) In subsection (4)—

“extradition hearing” has the meaning given by section 68 or as the case may be section 140 of the Extradition Act 2003,

“extradition proceedings” means proceedings under the Extradition Act 2003.

Section 18GA Retention of further fingerprints

(1) This section applies where—

(a) relevant physical data to which section 18G applies has been taken from or provided by a person, and

(b) the data is or includes the person's fingerprints (“the original fingerprints”).

(2) A constable may make a determination under this section in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if—

(a) the further fingerprints were taken under or by virtue of—

(i) any provision, power or authority mentioned in section 18G(1), or

(ii) paragraph 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, and

(b) the further fingerprints or the original fingerprints were taken—

(i) in connection with a terrorist investigation, as defined by section 32 of the Terrorism Act 2000, or

(ii) under a power conferred by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.

(3) Where a determination under this section is made in respect of the further fingerprints—

(a) the further fingerprints may be retained for as long as the original fingerprints are retained in accordance with this Part, and

(b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a).

(4) Subsection (3)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment.

(5) A written record must be made of a determination under this section.

Section 19 Prints, samples etc. in criminal investigations: supplementary provisions.

(1) Without prejudice to any power exercisable under section 19A of this Act, this section applies where a person convicted of an offence—

(a) has not, since the conviction, had taken from him, or been required to provide, any relevant physical data or had any impression or sample taken from him; or

(b) has at any time had—

(i) taken from him or been required (whether under paragraph (a) above or under section 18 , 19A or 19AA of this Act or otherwise) to provide any relevant physical data; or

(ii) any ... sample taken from him,

which was not suitable for the means of analysis for which the data were taken or required or the ... sample was taken or, though suitable, was insufficient (either in quantity or in quality) to enable information to be obtained by that means of analysis.

(2) Where this section applies, a constable may, within the permitted period—

(a) take from or require the convicted person to provide him with such relevant physical data as he reasonably considers it appropriate to take or, as the case may be, require the provision of ; . . .

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample and

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(3) A constable—

(a) may require the convicted person to attend a police station for the purposes of subsection (2) above;

(b) may, where the convicted person is in legal custody by virtue of section 295 of this Act, exercise the powers conferred by subsection (2) above in relation to the person in the place where he is for the time being.

(4) In subsection (2) above, “ the permitted period ” means—

(a) in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction;

(b) in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the Police Service of Scotland receives written intimation that the relevant physical data were or the sample, . . .was unsuitable or, as the case may be, insufficient as mentioned in that paragraph.

(5) A requirement under subsection (3)(a) above—

(a) shall give the person at least seven days’ notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day.

(6) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (3)(a) above.

Section 19A Samples etc. from persons convicted of sexual and violent offences.

(1) This section applies where a person—

(a) is convicted on or after the relevant date of a relevant offence and is sentenced to imprisonment;

(b) was convicted before the relevant date of a relevant offence, was sentenced to imprisonment and is serving that sentence on or after the relevant date;

(c) was convicted before the relevant date of a specified relevant offence, was sentenced to imprisonment, is not serving that sentence on that date or at any time after that date but was serving it at any time during the period of five years ending with the day before that date.

(2) Subject to subsections (3) and (4) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable reasonably considers appropriate; . . .

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample and

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(3) The power conferred by subsection (2) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under subsection (2) of section 19 of this Act in a case where the power conferred by that subsection was exercised by virtue of subsection (1)(a) of that section , under this section or under section 19AA(3) of this Act unless the data so taken or required have been or, as the case may be, the sample so taken or required has been lost or destroyed.

(4) Where this section applies by virtue of—

(a) paragraph (a) or (b) of subsection (1) above, the powers conferred by subsection (2) above may be exercised at any time when the person is serving his sentence; and

(b) paragraph (c) of the said subsection (1), those powers may only be exercised within a period of three months beginning on the relevant date.

(5) Where a person in respect of whom the power conferred by subsection (2) above may be exercised—

(a) is no longer serving his sentence of imprisonment, subsections (3)(a), (5) and (6);

(b) is serving his sentence of imprisonment, subsection (3)(b),

of section 19 of this Act shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.

(6) In this section—

“ conviction ” includes—

an acquittal by reason of the special defence set out in section 51A of this Act;

a finding under section 55(2) of this Act,

and “ convicted ” shall be construed accordingly;

“ relevant date ” means the date on which section 48 of the Crime and Punishment (Scotland) Act 1997 is commenced;

“ relevant offence ” means any relevant sexual offence or any relevant violent offence;

“ relevant sexual offence ” means any of the following offences—

rape at common law ;

clandestine injury to women;

abduction of a woman with intent to rape;

abduction with intent to commit the statutory offence of rape;

assault with intent to rape or ravish;

assault with intent to commit the statutory offence of rape;

indecent assault;

lewd, indecent or libidinous behaviour or practices;

public indecency if the court, in imposing sentence or otherwise disposing of the case, determined for the purposes of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 (c.42) that there was a significant sexual aspect to the offender's behaviour in committing the offence;

sodomy; . . .

any offence which consists of a contravention of any of the following statutory provisions—

section 52 of the Civic Government (Scotland) Act 1982 (taking and distribution of indecent images of children);

section 52A of that Act (possession of indecent images of children);

section 311 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (non consensual sexual acts);

section 313 of that Act (persons providing care services: sexual offences);

section 1 of the Criminal Law (Consolidation)(Scotland) Act 1995 (incest);

section 2 of that Act (intercourse with step-child);

section 3 of that Act (intercourse with child under 16 years by person in position of trust);

section 5(1) or (2) of that Act (unlawful intercourse with girl under 13 years);

section 5(3) of that Act (unlawful intercourse with girl aged between 13 and 16 years);

section 6 of that Act (indecent behaviour towards girl between 12 and 16 years);

section 7 of that Act (procuring);

section 8 of that Act (abduction and unlawful detention of women and girls);

section 9 of that Act (permitting use of premises for unlawful sexual intercourse);

section 10 of that Act (liability of parents etc in respect of offences against girls under 16 years);

section 11(1)(b) of that Act (soliciting for immoral purpose);

section 13(5)(b) and (c) of that Act (homosexual offences); and

any offence which consists of a contravention of any of the following provisions of the Sexual Offences (Scotland) Act 2009 (asp 9)—

section 1 (rape),

section 2 (sexual assault by penetration),

section 3 (sexual assault),

section 4 (sexual coercion),

section 5 (coercing a person into being present during a sexual activity),

section 6 (coercing a person into looking at a sexual image),

section 7(1) (communicating indecently),

section 7(2) (causing a person to see or hear an indecent communication),

section 8 (sexual exposure),

section 9 (voyeurism),

section 18 (rape of a young child),

section 19 (sexual assault on a young child by penetration),

section 20 (sexual assault on a young child),

section 21 (causing a young child to participate in a sexual activity),

section 22 (causing a young child to be present during a sexual activity),

section 23 (causing a young child to look at a sexual image),

section 24(1) (communicating indecently with a young child),

section 24(2) (causing a young child to see or hear an indecent communication),

section 25 (sexual exposure to a young child),

section 26 (voyeurism towards a young child),

section 28 (having intercourse with an older child),

section 29 (engaging in penetrative sexual activity with or towards an older child),

section 30 (engaging in sexual activity with or towards an older child),

section 31 (causing an older child to participate in a sexual activity),

section 32 (causing an older child to be present during a sexual activity),

section 33 (causing an older child to look at a sexual image),

section 34(1) (communicating indecently with an older child),

section 34(2) (causing an older child to see or hear an indecent communication),

section 35 (sexual exposure to an older child),

section 36 (voyeurism towards an older child),

section 37(1) (engaging while an older child in sexual conduct with or towards another older child),

section 37(4) (engaging while an older child in consensual sexual conduct with another older child),

section 42 (sexual abuse of trust) but only if the condition set out in section 43(6) of that Act is fulfilled,

section 46 (sexual abuse of trust of a mentally disordered person);

“ relevant violent offence ” means any of the following offences—

murder or culpable homicide;

uttering a threat to the life of another person;

perverting the course of justice in connection with an offence of murder;

fire raising;

assault;

reckless conduct causing actual injury;

abduction; and

any offence which consists of a contravention of any of the following statutory provisions—

sections 2 (causing explosion likely to endanger life) or 3 (attempting to cause such an explosion) of the Explosive Substances Act 1883;

section 12 of the Children and Young Persons (Scotland) Act 1937 (cruelty to children);

sections 16 (possession of firearm with intent to endanger life or cause serious injury), 17 (use of firearm to resist arrest) or 18 (having a firearm for purpose of committing an offence listed in Schedule 2) of the Firearms Act 1968;

section 6 of the Child Abduction Act 1984 (taking or sending child out of the United Kingdom); ...

section 47(1) (possession of offensive weapon in public place), 49(1) (possession of article with blade or point in public place), 49A(1) or (2) (possession of article with blade or point or offensive weapon on school premises) or 49C(1) (possession of offensive weapon or article with blade or point in prison) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39);

any of sections 140 to 142 and 152 to 154 of the Health and Care Act 2022 (offences relating to virginity testing and hymenoplasty) ;

“ sentence of imprisonment ” means the sentence imposed in respect of the relevant offence and includes—

a compulsion order, a restriction order, a hospital direction and any order under section 57(2)(a) or (b) of this Act; and

a sentence of detention imposed under section 207 or 208 of this Act,

and “ sentenced to imprisonment ” shall be construed accordingly; and any reference to a person serving his sentence shall be construed as a reference to the person being detained in a prison, hospital or other place in pursuance of a sentence of imprisonment; and

“ specified relevant offence ” means—

any relevant sexual offence mentioned in paragraphs (a), (b), (f) and (i)(viii) of the definition of that expression and any such offence as is mentioned in paragraph (h) of that definition where the person against whom the offence was committed did not consent; and

any relevant violent offence mentioned in paragraph (a) or (g) of the definition of that expression and any such offence as is mentioned in paragraph (e) of that definition where the assault is to the victim’s severe injury,

but, notwithstanding subsection (7) below, does not include—

conspiracy or incitement to commit; and

aiding and abetting, counselling or procuring the commission of,

any of those offences.

(6A) In subsection (6)—

(a) the references to “rape” in paragraphs (c) and (d) of the definition of “relevant sexual offence” are to the offence of rape at common law; and

(b) the references in paragraphs (ca) and (da) of that subsection to “the statutory offence of rape” are (as the case may be) to?

(i) the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or

(ii) the offence of rape of a young child under section 18 of that Act.

(7) In this section—

(a) any reference to a relevant offence includes a reference to any attempt, conspiracy or incitement to commit such an offence; and

(b) any reference to—

(i) a relevant sexual offence mentioned in paragraph (i) or (j) ; or

(ii) a relevant violent offence mentioned in paragraph (h),

of the definition of those expressions in subsection (6) above includes a reference to aiding and abetting, counselling or procuring the commission of such an offence.

Section 19B Power of constable in obtaining relevant physical data etc.

(1) A constable may use reasonable force in—

(a) taking any relevant physical data from a person or securing a person’s compliance with a requirement made under section 18(2), 19(2)(a) or 19A(2)(a) of this Act , or under subsection (3)(a) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section ;

(b) exercising any power conferred by section 18(6), 19(2)(b) or 19A(2)(b) of this Act , or under subsection (3)(b) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section .

(2) A constable may, with the authority of an officer of a rank no lower than inspector, use reasonable force in (himself) exercising any power conferred by section 18(6A), 19(2)(c) or 19A(2)(c) of this Act , or under subsection (3)(c) of section 19AA of this Act where that section applies by virtue of subsection (1)(a) of that section .

Section 19C Sections 18 and 19 to 19AA: use of samples etc.

(1) Subsection (2) applies to—

(a) relevant physical data taken or provided under section 18(2), 19(2)(a), 19A(2)(a) or 19AA(3)(a) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023 ) ,

(b) a sample, or any information derived from a sample, taken under section 18(6) or (6A), 19(2)(b) or (c), 19A(2)(b) or (c) or 19AA(3)(b) or (c) (including any taken or provided by virtue of paragraph 20 of Schedule 8 to the Terrorism Act 2000 or by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 or paragraph 18 of Schedule 6 to the National Security Act 2023 ) ,

(c) relevant physical data or a sample taken from a person—

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence where there is immediate danger of its being lost or destroyed, or

(iii) under the authority of a warrant,

(d) information derived from a sample falling within paragraph (c), and

(e) relevant physical data, a sample or information derived from a sample taken from, or provided by, a person outwith Scotland which is given by any person to—

(i) the Police Service of Scotland (“the Police Service”),

(ii) the Scottish Police Authority (“ the Authority ”), or

(iii) a person acting on behalf of the Police Service or the Authority .

(2) The relevant physical data, sample or information derived from a sample may be used—

(a) for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, ...

(b) for the identification of a deceased person or a person from whom the relevant physical data or sample came,

(c) in the interests of national security, ...

(ca) for the purposes of investigating foreign power threat activity, or

(d) for the purposes of a terrorist investigation .

(3) Subsections (4) and (5) apply to relevant physical data, a sample or information derived from a sample falling within any of paragraphs (a) to (d) of subsection (1) (“relevant material”).

(4) If the relevant material is held by the Police Service, the Authority or a person acting on behalf of the Police Service or the Authority, the Police Service or, as the case may be, the Authority or person may give the relevant material to another person for use by that person in accordance with subsection (2).

(5) The Police Service, the Authority or a person acting on behalf of the Police Service or the Authority may, in using the relevant material in accordance with subsection (2), check it against other relevant physical data, samples and information derived from samples received from another person.

(6) In subsection (2)—

(a) the reference to crime includes a reference to—

(i) conduct which constitutes a criminal offence or two or more criminal offences (whether under the law of a part of the United Kingdom or a country or territory outside the United Kingdom), or

(ii) conduct which is, or corresponds to, conduct which, if it all took place in any one part of the United Kingdom would constitute a criminal offence or two or more criminal offences,

(b) the reference to an investigation includes a reference to an investigation outside Scotland of a crime or suspected crime, ...

(c) the reference to a prosecution includes a reference to a prosecution brought in respect of a crime in a country or territory outside Scotland , ...

(ca) “ foreign power threat activity ” has the meaning given by section 33 of the National Security Act 2023, and

(d) “terrorist investigation” has the meaning given by section 32 of the Terrorism Act 2000.

(7) This section is without prejudice to any other power relating to the use of relevant physical data, samples or information derived from a sample.

Section 19AA Samples etc. from sex offenders

(1) This section applies where a person is subject to—

(a) the notification requirements of Part 2 of the 2003 Act;

(b) an order under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 ; or

(c) an order under section 122A or 123 of the 2003 Act (which makes provision for England and Wales and Northern Ireland corresponding to section 27 of that Act of 2016 ).

(2) This section applies regardless of whether the person became subject to those requirements or that order before or after the commencement of this section.

(3) Subject to subsections (4) to (8) below, where this section applies a constable may—

(a) take from the person or require the person to provide him with such relevant physical data as the constable considers reasonably appropriate;

(b) with the authority of an officer of a rank no lower than inspector, take from the person any sample mentioned in any of paragraphs (a) to (c) of subsection (6) of section 18 of this Act by the means specified in that paragraph in relation to that sample;

(c) take, or direct a police custody and security officer to take, from the person any sample mentioned in subsection (6A) of that section by the means specified in that subsection.

(4) Where this section applies by virtue of subsection (1)(c) above, the power conferred by subsection (3) shall not be exercised unless the constable reasonably believes that the person's sole or main residence is in Scotland.

(5) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under section 19(2) or 19A(2) of this Act unless the data so taken or required have been or, as the case may be, the sample so taken has been, lost or destroyed.

(6) The power conferred by subsection (3) above shall not be exercised where the person has previously had taken from him or been required to provide relevant physical data or any sample under that subsection unless the data so taken or required or, as the case may be, the sample so taken—

(a) have or has been lost or destroyed; or

(b) were or was not suitable for the particular means of analysis or, though suitable, were or was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis.

(7) The power conferred by subsection (3) above may be exercised only—

(a) in a police station; or

(b) where the person is in legal custody by virtue of section 295 of this Act, in the place where the person is for the time being.

(8) The power conferred by subsection (3) above may be exercised in a police station only—

(a) where the person is present in the police station in pursuance of a requirement made by a constable to attend for the purpose of the exercise of the power; or

(b) while the person is in custody in the police station following his arrest ... in connection with any offence.

(9) A requirement under subsection (8)(a) above—

(a) shall give the person at least seven days' notice of the date on which he is required to attend;

(b) may direct him to attend at a specified time of day or between specified times of day; and

(c) where this section applies by virtue of subsection (1)(b) or (c) above, shall warn the person that failure, without reasonable excuse, to comply with the requirement or, as the case may be, to allow the taking of or to provide any relevant physical data, or to provide any sample, under the power, constitutes an offence.

(10) A requirement under subsection (8)(a) above in a case where the person has previously had taken from him or been required to provide relevant physical data or any sample under subsection (3) above shall contain intimation that the relevant physical data were or the sample was unsuitable or, as the case may be, insufficient, as mentioned in subsection (6)(b) above.

(11) Before exercising the power conferred by subsection (3) above in a case to which subsection (8)(b) above applies, a constable shall inform the person of that fact.

(12) Any constable may arrest without warrant a person who fails to comply with a requirement under subsection (8)(a) above.

(13) This section does not prejudice the generality of section 18 of this Act.

(14) In this section, “ the 2003 Act ” means the Sexual Offences Act 2003 (c. 42).

Section 19AB Section 19AA: supplementary provision in sexual risk order cases

(1) This section applies where section 19AA of this Act applies by virtue of subsection (1)(b) or (c) of that section.

(2) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under section 19AA(8)(a) of this Act; or

(b) to allow relevant physical data to be taken from him, to provide relevant physical data, or to allow a sample to be taken from him, under section 19AA(3) of this Act,

shall be guilty of an offence.

(3) A person guilty of an offence under subsection (2) above shall be liable on summary conviction to the following penalties—

(a) a fine not exceeding level 4 on the standard scale;

(b) imprisonment for a period—

(i) where the conviction is in the district court, not exceeding 60 days; or

(ii) where the conviction is in the sheriff court, not exceeding 3 months; or

(c) both such fine and such imprisonment.

(4) Subject to subsection (6) below, all record of any relevant physical data taken from or provided by a person under section 19AA(3) of this Act, all samples taken from a person under that subsection and all information derived from such samples shall be destroyed as soon as possible following the person ceasing to be a person subject to any sexual risk orders .

(5) For the purpose of subsection (4) above, a person does not cease to be subject to a sexual risk order where the person would be subject to such an order but for an order of a court considering an appeal against the making of a sexual risk order suspending the effect of the order pending the determination of the appeal .

(6) Subsection (4) above does not apply if before the duty to destroy imposed by that subsection would apply, the person—

(a) is convicted of an offence; or

(b) becomes subject to the notification requirements of Part 2 of the 2003 Act.

(7) In this section—

...

...

“ sexual risk order ” means an order under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and also includes an order under section 122A or 123 of the 2003 Act;

“ the 2003 Act ” has the meaning given by section 19AA(14) of this Act; and

“ convicted ” shall be construed in accordance with section 19A(6) of this Act.

Section 20 Use of prints, samples etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 20A Arrested persons: testing for certain Class A drugs

(1) Subject to subsection (2) below, where subsection (3) below applies an appropriate officer may—

(a) require a person who has been arrested and is in custody in a police station to provide him with a sample of urine; or

(b) take from the inside of the mouth of such a person, by means of swabbing, a sample of saliva or other material,

which the officer may subject to analysis intended to reveal whether there is any relevant Class A drug in the person's body.

(2) The power conferred by subsection (1) above shall not be exercised where the person has previously been required to provide or had taken from him a sample under that subsection in the same period in custody.

(3) This subsection applies where—

(a) the person is of 16 years of age or more;

(b) the period in custody in the police station has not exceeded 6 hours;

(c) the police station is situated in an area prescribed by order made by statutory instrument by the Scottish Ministers; and

(d) either—

(i) the person's arrest was on suspicion of committing or having committed a relevant offence; or

(ii) a senior police officer who has appropriate grounds has authorised the making of the requirement to provide or the taking of the sample.

(4) Before exercising the power conferred by subsection (1) above, an appropriate officer shall—

(a) warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence; and

(b) in a case within subsection (3)(d)(ii) above, inform the person of the giving of the authorisation and the grounds for the suspicion.

(5) Where—

(a) a person has been required to provide or has had taken a sample under subsection (1) above;

(b) any of the following is the case—

(i) the sample was not suitable for the means of analysis to be used to reveal whether there was any relevant Class A drug in the person's body;

(ii) though suitable, the sample was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis; or

(iii) the sample was destroyed during analysis and the means of analysis failed to produce reliable information; and

(c) the person remains in custody in the police station (whether or not the period of custody has exceeded 6 hours),

an appropriate officer may require the person to provide or as the case may be take another sample of the same kind by the same method.

(6) Before exercising the power conferred by subsection (5) above, an appropriate officer shall warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence.

(7) A person who fails without reasonable excuse—

(a) to comply with a requirement made of him under subsection (1)(a) or (5) above; or

(b) to allow a sample to be taken from him under subsection (1)(b) or (5) above,

shall be guilty of an offence.

(8) In this section—

“ appropriate grounds ” means reasonable grounds for suspecting that the misuse by the person of any relevant Class A drug caused or contributed to the offence on suspicion of which the person was arrested;

“ appropriate officer ” means—

a constable; or

a police custody and security officer acting on the direction of a constable;

“ misuse ” has the same meaning as in the Misuse of Drugs Act 1971 (c. 38);

“ relevant Class A drug ” means any of the following substances, preparations and products—

cocaine or its salts;

any preparation or other product containing cocaine or its salts;

diamorphine or its salts;

any preparation or other product containing diamorphine or its salts;

“ relevant offence ” means any of the following offences—

theft;

assault;

robbery;

fraud;

reset;

uttering a forged document;

embezzlement;

an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);

an offence under section 4 of the Misuse of Drugs Act 1971 (c. 38) (restriction on production and supply of controlled drugs) committed in respect of a relevant Class A drug;

an offence under section 5(2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;

an offence under section 5(3) of that Act of 1971 (possession of controlled drug with intent to supply) committed in respect of a relevant Class A drug;

“ senior police officer ” means a police officer of a rank no lower than inspector.