The Act: Section by Section Section 9: Transfer of evidence to police
41.Subsection (1) sets out the circumstances in which a constable(17) can, for the purposes set out in subsection (2)(18), request the transfer of evidence(19) gathered during a forensic medical examination carried out (or, in the case of subsection (1)(c), purportedly carried out) under the examination service.(20) Paragraph (a) deals with police-referral cases and paragraph (b) with self-referral cases. In the latter case, the incident must have been reported to the police by the victim in order for a request to be made – so even if the police become aware of an incident, and of the fact that evidence is being stored under the retention service, in some other way, evidence cannot be transferred without the victim taking the step of making a report to the police about the incident. Paragraph (c) deals with cases where a health board report to the police that an examination has been carried out erroneously (due to the victim being under the self-referral age which applied at the time the examination took place) (see also the discussion of section 11 in paragraphs 45 to 47 below).
42.Health boards must comply with requests for transfer of evidence as soon as reasonably practicable. In practice, a constable is likely to collect the evidence either from the place where the forensic medical examination is carried out or from the place where the evidence is being stored. Samples in sexual offence cases being investigated by Police Scotland are tested and analysed by the Scottish Police Authority, independently from Police Scotland, in accordance with section 31 of the Police and Fire Reform (Scotland) Act 2012. Police officers transfer information and evidence to the Scottish Police Authority as part of their duties to prevent and detect crime under section 20 of that Act. The Act does not require to re-legislate for these practices.(21)