Commentary on Sections Part 2: Public Order Etc. Control of Sex Offenders Section 77 – Powers to take data and samples from persons subject to notification requirements
128.Section 77 amends the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) by inserting new sections 19AA and 19AB into that Act. The new sections allow the police to take relevant physical data (primarily fingerprints and palm prints), or any DNA samples from persons subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (“the 2003 Act”), a risk of sexual harm order (RSHO) under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act (“the 2005 Act”) or section 123 of the 2003 Act, if a DNA sample or data from these individuals is not already held on the database, or if such material has been lost or destroyed. This section also amends section 87 of the 2003 Act so that the police can also take a DNA sample as well as any relevant physical data from a registered sex offender who attends a police station to notify their details to the police.
129.Subsection (1) of section 19AA provides that these arrangements only apply to persons subject to the notification requirements or RSHOs.
130.Subsection (2) of section 19AA provides that the police will be able to take samples or data from any person who was subject to the notification requirements or a RSHO at the time the provisions commence, as well as from an individual who becomes subject to notification requirements or RSHO after commencement. The police will not be able to take samples or data from any person who may have been subject to the notification requirements or RSHO before the date of commencement, if that person was no longer subject to the notification requirements or a RSHO at that date.
131.Subsection (3) of section 19AA provides that a constable, or police custody and security officer (at a constable’s direction) can take any samples or data by certain means specified in section 18(6) and (6A) of the 1995 Act. Any samples which are retained from a registered sex offender can be retained indefinitely.
132.Subsection (4) of section 19AA enables the police to take samples or data from a person who is subject to a RSHO made under section 123 of the 2003 Act, if they reasonably believe that that person is resident in Scotland. The police will therefore be able to take and retain fingerprints and DNA samples from individuals who are subject to RHSOs (or who become subject to RSHOs) made in England, Wales or Northern Ireland, if these people move to Scotland.
133.Subsection (5) of section 19AA provides that the police must not exercise their powers under this section, if samples or data have already been taken from a sex offender who is subject to the notification requirements, or a person who is subject to a RSHO, under sections 19(2) or 19A(2) of the 1995 Act. However, if any samples or data which have previously been taken under sections 19(2) or 19A(2) of the 1995 Act have been lost or destroyed, the police will be able to use their powers under this section to take further samples or data.
134.Subsection (6) of section 19AA provides that the police can take further samples or data under this section, if the data and samples that were initially taken in exercise of the power in this section have been lost or destroyed, or were not suitable or sufficient for analysis.
135.Subsection (7) of section 19AA provides that the police may only take samples or data under this section at a police station, prison, hospital or any other place where a person is held in legal custody.
136.Subsection (8) of section 19AA provides that the police can only exercise their power to take samples or data in a police station when a person has been required to come to the station so their samples and data can be taken, or if a person to whom this section applies, is held in custody in a police station after being arrested or detained for any offence. This means that in appropriate circumstances, the police can exercise their powers under section 19AA to take samples and data from any relevant person who is brought into custody, without having to ask that person to return to the station on another occasion for that specific purpose.
137.Subsection (9) of section 19AA provides that the police must give a relevant person at least seven days notice of the requirement to attend a police station to provide samples or data. Any such notice which the police issue to a person who is subject to a RSHO must warn that person that they will commit an offence if they fail, without reasonable excuse, to comply with the requirements under this section.
138.Subsection (10) of section 19AA provides that if a relevant person is required to attend a police station to give samples or data under subsection (8) because a previous sample has either been lost or destroyed or is deemed unsuitable for the purposes of analysis, then these circumstances shall be explained to the person.
139.Subsection (11) of section 19AA provides that if a relevant person is in a police station due to having been arrested or detained for an offence, and a sample is to be taken from that person under this section, then this shall be explained to the person.
140.Subsection (12) of section 19AA confers a power of arrest on the police if a relevant person fails to comply with the obligations to attend a police station within the requested timeframe.
141.Subsection (13) of section 19AA ensures that any of the powers which are exercised in this section are without prejudice to the exercise of any powers in section 18 of the 1995 Act. If the police have taken any samples or data from an individual under section 19AA of the 1995 Act, they will still be able to take samples or data under section 18 of the 1995 Act and use these for investigating an offence, if an individual is arrested or detained under suspicion of having committed an imprisonable offence.
142.Subsection (1) of section 19AB provides that the arrangements under this section only apply to persons who are subject to risk of sexual harm orders (RSHO) under section 2 of the 2005 Act or section 123 of the 2003 Act.
143.Subsection (2) of section 19AB provides that a person subject to a RSHO will commit an offence if they do not comply with a notice issued by the police under section 19AA(8)(a) of the 1995 Act, or if they attend the police station but refuse to provide (or allow to be taken) a required sample or data. However, an offence will not be committed where the person has a "reasonable excuse."
144.Subsections (4), and (6) of section 19AB provide that any samples or data taken from a person subject to a RSHO under section 19AA(3) shall be destroyed as soon as possible following the expiry of the RSHO, unless prior to the duty to destroy such samples or data the individual in question is convicted of an offence or becomes subject to the notification requirements of the 2003 Act. In such circumstances, the samples and data will be retained indefinitely.
145.Subsection (5) provides that an RSHO shall not be deemed to have expired for the purpose of sections 19AA and 19AB of the 1995 Act, if it is suspended pending the outcome of an appeal under section 6(2) of the 2005 Act or any corresponding power exercised in the other UK jurisdictions.
146.Subsections (3) and (4) of section 77 make consequential amendments to sections 19 and 19A of the 1995 Act. These changes mean that the police will not be able to exercise their powers to take data and samples from a relevant person under those sections, if the police have already taken this material under section 19AA of the 1995 Act. However, the police will be able to exercise their powers under sections 19 or 19A of the 1995 Act, if any samples or data which have been taken under section 19AA, have been lost or destroyed.
147.Subsection (5) of section 77 amends section 19B of the 1995 Act to enable the police to use reasonable force in exercising the powers in section 19AA, but only when taking samples or data from a person who is subject to the notification requirements of the 2003 Act. The police cannot use reasonable force to take samples and data from a person who is subject to a RSHO.
148.Subsection (7) of section 77 amends section 87 of the 2003 Act by replacing subsections (4) and (5) with a new subsection (5A) which operates alongside the notification requirements provided for in sections 83(1), 84(1) or 85(1) of the 2003 Act. The police will be able to take samples or data from a relevant sex offender when he or she attends a police station to notify their details to the police. This will enable the police to obtain samples or data from these offenders without having to give them notice to return to a police station so this information can be obtained. Any samples and prints taken under section 87(5A) can be retained indefinitely.
149.Subsection (8) of section 77 inserts a definition of “relevant physical data” into section 88 of the 2003 Act. This definition has the same meaning as that in section 18(7A) of the 1995 Act.
150.Subsection (9) of section 77 amends section 91(1)(a) of the 2003 Act to make it an offence for a relevant sex offender to fail to provide or to allow to be taken from them any sample or data.