The Act: Section by Section Section 17: Meaning of references to “evidence”
59.The Act contains a number of references to evidence (see sections 2(3), 4(2), (3) and (4), 6(1) and (2), 7(1), 8 and 9). Section 17(1) provides an non-exhaustive list of things that might constitute evidence (for example, samples collected or images created during or in connection a forensic medical examination). But section 17(2) then provides that things collected or created during or in connection with a forensic medical examination are not evidence if they were collected or created for a purpose other than use in connection with any investigation of the incident which gave rise to the need for the examination or any proceedings in relation to that incident – for example, for use in connection with addressing the health care needs of the victim. This means, for example, that notes taken entirely for health care purposes would not fall to be transferred to police in compliance with a request under section 9(2) for the transfer of evidence. Such health care records would also not fall within the destruction provisions of the Act, and therefore any request for them to be destroyed would be dealt with under general NHS Scotland information governance arrangements.
60.In light of section 2(3) stating that a forensic medical examination is a physical medical examination, paragraph (c) of section 17(1) in particular clarifies that notes or other records can be evidence even where they relate to matters other than the victim’s physical condition. So, for example, notes about a victim’s psychological state during the carrying out of a forensic medical examination can be evidence – but only if, as provided in section 17(2), the notes are created for the purpose of use in any investigation or proceedings relating to the incident which led to the examination. Similar notes created solely for use in addressing the victim’s mental health care needs would not be evidence.
61.In practice, certain things (for example, urine samples) may be collected before the physical medical examination which constitutes the forensic medical examination proper starts – such non-intimate samples are sometimes known as “early evidence”. In some cases, the physical medical examination might then not proceed (for example, because of a lack of consent or because a professional judgment is made that the examination should not be carried out). Section 17(3) provides for things collected or created (for example, urine samples or preliminary notes) in anticipation of a forensic medical examination being carried out to be regarded as having been collected or created during or in connection with such an examination, regardless of whether the examination actually takes place. This ensures that things collected or created at this preliminary stage are still caught by the references in section 17(1) and (2) to things being collected or created “during or in connection with” a forensic medical examination (and therefore that such things will or will not be evidence, according to the purpose for which they were collected or created).
62.Section 17(4) provides that references to images, notes and other records include reference to those things in all forms that they exist, including digital form. Images and notes created during or in connection with a forensic medical examination (for use in connection with any investigation of the incident which gave rise to the need for the examination or any proceedings in relation to that incident) and stored by the health board in digital form – whether standard photographs or special magnified images taken with a colposcope device – are therefore caught by references in the Act to evidence. So, for example, the duty to destroy evidence under section 8 extends to the destruction of such images and notes.