Part 4: Police Investigatory and Other Powers Chapter 4: Taking of prints and samples from certain children Changes made by the Act: what this Chapter of the Act does
186.The Act will put in place new arrangements for the taking of prints and samples from children under 12 and from children of 12 and over in relation to conduct which occurred when they were under 12.
187.Generally, no prints or samples may be taken from a child under 12 except where authorised by an order of the sheriff under section 63, where authorised by virtue of the power to take prints and samples in urgent cases in section 69, or where authorised by any other statutory provision (see section 58). The limitation applies regardless of the child’s behaviour, or their consent to the taking of the print or sample. It also applies for all purposes, so does not depend on the purpose for which the constable seeks to take prints and samples.(98)
188.But it does not apply where the child appears to be the victim of an offence and the taking of prints and samples is necessary to properly investigate the offence. Nor does it apply where the child is harmed by the behaviour of another child below the age of criminal responsibility. See section 58(2). Subsection (3) of section 58 ensures that prints and samples taken for either of these purposes cannot be used to investigate an incident which occurred when the child was aged under 12 and in relation to which the child is themselves suspected of harmful behaviour (as defined in subsection (4)(b)). If the child is aged over 12 by the time a constable wishes to use the prints or samples for this new purpose, the child can consent to that use (subsection (5)(a)). In addition, it is always open to a constable to seek to take new samples from the child by applying for an order under section 63 (or, in urgent cases, under section 69).
189.A similar limitation on the taking of prints and samples from certain children of 12 or over is provided for by section 59. Unlike section 58, the limitation applies only where the purpose of taking prints and samples from the child is to investigate an incident in which the child behaved in a violent, dangerous or harmful way when the child was under 12.(99) Again, prints and samples cannot be taken except where authorised by an order under section 63, where authorised by virtue of the power to take prints and samples in urgent cases in section 69, or where the older child consents.
190.The behaviour to which this section applies is set out in subsection (2) and is behaviour which occurred when the child was under 12 and is behaviour—
	which was violent or dangerous and which caused or could have caused serious physical harm to another person, or
	which was sexually violent or sexually coercive and harmed or could have harmed another person.
191.This is also part of the test that the sheriff must consider when deciding to make an order under section 63 authorising the taking of prints and samples from a child under 12 or an older child in relation to behaviour that occurred when the child was under 12.
192.The prints and samples with which Chapter 4 of Part 4 of the Act is concerned are defined in section 60 and are “relevant physical data”, “relevant samples” and “intimate samples” (which are a subset of “relevant physical data” and “relevant samples”). The classes of data and samples are essentially the same as the “relevant physical data” and “relevant samples” to which section 18 of the 1995 Act applies.(100) As sections 58 and 59 generally exclude the taking of prints and samples, however, “relevant physical data” and “relevant sample” are defined more widely than in the 1995 Act to include certain “intimate samples”, such as dental impressions, pubic hair, and material obtained from swabbing bodily orifices other than the mouth.(101)
193.Section 60(6) provides the Scottish Ministers with a regulation-making power so that the definitions of “relevant physical data”, “relevant sample” and “intimate sample” can be kept up to date to reflect scientific and other developments. Regulations under this subsection are subject to the affirmative procedure.(102)
194.The Act provides for two routes for the police to obtain authorisation to take prints and samples from a child under 12 or from an older child in relation to behaviour when the child was under 12.
195.Both are available only where the police have reasonable grounds to suspect that the child, by behaving in a violent or dangerous way, has caused or risked causing serious physical harm(103) to another person; or, by behaving in a sexually violent or coercive way, caused or risked causing harm(104) to another person.
196.The first route is to seek and obtain an order from the sheriff under section 63 authorising the taking of prints and samples from the child. The other is where a senior police officer who is independent of the investigation(105) into the child’s behaviour authorises a constable under section 69 to take prints and samples. Even where prints and samples are taken under section 69, however, they cannot be used, and must be destroyed, unless the police apply for and obtain an order under section 63.(106)