Commentary on Sections Arrested persons: drug testing and reference for assessment Section 84 – Testing of arrested persons for Class A drugs
183.Section 84 inserts new sections 20A and 20B into the Criminal Procedure (Scotland) Act 1995.
184.Section 20A provides that the police may test a person for a relevant Class A drug if he or she has been arrested under suspicion of committing a relevant offence. The relevant offences are listed in subsection (8). A person who has been arrested under suspicion of committing any other offence which is not a relevant offence can also be tested at the discretion of a senior police officer if he or she believes that misuse of a Class A drug caused or contributed to the offence. Subsection (8) provides that the Class A drugs that will be tested for are cocaine and diamorphine (heroin). Subsection (2) provides that the police cannot test a person for a relevant Class A drug if that person has already given a sample for testing after they have been brought to a police station. However, subsection (5) sets out that a further sample can be taken if the original is not suitable for analysis, was insufficient or was destroyed during the testing process.
185.Subsection (3) sets out the conditions which must be met before a person is tested for a relevant Class A drug. A sample must also be taken or provided within 6 hours of that person being brought to a police station. To allow for the policy to be rolled out to particular parts of Scotland and in stages, a sample can only be taken if the Scottish Ministers have made an order by statutory instrument which states that mandatory drugs tests can be carried out in the area in which the police station is located. Such an order will be subject to negative resolution procedure of the Parliament.
186.Subsection (7) makes it an offence for an arrestee to refuse to comply with a drugs test under these powers if required to do so. The maximum penalties for committing this offence are set out in subsection (6). A constable is required to warn a person of this fact under subsection (4). When a person has been arrested for an offence (other than a relevant offence), a constable must also inform that person that a senior police officer has authorised him or her to take a sample, or to require that person to provide a sample. A person must also be told of the reasons why a senior police officer suspects that a Class A drug has been taken.
187.Section 20B supplements section 20A of the 1995 Act. Subsections (4) and (5) set out procedures which must be followed if a senior police officer decides that a person should be tested for a class A drug. Subsection (7) imposes a requirement to destroy a sample which has been taken under section 20A. Subsection (8) provides an exception to this, allowing retention of a sample for the purposes of prosecution under section 88 of this 2006 Act (for failing to attend and stay for the duration of assessments) – in this case the sample needs to be retained to be produced in court, but must be destroyed as soon as possible once it is not longer needed for any proceedings. Subsection (9) also sets down what the information gathered through a mandatory drugs test can be used for. Subsection (10) provides that the Scottish Ministers can add to or vary the lists of trigger offences and of relevant Class A drugs. Such an order will be made by statutory instrument and will be subject to affirmative resolution procedure.