PART 2 continued CHAPTER 3 continued
(1) Section 96 of the 2003 Act (information about release or transfer) is amended in accordance with subsections (2) and (3).
(2) After subsection (2) there is inserted—
“(2A) The regulations may make provision requiring the person who is responsible for an offender, in giving notice under the regulations, to provide—
(a) any information about the offender, or
(b) a photograph of any part of the offender.
(2B) In subsection (2A), “photograph” is to be construed in accordance with section 88(2).”.
(3) After subsection (3) there is inserted—
“(4) The regulations may make different provision for different purposes.”
After section 96 of the 2003 Act there is inserted—
Police powers of entry to and examination of relevant offender’s home address
(1) A sheriff may, if satisfied on the application of a senior police officer of the relevant force as to the matters mentioned in subsection (2), grant a warrant authorising any constable of the relevant force to enter premises in the sheriffdom (if necessary using reasonable force) and to examine and search them, and the things in them, for the purpose mentioned in subsection (3).
(2) Those matters are—
(a) that the premises are either—
(i) premises whose address has been notified by a relevant offender as his home address in his most recent notification of a home address under this Part; or
(ii) premises whose address has been notified by a relevant offender as the address of any other premises at which he regularly resides or stays, in his most recent notification under section 83(1) or 85(1) or in any notification under section 84(1) given by him since that notification;
(b) that the offender is not one to whom subsection (4) applies;
(c) that it would assist the carrying out of the purpose mentioned in subsection (3), for a constable of the relevant force to examine and search the premises and the things in them; and
(d) that on more than one occasion, a constable of the relevant force has attempted to examine and search the premises and the things in them for the purpose mentioned in subsection (3) and has been unable (whether by not being able to search and examine the premises and the things in them, or by not being able to obtain entry to the premises) to do so.
(3) That purpose is assessing the risk of the offender committing a sexual offence.
(4) This subsection applies to the relevant offender if he is—
(a) remanded in or committed to custody by an order of a court;
(b) serving a sentence of imprisonment or a term of service detention;
(c) detained in a hospital; or
(d) outside the United Kingdom.
(5) A sheriff is to determine an application for a warrant under subsection (1) without hearing from the relevant offender or any other person who has an interest in the premises.
(6) A warrant under subsection (1) does not confer power to seize anything in the premises to which it relates.
(7) A warrant under subsection (1) must be executed at a reasonable hour.
(8) A warrant under subsection (1) continues in force until the expiry of the period of one month beginning with the date of the warrant’s grant.
(9) A warrant under subsection (1) authorises entry on one occasion only.
(10) This section does not prejudice any other power of entry, examination, search or seizure.
(11) In this section—
“the relevant force” means the police force maintained for the area in which the premises are situated;
“senior police officer” means a constable of the rank of superintendent or above; and
“sexual offence” means—
an offence within any of paragraphs 36 to 59C of Schedule 3; or
any other offence in circumstances in which it would be likely that a determination such as is mentioned in paragraph 60 of that Schedule would be made in relation to the offence.”.
(1) Section 13 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (“the 1995 Act”) (which gives police constables certain powers in relation to suspects and witnesses) is amended in accordance with subsections (2) to (5).
(2) In subsection (1), in each of paragraphs (a) and (b), for “his name and address” there is substituted “the information mentioned in subsection (1A) below”.
(3) After subsection (1), there is inserted—
“(1A) That information is—
(a) the person’s name;
(b) the person’s address;
(c) the person’s date of birth;
(d) the person’s place of birth (in such detail as the constable considers necessary or expedient for the purpose of establishing the person’s identity); and
(e) the person’s nationality.”.
(4) In subsection (2)(a), for “name and address” there is substituted “information mentioned in subsection (1A) above”.
(5) In subsection (6), in each of paragraphs (a)(i) and (b), for “his name and address” there is substituted “the information mentioned in subsection (1A) above”.
(6) Section 14 of the 1995 Act (detention and questioning at a police station) is amended as follows—
(a) in subsection (9), for “his name and address” there is substituted “the information mentioned in subsection (10) below”; and
(b) after that subsection, there is inserted—
“(10) That information is—
(a) the person’s name;
(b) the person’s address;
(c) the person’s date of birth;
(d) the person’s place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person’s identity); and
(e) the person’s nationality.”.
(1) Section 13 of the 1995 Act (which gives police constables certain powers in relation to suspects and witnesses) is amended as follows.
(2) After subsection (1A) (as inserted by section 81) there is inserted—
“(1B) The constable may, if the person mentioned in paragraph (a) of subsection (1) gives a name and address, require the person to provide—
(a) the person’s fingerprints; or
(b) a record, created by a device approved by the Scottish Ministers, of the skin on the person’s fingers.
(1C) Fingerprints or a record provided by a person under a requirement under subsection (1B) above may be used only for the following purposes—
(a) verifying the name and address given by the person;
(b) establishing whether the person may be a person who is suspected of having committed any other offence,
and all record of such fingerprints or record shall be destroyed as soon as possible after they have fulfilled those purposes.”.
(3) In subsection (2)—
(a) for “(either or both)” there is substituted “(any or all)”; and
(b) after paragraph (a) there is inserted—
“(aa) subject to subsection (3A) below, establishes whether the person may be a person who is suspected of having committed any other offence;”.
(4) After subsection (3), there is inserted—
“(3A) The constable shall exercise the power under paragraph (aa) of subsection (2) above only where—
(a) the person mentioned in paragraph (a) of subsection (1) above has given a name and address; and
(b) it appears to the constable that establishing the matter mentioned in paragraph (aa) of subsection (2) can be achieved quickly.”.
(5) In subsection (5)—
(a) after paragraph (b) there is inserted—
“(ba) subsection (1B) above, of the existence of the power to make the requirement and why he proposes to exercise it in the person’s case;”; and
(b) in paragraph (d), for “either” there is substituted “any”.
(6) In subsection (6)—
(a) the word “or” immediately after paragraph (a)(i) is repealed;
(b) after paragraph (a)(ii) there is inserted “; or
(iii) under subsection (1B) above to provide the person’s fingerprints or a record such as is mentioned in that subsection,”.
(7) After subsection (7) there is inserted—
“(8) The Scottish Ministers by order made by statutory instrument may approve a device for the purpose of creating records of the sort mentioned in subsection (1B)(b) above.”.
(1) In section 18(3) of the 1995 Act (prints, samples etc. in criminal investigations), after “below” where it first occurs there is inserted “and section 18A of this Act”.
(2) After section 18 of that Act there is inserted—
(1) This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below is satisfied.
(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.
(3) Subject to subsections (9) and (10) below, the sample or information shall be destroyed no later than the destruction date.
(4) The destruction date is—
(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or
(b) such later date as an order under subsection (5) below may specify.
(5) On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.
(6) An application under subsection (5) above may be made to any sheriff—
(a) in whose sheriffdom the person referred to in subsection (2) above resides;
(b) in whose sheriffdom that person is believed by the applicant to be; or
(c) to whose sheriffdom the person is believed by the applicant to be intending to come.
(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.
(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal’s decision on any such appeal is final.
(9) Subsection (3) above does not apply where—
(a) an application under subsection (5) above has been made but has not been determined;
(b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or
(c) such an appeal has been brought but has not been withdrawn or finally determined.
(10) Where—
(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought;
(b) such an appeal is brought and is withdrawn or finally determined against the appellant; or
(c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant,
the sample or information shall be destroyed as soon as possible thereafter.
(11) In this section—
“the relevant chief constable” means—
the chief constable of the police force of which the constable who took or directed the taking of the sample was a member;
the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or
a chief constable who believes that that person is or is intending to come to the area of the chief constable’s police force; and
“relevant sexual offence” and “relevant violent offence” have the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.”.
After section 20 of the 1995 Act there is inserted—
(1) Subject to subsection (2) below, where subsection (3) below applies an appropriate officer may—
(a) require a person who has been arrested and is in custody in a police station to provide him with a sample of urine; or
(b) take from the inside of the mouth of such a person, by means of swabbing, a sample of saliva or other material,
which the officer may subject to analysis intended to reveal whether there is any relevant Class A drug in the person’s body.
(2) The power conferred by subsection (1) above shall not be exercised where the person has previously been required to provide or had taken from him a sample under that subsection in the same period in custody.
(3) This subsection applies where—
(a) the person is of 16 years of age or more;
(b) the period in custody in the police station has not exceeded 6 hours;
(c) the police station is situated in an area prescribed by order made by statutory instrument by the Scottish Ministers; and
(d) either—
(i) the person’s arrest was on suspicion of committing or having committed a relevant offence; or
(ii) a senior police officer who has appropriate grounds has authorised the making of the requirement to provide or the taking of the sample.
(4) Before exercising the power conferred by subsection (1) above, an appropriate officer shall—
(a) warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence; and
(b) in a case within subsection (3)(d)(ii) above, inform the person of the giving of the authorisation and the grounds for the suspicion.
(5) Where—
(a) a person has been required to provide or has had taken a sample under subsection (1) above;
(b) any of the following is the case—
(i) the sample was not suitable for the means of analysis to be used to reveal whether there was any relevant Class A drug in the person’s body;
(ii) though suitable, the sample was insufficient (either in quantity or quality) to enable information to be obtained by that means of analysis; or
(iii) the sample was destroyed during analysis and the means of analysis failed to produce reliable information; and
(c) the person remains in custody in the police station (whether or not the period of custody has exceeded 6 hours),
an appropriate officer may require the person to provide or as the case may be take another sample of the same kind by the same method.
(6) Before exercising the power conferred by subsection (5) above, an appropriate officer shall warn the person in respect of whom it is to be exercised that failure, without reasonable excuse, to comply with the requirement or, as the case may be, allow the sample to be taken constitutes an offence.
(7) A person who fails without reasonable excuse—
(a) to comply with a requirement made of him under subsection (1)(a) or (5) above; or
(b) to allow a sample to be taken from him under subsection (1)(b) or (5) above,
shall be guilty of an offence.
(8) In this section—
“appropriate grounds” means reasonable grounds for suspecting that the misuse by the person of any relevant Class A drug caused or contributed to the offence on suspicion of which the person was arrested;
“appropriate officer” means—
a constable; or
a police custody and security officer acting on the direction of a constable;
“misuse” has the same meaning as in the Misuse of Drugs Act 1971 (c. 38);
“relevant Class A drug” means any of the following substances, preparations and products—
cocaine or its salts;
any preparation or other product containing cocaine or its salts;
diamorphine or its salts;
any preparation or other product containing diamorphine or its salts;
“relevant offence” means any of the following offences—
theft;
assault;
robbery;
fraud;
reset;
uttering a forged document;
embezzlement;
an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);
an offence under section 4 of the Misuse of Drugs Act 1971 (c. 38) (restriction on production and supply of controlled drugs) committed in respect of a relevant Class A drug;
an offence under section 5(2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;
an offence under section 5(3) of that Act of 1971 (possession of controlled drug with intent to supply) committed in respect of a relevant Class A drug;
“senior police officer” means a police officer of a rank no lower than inspector.
(1) Section 20A of this Act does not prejudice the generality of section 18 of this Act.
(2) Each person carrying out a function under section 20A of this Act must have regard to any guidance issued by the Scottish Ministers—
(a) about the carrying out of the function; or
(b) about matters connected to the carrying out of the function.
(3) An order under section 20A(3)(c) shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(4) An authorisation for the purposes of section 20A of this Act may be given orally or in writing but, if given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.
(5) If a sample is provided or taken under section 20A of this Act by virtue of an authorisation, the authorisation and the grounds for the suspicion are to be recorded in writing as soon as is reasonably practicable after the sample is provided or taken.
(6) A person guilty of an offence under section 20A of this Act shall be liable on summary conviction to the following penalties—
(a) a fine not exceeding level 4 on the standard scale;
(b) imprisonment for a period—
(i) where conviction is in the district court, not exceeding 60 days; or
(ii) where conviction is in the sheriff court, not exceeding 3 months; or
(c) both such fine and imprisonment.
(7) Subject to subsection (8) below, a sample provided or taken under section 20A of this Act shall be destroyed as soon as possible following its analysis for the purpose for which it was taken.
(8) Where an analysis of the sample reveals that a relevant Class A drug is present in the person’s body, the sample may be retained so that it can be used, and supplied to others, for the purpose of any proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10); but—
(a) the sample may not be used, or supplied, for any other purpose; and
(b) the sample shall be destroyed as soon as possible once it is no longer capable of being used for that purpose.
(9) Information derived from a sample provided by or taken from a person under section 20A of this Act may be used and disclosed only for the following purposes—
(a) for the purpose of proceedings against the person for an offence under section 88 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10);
(b) for the purpose of informing any decision about granting bail in any criminal proceedings to the person;
(c) for the purpose of informing any decision of a children’s hearing arranged to consider the person’s case;
(d) where the person is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about the person’s supervision or release;
(e) for the purpose of ensuring that appropriate advice and treatment is made available to the person.
(10) Subject to subsection (11) below, the Scottish Ministers may by order made by statutory instrument modify section 20A(8) of this Act for either of the following purposes—
(a) for the purpose of adding an offence to or removing an offence from those for the time being listed in the definition of “relevant offence”;
(b) for the purpose of adding a substance, preparation or product to or removing a substance, preparation or product from those for the time being listed in the definition of “relevant Class A drug”.
(11) An order under subsection (10)(b) may add a substance, preparation or product only if it is a Class A drug (that expression having the same meaning as in the Misuse of Drugs Act 1971 (c. 38)).
(12) An order under subsection (10) above shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by resolution of the Scottish Parliament.”.
(1) This section applies where—
(a) a sample is provided or taken under section 20A of the 1995 Act by or from a person in custody in a police station; and
(b) an analysis of the sample reveals that a relevant Class A drug is present in the person’s body.
(2) A constable must require the person to attend, and remain for the duration of, a drugs assessment.
(3) A drugs assessment is an appointment with a suitably qualified person (“a drugs assessor”)—
(a) for the purpose of establishing whether the person is dependent on, or has a propensity to misuse, any relevant Class A drug;
(b) if the drugs assessor thinks that the person has such a dependency or propensity, for the purpose of establishing whether the person might benefit from assistance or treatment (or both) in connection with the dependency or propensity; and
(c) if the drugs assessor thinks that the person might benefit from such assistance or treatment (or both), for the purpose of drawing up a document which sets out the nature of assistance or treatment (or both) which may be most appropriate for the person in connection with any dependency on, or propensity to misuse, a relevant Class A drug which the drugs assessor thinks the person has.
(1) This section applies where by virtue of section 85(2) a person is required by a constable to attend and remain for the duration of a drugs assessment.
(2) The constable must—
(a) inform the person of the place at which the drugs assessment is to take place; and
(b) require the person, for the purpose of being given details of the date and time of the assessment, to report at that place on such date, or on one of such dates, as the constable specifies (such date or dates falling within the period of 7 days beginning with the date on which the requirement is made), at such time, or between such times, as the constable specifies;
and the constable must explain that these matters will be confirmed in writing.
(3) The constable must warn the person that the person is liable to prosecution if the person fails without reasonable excuse—
(a) to attend and remain for the duration of the drugs assessment; or
(b) to comply with the requirement imposed under subsection (2)(b).
(4) The constable must give the person notice in writing which—
(a) confirms the requirement to attend and remain for the duration of a drugs assessment;
(b) confirms the information given in pursuance of subsection (2)(a);
(c) confirms the requirement imposed under subsection (2)(b); and
(d) repeats the warning given in pursuance of subsection (3).
(5) The duties imposed by subsections (2) to (4) must be carried out before the person is released from custody at the police station.
(6) As soon as reasonably practicable following the carrying out of those duties, the constable must inform the drugs assessor who is to carry out the drugs assessment—
(a) of the making of the requirement to attend and remain for the duration of the assessment; and
(b) of the requirement imposed under subsection (2)(b).
(1) Subsection (2) applies where, in accordance with a requirement imposed by virtue of section 86(2), a person reports at the place where the person’s drugs assessment is to take place.
(2) The drugs assessor who is to carry out the drugs assessment or a person acting on the drugs assessor’s behalf must give the person a notice in writing which—
(a) informs the person of the date and time of the drugs assessment;
(b) confirms the place of the drugs assessment; and
(c) warns the person that the person is liable to prosecution if the person fails without good cause to attend and remain for the duration of the drugs assessment.
(3) Where a person is given a notice in pursuance of subsection (2), the drugs assessor who is to carry out the drugs assessment or a person acting on the drugs assessor’s behalf may change the date, time or place of the assessment by serving on the person a further notice in writing which—
(a) informs the person of the change; and
(b) repeats the warning mentioned in subsection (2)(c).
(4) For the purpose of subsection (3), a notice is served on a person if—
(a) given to the person; or
(b) sent to the person by registered post or a recorded delivery service.
(5) A certificate of posting of a notice sent under subsection (4)(b) issued by the postal operator concerned is sufficient evidence of the sending of the notice on the day specified in the certificate.
(6) In subsection (5), “postal operator” has the meaning given by section 125(1) of the Postal Services Act 2000 (c. 26).