Section 2: The examination service
12.The examination service that each health board must provide consists of providing forensic medical examinations in relation to two types of incident. The first is where certain types of sexual offences are alleged to have been committed. The relevant type of offence is defined in broad terms in subsection (11), but includes rape and sexual assault as defined in the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”). A forensic medical examination is not necessary in relation to “non-contact” sexual offending, as an examination would not result in any additional evidence being obtained in such cases. The Act therefore does not cover such cases.
13.The Act does not refer to attempts to commit offences of the kind described in subsection (11). This is unnecessary as an attempt to commit an offence is itself an offence under section 294 of the Criminal Procedure (Scotland) Act 1995 – so an attempted sexual offence, the nature of which is such that a forensic medical examination may result in evidence being collected, will still fall within the description set out in subsection (11).
14.The second type of incident involves alleged harmful sexual behaviour by children under the age of criminal responsibility.(4) Victims of such behaviour may also require a forensic medical examination. Again, “non-contact” behaviour would not necessitate the carrying out of a forensic medical examination and is not included in the definition of harmful sexual behaviour set out in subsection (11).(5) The reference to behaviour which risks causing harm covers attempted harmful sexual behaviour.
15.It may not be known at the time a forensic medical examination takes place whether the incident involves an alleged offence or an alleged case of harmful sexual behaviour by a child under the age of criminal responsibility. This does not matter for the purposes of section 2(2) – an incident giving rise to a need for a forensic medical examination will always involve an allegation that an incident falling, one way or the other, within section 2(2)(a) has taken place and so the duty on the health board to provide a forensic medical examination still applies.(6)
16.It does not matter, for the purposes of the provision of a forensic medical examination, whether the incident giving rise to the need for the examination took place in Scotland or elsewhere.(7) So, for example, a person aged 16 or over who lives in Scotland and who is sexually assaulted while abroad or elsewhere in the UK can request an examination on a self-referral basis on their return home.
17.Subsection (2) sets out the two ways in which the examination service is accessed by victims. The first possibility is that a victim is referred to a health board for an examination by a constable (following the incident being reported to police) – see subsection (2)(a).(8) The second possibility is that a victim “self-refers”, that is, requests the health board to carry out a forensic medical examination without the incident having been reported to police (see subsection (2)(b)). A victim might access self-referral by phoning and arranging an appointment at the appropriate health board facility.
18.Health board staff do not, under subsection (2)(b), have to make a judgement about whether an offence has been committed (or harmful sexual behaviour has occurred) in order for an examination to be carried out on a self-referral basis – the effect of the Act is that it is sufficient that the victim alleges that they have been the victim of such an offence (or behaviour).
19.Self-referral is not available to children aged under 16 (but see also paragraph 24 below). So even if a child aged under 16 requests a forensic medical examination on a self-referral basis, the health board will not be able to carry out such an examination until a constable requests an examination under subsection (2)(a). This does not prevent the young person accessing healthcare support ahead of police involvement.
20.Subsection (3) describes the “criminal justice” purpose for which forensic medical examinations are carried out, while referencing the fact that the examination also serves other purposes (in practice, addressing the health care needs of victims). “Investigation” and “proceedings” are both defined in section 18(1), while section 17 expands, in a number of respects, on the meaning of references to “evidence” – see paragraphs 59 to 62 below.
21.Subsection (3) also states that forensic medical examinations are physical medical examinations. So, for example, an entirely non-physical assessment of whether a person was incapable of consenting to sexual conduct as mentioned in section 17(2) of the 2009 Act is not a forensic medical examination for the purposes of the Act.(9)
22.However, in some cases where a person is referred for or requests a forensic medical examination following an incident of a type described in subsection (2), a full physical examination will not be carried out. Examinations may only proceed to the extent that the victim consents under general law and practice – so one reason why a full physical examination might not be carried out is that the victim consents only to a limited examination. As discussed below in relation to section 3, it is also possible for a professional judgement to be made that a full physical examination ought not to be carried out. Sections 17(3) and 18(2) ensure that, in a case where the physical examination does not in the end proceed for some reason, the provisions of the Act still apply in relation to whatever evidence is collected (including by providing that references to the need for an examination, such as that in section 2(3)(a), include reference to the need for the original referral or request for examination). So, for example, if a victim is referred by police for a forensic medical examination but does not consent to a full physical examination, notes taken by health board staff in anticipation of such an examination taking place are “evidence” (as long as they were not taken purely for health care reasons). This means that they must be transferred to a constable under section 9(3) following a request being made under section 9(2).
23.The fact that forensic medical examinations are physical medical examinations does not limit the health boards’ duty under section 5 of identifying and addressing any health care needs of persons undergoing a forensic medical examination – as explained below, that duty extends to mental health care needs as well as physical health care needs.
24.Subsection (4) confers power on the Scottish Ministers, by regulations subject to the affirmative procedure, to change the age at which self-referral becomes available (as set out in subsection (2)(b)) to any age from 13 to 18. This power may be exercised more than once (so, for example, the age could in principle be changed from 16 to 15, and then further changed to 14 or 13, or from 16 to 17 and then further changed to 18).(10)
25.Subsection (8) requires the Scottish Ministers to make a statement to the Scottish Parliament annually on the reasons for the self-referral age set out in subsection (2)(b) being changed (or not changed) using the power conferred by subsection (4). A statement under subsection (8) must also provide details of the support which is provided to persons aged under 16 who are referred for a forensic medical examination by a constable under subsection (2)(a), as well as details of any consideration given to the question of what support would be provided to such persons if the self-referral age was changed to allow that age group to self-refer under subsection (2)(b).
The age of criminal responsibility in Scotland is 12 (following commencement of section 1 of the Age of Criminal Responsibility (Scotland) Act 2019 on 17 December 2021). A child below the age of criminal responsibility cannot commit an offence, but harmful behaviour can still be dealt with through the children’s hearings system and forensic evidence may be relevant to establishing that such behaviour has occurred in some cases (as well as for the purposes of investigating the incident more generally).
Which means that the definition of “harmful sexual behaviour” used in the Act differs from descriptions of behaviour used for different purposes in the Age of Criminal Responsibility (Scotland) Act 2019.
It follows, with regard to the description of the purposes for which a forensic medical examination is carried out in section 2(3), that it need not be known at the time the forensic medical examination takes place which of the types of investigation or proceedings described in the definitions of these terms in section 18(1) might subsequently take place.
It also does not matter, where the incident giving rise to the need for an examination took place outside Scotland and the behaviour in question was carried out by a person below the age of criminal responsibility in that place, whether that age of criminal responsibility is higher, lower or the same as in Scotland: behaviour outside Scotland will be regarded as either a sexual offence or harmful sexual behaviour by a child under the age of criminal responsibility according to age of criminal responsibility in Scotland. For example, a person who is sexually assaulted by a person aged 14 in a country where the age of criminal responsibility is 15 will be able to access a forensic medical examination under the Act on the basis that the behaviour to which they were subject would be a sexual offence in Scotland.
Section 2 (and other sections) refer a person being referred (or other things being done) by “a constable”. Section 18(1) defines that term to mean Police Scotland constables. In order to ensure that the same arrangements apply in relation to all of the police forces operating in Scotland which might be involved in investigation of incidents of the type described in section 2(2), the Scottish Government has worked with the UK Government to develop the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 (Consequential Modifications) Order 2022 (S.I. 2022/261). (At the time of publication of these Notes, this Order has been made and laid before Parliament, but may be objected to until 29 April 2022.) When in force, the order will have the effect of:
• extending the duty on health boards to carry out forensic medical examinations to cases where the victim is referred to the health board by the British Transport Police, the Ministry of Defence Police or one of the service police forces (that is, the Royal Military Police, the Royal Navy Police and the Royal Air Force Police),
• extending the power to request the transfer of evidence under section 9(2) to members of the service police forces (British Transport Police constables and members of the Ministry of Defence Police are considered to already have this power by virtue of, respectively, the Railways and Transport Safety Act 2003 and the Ministry of Defence Police Act 1987), and
• ensuring that health boards are required to comply with requests for the transfer of evidence made under section 9(2) by the British Transport Police, the Ministry of Defence Police or one of the service police forces.
This does not mean that no evidence relevant to the issue of consent can be collected during a forensic medical examination (for example, a urine or blood sample collected during such an examination may indicate that a person was incapable of consenting to sexual conduct because of the effect of alcohol or any other substance, as mentioned in section 13(2)(a) of the 2009 Act).
The power includes power to make transitional, transitory or saving provision – for example, if the age of self-referral was increased at any time, this would allow regulations to provide that persons under the new age who had previously undergone an examination on a self-referral basis continued to be able to request the destruction of evidence collected during the examination under section 8.
