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Appendix B: Legislation
The Police, Public Order and Criminal Justice (Scotland) Act 2006 1 allows for people aged 16 and over who are arrested for certain trigger offences (acquisitive crime and drug offences) and held in police custody to be tested for heroin and cocaine.
Section 20A of the 1995 Act, as inserted by section 84 of the 2006 Act, provides that a police constable or a police custody and security officer (under the direction of a constable) ("an appropriate officer") may require a person to provide a sample of urine or allow a sample of saliva to be taken by means of swabbing for the purpose of analysing the sample to reveal whether a relevant Class A drug is present in the person's body.
Under section 20A of the 1995 Act, only a constable, or police custody and security officer (as defined by section 9 of the Police (Scotland) Act 1967), acting on the direction of a constable may take a sample of saliva from a person arrested for an offence in the circumstances set out in section 20A(3)(d) of the 1995 Act. A sample can be taken provided that the period that a person spends in custody in the police station has not exceeded 6 hours and the person is at least 16 years old and that the police station is in a prescribed area.
Section 20A(3) of the 1995 Act also provides that a sample can be taken for testing if a person is arrested under suspicion of committing a "relevant offence" or any other offence and a police officer who holds the rank of Inspector or above (a senior police officer) has authorised the taking of the sample. A senior police officer can authorise for a sample to be taken if he or she has reasonable grounds for suspecting that the misuse of a relevant Class A drug has caused or contributed to the commission of the offence for which a person was arrested under suspicion of committing.
Section 85 of the 2006 Act introduces a duty on the police to require a person who has tested positive for a relevant Class A drug to attend, and remain for the duration of a drugs assessment with a suitably qualified drugs assessor. Section 86 of that Act also introduces a duty on the police to inform the person where their drugs assessment will take place and to require that person to report to the place where their drugs assessment will take place on a date, or on one of such dates as stipulated by the police constable, within a period of 7 days of the requirement being made, to be given details of the date and time of the drugs assessment.
It is an offence under section 88(2)(a) of the 2006 Act for a person not to report to the place at which their drugs assessment will take place to obtain details of their appointment with a drugs assessor. A suitably qualified drugs assessor will be a person who has qualifications or experience as set out in the Drugs Assessor (Qualifications and Experience) (Scotland) Regulations 2007 ( SSI/2007/8).
If a person fulfils the requirements of their initial appointment (ie the requirements imposed under section 86(2)(b) of the 2006 Act), but fails to attend their drugs assessment, or does not remain for the duration of a drugs assessment, without reasonable excuse, he or she will be liable to prosecution under section 88(2)(b) or (c) of the 2006 Act.
It is for the Procurator Fiscal to decide, based on the facts and circumstances described by the police report, whether a person is considered to have a reasonable excuse in relation to these offences. The Crown Office and Procurator Fiscal Service provide advice/guidance to the police in this regard.
Trigger Offences
In terms of Section 20A (8) of the Criminal Procedure (Scotland) Act 1995, 'relevant offence' means any of the following offences:
(a) theft;
(b) assault;
(c) robbery;
(d) fraud;
(e) reset;
(f) uttering a forged document;
(g) embezzlement;
(h) an attempt, conspiracy or incitement to commit an offence mentioned in paragraphs (a) to (g);
(i) 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;
(j) an offence under section 5 (2) of that Act of 1971 (possession of controlled drug) committed in respect of a relevant Class A drug;
(k) 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.
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