10.1 In the course of our work, one other matter was brought to our attention by Police Scotland. It relates to the situation where samples lawfully obtained post-conviction are of insufficient quality for use, or where samples have not been taken through oversight. The relevant power is contained in section 19 of the Criminal Procedure (Scotland) Act, 1995:
- Section 19(1)(a) – if a sample wasn't taken at time of charge
- Section 19(1)(b) – if a sample wasn't suitable for analysis (i.e. it failed to profile)
10.2 In such circumstances, another sample can be taken within the permitted period. See Section 19(4) for the permitted periods:
‘(4) In subsection (2) above, “the permitted period” means—
(a) in a case to which paragraph (a) of subsection (1) above applies, the period of one month beginning with the date of the conviction;
(b) in a case to which paragraph (b) of that subsection applies, the period of one month beginning with the date on which a constable of the Police Service of Scotland receives written intimation that the relevant physical data were, or the sample, was unsuitable or, as the case may be, insufficient, as mentioned in that paragraph.’
10.3 It will be seen that the current time limit for obtaining such samples, namely one month, is tight, especially as there are various administrative matters to be addressed. We understand that it is not uncommon for the period of one month to have elapsed before the request to obtain a sample finds its way to the relevant officer. In the circumstances, we suggest that the ‘permitted period’ be amended to three months.