Faculty raises issues with forensic self-referral bill

Issues need to be addressed in a planned new system to allow complainers in sexual offence cases to refer themselves for forensic examination, the Faculty of Advocates said today.

In a submission on the Scottish Government's Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, Faculty says it gives rise to "significant concerns" about the management and delivery of vital services within the criminal justice system. 

The bill transfers responsibility for examination and retention services relating to complainers from Police Scotland to health boards, and introduces self-referral by those who have not reported a crime to the police.

Currently, a police constable is generally present during an examination of a complainer, and oversees the collection of samples and their safe transit to a laboratory.

Faculty "sees no difficulty in placing the examination of persons by health boards on a statutory footing per se; however it is the transfer of those functions from Police Scotland to the health boards, and how they will be delivered to an acceptable standard within the criminal justice system, that needs to be addressed". 

It points out that the bill makes no provision for the proper conduct of examination services and retention services by health boards. It believes there is therefore "a gap in the legislation as it relates to the quality and practical delivery of those services by the health boards".

While Faculty recognises that the option of self-referral being more widely available would be welcomed by persons wishing to be forensically examined, it observes: "Where a person self-refers, however, no constable will be present for the examination. The practical implications for the integrity and security of samples collected during the examination are obvious.

"At present, the attendance of a constable or constables, together with the presence of the forensic medical examiner [FME], ensures that the evidential chain can be corroborated back to the point of being obtained… in a self-referral situation, it remains necessary to corroborate the collection of any samples. This means that another person, aside from the FME, is required… that person must be qualified or trained in the proper handling and transmission of evidential samples and other material, at least to the standards which operate within Police Scotland."

The bill does not define FMEs, but in the Faculty's view "It is vital that FMEs remain qualified medical doctors with a required degree of specialism in the field. This is both in the interests of the persons being examined, and in the interests of justice, since FMEs will be expected to attend court and speak to their findings arising from a forensic medical examination."

Click here to view the full submission. The Scottish Parliament’s Health & Sport Committee is considering the bill at stage 1.