Chapter 2: Proposed 26 month retention period
13. In order for self-referral services to operate effectively, it must be clear to everyone – to health boards, to victims accessing a SARCS, their families and the organisations who support them – what will happen to any evidence retained by a health board. Evidence can include, for example, the biological samples, underwear and associated forensic information collected by health boards to support any future criminal investigation.
14. In the Scottish Government's view, there should be a nationally agreed retention period so that there is consistency in service, regardless of which health board provides the victim with support.
15. The Scottish Government is of the view that the principal policy consideration should be that the retention period is proportionate. Broadly that means that it is should not be too short – given that victims need a reasonable amount of time to decide if they want to make a police report – and that it should not be too long – it should not require health boards to continue holding evidence beyond the point at which available evidence shows that victims accessing a self-referral service, are unlikely to wish to make a police report.
16. The Scottish Government's policy is, subject to the finalisation of the self-referral protocol, that evidence should be limited to biological samples, any underwear and exceptionally – any relevant outerwear. This would mean that health boards do not have to store items that are bulky or otherwise difficult to store securely. The amount of evidence actually held by a health board at any time will be kept manageable by: the operation of the retention period; the removal of stored evidence as a result of conversion to police report; or the victim exercising their rights under the FMS Act to request the return or destruction of evidence as provided for under the FMS Act.
17. Against this background, section 8(1)(b) of the FMS Act empowers Ministers to prescribe a retention period by regulations. The retention period does not appear on the face of the FMS Act because the Scottish Government considers it better for there to be flexibility in relation to this issue. This future proofs the FMS Act to allow the initially prescribed retention period to change in the years ahead, with appropriate transitional provisions made, should that become appropriate.
CMO Taskforce recommendation
18. A Self-Referral Subgroup of the CMO Taskforce is developing the necessary resources to implement the provisions of the FMS Act as they relate to self-referral.
19. This includes developing a national protocol to provide clarity to health boards about what types of evidence should be taken and how to maintain the chain of evidence in a way that meets the requirements of the Scottish criminal justice system. Key stakeholders represented on the group include health boards, the Scottish Police Authority, Police Scotland, Rape Crisis Scotland and the Crown Office Procurator Fiscal Service.
20. Based on the evidence gathered by this sub group, the CMO Taskforce recommended to Ministers a retention period of 26 months, that is to say two years, two months. The rationale for that is set out below and Ministers are persuaded that 26 months appears to be an appropriate, and proportionate, period to form the basis of this consultation.
Proposed 26 month retention period
21. Evidence gathered from across the UK and internationally shows that there does not appear to be a consistent retention period adopted by countries who offer a self-referral service. Retention periods that have been applied range from one to seven years.
22. The Scottish Government considers that a national and proportionate retention period for Scotland serves the overarching policy aim of consistent, person centred, trauma informed health care and forensic medical services and access to recovery, for anyone who has experienced rape or sexual assault in Scotland. Moreover, Ministers consider that clarity and consistency is essential to ensuring that victims accessing these services, have control over what happens to them at a time at which it has been taken away. A range of accessible web and other information materials are being developed under the remit of the CMO Taskforce to ensure that victims can understand what the retention period means for them.
23. An important source of professional guidance to healthcare professionals providing forensic medical services is provided by the Faculty of Forensic and Legal Medicine ("FFLM"). The role and value of professional judgement, informed by FFLM and other relevant guidance, is enshrined in section 3 of the FMS Act. FFLM guidance published in January 2021, recommends a retention period of up to two years. This recommendation is informed by human tissue legislation and is applicable in England, Wales and Northern Ireland. In Scotland, it is the retention period regulations that will be determinative.
24. Whilst there is no human tissue or other previous legislation applicable to forensic medical services in Scotland, the FFLM guidance highlights that over time, in the absence of a decision by an individual to make a report to the police, the rationale for holding the evidence for criminal justice purposes becomes weaker. It also notes that the greater the time that elapses between the incident and the eventual report to the police, the less likely the police are to be able to successfully investigate and find evidence to prove or disprove the allegations. It is important to remember that whilst access to self-referral aims to minimise the loss of potential biological evidence, it does not avoid the weakening or loss of other forms of potential evidence such as CCTV images, text messages or crime scene evidence which the police might gather as part of any investigation.
25. Information gathered from services elsewhere in the UK also shows that where individuals go on to refer to police, they usually do so within a timeframe of three to six months and that the percentage of cases that converted to police referral was estimated between 15% and 40%.
26. During the course of the 2019 consultation on the Bill for the FMS Act, survivors told the Scottish Government that they would caution against retention periods falling on the anniversaries of the incident as this could be triggering. The proposed retention period of two years and two months, therefore seeks to avoid this, whilst offering broad parity with the FFLM guidance and existing practice elsewhere in the UK.
27. During the parliamentary process for the Bill for the FMS Act, the Scottish Parliament's Health and Sport Committee heard from survivors, who told them that they would prefer a retention period "as long as possible". However, if this was not possible then they stated that the retention period should be clearly and compassionately communicated and the rationale behind this period was to be made clear. As noted above, a range of accessible web and other information materials is being developed under the remit of the CMO Taskforce, which will clearly articulate, in a compassionate and trauma informed way, what the retention period is and how a victim can make a police report for example.
28. A matter that the Scottish Government considers should not have a bearing on the determination of the retention period is the length of time it can take between an incident taking place and the victim making a disclosure to healthcare, police or other public authorities. Since forensic medical examination normally takes place within a 7 day DNA capture window, the retention period is not relevant to a report of a historical incident. It is recognised that in these circumstances, it may take many years before someone feels able to disclose what has happened to them. Self-referral may indeed encourage victims to come forward sooner to seek healthcare support without this being dependent on making a police report. However, this does not imply that the retention period should be many years long, because in these cases, the victim is unlikely to have accessed forensic medical examination to have evidence collected. Under the FMS Act, self-referral will only be available to victims aged 16 or over.
29. In summary, in consulting on the proposal for an appropriate retention period, the Scottish Government has sought to strike a balance between ensuring that evidence is available within a reasonable timescale should the victim choose to report to the police (noting that evidence from across the UK indicates that the average conversion time is well within this period) and the practical considerations on health boards from retaining evidence for lengthy periods of time.
30. On that basis, it is considered that a 26 month retention period for evidence collected in the course of self-referral forensic medical services is proportionate and has regard to the views of survivors, as well as existing practice across the UK.
31. The FMS Act allows for the retention period to be amended in future should evidence demonstrate that this is desirable or necessary. As such, the Scottish Government will keep the retention period under close review.
Do you agree with the proposal that the retention period for evidence collected in the course of self-referral forensic medical services be 26 months (2 years, 2 months)?
If you indicated in your response to question 1 that the retention period should be shorter than 26 months, what should it be?
If you indicated in your response to question 1 that the retention period should be longer than 26 months, what should it be?