Background

In October 2019, Section 5A of the Road Traffic Act 1988 came into force in Scotland. This legislation set out a specific offence of driving with a specified controlled drug above a prescribed limit. In addition, Section 4 of the Road Traffic Act sets out an offence of driving while impaired or unfit to drive. Section 4 offences are significantly more difficult to prove in court for a range of reasons including the subjectivity of the roadside field impairment test.  Police Scotland carry out roadside testing which can indicate the presence of certain drugs, if this is positive, blood samples are taken and then passed to Forensic Services for evidential analysis.

Forensic Services carry out toxicology analysis on samples recovered by Police Scotland in relation to both Section 5A and Section 4 offences.  In Section 5A cases the 17 specified drugs set out in the Act are tested, and a report is provided stating the level of identified drugs and whether this exceeds the limit. In Section 4 cases the toxicology analysis is more complex, and tests are undertaken for an increased range of drugs. The results of the analysis in Section 4 cases are considered alongside other evidence (such as impairment tests) to determine if the case should proceed to prosecution.

Within legislation a statutory time limit is set out that requires any proceedings taken by COPFS to be started within six months of the incident date.  During COVID additional legislation allowed for the increase of the statutory time limit to 12 months. 

In 2022 it became clear that 447 drug driving cases had been unable to proceed to prosecution due to delays in the analysis of toxicology samples in the laboratory, which resulted in insufficient time to initiate any proceedings. The root cause of this related to insufficient capacity being available within the laboratory to meet the level of demand, caused by an underestimation of the prevalence of drug driving on the roads in Scotland. In April 2023 HMICS reported on their ‘Assurance Review of Scottish Police Authority Forensic Toxicology Provision’ and set out 25 wide-ranging recommendations in relation to drug driving toxicology analysis.  Progress in discharging these recommendations is subject to a separate report to the Forensic Services Committee.

Following the issue with the cases unable to proceed to prosecution, further funding was secured from Scottish Government to outsource some drug driving toxicology analysis. This allowed Forensic Services to set out a detailed toxicology improvement plan to enhance the internal laboratory capacity through recruitment and training of staff, process efficiency and method development. The plan and subsequent progress against delivery has been reported to the Forensic Services Committee since October 2022.

The statutory time limit extension has been reviewed annually since the pandemic by the Scottish Parliament to consider the appropriateness of continued extension; this was last undertaken in November 2023 where a further 12-month extension to the statutory time limit was agreed.

Forensic Services are working on an assumption that this extension will not be approved further in relation to Section 5A and Section 4 cases and as such any incidents recorded from 1^st June 2024 will have a 6-month statutory time limit applied.

A Memorandum of Understanding (MOU) ‘Provision of Drug Driving services in Scotland’ has been agreed by Forensic Services, Police Scotland and COPFS. This document sets out the standards required in relation to drug driving cases across the justice system to achieve:

• Appropriate and timely investigation of crime
• Management of instruction, necessity for and prioritisation of forensic submissions
• Efficient use of forensic science resources and improved and properly managed prioritisation of workload
• A transparent management of the forensic science process across the justice system

Forensic Services are accredited to the international standard ISO17025 for all analysis undertaken on Section 5A and Section 4 drug driving casework. This provides assurance that the toxicology results reported by Forensic Services in these drug driving cases meet required internationally recognised quality standards.