Police and Criminal Evidence Act 1984
Under s 61 of the Police and Criminal Evidence Act 1984 (PACE), a suspect’s fingerprints may be taken without consent if:
- they are detained for a recordable offence;
- they are charged with a recordable offence;
- they are informed that they will be reported for such an offence;
- a constable reasonably suspects them of committing or attempting to commit an offence, or they have committed or attempted to commit an offence, and: the name of the person is unknown to, and cannot be readily ascertained by, the constable; or the constable has reasonable grounds for doubting whether a name given by the person is their real name;
- they have answered to bail at a court or police station and the court, or an officer of at least the rank of inspector, authorises them to be taken. This is only permitted if the person who has answered to bail has:
- answered to it for a person whose fingerprints were taken on a previous occasion and there are reasonable grounds for believing that they are not the same person; or
- the person who has answered to bail claims to be a different person from a person whose fingerprints were taken on a previous occasion.
- they have been convicted of an offence in a country or territory outside England and Wales, and this would be an offence if carried out in England and Wales and they have not had their fingerprints taken on a previous occasion.
Generally, someone cannot have their fingerprints taken without consent if they have already had their fingerprints taken in the course of the investigation of the offence by the police. This is unless:
- the fingerprints taken on the previous occasion do not constitute a complete set of their fingerprints; or
- some or all of the fingerprints taken on the previous occasion are not of sufficient quality to allow satisfactory analysis, comparison or matching.
Where a person’s fingerprints are taken without the appropriate consent under s 61 of PACE, before the fingerprints are taken, the person shall be informed of:
- the reason for taking the fingerprints;
- the power by virtue of which they are taken; and
- in a case where the authorisation of the court or an officer is required for the exercise of the power, the fact that the authorisation has been given.
What is a recordable offence?
A recordable offence generally is one which could result in imprisonment (ie, an indictable or triable-either-way offence). There are, however, some more minor summary offences that are designated as recordable (eg, taking a pedal cycle without consent (s 12 of the Theft Act 1968) or falsely claiming a professional qualification (s 44 of the Nursing and Midwifery Order 2001)).
Other samples police can take without consent
If someone has been arrested or charged with a recordable offence or informed that they will be reported for a recordable offence, police are also allowed to take an impression of a person’s footwear without consent, a DNA sample (eg, from a mouth swab or head hair root), as well as swab the skin surface of their hands and arms.
Intimate samples include blood, urine, pubic hair, tissue fluid, and dental impression, swabs taken from the person’s genitals or from any bodily orifice except for the mouth. PACE dictates that the taking of an intimate sample must be authorised by a senior officer (at least the rank of inspector) and the suspect must consent.
The senior officer must be satisfied that there are reasonable grounds to believe that the suspect may have committed a recordable offence and it is essential to take the sample to confirm this. It is the inspector’s responsibility to inform the suspect that if they refuse to give consent this could lead to adverse inferences being made against them in court.
If police suspect someone in detention of having swallowed a Class A drug and this person had an intention to commit an offence under the Misuse of Drugs Act, a search by way of X-ray and ultrasound scan can be authorised. Consent must be given by the suspect and only qualified medical professionals can carry out those types of searches; they must do this with the use of suitable equipment at an appropriate place (ideally a hospital with resuscitation facilities). If the suspect refuses to give consent for such searches to be carried out, the court may draw adverse inferences against the suspect in relation to this matter.
Retention of samples
Fingerprints and DNA samples and profiles taken in the course of a criminal investigation are stored in a police database. How long they remain there depends on the seriousness of the offence and whether the suspect is convicted. The range is 2-3 years if someone is not convicted, (although the courts can grant an extension), but they can be kept indefinitely on conviction of an adult.