Rules and regulations. This briefing attempts to untangle the rules about when fingerprints and DNA samples etc can be taken. It tries to be both clear and comprehensive, but is probably not quite either.
This is about as much as most of us can carry in our heads. Precise regulations and additions to these basic rules follow.[note]
•When you are first arrested,[note] you can normally be fingerprinted or DNAed (non-intimate sample) only after you have been charged, or told that you have been reported for the offence.
•You cannot have an intimate DNA sample taken without your consent.
•You can also be fingerprinted or DNAed after you are convicted (by a court), and can be required to go to a police station for this.
•If you resist having fingerprints or samples taken, “reasonable force” can be used.
•You can now be photographed without your consent, and force can be used (including to remove any item or substance worn on or over your head).[note]
•You can always have fingerprints or samples taken if you consent.[note]
The basic rule states that fingerprints can only be taken without your consent after you have been charged, or informed that you are being ‘reported’. Two qualifications, one positive and one negative:
+Fingerprints cannot be taken unless it’s a recordable offence. In practice, about the only offences you might be charged with that aren’t recordable are ‘Obstruction of the Highway’ and ‘Breach of the Peace’.[note]
-You can also have your fingerprints taken without your consent, before being charged, on the authorisation of a Inspector.[note]
The authorisation for fingerprinting before charge can only be given if the Inspector “has reasonable grounds . . . for believing that [your] fingerprints will tend to confirm or disprove [your] involvement [in a criminal offence]” (PACE, s.61(4)). A copy of this authorisation should go on your custody record (which you can ask for a copy of after you are released).
In addition, you can be required to go to a police station after you have been charged (or reported) and released, or (if convicted) after you have been convicted by a court, or after you have accepted a Caution or (if under 18) a Reprimand or Warning, in order to have your fingerprints taken. This only applies if it’s for a recordable offence, and if you have not had fingerprints taken before or they proved unsuitable or insufficient. You must be summoned within one month of release or conviction (or one month after the police find out that the prints are unsuitable or insufficient), and must be given at least 7 days notice. You can be arrested without a warrant if you do not turn up. (PACE, s.63A(4)–(7))
‘Non-intimate’ DNA samples mean samples of hair (not pubic hair),[note] swabs taken from the mouth (but no other body orifice) or under the nail, a sample of nail, saliva or footprint etc.
The basic rule for non-intimate DNA samples is as for fingerprints: only after charge or being informed that you’ll be reported (unless you consent). The qualifications to the basic rule are as follows:
+Samples cannot be taken unless it’s for a recordable offence (see above, under fingerprints).
-You can have a non-intimate sample taken without your consent, before being charged, on the authorisation of a Inspector.[note]
The authorisation for taking a sample before charge can only be given if the Inspector has “reasonable grounds . . . for believing that the sample will tend to confirm or disprove [your] involvement [in a recordable offence]” (PACE, s.63(4)).[note] A copy of this authorisation should go on your custody record.
You can also be required to go to a police station after you have been charged or reported and released, or after conviction, for a sample to be taken, if no sample was taken before or it proved unsuitable or insufficient. The rules are the same as for fingerprints (see above).
‘Intimate’ DNA samples mean samples of blood, semen or other tissue fluid, urine or pubic hair, dental impressions or swabs taken from a body orifice other than the mouth. These regulations are in PACE, s.62.
An intimate sample can only ever be taken (a) if you consent (in writing), and (b) if authorised by a Superintendent. The rules for the authorisation are as for non-intimate samples (you do not have to have been charged with the offence). Note that an intimate sample can be taken from you even after you’ve been released by the police, if two or more non-intimate samples have been taken already, and they have proved insufficient.
In addition, the sample must be taken by a registered doctor, registered nurse or dentist (unless it’s a urine sample).
Note that, although you cannot have an intimate sample taken without your consent, if you withhold your consent without “good cause,” that fact can be made known to a court, which can “draw such inferences from the refusal as appear proper.”[note]
New rules are coming in regarding mandatory Class A drugs tests.[note] Hopefully TPers won’t qualify for these, but just in case. . . .
Mandatory drugs testing is only available for people aged 18 or over, and in one of two situations:
•either, if you have been charged with a “trigger offence,” which roughly means various offences under the Theft Act 1968 or a drugs offence related to a Class A drug;
•or, if you have been charged with any other offence, and an Inspector has authorised the sample to be taken.
In the second case, the inspector must have “reasonable grounds for suspecting that the misuse [by you] of any specified Class A drug caused or contributed to the offence.”
You have to be asked to give the sample for the drugs test, which can be either a non-intimate sample or a urine sample. But it is a specific offence to refuse to give the sample “without good cause.” The sample can be used by a court in sentencing after conviction, and also in deciding whether to grant bail.
In every case when fingerprints or DNA samples are taken at a police station, they can be the subject of a “speculative search” in the national databases. You should be informed about this by the police when the prints or samples are taken. (PACE, s.63A(1))
Fingerprints and samples no longer have to be destroyed once you are acquitted, or if the case against you is dropped, but in those cases they can only be used for the purposes of investigation of crime. They also do not have to be destroyed if you accept a Caution for the offence. (PACE, s.64(1)–(3), as amended by the Criminal Justice and Police Act 2001)
They also do not have to be destroyed if someone else has been convicted of the same offence, for the investigation of which your fingerprints or DNA sample were originally taken. But in that case, the samples cannot be used in evidence against you, nor for the purposes of any investigation of an offence. (PACE, s.64(3A))
You can ask to witness the destruction of your fingerprints and samples, and any copies of them (PACE, s.64(6)).
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 9/11/2002
(See the changelog and authorship page for revision details.)