Law Scenarios

Suggestions

s.61 PACE allows fingerprinting without consent after arrest for recordable offences (which includes most offences). Reasons need to be given and recorded in writing and reasonable force can be used (s.117). In all instances the suspect should be informed that the fingerprints will be the subject of a speculative search.

s.63 allows for non-intimate samples (mouth swabs) to be taken without consent in similar situations to fingerprints. This provision means that DNA samples obtained via mouth swabs may be taken without consent as a non-intimate sample.

s.62 allows for intimate samples (for example blood samples, semen and urine) but these can only be taken with consent in writing. An inspector has to have reasonable grounds to believe the sample will prove/disprove the suspect’s involvement. The suspect must be told that refusal to consent to the taking of the sample can harm their case.

In the case of S & Marper v. the UK the ECtHR held that the retention of DNA samples, profiles and fingerprints from those not convicted of any offence was a breach of Article 8. As a result of this case, the law on retention of fingerprints and samples has changed.

The Protection of Freedoms Act 2012 inserts a new section 63I PACE so data (including fingerprints and DNA profile) from someone convicted (including receiving a caution) of a recordable offence can be retained indefinitely.

Under a new s63H PACE inserted by the Protection of Freedoms Act 2012 the DNA profile and fingerprints of anyone arrested but not charged or charged but later acquitted of most offences cannot be retained.

There is however some exceptions to this rule under a new section 63F PACE. This provides for some time-limited retention of DNA samples and fingerprints for certain ‘qualifying offences’ such as serious violent or sexual offences, terrorism or burglary. If arrested and charged with a qualifying offence but not convicted, fingerprints and DNA can be retained for 3 years and a further 2 years if a court approves. If arrested for a qualifying offence but not charged, fingerprints and DNA can be retained for 3 years on application to the Biometrics Commissioner plus a 2 year possible extension approved by the court.

Exclusion of Evidence

Remedies for breach of PACE and the Codes of Practice include possible exclusion of evidence at the trial either under s.76 PACE if a confession has been obtained by oppression. According to s.76 oppression means any torture, inhuman or degrading treatment or the use of threat or violence. Under s.76 (2) (b) confession evidence may be excluded at trial if it was obtained in circumstances which makes it unreliable as in the case of Samuel (denial of legal advice). In addition, any evidence including a confession may be excluded under section 78 on the grounds that it would adversely affect the fairness of the trial. Breaches of the code must be ‘serious and substantial’ in order for the evidence obtained to be considered for exclusion.