Legal Article: Is it lawful to obtain biometrics for an excess offence still under investigation?

25 September 2020

Written by: Shelley Gregory, PNLD Legal Adviser
Not reviewed after the date of publication

PNLD Legal Adviser, Shelley Gregory, provides an overview of the advice received by PNLD from external sources, regarding police powers to obtain biometrics from a suspect arrested for an excess offence that is still under investigation.

PNLD have received various queries from officers in relation to the taking of biometrics following an arrest under section 6D  of the Road Traffic Act 1988 (RTA 1988). The matter is not clear cut and depends upon the interpretation of the relevant provisions in both the Police and Criminal Evidence Act 1984 (PACE) and the RTA 1988. We have sought advice from the Home Office and the Department for Transport on this issue, but their views are conflicting. Those views are outlined below.

Home Office View

Section 6D of the RTA 1988 contains the power of arrest that would usually be relied on by officers in circumstances where a preliminary breath / drug test has been administered and the officer believes the individual in question is over the prescribed legal limit of drugs/alcohol.

At the point that an individual has been arrested under this provision, they have not been arrested for a 'recordable offence'; they have only been arrested to facilitate the taking of a specimen for analysis or because they have refused to co-operate, which is problematic.

There are specific provisions that allow access to certain powers under the PACE and the PACE Codes of Practice when an arrest has been effected under section 6D of the RTA 1988. For example, section 34(6) of PACE states that a person arrested under section 6D is to be treated as arrested for an offence, for the purposes of Part 4 of PACE. However, no such provision exists in relation to Part 5 of PACE, which includes the provisions in relation to biometrics.

Additionally, in these circumstances, a custody officer would only be authorising entry into the relevant custody suite for the purpose of taking samples, instead of following a consideration of whether to detain an individual under section 37(2). These provisions combined mean that the individual concerned would not be detained in consequence of his arrest for a recordable offence, as is required to take fingerprints under section 61(3) of PACE or to take a non-intimate sample under section 63 of PACE.

In such circumstances, it is the Home Office’s opinion that if an individual is not 'under arrest for an offence', the power to obtain biometrics will not be available until they are charged.

However, if the arrest was alternatively made under section 24 of PACE, this could also be problematic. As the power to arrest under section 6D has been created to deal specifically with driving under the influence of drink/drugs, the courts would likely view arresting under section 24 instead, as an attempt to circumvent the relevant provisions and a possible abuse of power.

Department for Transport View

The power to arrest under section 6D of the RTA 1988 is dependent upon the constable obtaining a positive result of a preliminary breath or drugs test.

Sec 34(6) PACE (In Part IV Detention) provides:

“For the purposes of this Part of this Act a person arrested under section 6D of the Road Traffic Act 1988 or section 30(2) of the Transport and Works Act 1992 (c. 42) is arrested for an offence.”

Therefore, an arrest under section 6D of the RTA 1988 is to be treated as an offence under Part IV of PACE and so all of section 37, and Part IV of PACE, should apply.

Subsections (1), (2) and (3) of section 37 PACE (in Part IV) provides:

‘37(1) Where –

(a) a person is arrested for an offence –

(i) without a warrant; or

(ii) under a warrant not endorsed for bail,

(b) repealed

the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so.

37(2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released –

(a) without bail unless the pre-conditions for bail are satisfied, or

(b) on bail if those pre-conditions are satisfied,

(subject to subsection (3)).

37(3) If the custody officer has reasonable grounds for believing that the person's detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person, he may authorise the person arrested to be kept in police detention.’

PACE, Code of Practice G, Note for Guidance 1A provides:

‘1A This code does not apply to powers of arrest conferred on constables under any arrest warrant, for example, a warrant issued under the Magistrates' Courts Act 1980, sections 1 or 13, or the Bail Act 1976, section 7(1), or to the powers of constables to arrest without warrant other than under section 24 of PACE for an offence. These other powers to arrest without warrant do not depend on the arrested person committing any specific offence and include:

Road Traffic Act 1988, section 6D arrest of driver following the outcome of a preliminary roadside test requirement to enable the driver to be required to provide an evidential sample;

Therefore, it can be interpreted that Code G only relates to the power of arrest in section 24 of PACE. Therefore, the powers of arrest in Note 1A are not subject to the necessity test, as for section 24 PACE arrest. However, Note 1A doesn’t state that section 37 of PACE does not apply to the various other powers of arrest that Note 1A lists, which includes section 6D of the RTA 1988.

With regards to there being a power to obtain biometrics prior to charge, section 34(6) of PACE does not state that it ‘only’ applies to Part IV.  Therefore, reading section 34(6) of PACE in conjunction with section 6D(1) of the RTA 1988, it is provided that an arrest can only be made because an excess alcohol or drug offence is suspected after a positive test. This would be an arrest for an offence under section 5 or 5A of the RTA 1988, both of which are recordable offences because they carry a sentence of imprisonment. Sections 61 and 63 of PACE require the person to be in police detention in consequence of their arrest for a recordable offence, and therefore, on this interpretation, this requirement is satisfied and the power to obtain biometrics is available.

This interpretation depends on whether section 34(6) of PACE limits the section 6D(1) arrest just to Part IV and this is where a court ruling will be required in order to obtain a definitive answer.

The Schedule to the National Police Records (Recordable Offences) Regulations 2000 provides a list of non-imprisonable offences that have been specified by the Secretary of State to be recorded on PNC and includes section 6 of the RTA 1988.  Therefore, the power to obtain biometrics in consequence of an arrest under that section is available.  The view of the Department for Transport is that it would not be a realistic for the power to obtain biometrics to be available for this relatively minor offence, but then not be available for the more serious excess offences until the offence was proved (which may take months when waiting for scientific evidence).

PNLD Commen

As can be seen from the information above, the views of the experts in this field are currently conflicting with regards to the availability of the power to obtain biometrics for an excess offence still under investigation.  Until this is determined at a judiciary level, we are not in a position to advocate either interpretation. It may be sensible to err on the side of caution with the Home Office opinion that the power to obtain biometrics will not be available until the person is charged.  However, although this appears to be the safer option, this approach may lead to the eternal avoidance of the question being raised at court and consequently, a definitive answer never being available, due to a court never being called upon to make a ruling on this specific issue.

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