22 August 2017
Not reviewed after the date of publication
Can a civilian investigator take a DNA sample from a 14 year old suspect with his mother's consent, or can this only be done by police officers and designated officers?
There is no clear reference as to who is authorised to take a DNA sample with consent, although it is generally accepted that this is done by either a police officer or authorised detention officer.
Section 63 of the Police and Criminal Evidence (PACE) Act 1984 provides powers relating to the taking of non-intimate (DNA) samples. These samples can be taken with the written consent of the detainee or without consent if certain conditions/circumstances are satisfied.
Section 63(9ZA) states –
63(9ZA) The power to take a non-intimate sample from a person without the appropriate consent shall be exercisable by any constable.
Part 3 of Schedule 4 to the Police Reform Act 2002 refers to the powers of suitably designated detention officers. Paragraph 31 refers to non-intimate samples and gives a suitably designated detention officer the same powers as a constable under section 63 of PACE, namely, to take consented non-intimate samples; non-consented non-intimate samples with the appropriate inspector's authorisation; and to give the appropriate warning about speculative searches.
Code of Practice D, Part 6 deals with the taking of body samples and impressions for identification purposes, with paragraphs 6.5 to 6.8 (PNLD document D10525) dealing with 'non intimate samples'. Again the only mention is that this done by a constable.
Similarly paragraph 1(1) to Schedule 2A to PACE stipulates –
A constable may require a person to attend a police station for the purpose of taking his fingerprints under section 61(5A)(b)(i);
So it is perhaps best to err on the side of caution for the DNA to be taken by a constable or detention officer, unless your force or custody unit is happy for you to take the DNA sample.
But whoever takes the sample needs to be aware that appropriate consent means –
(a) in relation to a person who has attained the age of 18 years, the consent of that person;
(b) in relation to a person who has not attained that age but has attained the age of 14 years, the consent of that person and his parent or guardian; and
(c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian.
You can find some of our previous notable legal queries here, please note that they are not reviewed after publication.
To read more legislation about this subscribe to PNLD.