Investigation re-commenced but biometrics and photograph destroyed

14 July 2021

Not reviewed after the date of publication

Question: 

A person is arrested for an indictable offence and has their biometric samples and photo taken. At the conclusion of the detention they are released NFA with insufficient evidence to charge. The biometrics are subsequently destroyed.

Sometime later the investigation is re commenced. Is there a power to retake the biometrics and photograph without consent? Also are there any time restrictions on such?

Answer:

The power to take biometrics from a person arrested for an indictable offence comes from section 61 PACE for fingerprints and section 63 PACE for non-intimate samples. Sections 61(5A) and 63(3ZA) provide for the following scenario:

a person has been arrested for a recordable offence and released,

before release they had a non-intimate sample taken from them in the course of that investigation,

the investigation was discontinued but subsequently resumed,

before the resumption of the investigation any fingerprint, sample or DNA profile derived from the sample was destroyed due to the investigation being interrupted there no longer being a power to retain such biometrics.

In such a scenario above, sections 61(5A) and 63(3ZA) allow for further fingerprints and non-intimate samples to be taken from the person without the appropriate consent. With regards to fingerprints, this applies where the investigation was discontinued but subsequently resumed, and before the resumption of the investigation the fingerprints were destroyed pursuant to section 63D(3) (see section 61(5C) of PACE).

With regards to a non-intimate sample, this applies where the investigation was discontinued but subsequently resumed and before the resumption of the investigation any DNA profile derived from the sample was destroyed pursuant to section 63D(3), and the sample itself was destroyed pursuant to section 63R(4), (5) or (12) below (see section 63(3AA)).

Paragraphs 1 and 9 of Schedule 2A provide that a constable may require the person to attend a police station for the purpose of re-taking the fingerprints or non-intimate samples. However, this power may not be exercised after the end of the period of six months beginning with the day on which the investigation was resumed.

The power to take the fingerprints and non-intimate samples from a person without the appropriate consent in the circumstances above shall be exercisable by any constable by virtue of sections 61(8B) and 63(9ZA). However, please be aware of the following paragraphs of Schedule 2A:

paragraph 6 which provides that where a person's fingerprints have been taken under section 61 of PACE on two occasions in relation to any offence, he may not be required to attend a police station to have his fingerprints taken again under that section in relation to that offence without the authorisation of an officer of at least the rank of inspector;

paragraph 14(1) which provides that where a non-intimate sample has been taken from a person under section 63 on two occasions in relation to any offence, he may not under this Schedule be required to attend a police station to have another such sample taken from him under that section in relation to that offence on a subsequent occasion without the authorisation of an officer of at least the rank of inspector.

With regard to taking a photograph of the person, section 64A of PACE (D10402 on PNLD) provides for a photograph to be taken where the person is detained at a police station (or with certain additional powers to photograph persons away from the police station), either with the appropriate consent; or if the appropriate consent is withheld or it is not practicable to obtain it, without it. There are no similar provisions for recalling a person to have their photo taken again where an investigation has been interrupted, as in the case of fingerprints and DNA. We would therefore be of the opinion that the person would need to be photographed by consent or arrested on fresh evidence or in consequence of an arrest under paragraph 17 of Schedule 2A for failure to failed to comply with a requirement under the Schedule (as confirmed by note 5C of Code D), and detained in order for it to be taken without consent.

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