Non-intimate samples from an intoxicated detainee unable to consent

06 September 2021

Not reviewed after the date of publication

Question:

A detainee is processed in custody following an arrest for wounding, however they are intoxicated and incapable of understanding the current situation.

The officers want to take hand swabs from the detainee as soon as possible. I know that non-intimate samples can be taken from someone in certain circumstances without their consent (including in this instance), and by force if necessary, but PACE & PACE Code of Practice D seem silent regarding instances where the D/P isn't refusing to consent, but can't consent.

Answer:

PACE and Code of Practice D are silent when a person is unfit/unable to give consent. Nonetheless powers are available for police to take samples without the appropriate consent, therefore it is our opinion if a person is intoxicated it is still possible to take non-intimate samples.

This is provided that the conditions and requirements in section 63 of PACE are satisfied, in particular:

'63(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.

63(2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.

63(2C) The second is that -

(a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or
(b) he has had such a sample taken but it proved insufficient.

…..

63(3ZA) A non-intimate sample may be taken from a person without the appropriate consent if (before or after the coming into force of this subsection he has been arrested for a recordable offence and released and -

(a) he has not had a non-intimate sample of the same type and from the same part of the body taken from him in the course of the investigation of the offence by the police; or
(b) he has had a non-intimate sample taken from him in the course of that investigation but -

(i) it was not suitable for the same means of analysis, or
(ii) it proved insufficient, or
(iii) subsection (3AA) below applies'

There is no need to wait for the person to be sober to give them the opportunity to consent - however, this is a judgement call to make in the individual circumstances and the officer may choose to wait should time allow if it would be more appropriate in the circumstances or assist with the ease of the procedure.

Taking the non-intimate sample at a stage when the detainee is intoxicated may result in a degree of resistance from the detainee, and consequently force may end up being used to obtain a sample which may not have been necessary had the person been given the chance to become less intoxicated beforehand.

We believe that if the detainee is intoxicated and force is used to obtain the sample then a recorded reference to the intoxication should be made in the custody record in accordance with paragraph 6.10A of Pace Code of Practice D which provides 'if force is used, a record shall be made of the circumstances and those present.'

To read more legislation about this, login to the legal database. 

Back to Legal Questions