Taking biometrics after conviction

04 July 2018

Not reviewed after the date of publication

Question:

A suspect is invited to the police station to answer questions about a criminal offence (indecent images of children) and attends voluntarily. He is subsequently reported for summons, attends court and is convicted. For how long is there a legal power to take biometrics, DNA, fingerprints and photographs?

Answer:

Based on the assumption that the person hasn't had his biometrics already taken at any stage of the investigation previously and that he has now been convicted, the following would apply:

1. There isn't a power to take the photograph of the person – see section 64A of PACE (D10402 on PNLD) which provides there is no power to photograph a person in such cases. It provides only a power to photograph those individuals who are detained.

2. As the person has been convicted, with regards to fingerprints, you may consider section 61(6) of PACE. Section 61(6) of PACE allows fingerprints to be taken from persons convicted of a recordable offence or cautioned in respect of a recordable offence, where either their fingerprints have not been taken since they were convicted/cautioned or their fingerprints have been taken and subsequently have proved inadequate for analysis and/or loading onto the national database. This can be done without the appropriate consent and therefore, force may be used. The time limit in place for this is 2 years from the date of conviction/caution. See paragraph 3 of Schedule 2A to PACE for details.

3. With regards to the taking of a non-intimate sample, you may consider section 63(3B). Section 63(3B) allows a non-intimate sample to be taken from persons convicted of a recordable offence or cautioned in respect of a recordable offence and they have not had a non-intimate sample taken from them since they were convicted/cautioned; or they have had a non-intimate sample taken from them in the course of that investigation but it was not suitable for the same means of analysis, or it proved insufficient. This can be done without the appropriate consent and therefore, force may be used. The time limit in place for this is 2 years from the date of conviction/caution. See paragraph 11 of Schedule 2A to PACE for details.

4. Where there is a power under Schedule 2A to take biometrics there are time limits upon this – as provided above. Note however that when the offence is a 'qualifying offence', these time limits would not be relevant. There is no time limit when the offence is a qualifying one. Section 65A(2) lists the offences which are deemed 'qualifying'. In this instance, if the offence was for possession of indecent images under section 160 of the Criminal Justice Act 1988 or for being in possession of a prohibited image of a child under section 62 of the Coroners and Justice Act 2009 (which covers images that are not photographs or pseudo-photographs, for example video recordings); then these are not qualifying offences and the time limits mentioned above will apply. If however the offence is of taking indecent photographs etc. under section 1 of the Protection of Children Act 1978 then this is a qualifying offence and the time limits would not be relevant.

5. Where there is a power to take biometrics under 61(6) or 63(3B), there is also a power to require the person to attend the police station for the purpose of taking those data and time limits are imposed upon that person in which they must attend to do so within 7 days. See paragraphs 15 and 16 of Schedule 2A for full details. There is a power to arrest a person who does not comply with this requirement to attend.

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