05 February 2020
Not reviewed after the date of publication
Can you confirm when fingerprints may be taken from a person under arrest on suspicion of a drink / drive offence; can these be taken prior to charge?
Section 6D of the Road Traffic Act 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 PACE and the Codes of Practice when an arrest has been effected under section 6D of the Road Traffic Act 1988. For example, section 34(6) 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 Part 5 of PACE, which includes the provisions in relation to fingerprinting.
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) PACE.
We have previously sought advice from the Home Office regarding this matter and the view outlined above is one which they have endorsed. In such circumstances, it is our opinion that if an individual is not 'under arrest for an offence', the power to take fingerprints under section 61 of PACE will not be available until they are charged.
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.
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