Using fingerprints as a method of identification in custody

18 March 2020

Not reviewed after the date of publication

Question:

A person is arrested and detained for breach of bail conditions, however the person's identity is disputed. Can fingerprints be used as a method of identification?

Answer: 

Section 61 of the Police and Criminal Evidence Act 1984 (PACE) allows the police to obtain fingerprints.

The fingerprints of a person may be taken with their consent pursuant to section 61(1) and (2) of PACE which provide:

'61(1) Except as provided by this section no person's fingerprints may be taken without the appropriate consent.

61(2) Consent to the taking of a person's fingerprints must be in writing if it is given at a time when he is at a police station.'

There are two occasions when a person can be fingerprinted without consent when their identity is in dispute: under section 61(4A) and (4B) of PACE, when they answer bail at a court / police station, or under section 61(6A) and (6B), when they are suspected of committing / attempt to commit an offence or have committed / attempted to commit an offence. As a breach of bail conditions is not an offence, the powers afforded under section 61 to obtain fingerprints without consent in these circumstances are not available.

Therefore, we are of the opinion that the fingerprints may only be taken from a person detained at a police station in the circumstances, with their consent.

In the case of a juvenile, PACE Code of Practice C will apply and by virtue of their age, a juvenile will always require an appropriate adult. The consent of the appropriate adult will be required and the appropriate adult will need to be physically present at the time the fingerprints are taken.

When the custody officer becomes aware of the true identity of the detainee, if there are no grounds for detention, the person should be immediately released from custody in accordance with section 34(2) of PACE, which states:

'34(2) Subject to subsection (3) below, if at any time a custody officer –

(a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and
(b) is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this part of this Act,

it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.'

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