PACE consent provisions
18+ Suspect
18+ Vulnerable: Suspect in presence of appropriate adult
14-17: Suspect AND parent / guardian
u14: Parent / guardian only
17 & under: Has to be a parent / guardian - cannot be any other AA.
Can ONLY be the parent or legal guardian AND they can give consent without being present.
Where juvenile is in the care of the local authority or voluntary organisation, consent CAN be provided by a representative of that organisation.
Authorisations & Responsibility
Showing photographs - Sergeant - supervise / direct
Carried out by any police officer / staff
Known suspect ID procedure - INSPECTOR - Authorise
Carried out by ID officer, who can DELEGATE to another police officer/ police staff but ID officer retains overall responsibility for PACE compliance (ID process & DP welfare) during the procedure.
“Known Suspect”
Known Suspect = sufficient information known to the police to establish RGS a person of involvement in an offence
Suspect known & available
(1) Video ID
(2) ID parade
(3) Group identification
CONFRONTATION may only be used as a last resort when the suspect has become “UNAVAILABLE” (i.e. refuses to co-operate).
When to conduct a known suspect ID procedure
(1) Eyewitness has either identified a suspect or purported to have identified a suspect.
(2) Eyewitness is available who either:
(a) Expresses an ability to identify the suspect
(b) Has a reasonable chance of being able to identify a suspect
(3) Eyewitness has not yet been given the opportunity to identify the suspect in any of the known suspect identification procedures:
(4) The suspect disputes being the person the eyewitness claims to have seen on a previous occasion.
A known suspect ID procedure shall be held unless either:
(i) It is not practicable to hold a procedure
(ii) Conducting a procedure would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.
Identification Procedures
First Description
PACE Code D
A record shall be made of the suspect’s description
As first given by a potential witness.
A copy of the record shall where practicable
be given to the suspect or their solicitor
before any identification procedures are carried out.
Intimate samples
Blood (surgically drawn)
Urine
Dental impresssions
Semen
Tissue fluid
Orifice (other than mouth)
Pubic hair
External genital swabs
Consent is always required
“Only police officers can take the piss” (doctor for everything else)
Identification Procedures
Makeup of parade
PACE Code D
The set of images must include the suspect and at least 8 other people (in addition to the suspect) who so far as possible resemble the suspect in age, general appearance, and position in life.
Only 1 suspect shall appear in any set of images unless there are 2 suspects of roughly similar appearance, in which case both suspects can be shown together with at least 12 other people.
Authorisation for Intimate Samples
Persons in Police Detention
SUSPECT
(1) INSPECTOR or above has RGB that the sample
will tend to confirm or disprove the suspect’s involvement
AND
(2) Suspect consents in writing in accordance with PACE consent provisions.
VICTIM
(1) Victim consents in writing
(2) INSPECTOR authorises IF victim is in police detention at time of request.
Authorisation for Intimate Samples
Suspects not in Police Detention
For Identification:
(1) Suspect has given 2 or more non-intimate samples in the course of the investigation which have proved insufficient for the same means of analysis.
(2) INSPECTOR+ has authorised
(3) Suspect consents in writing
For Elimination:
Subject consents in writing
Authorisation for Intimate Samples for Elimination
(Subject not detained)
Subject consents in writing
Authorisation for Intimate Samples
Persons convicted outside England & Wales
(1) If committed in E&W would be a Qualifying Offence*
(2) 2+ non-intimate samples have proven insufficient for analysis
(3) INSPECTOR+ satisfied that the sample is necessary to assist in the prevention/ detection of crime, and therefore authorises it to be taken.
(4) Subject consents in writing.
*Qualifying offences
Homicide
Sexual offences
Serious offences vs Person
Firearms
Abduction
Theft Act s9 s10 a12A (Agg TWOC)
Arson
Non-intimate samples
Hair (non pubic)
Mouth swab
Saliva
Body swabs
Body impressions
Nail cuttings / scraping
Can be obtained without consent
Non-intimate samples without consent
INSPECTOR+ authority not required
(1) Person detained for a recordable offence and has not provided a sample OR has provided a sample which proved insufficient.
(2) Person arrested for recordable offence & released on bail. Person is now on bail & has not provided a sample of the same type / body part in the course of the investigation OR
(i) Has provided an insufficient sample
(ii) Investigation was discontinued (but since resumed) and the subject’s DNA sample was destroyed.
(3) Person has been charged or reported for a recordable offence and has not provided a sample
or provided an insufficient sample
or sample provided was destroyed and there is dispute as to whether a DNA sample relevant to the proceedings was derived from the destroyed sample.
(4) Person detained following acquittal on the grounds of insanity or unfitness to plead.
Non-intimate samples without consent
INSPECTOR+ authority required
(1) Person in police custody on the authority of a court
AND RGS person was involved in a recordable offence
AND BELIEF that the sample will tend to confirm/ disprove their involvement.
(2) Person has been cautioned or convicted in E&W for a recordable offence and either:
*Non-intimate sample not yet obtained OR
*Non-intimate sample taken but proved unsuitable/ insufficient
AND
INSPECTOR+ satisfied that the sample is necessary to assist in the prevention or detection of crime.
(3) Person convicted outside E&W which would be a QUALIFYING offence in E&W
AND a non-intimate sample was not taken or proved insufficient
AND INSPECTOR+ is satisfied that the taking of a sample is necessary to prevent/ detect crime.
Non-intimate samples without consent
Requirement provisions
There is the power to make a requirement for a person to attend a police station to have a non-intimate sample taken; and to arrest a person who fails to comply with the requirement.
(1) Person arrested for a recordable offence and released on bail
Requirement can be made up to SIX MONTHS from either:
*The day the investigating officer was informed that the sample previously taken was unsuitable/ insufficient
*For persons whose DNA sample and profile was destroyed prior to the resumption of the investigation, the day on which the investigation resumed.
(2) Persons charged or reported for a recordable offence (whether or not in police detention):
Requirement can be made up to SIX MONTHS from either:
*The day the person was charged/ reported if a sample has not been taken during the course of the investigation
*The day the investigating officer was informed that the sample previously taken was unsuitable/ insufficient
*For persons whose DNA sample and profile was destroyed prior to the resumption of the investigation, the day on which the investigation resumed.
(3) Person convicted or cautioned for a QUALIFYING offence (either in E&W or elsewhere): NO TIME LIMIT.
(4) Person convicted or cautioned for a recordable offence (other than a Qualifying offence) in E&W:
Requirement can be made up to TWO YEARS from either:
*The day the person was convicted or cautioned
*The day that an officer from the force investigating the offence was informed that the sample previously taken was unsuitable/ insufficient.
NOTE 1:
A requirement for a person to attend a police station to have a sample taken MUST give the person a period of at least 7 days within which to attend, and MAY direct them to attend at a specified time (or between specified times).
NOTE 2:
*A person who has had a non-intimate sample taken in any of the above circumstances on TWO OCCASIONS may only be required to attend a police station for a N-I sample to be taken again in relation to that offence if authorised by INSPECTOR+.
*The authorisation and the reasons for giving it must be recorded as soon as practicable.
Fingerprints: Pre-Arrest
PACE Code D s61
Fingerprints can be taken without consent from any person whom
A constable reasonably suspects
*is committing *attempting to commit
*has committed *attempted to commit
any offence if either:
*The person’s name is unknown and cannot be readily ascertained
*The constable RGS for doubting whether a name given by the person is their real name.
Note: fingerprints taken under this power are not regarded as having been taken in the course of the investigation of an offence.
Fingerprints: Pre-Conviction
No INSPECTOR+ authority required
Arrested / Reported / Charged for a Recordable Offence
Power to take FP impressions without consent
Six Month window in which requirement can be made
FP impressions can also be taken without consent before arrest:
To confirm/ establish identity ONLY
Fingerprints: Pre-Conviction
INSPECTOR+ authority required
Bail Back / “Impostor Rule”
PACE Code D s61
Fingerprint impressions can be taken without consent
From a person who has been bailed to appear at a court or police station if the person either:
*Answers bail for a person whose fingerprints were taken previously and there are reasonable grounds for believing they are not the same person
*Answers bail claiming to be a different person from the person whose fingerprints were previously taken
In either case either the court or INSPECTOR+
authorises the fingerprints to be taken at the court or police station The authority may be given in writing or orally and confirmed in writing as soon as practicable.
Fingerprints
Post Conviction: INSPECTOR+ authority required
Cautioned / convicted of a recordable offence
Power to take FP impressions without consent
Two Year window in which requirement can be made
At least 7 days notice unless INSP+ authorises less due to an urgent investigative need.
Convicted abroad of qualifying offence (including reprimand)
Power to take FP impressions without consent
No time limit in which requirement can be made
At least 7 days notice unless INSP+ authorises less due to an urgent investigative need.
Speculative Searches of the National Database
Samples & FP impressions
Arrested / charged / reported for a recordable offence
Police or other law enforcement database
Inside & outside UK can be speculatively searched
If not arrested / charged / reported for a recordable offence
Then a speculative search could only be conducted
with the written consent of the subject.
Samples obtained for the purpose of testing
for the presence of a Class A drug
CANNOT be used for a speculative search
Footwear impressions
Arrested / charged / reported for a recordable offence
AND in police detention
Footwear impressions can be taken without consent
Otherwise FW impressions can only be taken with consent
AND if the subject is at a police station this must be written consent.
Searching detained persons
PACE s54
Marks / features / injuries & involvement in an offence
A person detained at a police station can be searched or examined
to establish whether they have any marks/ features/ injuries that would tend to identify them as a person involved in the commission of an offence and to photograph any identifying marks.
If this fact is in issue an officer of the rank of Inspector or above can authorise that such a search take place without the detainees’ consent if either:
*Consent has been withheld by the detainee
*It has not been practicable to obtain the detainee’s consent.
Reasonable force may be used where necessary.
Authority can be provided orally or in writing but if provided orally must be backed up in writing ASAP thereafter.
Persons detained at a police station for the purpose
of a s1 PACE search are NOT detainees for the purpose of these powers.
Searching detained persons
PACE s54
Confirmation of identity
A person detained at a police station can be searched or examined
to establish their identity.
If the detainee’s identity is in issue
An officer of the rank of INSPECTOR+
Can authorise that such a search take place without the detainees’ consent if either:
*The detainee has refused to identify themselves
*The authorising officer has reasonable grounds for suspecting that the person is not who they claim to be.
Reasonable force may be used where necessary.
Authority can be provided orally or in writing but if provided orally must be backed up in writing ASAP thereafter.
Persons detained at a police station for the purpose
of a s1 PACE search are NOT detainees for the purpose of these powers.
