Powers to search, examine and take samples

There are two pieces of legislation that deal with police powers to search, make physical examinations of suspects and take samples - the Summary Offences Act 1953 and the Criminal Law (Forensic Procedures) Act 2007.

There is some overlap between the Acts but in practice procedures that are routinely used to identify a suspect, such as fingerprinting and photographing, are governed by the Summary Offences Act 1953. Less commonly performed procedures, such as the taking of DNA samples, are governed by the Criminal Law (Forensic Procedures) Act 2007.

When a person is taken into custody, the police may use such force as is reasonably necessary to search and take anything they find upon him or her relevant to the commission of an offence [Summary Offences Act 1953s 81(1)].

Where the police reasonably believe that a physical examination of a person will give evidence of the offence the person is charged with, a doctor may carry out an examination. Only a police officer over the rank of sergeant in charge of the police station where the person is held may authorise such an examination.

Any reasonable examination can be carried out, and reasonable force may be used. People must be told before a medical examination is arranged, and may have a medical practitioner of their choice to conduct a second and independent examination. The person must pay the cost of an independent examination. The police officer in charge must take reasonable steps to inform the doctor that the person under investigation requests their attendance [Summary Offences Act 1953 s 81].

If after obtaining evidence, the charge is later withdrawn or dismissed, all photographs, prints, impressions, recordings and samples must be destroyed [Summary Offences Act 1953 s 81].

Once a person is charged with an offence (or if a magistrate authorises it before charges are laid) the police may take photographs, take prints of hands, fingers, feet or toes, have teeth impressions taken by a dentist, make a recording of the person's voice and request a sample of handwriting.

Reasonable force can be used [Summary Offences Act 1953 s 81]. The evidence is taken to help identify a person. Anyone who refuses to comply with a reasonable direction in relation to the obtaining of a sample of voice or hand writing or teeth impressions faces a maximum penalty of three months imprisonment or a fine of $1000.

The law relating to the taking of forensic samples for DNA testing is contained in the Criminal Law (Forensic Procedures) Act 2007. Depending on whether or not a person is a suspect, an offender or a volunteer there are different rules.

There are two broad categories of procedures covered by the Act: simple identity procedures and forensic procedures (including instrusive forensic procedures).

Simple identity procedures

Anyone convicted of, or suspected of having committed, a serious offence can be required to undergo a simple identity procedure. This includes the taking of forensic material by buccal swab (i.e. cheek swab) for the purpose of obtaining a DNA profile. It can also include taking samples by finger prick but this method is not normally used by police.

Under the legislation police have extensive powers to collect DNA samples on this basis. The reason for this is the extremely broad definition of what constitutes a serious offence. The suspicion of having committed a serious offence or the fact that a serious offence has been committed provides the trigger for the police to use these powers.

A serious offence is an indictable offence or a summary offence that is punishable by imprisonment - this includes a wide spectrum of offences such as assault police, shoplifting, carrying an offensive weapon, possessing body armour, being unlawfully on premises, indecent behaviour, making a false report to police, driving under the influence and offensive behaviour and language.

Both offenders (under s 20) and suspects (under s 14) can be compelled to provide DNA samples if it is requested on the basis of a simple identity procedure. A suspect or offender does not have to be in custody in order for police to conduct a simple identity procedure and police may issue directions to attend a police station for the purpose of providing a DNA sample. Where a suspect or offender refuses or fails to comply with a request for a simple identity procedure a warrant can be issued for their arrest and reasonable force can be used to take a sample.

A suspect is any person that police have a reasonable suspicion (s 3(4)) of having committed a serious offence. As the definition of what constitutes a serious offence is so broad it potentially affects many people including those suspected of having committed what are considered to be quite minor offences (such as shoplifting and disorderly behaviour).

Once a suspect or offender has provided DNA it is added to the database and there is no provision for it to be removed later. This means that where a person was questioned in relation to a serious offence and provided DNA, the sample will remain on the database even though no charges have been laid. Similarly, there are no provisions to destroy DNA samples taken from those people charged with an offence who are subsequently acquitted.

Children and young people

There are no special protections for persons under the age of 18 who have samples taken because they are offenders or suspects. However, if they are providing DNA as volunteers or victims they receive special protection under sections 10 & 11 , see Volunteers and victims.

Other forensic procedures

Other forensic procedure include the following:

Different procedures apply for forensic procedures other than a simple identity procedure. In these circumstances a suspect has a right to be heard and represented at a hearing conducted by a senior police officer (ss 15-19).

Guidelines for forensic procedures

The legislation provides the following guidelines and requirements for forensic procedures:

* An intrusive forensic procedure includes:

# but does not include a simple identity procedure e.g. buccal swab or taking of blood by finger prick method.

Reasonable force may be used to carry out a forensic procedure and before it is carried out a police officer must inform the person of this and the fact that if they obstruct or resist the procedure this may be used in evidence against them.

The maximum penalty for intentionally obstructing or resisting a forensic procedure is 2 years imprisonment.

Volunteers and victims

There is provision under the Criminal Law (Forensic Procedures) Act 2007 for the taking of DNA samples from volunteers and victims. Where a person volunteers to provide a DNA sample for inclusion in the volunteers and victims index of the DNA database system, their express consent is required. A child 16 years of age or over can consent where a DNA profile is not to be stored as a result of the procedure.

A child or person under a disability is defined as a 'protected person'. This means that they cannot provide consent (except, as referred to above, where they are over 16 years of age and the DNA is not to be stored as a result of the procedure) so their next of kin or guardian must provide express consent on their behalf.

Even where consent has been given on behalf of a protected person, if they subsequently object to the procedure, then it must be stopped. A protected person who appears to be capable of responding rationally to information must be advised before the procedure is carried out of their right to object or resist the procedure.

A person who at the time at which a volunteers procedure was authorised was a protected person because he/she was under 16 years of age may, at any time after reaching 16 years, request destruction of the relevant forensic material collected.