Sampling made simple?

PACE introduced the non-intimate sample, defined at section 65, and although the type of sample was not seen as being as invasive to obtain as an intimate one, there were still restrictions placed on when and how the sample could be obtained without the consent of the suspect.

Section 63 stated that the person had to be in police detention and should they not consent a superintendent or above had to authorise the taking of the sample. The authorising officer had to be satisfied that the person was involved in a serious arrestable offence (most likely the one for which they had been arrested) and believe that the taking of the sample would tend to confirm or disprove their involvement. If the person consented to the taking of the sample, an inspector had to have reasonable grounds to believe such a sample would tend to confirm or disprove the person’s involvement in the offence.

With the development of DNA profiling it soon became clear that the law had to change to ensure the investigation of crime fully benefited from this breakthrough. The Criminal Justice and Public Order Act 1994 (CJPO) was introduced and amended PACE to extend the circumstances in which non-intimate samples could be taken and thereby make possible the creation of a National DNA Database.

A non-intimate sample could still be taken with consent and this had to be in writing. Saliva and a swab taken from a person’s body orifice including the mouth were now included in the Section 65 definition.

The changes maintained the need for a superintendent’s authority and retained the same conditions for a sample taken during the course of an investigation. However, the level of offence was significantly reduced, from being of a serious arrestable one, to recordable, (a recordable offence is one which carries a sentence of imprisonment on conviction but includes some non-imprisonable offences that are listed in the National Police Records [recordable offences] Regulations of 2000 S.I. 1134/2000 and 2003 S.I.2823/2003).

In addition the scope to take samples was enlarged to include instances where a person had been convicted of or charged with a recordable offence as well as after they had been informed they would be reported for a recordable offence. This was reliant however on the person concerned not having previously given a sample or if they had done so it had proved insufficient or unsuitable for analysis. There was no authority required for this type of sample and force could be used if necessary. These samples were considered important in building the database.

To ensure a positive result was obtained from the samples in the latter category only, Section 63A even allowed police to take/retake the sample one month from the date of the charge or the date the officer was told the sample was unsuitable or insufficient. The police officer though has to give the person seven days notice during which time they can attend at a police station by appointment. Additionally this section created the concept of the speculative search, allowing samples to be checked against records and every person from whom a non-intimate sample is taken should be told that it may be the subject of a speculative search.

Although the changes to the section at this time were quite substantial the number of non-intimate samples taken in a three week period at 13 police stations throughout the country between August 1995 and February 1996 amounted to only 7% of prisoners overall. (Home Office Research and Statistics Directorate, Research Findings No 62).

The Criminal Justice and Police Act 2001 tried to address the problem and alleviate the potential loss of opportunity to take samples. The level of authority for taking a non-intimate sample during an investigation was lowered from superintendent to inspector, and the act redefined the meaning of ‘insufficient’ to include where scientific failure inhibits the production of a profile or where the sample has been damaged prior to analysis. Again the time limits of one month and