Commentary on Sections Identification Section 90 Searches, examinations and fingerprinting: England and Wales
204.Subsection (1) inserts after section 54 of the Police and Criminal Evidence Act 1984 (searches of detained persons) a new section 54 A. The new section provides that where an officer of at least inspector rank authorises it, a person who is detained in a police station may be searched or examined or both (a) for the purposes of ascertaining whether he has any mark on him which would identify him as a person involved in the commission of an offence or (b) for the purpose of facilitating the ascertainment of his identity.
205.Subsection (2) of the new section 54A limits the grounds for authorising a search or examination under subsection (1)(a) to circumstances where the suspect withholds consent to an examination for a mark, or it is not practicable to obtain such consent, because for example the suspect is drunk and unable to give consent.
206.Under Subsection (3) in a case to which subsection (2) does not apply, the officer can only authorise a search to establish identity where the person has refused to identify himself or there are reasonable grounds for doubting whether he is the person who he says he is.
207.Subsection (5) provides that any identifying mark found during a search or examination may be photographed with appropriate consent or where consent is withheld or it is not practicable to obtain it, a photograph may be taken without the appropriate consent.
208.Subsection (6) provides that where a search or examination or the taking of a photograph are authorised, only constables and persons who are designated for the purposes of this section by the relevant chief officer of police, may carry out the search or examination or take the photograph. This subsection also applies section 117 of PACE, the use of reasonable force, to the exercise of the powers conferred by subsection (1) and (5) to designated non constables.
209.Under Subsection (7) a person may not carry out a search or examination of a person of the opposite sex or take a photograph of any part of the body of a person of the opposite sex. Where a search involves the removal of more than outer clothing it falls within the definition of a strip search for the purposes of PACE Code C and is subject to the safeguards contained in the code in relation to the conduct of such a search.
210.Subsection (8) prohibits the carrying out of an intimate search under new Section 54 A. An intimate search is a search of body orifices other than the mouth.
211.Subsection (9) provides that a photograph of an identifying mark can be used by or disclosed to any person for the purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution and they can be subsequently retained, but then only used for a related purpose.
212.Subsections (10) to (12) set out definitions of references to crime, references to ascertaining a person’s identity, references to taking a photograph and marks.
213.Subsection (2) of Section 90 amends section 61 (4) of PACE which sets out the grounds on which an officer of at least superintendent rank can authorise the taking of fingerprints of a person detained at a police station without the appropriate consent. Authorisation can currently only be given where the officer has reasonable grounds (a) for suspecting the involvement of the person whose fingerprints are to be taken in a criminal offence; and (b) for believing that his fingerprints will tend to confirm or disprove his involvement. Subsection (2) amends the grounds in s.61 (4)(b) so that an officer may authorise the taking of a person’s fingerprints if the prints will facilitate the identification of the person.
214.By virtue of subsection (2) (b) the power only applies to a person who is detained at a police station and refuses to identify himself or there are reasonable grounds for doubting whether he is the person who he says he is.
215.The effect of the amendments to section 61 (4) of PACE as amended by section 82 of the Criminal Justice and Police Act 2001 is that fingerprints taken for identification purposes may be retained in the same way in which fingerprints taken in order to prove or disprove involvement in a crime are now retained. In other words, fingerprints may be retained regardless of whether the person is proceeded against or convicted, but can be used only for the purposes of the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.