Schedule 2: Provisions supplementary to Part 2 Fingerprints and DNA
208.The Act amends those parts of PACE dealing with the taking, storage and retrieval of fingerprints, footprints and DNA, to take account of developments in a number of new technologies. It also addresses the need to reflect new practices and procedures. It makes provision for electronic capture and storage of fingerprints, and type approval of the equipment used. It further provides for officers of the level of inspector or above to give authorisation to the taking of fingerprints and non-intimate samples without consent and for the taking of intimate samples with consent.
209.In July 1999 the Home Office published "Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA samples" (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). This consultation document formed the basis for some of the measures included in this Act. The responses received represented a broad range of interests. The majority of the respondents welcomed the proposals which have now been taken forward in this Act.
210.An additional measure has been included to allow all fingerprints and DNA samples lawfully taken from suspects during the course of an investigation to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences. This arises from the decisions of the Court of Appeal (Criminal Division) in R v Weir and R v B (Attorney General's reference No 3/199) May 2000. These raised the issue of whether the law relating to the retention and use of DNA samples on acquittal should be changed. In these two cases compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used and neither could be convicted. This was because at the time the matches were made both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles were taken. Currently section 64 of PACE specifies that where a person is not prosecuted or is acquitted of the offence the sample must be destroyed and the information derived from it can not be used. The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that where a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge. The Act removes the requirement of destruction and provides that fingerprints and samples lawfully taken on suspicion of involvement in an offence or under the Terrorism Act can be used in the investigation of other offences. This new measure will bring the provisions of PACE for dealing with fingerprint and DNA evidence in line with other forms of evidence.
211.The Act also amends the Police and Criminal Evidence (NI) Order 1989 so that restrictions on the use and destruction of fingerprints and samples are consistent with the new provisions for England and Wales, as detailed above.