In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q My client is currently being investigated by the police in connection with an armed robbery.

Knowing his innocence, he wishes to co-operate fully, but he is nevertheless reluctant to provide the police with fingerprints and a DNA sample as he is not comfortable with this intimate information being kept on file.

What are his rights in this situation?

A The taking and processing of fingerprints and DNA samples by the police is covered by sections 27 and 61 to 64 of the Police and Criminal Evidence Act 1984 (PACE) (as amended).

Section 61 covers the taking of fingerprints from individuals detained at police stations, and section 61(1) states that, as a basic position, fingerprints cannot be taken without an individual's consent.

However, the rest of section 61 sets out exceptions to this basic position.

Essentially, if a police officer with a rank of at least Inspector so authorises, fingerprints can be taken without consent from anyone that officer suspects of having been involved in an offence if he believes that the fingerprints will tend to confirm or disprove the suspect's identity or involvement in the crime.

In addition, fingerprints can be taken without consent from someone who has been charged with, or informed that he will be reported for, a recordable offence (unless prints have previously been taken).

Anyone whose fingerprints are taken without consent must first be told of the reason why they are being taken, and they must also be told that these prints may be the subject of a speculative search.

An individual's DNA can be obtained from 'intimate' and 'non-intimate samples' (defined in PACE section 65).

The taking of an intimate sample requires consent in all circumstances.

This is not the case for non-intimate samples (PACE section 63).

As with fingerprints, a non-intimate sample should normally only be taken with consent (unless that person has been charged with, or informed that he will be reported for, a recordable offence).

However, if a person is in police detention or custody, a police officer with the rank of at least Inspector can give an authorisation for a sample to be taken without consent if he has reasonable grounds for suspecting the involvement of that person in a recordable offence, and believes that the sample will tend to confirm or disprove that involvement.

The individual must be informed of the authorisation and the grounds for giving it.

The human rights implications of PACE's provisions on fingerprints and samples were discussed in the Court of Appeal case of R, on the application of Marper and another v Chief Constable of South Yorkshire Police [2002] EWCA Civ 1275.

In this case it was accepted that taking fingerprints and samples constituted an interference with the right to respect for private life contained in article 8(1) of the European Convention on Human Rights, as incorporated into English law by the Human Rights Act 1998.

However, article 8(2) states that 'there shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society...for the prevention of disorder or crime...'

It is generally accepted (and was accepted, by implication, in Marper) that taking fingerprints and samples in accordance with PACE is necessary in a democratic society for the prevention of crime.

Thus the infringement of article 8 rights is considered to be justified.

Inevitably, once the fingerprints or samples have been taken lawfully, the question arises as to whether the police can keep them on file.

This appears to be of particular concern to your client.

The fingerprints and samples of convicted criminals can be kept on file, in the interests of preventing repeat offending (section 64 PACE).

This section used to require the destruction of fingerprints and samples taken from individuals in connection with the investigation of an offence if that individual was subsequently cleared of involvement.

However, it was amended by section 82 of the Criminal Justice and Police Act 2001 and now allows the police to retain fingerprints and DNA samples from all suspects - even if the suspect is found to have had nothing to do with the offence under investigation.

The compatibility of the amended PACE section 64 with the HRA was the issue at stake in Marper.

The Court of Appeal accepted that the retention of fingerprints and samples, as well as the taking of them, constituted a prima facie breach of article 8(1).

The court went on to consider whether the retention of fingerprints and samples taken from suspects subsequently found to be innocent was justified under article 8(2).

The Court of Appeal acknowledged that members of the public are not comfortable with private information about them being retained on file.

Nevertheless, the court held that:

- The aim of retaining the fingerprints and DNA samples was 'the prevention or detection of crime', and section 64 states that they can only be used for these purposes;

- Retention would only occur where the fingerprints or DNA were taken in accordance with the law (as contained in PACE);

- The retention was proportionate, as the interference with an individual's rights was small while the benefit to crime prevention or detection was great.

Thus the court found that the police's conduct was justified under article 8(2).

The claimants also argued that section 64 treats innocent people who have been suspected of a crime less favourably than equally innocent people who have not been suspected of a crime, thus violating their article 14 convention rights.

Lord Woolf rejected this argument, stating that article 14 was not applicable, as being suspected of a crime did not come within any of the grounds of discrimination mentioned therein, including 'other status'.

He added that, in any event, there was no discrimination as all those who had had their fingerprints or DNA samples taken (the relevant comparators) were treated in exactly the same way.

An alternative negative view was provided by Lord Justice Sedley, who accepted that being investigated but not charged came within 'other status'.

His judgment went on to stress that a chief constable should always exercise his discretion to destroy data 'where he or she is satisfied on conscientious consideration that the individual is free of any taint of suspicion'.

Marper represents confirmation from the Court of Appeal not only that the police can lawfully take your client's fingerprints and DNA samples without his consent, but also that they can lawfully be retained even if he is subsequently cleared of any involvement in the offence in question.

The case clearly raises worrying possibilities of a nationwide register of DNA or fingerprints being created by the back door.

It is being appealed to the House of Lords and is unlikely to be heard until next year.

Many civil liberties and criminal lawyers will be awaiting the result anxiously.

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