Police and Criminal Evidence Act 1984, section 61

Finger-printing

Part V Questioning and Treatment of Persons by Police

(1)Except as provided by this section no person’s fingerprints may be taken without the appropriate consent.

(2)Consent to the taking of a person’s fingerprints must be in writing if it is given at a time when he is at a police station.

[F461 (3)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a)he is detained in consequence of his arrest for a recordable offence; and

(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police.F461]

[F462 (3A)[F463 Where a person mentioned in paragraph (a) of subsection (3) or (4) has already had his fingerprints taken in the course of the investigation of the offence by the policeF463] , that fact shall be disregarded for the purposes of that subsection if—

(a)the fingerprints taken on the previous occasion do not constitute a complete set of his fingerprints; or

(b)some or all of the fingerprints taken on the previous occasion are not of sufficient quality to allow satisfactory analysis, comparison or matching (whether in the case in question or generally).F462]

[F464 (4)The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

(a)he has been charged with a recordable offence or informed that he will be reported for such an offence; and

(b)he has not had his fingerprints taken in the course of the investigation of the offence by the police.F464]

[F465 (4A)The fingerprints of a person who has answered to bail at a court or police station may be taken without the appropriate consent at the court or station if—

(a)the court, or

(b)an officer of at least the rank of inspector,

authorises them to be taken.

(4B)A court or officer may only give an authorisation under subsection (4A) if—

(a)the person who has answered to bail has answered to it for a person whose fingerprints were taken on a previous occasion and there are reasonable grounds for believing that he is not the same person; or

(b)the person who has answered to bail claims to be a different person from a person whose fingerprints were taken on a previous occasion.F465]

(5)An officer may give an authorisation under [F466subsection (4A)F466] above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

[F467 (5A)The fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection) he has been arrested for a recordable offence and released and—

(a)F468... he has not had his fingerprints taken in the course of the investigation of the offence by the police; or

(b)F469... he has had his fingerprints taken in the course of that investigation [F470 but

(i)subsection (3A)(a) or (b) above applies, or

(ii)subsection (5C) below applies.F470,F467]]

[F471 (5B)The fingerprints of a person not detained at a police station may be taken without the appropriate consent if (before or after the coming into force of this subsection) he has been charged with a recordable offence or informed that he will be reported for such an offence and—

(a)he has not had his fingerprints taken in the course of the investigation of the offence by the police; or

(b)he has had his fingerprints taken in the course of that investigation [F472 but

(i)subsection (3A)(a) or (b) above applies, or

(ii)subsection (5C) below applies.F472,F471]]

[F473 (5C)This subsection applies where—

(a)the investigation was discontinued but subsequently resumed, and

(b)before the resumption of the investigation the fingerprints were destroyed pursuant to section 63D(3) below.F473]

[F474 (6)Subject to this section, the fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection)—

(a)he has been convicted of a recordable offence, [F475 or F475]

(b)he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, [F476 and F476]

F477(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

either of the conditions mentioned in subsection (6ZA) below is met.

(6ZA)The conditions referred to in subsection (6) above are—

(a)the person has not had his fingerprints taken since he was convicted, [F478 or cautionedF478] ;

(b)he has had his fingerprints taken since then but subsection (3A)(a) or (b) above applies.

(6ZB)Fingerprints may only be taken as specified in subsection (6) above with the authorisation of an officer of at least the rank of inspector.

(6ZC)An officer may only give an authorisation under subsection (6ZB) above if the officer is satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime.F474]

[F479 (6A)A constable may take a person's fingerprints without the appropriate consent if—

(a)the constable reasonably suspects that the person is committing or attempting to commit an offence, or has committed or attempted to commit an offence; and

(b)either of the two conditions mentioned in subsection (6B) is met.

(6B)The conditions are that—

(a)the name of the person is unknown to, and cannot be readily ascertained by, the constable;

(b)the constable has reasonable grounds for doubting whether a name furnished by the person as his name is his real name.

(6C)The taking of fingerprints by virtue of subsection (6A) does not count for any of the purposes of this Act as taking them in the course of the investigation of an offence by the police.F479]

[F480 (6D)Subject to this section, the fingerprints of a person may be taken without the appropriate consent if—

(a)under the law in force in a country or territory outside England and Wales the person has been convicted of an offence under that law (whether before or after the coming into force of this subsection and whether or not he has been punished for it);

(b)the act constituting the offence would constitute a qualifying offence if done in England and Wales (whether or not it constituted such an offence when the person was convicted); and

(c)either of the conditions mentioned in subsection (6E) below is met.

(6E)The conditions referred to in subsection (6D)(c) above are—

(a)the person has not had his fingerprints taken on a previous occasion under subsection (6D) above;

(b)he has had his fingerprints taken on a previous occasion under that subsection but subsection (3A)(a) or (b) above applies.

(6F)Fingerprints may only be taken as specified in subsection (6D) above with the authorisation of an officer of at least the rank of inspector.

(6G)An officer may only give an authorisation under subsection (6F) above if the officer is satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime.F480]

[F481 (7)Where a person's fingerprints are taken without the appropriate consent by virtue of any power conferred by this section—

(a)before the fingerprints are taken, the person shall be informed of—

(i)the reason for taking the fingerprints;

(ii)the power by virtue of which they are taken; and

(iii)in a case where the authorisation of the court or an officer is required for the exercise of the power, the fact that the authorisation has been given; and

(b)those matters shall be recorded as soon as practicable after the fingerprints are taken.F481]

[F482 (7A)If a person’s fingerprints are taken at a police station, [F483 or by virtue of [F484 subsection (4A), (6A)F484] at a place other than a police station,F483] whether with or without the appropriate consent—

(a)before the fingerprints are taken, an officer [F485 (or, where by virtue of subsection (4A), (6A) or (6BA) the fingerprints are taken at a place other than a police station, the constable taking the fingerprints)F485] shall inform him that they may be the subject of a speculative search; and

(b)the fact that the person has been informed of this possibility shall be recorded as soon as is practicable after the fingerprints have been taken.F482]

(8)If he is detained at a police station when the fingerprints are taken, [F486the matters referred to in subsection (7)(a)(i) to (iii) aboveF486][F487 and, in the case falling within subsection (7A) above, the fact referred to in paragraph (b) of that subsectionF487] shall be recorded on his custody record.

F488(8A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F489 (8B)Any power under this section to take the fingerprints of a person without the appropriate consent, if not otherwise specified to be exercisable by a constable, shall be exercisable by a constable.F489]

(9)Nothing in this section—

(a)M36 affects any power conferred by paragraph 18(2) of Schedule 2 to the Immigration Act 1971; or

[F490 (b)applies to a person arrested or detained under the terrorism provisions [F491 or under section 27 of the National Security Act 2023,F491] [F492 or detained under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019F492] .F490]

[F493 (10)Nothing in this section applies to a person arrested under an extradition arrest power.F493]

Definitions used in section 61 10

fingerprints

“fingerprints”, in relation to any person, means a record (in any form and produced by any method) of the skin pattern and other physical characteristics or features of—

(a)

any of that person’s fingers; or

(b)

either of his palms;

Defined in s.65(1) · see it in the full Act
appropriate consent

“appropriate consent” means—

(a)

in relation to a person who has attained the age of 18 years , the consent of that person;

(b)

in relation to a person who has not attained that age but has attained the age of 14 years, the consent of that person and his parent or guardian; and

(c)

in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian;

Defined in s.65(1) · see it in the full Act
recordable offence

“recordable offence” means any offence to which regulations under section 27 above apply;

Defined in s.118(1) · see it in the full Act
offence

“offence”, in relation to any country or territory outside England and Wales, includes an act punishable under the law of that country or territory, however it is described;

Defined in s.65(1) · see it in the full Act
sufficient

“sufficient” and “insufficient”, in relation to a sample, means (subject to subsection (2) below) sufficient or insufficient (in point of quantity or quality) for the purpose of enabling information to be produced by the means of analysis used or to be used in relation to the sample ;

Defined in s.65(1) · see it in the full Act
analysis

“analysis”, in relation to a skin impression, includes comparison and matching;

Defined in s.65(1) · see it in the full Act
qualifying offence

(1) In this Part, “qualifying offence” means—

(a)an offence specified in subsection (2) below, or

(b)an ancillary offence relating to such an offence.

Defined in s.65A(1) · see it in the full Act
speculative search

“speculative search”, in relation to a person’s fingerprints or samples, means such a check against other fingerprints or samples or against information derived from other samples as is referred to in section 63A(1) above;

Defined in s.65(1) · see it in the full Act
the terrorism provisions

“the terrorism provisions” means sections 41 and 43B of the Terrorism Act 2000 , and any provision of Schedule 7 to that Act conferring a power of detention; and

Defined in s.65(1) · see it in the full Act
extradition arrest power

“extradition arrest power” means any of the following—

(a)

a Part 1 warrant (within the meaning given by the Extradition Act 2003) in respect of which a certificate under section 2 of that Act has been issued;

(b)

section 5 of that Act;

(c)

a warrant issued under section 71 of that Act;

(d)

a provisional warrant (within the meaning given by that Act).

(e)

section 74A of that Act;

Defined in s.65(1) · see it in the full Act

Cases considering section 61 5

Public Prosecution Service v McKee (Northern Ireland)

[2013] UKSC 32 · 22 May 2013Limits

The provision was identified as the broadly similar fingerprinting regime for England and Wales. (see para [2]) The provision confirmed that fingerprints in England and Wales could otherwise be taken only with consent. (see para [2]) The uncommenced provision would have required approval of electronic fingerprinting devices in England and Wales. Its legislative history did not show an intention that use of an unapproved device should exclude the resulting evidence. (see paras [3]; [16])

Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant)Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC)(Appellant) Consolidated Appeals

[2004] UKHL 39 · 22 July 2004

The House identified this as one of the principal provisions authorising the taking of fingerprints in regulated circumstances involving suspicion of a criminal offence.

R (S) v Chief Constable of the South Yorkshire Police (R (Marper) v Chief Constable of the South Yorkshire Police)

[2002] EWCA Civ 1275 · 12 September 2002Defines

Section 61(1) was identified as prohibiting the taking of fingerprints without consent except as provided by later subsections. It illustrated the carefully defined statutory code governing the taking of fingerprints. (see “The Legislation”) Section 61(2) was identified as requiring written consent for fingerprinting at a police station. It formed part of the statutory code on when fingerprints could be taken, without independently determining the retention issue. (see “The Legislation”) Section 61(3) was identified as permitting non-consensual fingerprinting of a detained person in defined circumstances connected with suspected crime or a charge. It supported the conclusion that the statutory scheme confined the lawful taking of fingerprints. (see “The Legislation”) Section 61(3)(b) was identified as permitting non-consensual fingerprinting after charge or notification of a recordable offence where fingerprints had not already been taken in the investigation. It illustrated the statutory limits on taking fingerprints. (see “The Legislation”) Section 61(3A) was identified as providing for retaking fingerprints where earlier impressions were incomplete or inadequate for analysis, comparison or matching. It was part of the statutory code but was not independently decisive of the retention issue. (see “The Legislation”) Section 61(4) was identified as authorising non-consensual fingerprinting where a superintendent authorised it on reasonable grounds relating to suspected crime or identity. It was part of the statutory controls on taking fingerprints. (see “The Legislation”) Section 61(4A) was identified as providing for non-consensual fingerprinting after answering bail in specified circumstances. It formed part of the statutory code governing the taking of fingerprints, without determining whether later retention was justified. (see “The Legislation”) Section 61(4B) was identified as requiring reasonable grounds for believing that a person answering bail was not who he claimed to be. It illustrated the statutory controls on taking fingerprints. (see “The Legislation”) Section 61(6) was identified as authorising non-consensual fingerprinting of persons convicted of recordable offences, with amendments extending the category to cautioned, warned and reprimanded persons. It formed part of the statutory scheme but was not independently decisive. (see “The Legislation”) Section 61(7) was identified as requiring a person to be told why fingerprints were being taken and requiring the reason to be recorded. It illustrated the detailed statutory safeguards in the taking regime. (see “The Legislation”) Section 61(7A) was identified as requiring information about the possibility of a speculative search and recording that the person had been informed. It was part of the statutory code but did not determine the appeal. (see “The Legislation”)

What each judgment says about section 61 is in the case-law panel in the full Act.

Amendments and notes

40 notes from legislation.gov.uk

Amendments

  1. F461S. 61(3) substituted (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 9(2), 336; S.I. 2004/829, art. 2(1)(2)(a) (subject to art. 2(3)-(6))
  2. F462S. 61(3A) inserted (1.1.2003) by 2001 c. 16, s. 78(3); S.I. 2002/3032, art. 2(a)
  3. F463Words in s. 61(3A) substituted (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 9(3), 336; S.I. 2004/829, art. 2(1)(2)(a) (subject to art. 2(3)-(6))
  4. F464S. 61(4) substituted (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 9(2), 336; S.I. 2004/829, art. 2(1)(2)(a) (subject to art. 2(3)-(6))
  5. F465S. 61(4A)(4B) inserted (1.1.2003) by 2001 c. 16, s. 78(4); S.I. 2002/3032, art. 2(a)
  6. F466Words in s. 61(5) substituted (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 9(4), 336; S.I. 2004/829, art. 2(1)(2)(a) (subject to art. 2(3)-(6))
  7. F467S. 61(5A) inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(1), 59(1); S.I. 2011/414, art. 2(b)
  8. F468Words in s. 61(5A)(a) omitted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), ss. 59(2)(a), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 12
  9. F469Words in s. 61(5A)(b) omitted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), ss. 59(2)(b), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 12
  10. F470Words in s. 61(5A)(b) substituted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(1)(a), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  11. F471S. 61(5B) inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(2), 59(1); S.I. 2011/414, art. 2(b)
  12. F472Words in s. 61(5B)(b) substituted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(1)(a), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  13. F473S. 61(5C) inserted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(1)(b), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  14. F474S. 61(6)-(6ZC) substituted for s. 61(6) (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(3), 59(1); S.I. 2011/414, art. 2(b)
  15. F475Word in s. 61(6)(a) inserted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 7(2)(a) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  16. F476Word in s. 61(6)(b) substituted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 7(2)(b) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  17. F477S. 61(6)(c) omitted (8.4.2013) by virtue of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 7(2)(c) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  18. F478Words in s. 61(6ZA)(a) substituted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 7(3) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  19. F479S. 61(6A)-(6C) inserted (7.3.2011) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 117(2), 178(8); S.I. 2011/410, art. 2(a)
  20. F480S. 61(6D)-(6G) inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 3(1), 59(1); S.I. 2011/414, art. 2(b)
  21. F481S. 61(7) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 4(1), 59(1); S.I. 2011/414, art. 2(b)
  22. F482S. 61(7A) inserted (10.4.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 56(a); S.I. 1995/721, art. 2, Sch. Appendix A
  23. F483Words in s. 61(7A) inserted (7.3.2011) by Serious Organised Crime and Police Act 2005 (c. 15), ss. 117(4)(a), 178(8); S.I. 2011/410, art. 2(b)
  24. F484Words in s. 61(7A) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 4(2)(a), 59(1); S.I. 2011/414, art. 2(b)
  25. F485S. 61(7A)(a): By Crime and Security Act 2010 (c. 17), ss. 4(2)(b), 59(1); S.I. 2011/414, art. 2(b), it is provided that the words "(or, in a subsection (6A) case, the constable)" (which were inserted (prosp.) by 2005 c. 15, s. 117(4)(b)) be substituted (7.3.2011) text inserted, substituted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  26. F486Words in s. 61(8) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 4(3), 59(1); S.I. 2011/414, art. 2(b)
  27. F487Words in s. 61(8) inserted (10.4.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 56(b); S.I. 1995/721, art. 2, Sch. Appendix A
  28. F488S. 61(8A) repealed (12.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 112(1)(2), 116(6), Sch. 7 para. 127(2), Sch. 8 Pt. 13
  29. F489S. 61(8B) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(4), 59(1); S.I. 2011/414, art. 2(b)
  30. F490S. 61(9)(b) substituted (19.2.2001) by 2000 c. 11, s. 125, Sch. 15 para. 5(7) (with s. 129(1)); S.I. 2001/421 art. 2
  31. F491Words in s. 61(9)(b) inserted (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 18 para. 4(4) (with s. 97); S.I. 2023/1272, reg. 2(f)
  32. F492Words in s. 61(9)(b) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 18(5); S.I. 2020/792, reg. 2(i)
  33. F493S. 61(10) inserted (1.1.2004) by Extradition Act 2003 (c. 41), ss. 169(3), 221; S.I. 2003/3103, art. 2 (subject to savings in Order (as amended by S.I. 2003/3312, art. 2(2) and S.I. 2003/3258, art. 2(2)))

Modifications

  1. C494S. 61 applied (with modifications) by S.I. 1985/1882, art. 6
  2. C495S. 61 modified (2.8.1993) by S.I. 1993/1813, art. 6, Sch. 3 para. 3(2); and s. 61 modified by the said S.I. 1993/1813, art. 6, Sch. 3 para. 3 as incorporated (with modifications) (1.12.1997) by S.I. 1994/1405, art. 6, Sch. 3 para. 4
  3. C496S. 61 extended (2.12.2002) by Police Reform Act 2002 (c. 30), s. 38, Sch. 4 Pt. 3 para. 29(a); S.I. 2002/2750, art. 2(a)(ii)(d)
  4. C497S. 61 applied (with modifications) (31.12.2006) by The Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 2006 (S.I. 2006/2015), arts. 2, 3, Schs. 1-3
  5. C498S. 61(1)-(8) modified (E.W.) (temp.) by Prevention of Terrorism (Temporary Provisions) Act 1989 (c. 4, SIF 39:2), ss. 15(10), 16(1)(3)(4), 27(5), Sch. 5 para. 7(6)
  6. C499S. 61(7A)(a) modified (2.12.2002) by Police Reform Act 2002 (c. 30), s. 38, Sch. 4 Pt. 3 para. 29(b); S.I. 2002/2750, art. 2(a)(ii)(d)

Marginal citations

  1. M361971 c. 77.