Police and Criminal Evidence Act 1984, section 63

Other samples

Part V Questioning and Treatment of Persons by Police

(1)Except as provided by this section, a non-intimate sample may not be taken from a person without the appropriate consent.

(2)Consent to the taking of a non-intimate sample must be given in writing.

[F517 (2A)A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.

(2B)The first is that the person is in police detention in consequence of his arrest for a recordable offence.

(2C)The second is that—

(a)he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or

(b)he has had such a sample taken but it proved insufficient.F517]

(3)A non-intimate sample may be taken from a person without the appropriate consent if—

(a)F518he . . . is being held in custody by the police on the authority of a court; and

(b)an officer of at least the rank of [F519inspectorF519] authorises it to be taken without the appropriate consent.

[F520 (3ZA)A non-intimate sample may be taken from a person 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)F521... he has not had a non-intimate sample of the same type and from the same part of the body taken from him in the course of the investigation of the offence by the police; or

(b)F522... he has had a non-intimate sample taken from him in the course of that investigation but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved insufficient.F520] , or

[F523 (iii)subsection (3AA) below applies.F523]

[F524 (3A)A non-intimate sample may be taken from a person (whether or not he is in police detention or held in custody by the police on the authority of a court) without the appropriate consent if 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 a non-intimate sample taken from him in the course of the investigation of the offence by the police; or

(b)he has had a non-intimate sample taken from him in the course of that investigation but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved [F525 insufficient, or

(iii)subsection (3AA) below applies; orF525]

(c)he has had a non-intimate sample taken from him in the course of that investigation and—

(i)the sample has been destroyed pursuant to section [F526 63RF526] below or any other enactment, and

(ii) it is disputed, in relation to any proceedings relating to the offence, whether a dfnDNA profile relevant to the proceedings is derived from the sample.F524]

[F527 (3AA)This subsection applies where the investigation was discontinued but subsequently resumed, and before the resumption of the investigation—

(a)any dfnDNA profile derived from the sample was destroyed pursuant to section 63D(3) below, and

(b)the sample itself was destroyed pursuant to section 63R(4), (5) or (12) below.F527]

[F528 (3B)Subject to this section, a non-intimate sample may be taken from a person without the appropriate consent if (before or after the coming into force of this subsection)—

(a)he has been convicted of a recordable offence, [F529 orF529]

(b)he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, [F530 andF530]

F531(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

either of the conditions mentioned in subsection (3BA) below is met.

(3BA)The conditions referred to in subsection (3B) above are—

(a)a non-intimate sample has not been taken from the person since he was convicted [F532 or cautionedF532] ;

(b)such a sample has been taken from him since then but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved insufficient.

(3BB)A non-intimate sample may only be taken as specified in subsection (3B) above with the authorisation of an officer of at least the rank of inspector.

(3BC)An officer may only give an authorisation under subsection (3BB) above if the officer is satisfied that taking the sample is necessary to assist in the prevention or detection of crime.F528]

[F533 (3C)A non-intimate sample may also be taken from a person without the appropriate consent if he is a person to whom section 2 of the Criminal Evidence (Amendment) Act 1997 applies (persons detained following acquittal on grounds of insanity or finding of unfitness to plead).F533]

[F534 (3E)Subject to this section, a non-intimate sample may be taken without the appropriate consent from a person 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 (3F) below is met.

(3F)The conditions referred to in subsection (3E)(c) above are—

(a)the person has not had a non-intimate sample taken from him on a previous occasion under subsection (3E) above;

(b)he has had such a sample taken from him on a previous occasion under that subsection but—

(i)the sample was not suitable for the same means of analysis, or

(ii)it proved insufficient.

(3G)A non-intimate sample may only be taken as specified in subsection (3E) above with the authorisation of an officer of at least the rank of inspector.

(3H)An officer may only give an authorisation under subsection (3G) above if the officer is satisfied that taking the sample is necessary to assist in the prevention or detection of crime.F534]

(4)An officer may only give an authorisation under subsection (3) above if he has reasonable grounds—

(a)for suspecting the involvement of the person from whom the sample is to be taken in a [F535recordable offenceF535] ; and

(b)for believing that the sample will tend to confirm or disprove his involvement.

(5)An officer may give an authorisation under subsection (3) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

[F536 (5A)An officer shall not give an authorisation under subsection (3) above for the taking from any person of a non-intimate sample consisting of a skin impression if—

(a)a skin impression of the same part of the body has already been taken from that person in the course of the investigation of the offence; and

(b)the impression previously taken is not one that has proved insufficient.F536]

[F537 (6)Where a non-intimate sample is taken from a person without the appropriate consent by virtue of any power conferred by this section—

(a)before the sample is taken, an officer shall inform him of—

(i)the reason for taking the sample;

(ii)the power by virtue of which it is taken; and

(iii)in a case where the authorisation of 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 sample is taken.

(7)The reason referred to in subsection (6)(a)(i) above must include, except in a case where the non-intimate sample is taken under subsection (3B) or (3E) above, a statement of the nature of the offence in which it is suspected that the person has been involved.F537]

[F538 (8B)If a non-intimate sample is taken from a person at a police station, whether with or without the appropriate consent—

(a)before the sample is taken, an officer shall inform him that it 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 practicable after the sample has been taken.F538]

(9)If a non-intimate sample is taken from a person detained at a police station, the matters required to be recorded by [F539subsection (6) or (8B)F539] above shall be recorded in his custody record.

[F540 (9ZA)The power to take a non-intimate sample from a person without the appropriate consent shall be exercisable by any constable.F540]

[F541 (9A)Subsection (3B) above shall not apply to

[F542 (a)F542] any person convicted before 10th April 1995 unless he is a person to whom section 1 of the Criminal Evidence (Amendment) Act 1997 applies (persons imprisoned or detained by virtue of pre-existing conviction for sexual offence etc.).F541][F543 ; or

(b)a person given a caution before 10th April 1995.F543]

[F544 (10)Nothing in this section applies to a person arrested or detained under the terrorism provisions [F545 or detained under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019F545] .F544]

[F546 (10A)Nothing in this section applies to a person arrested or detained under section 27 of the National Security Act 2023.F546]

[F547 (11)Nothing in this section applies to a person arrested under an extradition arrest power.F547]

Definitions used in section 63 11

non-intimate sample

“non-intimate sample” means—

(a)

a sample of hair other than pubic hair;

(b)

a sample taken from a nail or from under a nail;

(c)

a swab taken from any part of a person's body other than a part from which a swab taken would be an intimate sample;

(d)

saliva;

(e)

a skin impression;

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
insufficient

“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
skin impression

“skin impression”, in relation to any person, means any record (other than a fingerprint) which is a record “in any form and produced by any method) of the skin pattern and other physical characteristics or features of the whole or any part of his foot or of any other part of his body;

Defined in s.65(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 63 5

R, R (on the application of) v A Chief Constable

[2013] EWHC 2864 (Admin) · 24 September 2013Interprets

The court applied the provision to establish that a non-intimate sample could be taken without consent from a person convicted of a recordable offence, subject to the statutory conditions. The claimant’s qualifying convictions brought him within the scheme (see paras [1], [14], [21]). The court applied the condition that no suitable non-intimate sample had previously been taken since conviction or caution. This formed part of the statutory basis for the later requirement (see paras [1], [14]). The provision required authorisation by an officer of at least inspector rank before a sample could be taken under section 63(3B). The court held that authorisation had to precede a paragraph 11 attendance requirement (see paras [14], [17], [33]-[34]). The authorising officer could act only if satisfied that taking the sample was necessary to assist prevention or detection of crime. The court accepted that the detective inspector’s assessment of necessity could rely on offending propensity and the public interest in detecting crime (see paras [14], [40]-[41]).

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 provision contained the principal power relevant to taking samples where a person was charged with a recordable offence. The House distinguished the lawful taking of samples from their subsequent retention and use.

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 63 was identified as containing restrictions on the taking of intimate samples, alongside section 62. It illustrated the statutory code governing the taking of samples, without independently deciding the retention issue. (see “The Legislation”)

What each judgment says about section 63 is in the case-law panel in the full Act.

Amendments and notes

37 notes from legislation.gov.uk

Amendments

  1. F517S. 63(2A)-(2C) inserted (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 10(2), 336; S.I. 2004/829, art. 2(1)(2)(a) (subject to art. 2(3)-(6))
  2. F518Words in s. 63(3)(a) repealed (5.4.2004) by Criminal Justice Act 2003 (c. 44), ss. 10(3), 332, 336, Sch. 37 Pt. 1; S.I. 2004/829, art. 2(1)(2)(a)(l)(i) (subject to art. 2(3)-(6))
  3. F519Word in s. 63(3)(b) substituted (1.4.2003) by 2001 c. 16, ss. 80(1), 138(2); S.I. 2003/708, art. 2(h)
  4. F520S. 63(3ZA) inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(5), 59(1); S.I. 2011/414, art. 2(b)
  5. F521Words in s. 63(3ZA)(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(3)(a), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 12
  6. F522Words in s. 63(3ZA)(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(3)(b), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 12
  7. F523S. 63(3ZA)(b)(iii) and word inserted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(2)(a), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  8. F524S. 63(3A) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(6), 59(1); S.I. 2011/414, art. 2(b)
  9. F525Words in s. 63(3A)(b) substituted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(2)(b), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  10. F526Word in s. 63(3A)(c)(i) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 3(2) (with s. 97); S.I. 2013/2104, art. 3(c)
  11. F527S. 63(3AA) inserted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 144(2)(c), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13
  12. F528S. 63(3B)-(3BC) substituted for s. 63(3B) (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(7), 59(1); S.I. 2011/414, art. 2(b)
  13. F529Word in s. 63(3B)(a) inserted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 8(2)(a) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  14. F530Word in s. 63(3B)(b) substituted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 8(2)(b) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  15. F531S. 63(3B)(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. 8(2)(c) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  16. F532Words in s. 63(3BA)(a) substituted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 24 para. 8(3) (with s. 135(4)); S.I. 2013/453, art. 4(f)
  17. F533S. 63(3C) inserted (19.3.1997) by 1997 c. 17, s. 2(1)(2)(a)(3)-(7)
  18. F534S. 63(3E)-(3H) inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 3(4), 59(1); S.I. 2011/414, art. 2(b)
  19. F535Words in s. 63(4)(a) substituted (10.4.1995) by 1994 c. 33, s. 55(3); S.I. 1995/721, art. 2, Sch.
  20. F536S. 63(5A) inserted (1.1.2003) by 2001 c. 16, s. 80(3); S.I. 2002/3032, art. 2(b)
  21. F537S. 63(6)(7) substituted for s. 63(6)-(8A) (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 4(7), 59(1); S.I. 2011/414, art. 2(b)
  22. F538S. 63(8B) inserted (10.4.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 58(a); S.I. 1995/721, art. 2, Sch. Appendix A
  23. F539Words in s. 63(9) substituted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 4(8), 59(1); S.I. 2011/414, art. 2(b)
  24. F540S. 63(9ZA) inserted (2.12.2002) by Police Reform Act 2002 (c. 30), s. 107, Sch. 7 para. 9(4); S.I. 2002/2750, art. 2(b)(ii)
  25. F541S. 63(9A) substituted for the subsection (10) inserted in s. 63 by 1994 c. 33, s. 55(6) (19.3.1997) by 1997 c. 17, s. 1(1)(a)(2)(3)(6)
  26. F542Words in s. 63(9A) renumbered as s. 63(9A)(a) (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(8)(a), 59(1); S.I. 2011/414, art. 2(b)
  27. F543S. 63(9A)(b) and word inserted (7.3.2011) by Crime and Security Act 2010 (c. 17), ss. 2(8)(b), 59(1); S.I. 2011/414, art. 2(b)
  28. F544S. 63(10) substituted (19.2.2001) by 2000 c. 11, s. 125, Sch. 15 para. 5(9) (with s. 129(1));S.I. 2001/421, art. 2
  29. F545Words in s. 63(10) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 18(8); S.I. 2020/792, reg. 2(i)
  30. F546S. 63(10A) inserted (20.12.2023) by The National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023 (S.I. 2023/1386), reg. 1(2), Sch. para. 7(5)
  31. F547S. 63(11) inserted (1.1.2004) by Extradition Act 2003 (c. 41), ss. 169(4), 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. C508S. 63 applied with modifications by S.I. 1985/1800, arts. 3–11, Schs. 1, 2 and 1985/1882, art. 8
  2. C509S. 63 modified (2.8.1993) by S.I. 1993/1813, art. 6, Sch. 3 para. 3(2)(3); s. 63 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. C510S. 63 extended (2.12.2002) Police Reform Act 2002 (c. 30), s. 38, Sch. 4 Pt. 3 para. 31(a); S.I. 2002/2750, art. 2(a)(ii)(d)
  4. C511S. 63 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. C512S. 63 applied (with modifications) (4.11.2015) by The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (S.I. 2015/1783), arts. 1, 3(1), Sch. 1 (with art. 3(2), (3), 4-19, Sch. 2)
  6. C513S. 63(8B)(a) modified (2.12.2002) by Police Reform Act 2002 (c. 30), s. 38, Sch. 4 Pt. 3 para. 31(c); S.I. 2002/2750, art. 2(a)(ii)(d)