When Police can obtain DNA samples

Sometimes people might offer to give a police officer1 a DNA sample or agree to do so if asked. However, police officers can only require people to give a DNA sample in some circumstances.

For instance, if a police officers has grounds to suspect someone of committing an imprisonable offence2 and analysis of DNA will confirm or disprove this, then the law says they can ask the Court to make an order to require someone to give a DNA sample.  Also, if a police officer has  arrested or are about to charge someone for an imprisonable offence, then they can require a DNA sample. For the details see the Criminal Investigations (Bodily Samples) Act 1995.

For information on how long Police can keep DNA samples and DNA profiles once they are obtained, see the section how long Police can keep DNA samples and DNA profiles.

There are five situations in which a police officer3 can obtain DNA samples from someone aged 17 years or older4 who is not convicted of a crime.5

1. Elimination sample

Police can ask a person if they will agree to give a DNA sample to eliminate themselves from police inquiries.  This is not covered by the Criminal Investigations (Bodily Samples) Act 1995.  In this situation, a person could refuse to give a sample. Alternatively, someone (such as a victim) could volunteer to give a DNA sample to distinguish their DNA from the DNA of the offender.   In case 1 Detective Jess asks Chris if he will give an elimination sample.

2. Suspect request (Consent Sample)

If a police officer:

  • suspects that someone may have committed an imprisonable offence, 6 and
  • believes on reasonable grounds that an analysis of that person’s DNA would confirm or disprove the person’s involvement in the offence,

then the officer can ask someone if they will agree to give a sample.

The police officer has to give the person certain forms to sign and explain what the consequences are. The person does not have to consent or agree. This is called a “suspect request” under Part 2 of the Criminal Investigations (Bodily Samples) Act 1995.

3. Suspect compulsion order

If the person does not consent to a “suspect request”, then a police officer can apply to a Judge for an order to make the person give a sample.  (This is the situation with Sam in case 1). The Judge can make the order if:

  • the facts show there is good cause to suspect the person committed an imprisonable offence;
  • that the suspect has refused to consent to giving a bodily sample; and
  • it is reasonable to think that the analysis of a DNA sample from the suspect will help either prove or disprove that the suspect committed the offence;
  • and it is reasonable to make the order in the circumstances,

This is called a “suspect compulsion” order under Part 2 of the Act.

Once the Judge has made an order then a police officer can obtain the DNA sample.

When they obtain the sample, the police officer has to give the person forms to sign and explain what is happening. A person cannot refuse to give a sample in this situation.

A person can take their own saliva (buccal) swab with the supervision of a police officer or agree to a fingerprick or a venous blood sample (taken with a needle and syringe) being taken by a qualified person.

The police officer can use reasonable force to assist a qualified person to take a fingerprick sample if the person does not cooperate.

4. Sample upon arrest or intention to charge

If a police officer is arresting someone for committing an offence7 or intend to charge them with committing an offence, then at the same time, they can obtain a DNA sample from the person.

The police officer has to give the person forms to sign and explain what is happening.

A person cannot refuse to give a sample in this situation. A person can take their own saliva (buccal) swab with the supervision of a police officer or agree to a fingerprick being taken by a qualified person.

The police officer can use reasonable force to assist a qualified person to take a fingerprick sample if the person will not co-operate. This is set out under Part 2B of the Act.

5. Databank request

A police officer can request someone to give a DNA sample for the purpose of adding that person’s DNA profile to the  National DNA Profile Databank. This request may be refused. If a person consents, then they need to be given certain forms. Generally people are free to withdraw their consent at any time, although there are some exceptions. This is set out under Part 3 of the Act.

Footnotes

  1. The term ‘police officer’ here means a sworn police officer (a constable)
  2. An offence where, if the person is convicted of the offence, they could be sentenced to prison. Although Police can request a DNA sample in all such cases, they usually focus on the more serious offences.
  3. The term ‘police officer’ here means a sworn police officer (a constable)
  4. In general the police can only obtain a DNA sample from a child aged between 10 to 13 years if there is good cause to suspect him or her of committing a very serious offence, such as murder or manslaughter, and if the court makes an order (called a juvenile compulsion order). The police can obtain a DNA sample from a young person aged 14 to 16 years old if she or he consents (and the reason for obtaining the sample is to compare the young person’s DNA profile to a crime scene DNA profile); or if the police have arrested or intend to charge the young person with an imprisonable offence; or if the court makes a juvenile compulsion order. There are also extra protections in place for children and young people, such as a parent or caregiver needing to also consent or know about the request to obtain the sample. Children and young people are also allowed a lawyer. It should be noted that the police cannot request anyone under 17 years to give a sample for the National DNA Profile Databank (a “Databank request”).
  5. As well as these five situations, the police can obtain a DNA sample from someone when they are convicted of an imprisonable offence.
  6. This is must be an offence that the person could go to prison for. The police usually focus on more serious offences, not just any imprisonable offence.
  7. Again, this has to be for an offence that the person could go to prison for. The police usually focus on more serious offences, not just any imprisonable offence.