Other samples

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

Where a person gives consent to the taking of a non-intimate sample, that consent shall be in writing.

A non-intimate sample may be taken from a person, without the appropriate consent — Section 37 Police Act (2021 Revision) Page 28 Revised as at 31st December, 2020 c

if —

that person is being held in custody by the police on the authority of a court; and taken without the appropriate consent; or

a police officer of at least the rank of Inspector authorises it to be

where the following conditions are satisfied —

the person is in police detention in consequence of that person’s arrest for an arrestable offence; and and from the same part of the body taken in the course of the investigation of the offence by the police, or that person has had such a sample taken but it proved insufficient.

either that person has not had a non-intimate sample of the same type

A non-intimate sample may be taken from a person, whether or not that person is in police detention or held in custody by the police on the authority of a court, without the appropriate consent if —

that person has been charged with an arrestable offence or informed that that person will be reported for such an offence; and

either the person has not had a non-intimate sample taken from that person in the course of the investigation of the offence by the police or the person has had a non-intimate sample taken from that person but either it was not suitable for the same means of analysis or, though so suitable, the sample proved insufficient.

A non-intimate sample may be taken from a person without the appropriate consent if that person has been convicted of an arrestable offence.

A non-intimate sample may also be taken from a person without the appropriate consent if that person is a person to whom section 159 of the Criminal Procedure Code (2021 Revision) applies.

A police officer may only give an authorisation under subsection (3)(a) if the police officer has reasonable grounds —

for suspecting the involvement of the person from whom the sample is to be taken in an arrestable offence; and

for believing that the sample will tend to confirm or disprove that person’s involvement.

A police officer may give an authorisation under subsection (3)(a) orally or in writing but, if the police officer gives it orally, that police officer shall confirm it in writing as soon as is practicable.

A police officer shall not give an authorisation under subsection (3)(a) for the taking from any person of a non-intimate sample consisting of a skin impression if — Police Act (2021 Revision) Section 37 c Revised as at 31st December, 2020 Page 29

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

the impression previously taken is not one that has proved insufficient.

Where —

an authorisation has been given; and

it is proposed that a non-intimate sample shall be taken in pursuance of the authorisation, a police officer shall inform the person from whom the sample is to be taken —

of the giving of the authorisation; and

of the grounds for giving it.

The duty imposed by subsection (10)(ii) includes a duty to state the nature of the offence in which it is suspected that the person from whom the sample is to be taken has been involved.

If a non-intimate sample is taken from a person by virtue of subsection (3) —

the authorisation by virtue of which it was taken; and

the grounds for giving the authorisation, shall be recorded by a police officer as soon as is practicable after the sample is taken.

In a case where by virtue of subsection (3), (4), (5) or (6) a sample is taken from a person without the appropriate consent —

that person shall be told the reason before the sample is taken; and

the reason shall be recorded by a police officer as soon as practicable after the sample is taken.

If a non-intimate sample is taken from a person at a police station, whether with or without the appropriate consent —

before the sample is taken, a police officer shall inform that person that it may be the subject of a random search; and

the fact that the person has been informed of this possibility shall be recorded by a police officer as soon as practicable after the sample has been taken.

If a non-intimate sample is taken from a person detained at a police station, the matters required to be recorded by subsection (12), (13) or (14) shall be recorded in that person’s custody record.

The power to take a non-intimate sample from a person without the appropriate consent —

shall be exercisable by any police officer; and

may be exercised with reasonable force. Section 38 Police Act (2021 Revision) Page 30 Revised as at 31st December, 2020 c

Where a non-intimate sample consisting of a skin impression is taken electronically from a person, it shall be taken only in such manner, and using such devices, approved from time to time by the Commissioner in writing and published by Order in the Gazette.

Where any non-intimate samples have been taken contrary to the procedure prescribed in this section, the failure to follow the prescribed procedure shall not render the non-intimate sample evidence inadmissible in any legal proceedings.

Nothing in this section applies to any person —

arrested or detained under the Terrorism Act (2018 Revision); or

arrested under an extradition arrest power.

Police Act

10 Parts