Forensic Procedures

Generally

The Forensic Procedure Act 2000 ['the Act'] was enacted to allow forensic procedures to be carried out on certain people such as suspects or people charged with a serious offence, to assist police in solving crime. A forensic procedure can either be non-intimate or intimate. A non-intimate forensic procedure may involve taking a sample of blood, saliva or hair (not pubic hair) or an external examination of a body part, other than an intimate body part. The most common sample currently taken is the buccal swab (on the inside of the cheek). An intimate forensic procedure may involve an external examination of genitals, anus, buttock, breasts, an internal body cavity other than the mouth and the taking of samples of pubic hair.

Exclusions

The Act does not allow forensic procedures to be carried out on children under 10 years of age or to victims of an offence. The Act also does not apply to photographs and video recordings obtained in the course of a police surveillance operation.

Circumstances For Carrying Out Forensic Procedure

An intimate forensic procedure may be carried out on a suspect or charged person (person arrested and charged with a serious offence) who is 15 years or older, provided the suspect or charged person has given their informed consent. Informed consent is consent given after all details of the procedure have been explained to the person. If the suspect or charged person does not give their consent to the forensic procedure being carried out, the police must obtain an order from a magistrate.

A non-intimate forensic procedure may be carried out on a suspect or charged person who is 15 years or older, provided the suspect or charged person has given their informed consent to the procedure. If the suspect or charged person does not give their consent to the forensic procedure being carried out, an Order of Police must be obtained.

Where a suspect or a charged person is under 15 years of age, a forensic procedure may be carried out on that person if both the suspect or the charged person and their parent have given their informed consent to the procedure. Again, if the suspect or charged person or their parent refuse to give their consent, a magistrates order must be obtained.

A suspect or charged person may withdraw their consent to a forensic procedure before or during the carrying out of the procedure either by saying so or by behaving in such a way to demonstrate that their consent has been withdrawn.

Carrying Out Of Forensic Procedures

A forensic procedure must be carried out in circumstances affording reasonable privacy to the person undergoing the procedure and is to be carried out in accordance with appropriate medical standards.

A forensic procedure may only be carried out by an authorised person. The Act contains a list of all forensic procedures and the persons authorised to carry out those procedures. These are generally medical practitioners, nurses, dentists, and in some circumstances, police officers.

If practicable, an intimate forensic procedure (other than the taking of a dental impression or an x-ray) is to be carried out by a person of the same sex as the person undergoing the procedure. A non-intimate forensic procedure for which the person must remove clothing covering intimate parts of the body is also to be carried out by a person of the same sex.

All forensic procedures on suspects or charged persons under 15 years of age must be carried out in the presence of a parent, or if both parents are unavailable, an independent witness over 18 years of age who is not a police officer and is not the suspect or charged persons' parent.

Police officers may be present during the carrying out of forensic procedures for the purposes of safety, security, continuity of evidence, investigation and the effective carrying out of the procedure in accordance with the Act.

Use Of Force

If the carrying out of a forensic procedure is authorised under the Act, authorised persons and police officers may use reasonable force to enable the forensic procedure to be carried out and to prevent loss, destruction or contamination of any sample.

A police officer may, while waiting for an application for a forensic order to be determined by a magistrate, also use reasonable force to prevent the suspect or charged person, if in custody, destroying or contaminating evidence that might be obtained by carrying out that forensic procedure. This does not, however, authorise the carrying out of the forensic procedure.

Magistrates Order

A police officer may apply to a magistrate for an order authorising the carrying out of an intimate forensic procedure on a suspect or charged person of any age or a non-intimate forensic procedure on a suspect or charged person who is under 15 years of age. A magistrate will only issue an order if satisfied the order is justified in all the circumstances.

Refusing Or Obstructing Forensic Procedure

If a police officer or a magistrate makes an order authorising the carrying out of a forensic procedure on a suspect or a charged person, evidence that the suspect or charged person:

refused to comply with any reasonable direction for the carrying out of a forensic procedure; or
obstructed a person in connection with the carrying out of a forensic procedure; or
resisted a person in connection with the carrying out of a forensic procedure; or
hindered a person in connection with the carrying out of a forensic procedure; or
used violence against a person in connection with the carrying out of a forensic procedure; or
threatened a person in connection with the carrying out of a forensic procedure; or
intimidated a person in connection with the carrying out of a forensic procedure -

is admissible in any proceedings against the suspect or charged person in respect of the offence for which the forensic procedure was carried out.

Page Last Revised : Tuesday, September 12, 2006