DNA in Sexual Offence Cases

If you are arrested for a sexual offence your biometrics will be obtained, this includes your fingerprints. This is standard procedure however, there are other samples which are distinguished from the standard biometrics these are intimate and non intimate samples. Depending on the circumstances of the alleged offence you may requested to provide one or both types of samples. 

Non Intimate DNA Samples 

The police have wide powers to take non-intimate samples from a person under the Police and Criminal Evidence act 1984 (PACE 1984).

Non-intimate samples are defined as meaning:

• a sample of hair other than pubic hair
• a sample taken from a nail or from under a nail
• a swab from any part of a person's body other than a part from which a swab taken would be an intimate sample
• a sample of saliva
• a skin impression (other than a fingerprint)

An intimate sample is:

• a sample of blood, semen or any other tissue fluid, urine or pubic hair
• a dental impression, or
• a swab taken from any part of the genitals (including pubic hair) or from a person’s body orifice other than the mouth

The police have the power to take intimate samples from a person who is detained only if the appropriate consent is obtained in writing, and the action is authorised by an officer of the rank of inspector or above.

The officer can only authorise this if there are reasonable grounds for suspecting the involvement of the person from whom the sample is taken in a recordable offence, and believing that the sample would tend to confirm or disprove their involvement in that offence.

Can I refuse to give the police a DNA sample?

Under PACE 1984, section 63 states the police can lawfully take non-intimate samples like the buccal swab without your consent if arrested for a recordable offence including all sexual offences. If you refuse to give a DNA sample, the police can use reasonable force to collect the sample, and this may also be noted in evidence. Non-intimate samples include the buccal swab, hair samples (not pubic) and fingernail scrapings.

You can refuse to provide an intimate swab but you must understand the consequences and impact on any future defence of doing so. It is therefore important to seek legal advice when in the position. 

Would DNA be found if I wore a condom?

Yes, DNA can be identified even if a condom is worn, but this depends on several factors. Firstly, if there is any external transfer this can be touch DNA from the person who applied the condom e.g. Skin cells or if any lubricant residue has picked up epithelial cells (from any vaginal, anal or oral contact. Secondly, if the condom broke or leaked then semen or other bodily fluids may have escaped which can be recovered. Condoms can leave DNA traces on clothing, beddings or any other surfaces including saliva or fingernail scrapings. Finally, in the police recover the condom packaging it may have fingerprints or DNA from the person who has opened it.

How Eventum Legal Can Help

We specialise in the defence of sexual and domestic abuse where DNA evidence can play a crucial role in the prosecution and defence of such cases. We understand that the presence of DNA does not infer guilt alone, and there are ways in which cases involving DNA can be successfully challenged.

If you are concerned about potential DNA evidence, or you are facing a case where there is no DNA and cannot understand why you are being prosecuted, then contact our team and we can talk through your case and evidential concerns you may have.