Section 36Part 4 — Powers, Duties and Privileges of Police Officers
Intimate samples
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36. (1) Subject to section 40, an intimate sample may be taken from a person in police detention only —
if a police officer of at least the rank of Inspector authorises it to be taken; and
if the appropriate consent is given. Section 36 Police Act (2021 Revision) Page 26 Revised as at 31st December, 2020 c
An intimate sample may be taken from a person who is not in police detention but from whom, in the course of the investigation of an offence, two or more non-intimate samples suitable for the same means of analysis have been taken which have proved insufficient —
if a police officer of at least the rank of Inspector authorises it to be taken; and
if the appropriate consent is given.
A police officer may only give an authorisation under subsection (1) or (2) if that 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 (1) or (2) 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.
The appropriate consent shall be given in writing.
Where —
an authorisation has been given; and
it is proposed that an 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 (6)(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 an intimate sample is taken from a person —
the authorisation by virtue of which it was taken;
the grounds for giving the authorisation; and
the fact that the appropriate consent was given, shall be recorded by a police officer as soon as is practicable after the sample is taken.
If an intimate sample is taken from a person at a police station —
before the sample is taken, a police officer shall inform that person that it may be the subject of a random search; and Police Act (2021 Revision) Section 37 c Revised as at 31st December, 2020 Page 27
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 an intimate sample is taken from a person detained at a police station, the matters required to be recorded by subsection (8) or (9) shall be recorded in that person’s custody record.
In the case of an intimate sample which is a dental impression, the sample may be taken from a person only by a registered dentist.
In the case of any other form of intimate sample, except in the case of a sample of urine or buccal swab, the sample may be taken from a person only by —
a registered medical doctor; or
a registered nurse.
Where the appropriate consent to the taking of an intimate sample from a person was refused without good cause, in any proceedings against that person for an offence —
the court, in determining —
whether to commit that person for trial; or
whether there is a case to answer;
a Judge, in deciding whether to grant an application made by the accused for dismissal of a charge; or
the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear reasonable.
Where any intimate samples have been taken contrary to the procedure prescribed in this section, the failure to follow the prescribed procedure shall not render the intimate sample evidence inadmissible in any legal proceedings.
Nothing in this section applies to the taking of a specimen for the purposes of any of the provisions of sections 82 to 88 of the Traffic Act (2021 Revision).
Nothing in this section applies to a person arrested or detained under the Terrorism Act (2018 Revision).