Taking DNA samples without consent from mentally disordered offenders: The impact of Home Office Circular 27/1997

Abstract

The Criminal Evidence (Amendment) Act 1997 extends the power of police officers to take non-intimate samples from suspects without their consent and by force if necessary in respect of a range of sexual or violent offences, and offences of burglary. Among those susceptible to these extended powers are mentally disordered offenders who have been convicted of a scheduled offence and who are still in prison or detained under Part III of the Mental Health Act 1983. Further, the retrospective operation of the power also extends to persons detained under the MHA following acquittal on grounds of insanity or finding of unfitness to plead. Circular 27/1997 contains important advice to police forces as to how the extended powers should be exercised in relation inter alia to the mentally disordered. This article explains the background to the circular and examines its contents in detail. It then goes on to point to some of the ethical dilemmas that may confront clinical staff in discharging their dualistic responsibilities towards their patients and the wider community. Finally, it makes suggestions as to best practice in this area, drawing on experience of how the circular has been implemented to date.

Key Words:

• mentally disordered offender
• Police and Criminal Evidence Act 1984
• DNA sample
• criminal evidence
• patients' rights