By Dr Anton Hughes -
Snapshot
- The ability to obtain forensic material, which may be used in a case against them, runs contrary to both the traditional right against self-incrimination and, where obtained without consent, the right to silence
- Where a person does not consent to a forensic procedure, a magistrate may order a procedure be carried out
- In respect of ordering both intimate and non-intimate procedures, a magistrate must be satisfied of certain criteria
The Crimes (Forensic Procedures) Act 2000 (the Act) gives police broad powers to obtain forensic material from a person, both with and without their consent. The Act authorises the taking of forensic material by both non-intimate and intimate procedures, as defined in s3(1).
The ability to obtain forensic material, which may be used in a case against them, runs contrary to both the traditional right against self-incrimination and, where obtained without consent, the right to silence.
In those circumstances, and consistent with the principle of legality, it has been held that “[a]uthorisation under the Act can only be granted strictly in accordance with its provisions”: Walker v Bugden (2005) 155 A Crim R 416 at [53]. Any doubt should be resolved in favour of the person from whom the forensic material is sought.
