Newsletters Private Prosecution 26th Feb 2019

Fingerprints and Forfeiture Without the Powers of the State

Matters that are routine in public prosecutions often pose greater difficulty for the private prosecutor, who does not have access to the resources available to the State.  This article will explore two such matters: obtaining a suspect’s fingerprints and, post-conviction, disposing of criminal property seized from a defendant.


A private prosecutor may have an interest in obtaining the following:

  1. A suspect’s fingerprints, held by the police, for the private prosecutor to compare with marks on a document or object;
  2. The results of fingerprint analysis already carried out by the police on a document or object;
  3. Where the police do not already hold them, fingerprints from a suspect / defendant so that the private prosecutor can conduct her/his own expert analysis;
  4. Fingerprints from a convicted defendant to be retained on the PNC for use in future criminal proceedings.

Obtaining a suspect’s fingerprints from the police

The power to take fingerprints is contained in section 61 of the Police and Criminal Evidence Act 1984 [‘PACE’]  The police can take fingerprints without consent and retain them where a suspect has been arrested and/or charged with a recordable offence.  The fingerprints of a convicted defendant can be retained for use in the detection of crime.

Where a private prosecutor holds a document which bears possible fingerprints, and it is known that the police hold the fingerprints of a suspect, how can those fingerprints be obtained for comparison?

First, the cooperation of the police could be sought.  Retained fingerprint and DNA evidence can be “used” under section 63T(c) of PACE “for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution…” which would include a private prosecution.  ‘Use’ includes allowing a check to be made against the material, or disclosing it to any person.  Data sharing agreements between the police and outside individuals or organisations are recognised in the College of Policing guidelines, and the Zinga[1] litigation is an important example of how co-operation between the police and a private prosecutor can work.

Second, should the police refuse, the next option would be to seek a court order for the production of the evidence.  This could be done by way of a witness summons or an order under Part 17 of the Criminal Procedure Rules, when any claims about data protection can be overridden by the courts[2].  However, this can only be done once the case has started, so does not help if the fingerprint evidence is needed to pass the evidential threshold.

It may be possible in some circumstances to make use of the Norwich Pharmacal procedure. For a review of the practicalities of this, see the previous newsletter.

Obtaining expert fingerprint analysis already conducted and held by the police

Once again, agreement of the police could be sought; sometimes they may be prepared to assist provided there is a suitable data sharing agreement (with undertakings).

Should the police be unwilling to provide the material, the Divisional Court held in Hallas[3] that there is “no right” for a private prosecutor to see exhibits or witness statements held by the police before a private prosecution has started, because at this stage s/he is merely a private citizen with no entitlement to look at material held by the police.

However, once a case has been committed for trial in the Crown Court “to all intents and purposes, the prosecution is on behalf of the Crown” and so disclosure can be ordered (Pawsey[4]).  Alternatively, once proceedings have begun in the magistrates’ court, a witness summons can be obtained.

Obtaining a suspect’s fingerprints to assist with the investigation, when the police do not hold them

It is more difficult for a private prosecutor to obtain fingerprints from a suspect / defendant where they have not already been taken by the police.

One option would be for the suspect / defendant to be asked to provide her/his fingerprints voluntarily.

Should s/he refuse, another possibility would be to ask for the assistance of the police.  There is nothing in the statute which prevents the police from requiring a defendant to attend a police station to provide her/his fingerprints, but once again, this can only be done after arrest or charge (neither of which is applicable where an information is laid against a prospective defendant) or following conviction[5].

If the police refuse, there is little the private prosecutor can do.  The legislation sets out eight situations in which fingerprints can be taken without consent, none of which would cater for a request by a private prosecutor.  The court only has power to order the taking of fingerprints where a defendant has answered to bail and there is uncertainty over their identity.

 Obtaining the fingerprints of a defendant who has been convicted following a private prosecution, for entry onto the Police National Computer.

The court cannot order that fingerprints are taken but the police have power to do so under section 61 of PACE.  It might be worth the private prosecutor alerting the Chief Constable of the relevant police force in such circumstances.

Forfeiture and destruction of property post-conviction.

The second issue concerns forfeiture and destruction: following a successful private prosecution, what can be done with criminal property seized from a defendant?

It cannot be retained, nor can it be returned to the defendant.  Destroying the property without permission of the court could also cause difficulty as it does not belong to the private prosecutor.  The private prosecutor must, therefore, request an order for forfeiture and destruction.

Section 143 of the Powers of Criminal Courts Sentencing Act 2000 confers power on the court to order forfeiture and destruction of criminal property where a defendant has been convicted of an offence relating to it.  There does not appear to be anything to prevent a private prosecutor from making such a request, however, there is one important matter which the private prosecutor would be well-advised to note; by section 143(3):

An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police.

 Therefore, the private prosecutor must be alert to the need to give the property to the police for destruction; s/he should not destroy it her/himself or s/he risks being in breach of the order of the court.

Alison Levitt QC

Hannah Thomas

[1] R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823.

[2] Data Protection Act 2018, Schedule 2, Part 1 (5).

[3] (1988) 87 Cr. App. R. 340.

[4] [1989] Crim LR 152.

[5] Section 61 Police and Criminal Evidence Act 1984, subsections 5B and 6-6ZC.

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