Report No. 87
Position in England as to battery.- Although there is little English authority, it can be said with some confidence that the use of force against the body of a detained person for the purpose of obtaining evidence would (unless there is a specified rule of statutory authority sanctioning it) be actionable as a tort. There is a common law power to search arrested persons (the police have not tried to assert that this power extends to a search of the body, as distinct from a search of the clothes or exterior)4. But other cases of use of force would require statutory authority. There is no common law right in the police in England to take fingerprints without the consent of the accused5. The consent must be free6. Scott L.J. regarded the taking of fingerprints without statutory authority as inconsistent with the presumption of innocence until proof of guilt and (if it followed an arrest) as an element in the false imprisonment7.
The Scottish Justiciary Appeal Court in 19338, by a majority judgment, held that forcible taking of fingerprints did not constitute a violation of the common law right of the subject in Scotland. But it would appear that the English law was different this was pointed out by Lord Hunter in his dissenting judgment in the above mentioned case. One contemporary article9 offered those comments on the Scottish case. "Forcible taking of fingerprints does not appear to have been the subject of reported English judicial decisions. It would be wise, however, for those on whom the taking of such (fingerprints) devolves to acquaint themselves with the regulations on the subject and see that such (regulations) are strictly carried out."
1. See also Chapter 1 of the Report.
2. Bessell v. Wilson, 1853 Law Times old series 233.
3. Halsbury's, 4th Edn., Vol. 11, p. 85, para. 121.
4. Glaaville L. Williams The Privilege Against Self Incrimination: An International Symposium (England), (1961) 51 Cr LJ Criminology and Police Science 166 (169).
5. Isschinsky v. Chritie, (1946) KB 124 (142) (Scott, L.J.).
6. Dumbell v. Roberts, (1944) 1 All EB 326 (330) (CA) (per Scott, L.J.).
7. Dumbell v. Roberts, (1944) 1 All ER 326 (330).
8. See Law Commission of India, 69th Report.
9. Note in the Justice of Peace, reproduced in (1933) 34 Cr LJ 71 (73) .