(i) omit “with the consent of the Secretary of State”, and

(ii) before “services” insert “relevant”, and

(b) after subsection (4) insert—

“(4A) In subsection (4) “relevant services” means—

(a) 5the provision to the same person of more than one copy

of any published material where each of the copies of

the material is either provided on paper, a portable disk

which stores the material electronically or a similar

medium,

(b) 10the provision of training, or

(c) the provision of conferences.

(4B) The Secretary of State may by order amend subsection (4A).

(4C) An order under subsection (4B) may include such transitional

or saving provision as the Secretary of State considers

15appropriate.

(4D) The Secretary of State must consult the Commissioner before

making an order under subsection (4B).”

(4) In section 82(3)(a) of that Act (orders under the Act subject to negative

procedure) after “4(1)” insert “or 47(4B)”.

98 20Removal of Secretary of State approval for staff numbers, terms etc.

(1) Paragraph 4 of Schedule 5 to the Data Protection Act 1998 (appointment of

officers and staff of the Information Commissioner) is amended as follows.

(2) After sub-paragraph (4) insert—

“(4A) In making appointments under this paragraph, the Commissioner

25must have regard to the principle of selection on merit on the basis

of fair and open competition.”

(3) Omit sub-paragraph (5) (approval of Secretary of State required for number,

and terms and conditions, of persons to be appointed).

Part 7 30Miscellaneous and general

Miscellaneous repeals of enactments

99 Repeal of provisions for conducting certain fraud cases without jury

Omit section 43 of the Criminal Justice Act 2003 (applications by prosecution

for certain fraud cases to be conducted without a jury).

100 35Removal of restrictions on times for marriage or civil partnership

(1) In the Marriage Act 1949—

(a) omit section 4 (solemnization of marriages to take place at any time

between 8 a.m. and 6 p.m.), and

(b) omit section 75(1)(a) (offence of solemnizing a marriage outside the

permitted hours).

(2) In section 16(4) of the Marriage (Registrar General’s Licence) Act 1970

(disapplication of certain provisions of the Act of 1949) for “sections 75(1)(a)

5and” substitute “section”.

(3) In section 17(2) of the Civil Partnership Act 2004 (registration as civil partners

under the standard procedure to take place on any day in the applicable period

between 8 a.m. and 6 p.m.)—

(a) for “on any day in” substitute “at any time during”, and

(b) 10omit “between 8 o’clock in the morning and 6 o’clock in the evening”.

(4) Omit section 31(2)(ab) of that Act (offence of officiating at the signing of a civil

partnership schedule outside the permitted hours).

General

101 Consequential amendments, repeals and revocations

(1) 15Schedule 7 (consequential amendments) has effect.

(2) The provisions listed in Schedule 8 are repealed or (as the case may be) revoked

to the extent specified.

(3) The Secretary of State may by order make such provision as the Secretary of

State considers appropriate in consequence of this Act.

(4) 20The power to make an order under subsection (3)—

(a) is exercisable by statutory instrument,

(b) includes power to make transitional, transitory or saving provision,

(c) may, in particular, be exercised by amending, repealing, revoking or

otherwise modifying any provision made by or under an enactment

25(including any Act passed in the same Session as this Act).

(5) Subject to subsection (6), a statutory instrument containing an order under this

section is not to be made unless a draft of the instrument has been laid before,

and approved by a resolution of, each House of Parliament.

(6) A statutory instrument containing an order under this section which neither

30amends nor repeals any provision of primary legislation is subject to

annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—

• “enactment” includes an Act of the Scottish Parliament, a Measure or Act
  
  of the National Assembly for Wales and Northern Ireland legislation,

• 35“primary legislation” means—

  (a)

  a public general Act,

  (b)

  an Act of the Scottish Parliament,

  (c)

  a Measure or Act of the National Assembly for Wales, and

  (d)

  Northern Ireland legislation.

102 Transitional, transitory or saving provision

The Secretary of State may by order made by statutory instrument make such

transitional, transitory or saving provision as the Secretary of State considers

appropriate in connection with the coming into force of any provision of this

5Act (other than Chapter 1 of Part 1).

103 Financial provisions

(1) There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown by virtue of this Act, and

(b) any increase attributable to this Act in the sums payable by virtue of any other

10Act out of money so provided.

(2) There is to be paid into the Consolidated Fund any sums received by a Minister of the

Crown by virtue of this Act.

104 Channel Islands and Isle of Man

Her Majesty may by Order in Council provide for Chapters 1 and 2 of Part 5

15(and Parts 5 and 6 of Schedules 7 and 8) to extend, with or without

modifications, to any of the Channel Islands or to the Isle of Man.

105 Extent

(1) The following provisions extend to England and Wales only—

(a) sections 1 to 18, 23 and 24,

(b) 20Chapter 2 of Part 1,

(c) Chapter 1 of Part 2,

(d) Chapter 2 of Part 3,

(e) Part 5,

(f) sections 99 and 100,

(g) 25Parts 3 and 5 to 8 of Schedule 7 (subject to subsection (7)(i)),

(h) Parts 3, 5, 6, 9 and 10 of Schedule 8 (subject to subsection (7)(i)), and

(i) any provision which extends to England and Wales only by virtue of

subsection (5) or (6).

(2) Part 2 of Schedule 1 extends to England and Wales and Northern Ireland only.

(3) 30Parts 4 and 5 of Schedule 1 extend to Scotland only.

(4) Part 6 of Schedule 1, section 62 and Schedule 6 extend to Northern Ireland only.

(5) The following provisions have the extent provided for in those provisions—

(a) Schedule 2 (see each paragraph), and

(b) Part 2 of Schedule 8 (see the notes to that Part).

(6) 35The amendments, repeals and revocations made by Parts 1 and 4 of Schedules

7 and 8 have the same extent as the enactment amended, repealed or revoked.

(7) The following provisions extend to England and Wales, Scotland and Northern

Ireland—

(a) sections 19 to 22 (excluding Parts 2 and 4 to 6 of Schedule 1) and 25,

(b) 40Chapter 2 of Part 2,

(c) Chapter 1 of Part 3 (excluding Schedule 2),

(d) Part 4 (excluding section 62 and Schedule 6),

(e) Part 6,

(f) sections 101 to 104 (excluding Schedules 7 and 8), this section and

sections 106 and 107,

(g) 5Part 2 of Schedule 7,

(h) Parts 7 and 8 of Schedule 8,

(i) the repeal of section 330(5)(b) of the Criminal Justice Act 2003 in Part 8

of Schedule 7 and Part 9 of Schedule 8, and

(j) any provision which extends to England and Wales, Scotland and

10Northern Ireland by virtue of subsection (5) or (6).

(8) Sections 104 and 107 (and this section and section 106 so far as relating to those

sections) also extend to the Channel Islands and the Isle of Man.

106 Commencement

(1) Subject as follows, this Act comes into force on such day as the Secretary of

15State may by order made by statutory instrument appoint; and different days

may be appointed for different purposes.

(2) The provisions mentioned in subsection (3) come into force on such day as the

Welsh Ministers may by order made by statutory instrument appoint; and

different days may be appointed for different purposes.

(3) 20The provisions are—

(a) Chapter 2 of Part 1 so far as relating to schools in Wales and further

education institutions in Wales,

(b) sections 39(1), 40, 41 and 43 to 46 so far as they confer functions on the

Welsh Ministers,

(c) 25section 53 and Schedule 3, and

(d) section 56 and Schedule 4 so far as relating to land in Wales.

(4) The following provisions come into force at the end of the period of two

months beginning with the day on which this Act is passed—

(a) section 39(2) and Schedule 2, and

(b) 30Part 2 of Schedule 8 (and section 101(2) so far as relating to that Part of

that Schedule).

(5) The following provisions come into force on the day on which this Act is

passed—

(a) section 99, Part 8 of Schedule 7 and Part 9 of Schedule 8 (and section

35101(1) and (2) so far as relating to those Parts of those Schedules), and

(b) sections 101(3) to (7) and 102 to 105, this section and section 107.

107 Short title

This Act may be cited as the Protection of Freedoms Act 2011.

SCHEDULES

Section 19

SCHEDULE 1 Amendments of regimes other than PACE

Part 1 5Material subject to the Terrorism Act 2000

1 (1) Schedule 8 to the Terrorism Act 2000 (treatment of persons detained under

section 41 or Schedule 7 of that Act) is amended as follows.

(2) Omit paragraph 14 (retention of material: England and Wales and Northern

Ireland).

(3) 10In paragraph 20 (retention of material: Scotland)—

(a) in sub-paragraph (3), omit the words from “but” to the end of the

sub-paragraph, and

(b) omit sub-paragraph (4).

(4) After paragraph 20 insert—

15“Destruction and retention of fingerprints and samples etc: United Kingdom

20A (1) This paragraph applies to—

(a) fingerprints taken under paragraph 10,

(b) a DNA profile derived from a DNA sample taken under

paragraph 10 or 12,

(c) 20relevant physical data taken or provided by virtue of

paragraph 20, and

(d) a DNA profile derived from a DNA sample taken by virtue

of paragraph 20.

(2) Fingerprints, relevant physical data and DNA profiles to which

25this paragraph applies (“paragraph 20A material”) must be

destroyed if it appears to the responsible chief officer of police

that—

(a) the taking or providing of the material or, in the case of a

DNA profile, the taking of the sample from which the

30DNA profile was derived, was unlawful, or

(b) the material was taken or provided, or (in the case of a

DNA profile) was derived from a sample taken, from a

person in connection with that person’s arrest under

section 41 and the arrest was unlawful or based on

35mistaken identity.

(3) In any other case, paragraph 20A material must be destroyed

unless it is retained under any power conferred by paragraphs 20B

to 20E.

(4) Paragraph 20A material which ceases to be retained under a

5power mentioned in sub-paragraph (3) may continue to be

retained under any other such power which applies to it.

(5) Nothing in this paragraph prevents a relevant search, in relation

to paragraph 20A material, from being carried out within such

time as may reasonably be required for the search if the

10responsible chief officer of police considers the search to be

desirable.

(6) For the purposes of sub-paragraph (5), “a relevant search” is a

search carried out for the purpose of checking the material

against—

(a) 15other fingerprints or samples taken under paragraph 10 or

12 or a DNA profile derived from such a sample,

(b) any of the relevant physical data, samples or information

mentioned in section 19C(1) of the Criminal Procedure

(Scotland) Act 1995,

(c) 20any of the relevant physical data, samples or information

held by virtue of section 56 of the Criminal Justice

(Scotland) Act 2003,

(d) material to which section 18 of the Counter-Terrorism Act

2008 applies,

(e) 25any of the fingerprints, samples and information

mentioned in section 63A(1)(a) and (b) of the Police and

Criminal Evidence Act 1984 (checking of fingerprints and

samples), and

(f) any of the fingerprints, samples and information

30mentioned in Article 63A(1)(a) and (b) of the Police and

Criminal Evidence (Northern Ireland) Order 1989

(checking of fingerprints and samples).

20B (1) This paragraph applies to paragraph 20A material relating to a

person who is detained under section 41.

(2) 35In the case of a person who has previously been convicted of a

recordable offence (other than a single exempt conviction), or an

offence in Scotland which is punishable by imprisonment, or is so

convicted before the end of the period within which the material

may be retained by virtue of this paragraph, the material may be

40retained indefinitely.

(3) In the case of a person who has no previous convictions, or only

one exempt conviction, the material may be retained until the end

of the retention period specified in sub-paragraph (4).

(4) The retention period is—

(a) 45in the case of fingerprints or relevant physical data, the

period of 3 years beginning with the date on which the

fingerprints or relevant physical data were taken or

provided, and

(b) in the case of a DNA profile, the period of 3 years

beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile

was derived from more than one DNA sample, the date on

5which the first of those samples was taken).

(5) The responsible chief officer of police or a specified chief officer of

police may apply to a relevant court for an order extending the

retention period.

(6) An application for an order under sub-paragraph (5) must be

10made within the period of 3 months ending on the last day of the

retention period.

(7) An order under sub-paragraph (5) may extend the retention

period by a period which—

(a) begins with the date on which the material would

15otherwise be required to be destroyed under this

paragraph, and

(b) ends with the end of the period of 2 years beginning with

that date.

(8) The following persons may appeal to the relevant appeal court

20against an order under sub-paragraph (5), or a refusal to make

such an order—

(a) the responsible chief officer of police;

(b) a specified chief officer of police;

(c) the person from whom the material was taken.

(9) 25In Scotland—

(a) an application for an order under sub-paragraph (5) is to

be made by summary application;

(b) an appeal against an order under sub-paragraph (5), or a

refusal to make such an order, must be made within 21

30days of the relevant court’s decision, and the relevant

appeal court’s decision on any such appeal is final.

(10) In this paragraph—

• “relevant court” means—

  (a)

  in England and Wales, a District Judge (Magistrates’
  
  35Courts),

  (b)

  in Scotland, the sheriff—

  (i)

  in whose sheriffdom the person to whom the
  
  material relates resides,

  (ii)

  in whose sheriffdom that person is believed
  
  40by the applicant to be, or

  (iii)

  to whose sheriffdom that person is believed
  
  by the applicant to be intending to come; and

  (c)

  in Northern Ireland, a district judge (magistrates’
  
  court) in Northern Ireland;

• 45“the relevant appeal court” means—

  (a)

  in England and Wales, the Crown Court,

  (b)

  in Scotland, the sheriff principal, and

  Protection of Freedoms BillPage 87

  (c)

  in Northern Ireland, the County Court in Northern
  
  Ireland;

• “a specified chief officer of police” means—

  (a)

  in England and Wales and Northern Ireland—

  (i)

  5the chief officer of the police force of the area
  
  in which the person from whom the material
  
  was taken resides, or

  (ii)

  a chief officer of police who believes that the
  
  person is in, or is intending to come to, the
  
  10chief officer’s police area, and

  (b)

  in Scotland—

  (i)

  the chief constable of the police force in the
  
  area in which the person who provided the
  
  material, or from whom it was taken, resides,
  
  15or

  (ii)

  a chief constable who believes that the person
  
  is in, or is intending to come to, the area of the
  
  chief constable’s police force.

20C (1) This paragraph applies to paragraph 20A material relating to a

20person who is detained under Schedule 7.

(2) In the case of a person who has previously been convicted of a

recordable offence (other than a single exempt conviction), or an

offence in Scotland which is punishable by imprisonment, or is so

convicted before the end of the period within which the material

25may be retained by virtue of this paragraph, the material may be

retained indefinitely.

(3) In the case of a person who has no previous convictions, or only

one exempt conviction, the material may be retained until the end

of the retention period specified in sub-paragraph (4).

(4) 30The retention period is—

(a) in the case of fingerprints or relevant physical data, the

period of 6 months beginning with the date on which the

fingerprints or relevant physical data were taken or

provided, and

(b) 35in the case of a DNA profile, the period of 6 months

beginning with the date on which the DNA sample from

which the profile was derived was taken (or, if the profile

was derived from more than one DNA sample, the date on

which the first of those samples was taken).

20D (1) 40For the purposes of paragraphs 20B and 20C, a person is to be

treated as having been convicted of an offence if—

(a) the person has been given a caution in respect of the

offence which, at the time of the caution, the person has

admitted,

(b) 45the person has been warned or reprimanded under section

65 of the Crime and Disorder Act 1998 for the offence,

(c) the person, in relation to an offence in Scotland punishable

by imprisonment, has accepted or has been deemed to

accept—

(i) a conditional offer under section 302 of the

Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that

Act,

(iii) 5a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(d) the person, having been given a fixed penalty notice under

section 129(1) of the Antisocial Behaviour etc. (Scotland)

Act 2004 in connection with an offence in Scotland

10punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is

liable to pay by virtue of section 131(5) of that Act,

or

(e) 15the person, in relation to an offence in Scotland punishable

by imprisonment, has been discharged absolutely by order

under section 246(3) of the Criminal Procedure (Scotland)

Act 1995.

(2) Paragraphs 20B and 20C and this paragraph, so far as they relate

20to persons convicted of an offence, have effect despite anything in

the Rehabilitation of Offenders Act 1974.

(3) But a person is not to be treated as having been convicted of an

offence if that conviction is a disregarded conviction or caution by

virtue of section 82 of the Protection of Freedoms Act 2011.

(4) 25For the purposes of paragraphs 20B and 20C—

(a) a person has no previous convictions if the person has not

previously been convicted—

(i) in England and Wales or Northern Ireland of a

recordable offence, or

(ii) 30in Scotland of an offence which is punishable by

imprisonment, and

(b) if the person has previously been convicted of a recordable

offence in England and Wales or Northern Ireland, the

conviction is exempt if it is in respect of a recordable

35offence, other than a qualifying offence, committed when

the person was aged under 18.

(5) In sub-paragraph (4), “qualifying offence” has—

(a) in relation to a conviction in respect of a recordable offence

committed in England and Wales, the meaning given by

40section 65A of the Police and Criminal Evidence Act 1984,

and

(b) in relation to a conviction in respect of a recordable offence

committed in Northern Ireland, the meaning given by

Article 53A of the Police and Criminal Evidence (Northern

45Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)).

(6) If a person is convicted of more than one offence arising out of a

single course of action, those convictions are to be treated as a

single conviction for the purposes of calculating under paragraph

20B or 20C whether the person has been convicted of only one

50offence.

(7) Nothing in paragraph 20B or 20C prevents the start of a new

retention period in relation to paragraph 20A material if a person

is detained again under section 41 or (as the case may be) Schedule

7 when an existing retention period (whether or not extended) is

5still in force in relation to that material.

20E (1) Paragraph 20A material may be retained for as long as a national

security determination made by the responsible chief officer of

police has effect in relation to it.

(2) A national security determination is made if the responsible chief

10officer of police determines that it is necessary for any paragraph

20A material to be retained for the purposes of national security.

(3) A national security determination—

(a) must be made in writing,

(b) has effect for a maximum of 2 years beginning with the

15date on which the determination is made, and

(c) may be renewed.

20F (1) If fingerprints or relevant physical data are required by paragraph

20A to be destroyed, any copies of the fingerprints or relevant

physical data held by a police force must also be destroyed.

(2) 20If a DNA profile is required by that paragraph to be destroyed, no

copy may be retained by a police force except in a form which does

not include information which identifies the person to whom the

DNA profile relates.

20G (1) This paragraph applies to—

(a) 25samples taken under paragraph 10 or 12, or

(b) samples taken by virtue of paragraph 20.

(2) Samples to which this paragraph applies must be destroyed if it

appears to the responsible chief officer of police that—

(a) the taking of the sample was unlawful, or

(b) 30the sample was taken from a person in connection with

that person’s arrest under section 41 and the arrest was

unlawful or based on mistaken identity.

(3) Subject to this, the rule in sub-paragraph (4) or (as the case may be)

(5) applies.

(4) 35A DNA sample to which this paragraph applies must be

destroyed—

(a) as soon as a DNA profile has been derived from the

sample, or

(b) if sooner, before the end of the period of 6 months

40beginning with the date on which the sample was taken.

(5) Any other sample to which this paragraph applies must be

destroyed before the end of the period of 6 months beginning with

the date on which it was taken.

(6) Nothing in this section prevents a relevant search, in relation to

45samples to which this paragraph applies, from being carried out

within such time as may reasonably be required for the search if