Protection of Freedoms Bill (HC Bill 146)

the responsible chief officer of police considers the search to be

desirable.

(7) In sub-paragraph (6) “a relevant search” has the meaning given by

paragraph 20A(6).

20H (1) 5Any material to which paragraph 20A or 20G applies must not be

used other than—

(a) in the interests of national security,

(b) for the purposes of a terrorist investigation,

(c) for purposes related to the prevention or detection of

10crime, the investigation of an offence or the conduct of a

prosecution, or

(d) for purposes related to the identification of a deceased

person or of the person to whom the material relates.

(2) Material which is required by paragraph 20A or 20G to be

15destroyed must not at any time after it is required to be destroyed

be used—

(a) in evidence against the person to whom the material

relates, or

(b) for the purposes of the investigation of any offence.

(3) 20In this paragraph—

(a) the reference to using material includes a reference to

allowing any check to be made against it and to disclosing

it to any person,

(b) the reference to crime includes a reference to any conduct

25which—

(i) constitutes one or more criminal offences (whether

under the law of a part of the United Kingdom or

of a country or territory outside the United

Kingdom), or

(ii) 30is, or corresponds to, any conduct which, if it all

took place in any one part of the United Kingdom,

would constitute one or more criminal offences,

and

(c) the references to an investigation and to a prosecution

35include references, respectively, to any investigation

outside the United Kingdom of any crime or suspected

crime and to a prosecution brought in respect of any crime

in a country or territory outside the United Kingdom.

(4) Sub-paragraphs (1) and (3) do not form part of the law of Scotland.

20I 40In paragraphs 20A to 20H—

• “DNA profile” means any information derived from a DNA
  
  sample;

• “DNA sample” means any material that has come from a
  
  human body and consists of or includes human cells;

• 45“fingerprints” has the meaning given by section 65(1) of the
  
  Police and Criminal Evidence Act 1984 (Part 5 definitions);

• “paragraph 20A material” has the meaning given by
  
  paragraph 20A(2);

Protection of Freedoms BillPage 91

• “police force” means any of the following—

  (a)

  the metropolitan police force;

  (b)

  a police force maintained under section 2 of the Police
  
  Act 1996 (police forces in England and Wales outside
  
  5London);

  (c)

  the City of London police force;

  (d)

  any police force maintained under or by virtue of
  
  section 1 of the Police (Scotland) Act 1967;

  (e)

  the Scottish Police Services Authority;

  (f)

  10the Police Service of Northern Ireland;

  (g)

  the Police Service of Northern Ireland Reserve;

  (h)

  the Ministry of Defence Police;

  (i)

  the Royal Navy Police;

  (j)

  the Royal Military Police;

  (k)

  15the Royal Air Force Police;

  (l)

  the British Transport Police;

• “recordable offence” has—

  (a)

  in relation to a conviction in England and Wales, the
  
  meaning given by section 118(1) of the Police and
  
  20Criminal Evidence Act 1984, and

  (b)

  in relation to a conviction in Northern Ireland, the
  
  meaning given by Article 2(2) of the Police and
  
  Criminal Evidence (Northern Ireland) Order 1989;

• “relevant physical data” has the meaning given by section
  
  2518(7A) of the Criminal Procedure (Scotland) Act 1995;

• “responsible chief officer of police” means, in relation to
  
  fingerprints or samples taken in England or Wales, or a
  
  DNA profile derived from a sample so taken, the chief
  
  officer of police for the police area—

  (a)

  30in which the material concerned was taken, or

  (b)

  in the case of a DNA profile, in which the sample from
  
  which the DNA profile was derived was taken;

• “responsible chief officer of police” means, in relation to
  
  relevant physical data or samples taken or provided in
  
  35Scotland, or a DNA profile derived from a sample so taken
  
  or provided, the chief constable of the police force for the
  
  area—

  (a)

  in which the material concerned was taken or
  
  provided, or

  (b)

  40in the case of a DNA profile, in which the sample from
  
  which the DNA profile was derived was taken;

• “responsible chief officer of police” means, in relation to
  
  fingerprints or samples taken in Northern Ireland, or a
  
  DNA profile derived from a sample so taken, the Chief
  
  45Constable of the Police Service of Northern Ireland.”

(5) In paragraph 11(1)(a), for “paragraph 14(4)” substitute “paragraph 20H”.

(6) In paragraph 15(1) for “paragraphs 10 to 14” substitute “paragraphs 10 to

13”.

(7) After paragraph 15(1) insert—

“(1A) In the application of section 65(2A) of the Police and Criminal

Evidence Act 1984 for the purposes of sub-paragraph (1) of this

paragraph, the reference to the destruction of a sample under

5section 63Q of that Act is a reference to the destruction of a sample

under paragraph 20G of this Schedule.”

(8) In paragraph 15(2) for “paragraphs 10 to 14” substitute “paragraphs 10 to

13”.

Part 2 10Material subject to the International Criminal Court Act 2001

2 In Schedule 4 of the International Criminal Court Act 2001 (taking of

fingerprints or non-intimate samples) for paragraph 8 substitute—

“8 (1) This paragraph applies to the following material—

(a) fingerprints and samples taken under this Schedule, and

(b) 15DNA profiles derived from such samples.

(2) The material must be destroyed—

(a) before the end of the period of 6 months beginning with

the date on which the material was transmitted to the ICC

(see paragraph 6(2)), or

(b) 20if later, as soon as it has fulfilled the purpose for which it

was taken or derived.

(3) If fingerprints are required to be destroyed by virtue of sub-

paragraph (2), any copies of the fingerprints held by the police

must also be destroyed.

(4) 25If a DNA profile is required to be destroyed by virtue of sub-

paragraph (2), no copy may be retained by the police except in a

form which does not include information from which the person

to whom the DNA profile relates can be identified.

(5) In this paragraph—

• 30“DNA profile” means any information derived from a DNA
  
  sample;

• “DNA sample” means any material that has come from a
  
  human body and consists of or includes human cells.”

Part 3 35Material subject to section 18 of the Counter-Terrorism Act 2008

3 The Counter-Terrorism Act 2008 is amended as follows.

4 For section 18 (material not subject to existing statutory restrictions)

substitute—

“18 Destruction of material not subject to existing statutory restrictions

(1) 40This section applies to fingerprints, DNA samples and DNA profiles

that—

(a) are held by a law enforcement authority under the law of

England and Wales or Northern Ireland, and

(b) are not held subject to existing statutory restrictions.

(2) Material to which this section applies (“section 18 material”) must be

5destroyed if it appears to the responsible officer that the condition in

subsection (3) is not met.

(3) The condition is that the material has been—

(a) obtained by the law enforcement authority pursuant to an

authorisation under Part 3 of the Police Act 1997

10(authorisation of action in respect of property),

(b) obtained by the law enforcement authority in the course of

surveillance, or use of a covert human intelligence source,

authorised under Part 2 of the Regulation of Investigatory

Powers Act 2000,

(c) 15supplied to the law enforcement authority by another law

enforcement authority, or

(d) otherwise lawfully obtained or acquired by the law

enforcement authority for any of the purposes mentioned in

section 18D(1).

(4) 20In any other case, section 18 material must be destroyed unless it is

retained by the law enforcement authority under any power

conferred by section 18A or 18B, but this is subject to subsection (5).

(5) A DNA sample to which this section applies must be destroyed—

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

25or

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

with the date on which it was taken.

(6) Section 18 material which ceases to be retained under a power

mentioned in subsection (4) may continue to be retained under any

30other such power which applies to it.

(7) Nothing in this section prevents section 18 material from being

checked against other fingerprints, DNA samples or DNA profiles

held by a law enforcement authority within such time as may

reasonably be required for the check, if the responsible officer

35considers the check to be desirable.

(8) For the purposes of subsection (1), the following are “existing

statutory restrictions”—

(a) sections 63A and 63D to 63T of the Police and Criminal

Evidence Act 1984;

(b) 40Articles 63A and 64 of the Police and Criminal Evidence

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

(c) paragraphs 20(3) or 20A to 20I of Schedule 8 to the Terrorism

Act 2000;

(d) section 2(2) of the Security Service Act 1989;

(e) 45section 1(2) of the Intelligence Services Act 1994.

18A Retention of material: general

(1) Section 18 material which is not a DNA sample and relates to a

person who has no previous convictions or only one exempt

conviction may be retained by the law enforcement authority until

5the end of the retention period specified in subsection (2).

(2) The retention period is—

(a) in the case of fingerprints, the period of 3 years beginning

with the date on which the fingerprints were taken, and

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

10with 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).

(3) Section 18 material which is not a DNA sample and relates to a

15person who has previously been convicted of a recordable offence

(other than a single exempt conviction), or is so convicted before the

material is required to be destroyed by virtue of this section, may be

retained indefinitely.

18B Retention for purposes of national security

(1) 20Section 18 material which is not a DNA sample may be retained for

as long as a national security determination made by the responsible

officer has effect in relation to it.

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

determines that it is necessary for any such section 18 material to be

25retained 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 date

on which the determination is made, and

(c) 30may be renewed.

18C Destruction of copies

(1) If fingerprints are required by section 18 to be destroyed, any copies

of the fingerprints held by the law enforcement authority concerned

must also be destroyed.

(2) 35If a DNA profile is required by that section to be destroyed, no copy

may be retained by the law enforcement authority concerned except

in a form which does not include information which identifies the

person to whom the DNA profile relates.

18D Use of retained material

(1) 40Section 18 material must not be used other than—

(a) in the interests of national security,

(b) for the purposes of a terrorist investigation,

(c) for purposes related to the prevention or detection of crime,

the investigation of an offence or the conduct of a

45prosecution, or

(d) for purposes related to the identification of a deceased person

or of the person to whom the material relates.

(2) Material which is required by section 18 to be destroyed must not at

any time after it is required to be destroyed be used—

(a) 5in evidence against the person to whom the material relates,

or

(b) for the purposes of the investigation of any offence.

(3) In this section—

(a) the reference to using material includes a reference to

10allowing any check to be made against it and to disclosing it

to any person,

(b) the reference to crime includes a reference to any conduct

which—

(i) constitutes one or more criminal offences (whether

15under the law of a part of the United Kingdom or of a

country or territory outside the United Kingdom), or

(ii) is, or corresponds to, any conduct which, if it all took

place in any one part of the United Kingdom, would

constitute one or more criminal offences, and

(c) 20the references to an investigation and to a prosecution

include references, respectively, to any investigation outside

the United Kingdom of any crime or suspected crime and to

a prosecution brought in respect of any crime in a country or

territory outside the United Kingdom.

18E 25Sections 18 to 18E: supplementary provisions

(1) In sections 18 to 18D and this section—

• “DNA profile” means any information derived from a DNA
  
  sample;

• “DNA sample” means any material that has come from a
  
  30human body and consists of or includes human cells;

• “fingerprints” means a record (in any form and produced by
  
  any method) of the skin pattern and other physical
  
  characteristics or features of a person’s fingers or either of a
  
  person’s palms;

• 35“law enforcement authority” means—

  (a)

  a police force,

  (b)

  the Serious Organised Crime Agency,

  (c)

  the Commissioners for Her Majesty’s Revenue and
  
  Customs, or

  (d)

  40a person formed or existing under the law of a
  
  country or territory outside the United Kingdom so
  
  far as exercising functions which—

  (i)

  correspond to those of a police force, or

  (ii)

  otherwise involve the investigation or
  
  45prosecution of offences;

• “police force” means any of the following—

  (a)

  the metropolitan police force;

  Protection of Freedoms BillPage 96

  (b)

  a police force maintained under section 2 of the Police
  
  Act 1996 (police forces in England and Wales outside
  
  London);

  (c)

  the City of London police force;

  (d)

  5any police force maintained under or by virtue of
  
  section 1 of the Police (Scotland) Act 1967;

  (e)

  the Police Service of Northern Ireland;

  (f)

  the Police Service of Northern Ireland Reserve;

  (g)

  the Ministry of Defence Police;

  (h)

  10the Royal Navy Police;

  (i)

  the Royal Military Police;

  (j)

  the Royal Air Force Police;

  (k)

  the British Transport Police;

• “recordable offence” has—

  (a)

  15in relation to a conviction in England and Wales, the
  
  meaning given by section 118(1) of the Police and
  
  Criminal Evidence Act 1984, and

  (b)

  in relation to a conviction in Northern Ireland, the
  
  meaning given by Article 2(2) of the Police and
  
  20Criminal Evidence (Northern Ireland) Order 1989
  
  (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

• “the responsible officer” means—

  (a)

  in relation to material obtained or acquired by a police
  
  force in England and Wales, the chief officer of the
  
  25police force;

  (b)

  in relation to material obtained or acquired by the
  
  Police Service of Northern Ireland or the Police
  
  Service of Northern Ireland Reserve, the Chief
  
  Constable of the Police Service of Northern Ireland;

  (c)

  30in relation to material obtained or acquired by the
  
  Ministry of Defence Police, the Chief Constable of the
  
  Ministry of Defence Police;

  (d)

  in relation to material obtained or acquired by the
  
  Royal Navy Police, the Royal Military Police or the
  
  35Royal Air Force Police, the Provost Marshal for the
  
  police force which obtained or acquired the material;

  (e)

  in relation to material obtained or acquired by the
  
  British Transport Police, the Chief Constable of the
  
  British Transport Police;

  (f)

  40in relation to material obtained or acquired by the
  
  Serious Organised Crime Agency, the Director
  
  General of the Serious Organised Crime Agency;

  (g)

  in relation to material obtained or acquired by the
  
  Commissioners for Her Majesty’s Revenue and
  
  45Customs, any of those Commissioners;

  (h)

  in relation to any other material, such person as the
  
  Secretary of State may by order specify;

• “section 18 material” has the meaning given by section 18(2);

• “terrorist investigation” has the meaning given by section 32 of
  
  50the Terrorism Act 2000.

(2) An order under subsection (1) is subject to negative resolution

procedure.

(3) For the purposes of section 18A, a person is to be treated as having

been convicted of an offence if the person—

(a) 5has been given a caution in respect of the offence which, at

the time of the caution, the person has admitted, or

(b) has been warned or reprimanded under section 65 of the

Crime and Disorder Act 1998 for the offence.

(4) Sections 18A and this section, so far as they relate to persons

10convicted of an offence, have effect despite anything in the

Rehabilitation of Offenders Act 1974.

(5) 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.

(6) 15For the purposes of section 18A—

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

previously been convicted in England and Wales or Northern

Ireland of a recordable offence, and

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

20offence, the conviction is exempt if it is in respect of a

recordable offence, other than a qualifying offence,

committed when the person was aged under 18.

(7) In subsection (6), “qualifying offence” has—

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

25committed in England and Wales, the meaning given by

section 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

3053A of the Police and Criminal Evidence (Northern Ireland)

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

(8) 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 section 18A whether

35the person has been convicted of only one offence.”

Part 4 Material subject to the Criminal Procedure (Scotland) Act 1995

5 (1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2) In section 18(3), for “18F” substitute “18G”.

(3) 40After section 18F insert—

“18G Retention of samples etc: national security

(1) This section applies to—

(a) relevant physical data taken from or provided by a person

under section 18(2) (including any taken or provided by

virtue of paragraph 20 of Schedule 8 to the Terrorism Act

2000),

(b) any sample, or any information derived from a sample, taken

from a person under section 18(6) or (6A) (including any

5taken by virtue of paragraph 20 of Schedule 8 to the

Terrorism Act 2000),

(c) any relevant physical data, sample or information derived

from a sample taken from, or provided by, a person under

section 19AA(3),

(d) 10any relevant physical data, sample or information derived

from a sample which is held by virtue of section 56 of the

Criminal Justice (Scotland) Act 2003, and

(e) any relevant physical data, sample or information derived

from a sample taken from a person—

(i) 15by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence

where there is immediate danger of its being lost or

destroyed, or

(iii) under the authority of a warrant.

(2) 20The relevant physical data, sample or information derived from a

sample may be retained for so long as a national security

determination made by the relevant chief constable has effect in

relation to it.

(3) A national security determination is made if the relevant chief

25constable determines that is necessary for the relevant physical data,

sample or information derived from a sample to be retained for the

purposes of national security.

(4) A national security determination—

(a) must be made in writing,

(b) 30has effect for a maximum of 2 years beginning with the date

on which the determination is made, and

(c) may be renewed.

(5) Any relevant physical data, sample or information derived from a

sample which is retained in pursuance of a national security

35determination must be destroyed as soon as possible after the

determination ceases to have effect (except where its retention is

permitted by any other enactment).

(6) In this section, “the relevant chief constable” means the chief

constable of the police force of which the constable who took the

40relevant physical data, or to whom it was provided, or who took or

directed the taking of the sample, was a member.”

(4) In section 19C—

(a) in subsection (1), at the end of both paragraph (a) and paragraph (b)

insert “(including any taken or provided by virtue of paragraph 20 of

45Schedule 8 to the Terrorism Act 2000)”,

(b) in subsection (2)—

(i) omit the word “or” at the end of paragraph (a), and

(ii) after paragraph (b) insert—

“(c) in the interests of national security, or

(d) for the purposes of a terrorist investigation.”,

(c) after subsection (2) insert—

“(2A) Despite subsection (2), the relevant physical data, sample or

information derived from a sample may not be used for the

5purposes mentioned in paragraphs (a) and (b) of that

subsection if its retention is lawful only by virtue of a national

security determination made under section 18G.”, and

(d) in subsection (6)—

(i) omit the word “and” at the end of paragraph (b), and

(ii) 10after paragraph (c) insert “, and

“(d) terrorist investigation” has the meaning given by

section 32 of the Terrorism Act 2000.”

Part 5 Material subject to the Criminal Justice (Scotland) Act 2003

6 (1) 15Section 56 of the Criminal Justice (Scotland) Act 2003 (asp 7)2003 (asp 7) (retaining

sample or relevant physical data where given voluntarily) is amended as

follows.

(2) In subsection (2)—

(a) omit the word “or” at the end of paragraph (a), and

(b) 20after paragraph (b) insert—

“(c) in the interests of national security, or

(d) for the purposes of a terrorist investigation.”