A
BILL
TO
Provide for the destruction, retention, use and other regulation of certain evidential material;
to impose consent and other requirements in relation to certain processing of biometric
information relating to children; to provide for a code of practice about surveillance camera
systems and for the appointment and role of the Surveillance Camera Commissioner; to
provide for judicial approval in relation to certain authorisations and notices under the
Regulation of Investigatory Powers Act 2000; to provide for the repeal or rewriting of powers
of entry and associated powers and for codes of practice and other safeguards in relation to
such powers; to make provision about vehicles left on land; to provide for a maximum
detention period of 14 days for terrorist suspects; to replace certain stop and search powers
and to provide for a related code of practice; to amend the Safeguarding Vulnerable Groups
Act 2006; to make provision about criminal records; to disregard convictions and cautions for
certain abolished offences; to make provision about the release and publication of datasets
held by public authorities and to make other provision about freedom of information and the
Information Commissioner; to repeal certain enactments; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1 Regulation of biometric data
CHAPTER 1 Destruction, retention and use of fingerprints etc.
Destruction rule for fingerprints and DNA profiles subject to PACE
1 5Destruction of fingerprints and DNA profiles
After section 63C of the Police and Criminal Evidence Act 1984 insert—
“63D Destruction of fingerprints and DNA profiles
(1) This section applies to—
(a) fingerprints—
Protection of Freedoms BillPage 2
(i)
taken from a person under any power conferred by this
Part of this Act, or
(ii)
taken by the police, with the consent of the person from
whom they were taken, in connection with the
5investigation of an offence by the police, and
(b)
a DNA profile derived from a DNA sample taken as mentioned
in paragraph (a)(i) or (ii).
(2)
Fingerprints and DNA profiles to which this section applies (“section
63D material”) must be destroyed if it appears to the responsible chief
10officer of police that—
(a)
the taking of the fingerprint or, in the case of a DNA profile, the
taking of the sample from which the DNA profile was derived,
was unlawful, or
(b)
the fingerprint was taken, or, in the case of a DNA profile, was
15derived from a sample taken, from a person in connection with
that person’s arrest and the arrest was unlawful or based on
mistaken identity.
(3)
In any other case, section 63D material must be destroyed unless it is
retained under any power conferred by sections 63E to 63N (including
20those sections as applied by section 63O).
(4)
Section 63D material which ceases to be retained under a power
mentioned in subsection (3) may continue to be retained under any
other such power which applies to it.
(5)
Nothing in this section prevents a speculative search, in relation to
25section 63D material, from being carried out within such time as may
reasonably be required for the search if the responsible chief officer of
police considers the search to be desirable.”
Modification of rule for particular circumstances
2 Material retained pending investigation or proceedings
30After section 63D of the Police and Criminal Evidence Act 1984 (for which see
section 1) insert—
“63E
Retention of section 63D material pending investigation or
proceedings
(1)
This section applies to section 63D material taken (or, in the case of a
35DNA profile, derived from a sample taken) in connection with the
investigation of an offence in which it is suspected that the person to
whom the material relates has been involved.
(2)
The material may be retained until the conclusion of the investigation
of the offence or, where the investigation gives rise to proceedings
40against the person for the offence, until the conclusion of those
proceedings.”
3 Persons arrested for or charged with a qualifying offence
After section 63E of the Police and Criminal Evidence Act 1984 (for which see
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section 2) insert—
“"63F
Retention of section 63D material: persons arrested for or charged with
a qualifying offence
(1) This section applies to section 63D material which—
(a)
5relates to a person who is arrested for, or charged with, a
qualifying offence but is not convicted of that offence, and
(b)
was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of the
offence.
(2)
10If the person has previously been convicted of a recordable offence
which is not an excluded offence, or is so convicted before the material
is required to be destroyed by virtue of this section, the material may be
retained indefinitely.
(3)
Otherwise, material falling within subsection (4) or (5) may be retained
15until the end of the retention period specified in subsection (6).
(4) Material falls within this subsection if it—
(a)
relates to a person who is charged with a qualifying offence but
is not convicted of that offence, and
(b)
was taken (or, in the case of a DNA profile, derived from a
20sample taken) in connection with the investigation of the
offence.
(5) Material falls within this subsection if—
(a)
it relates to a person who is arrested for a qualifying offence but
is not charged with that offence,
(b)
25it was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of the
offence, and
(c) any prescribed circumstances apply.
(6) The retention period is—
(a)
30in 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
with the date on which the DNA sample from which the profile
was derived was taken (or, if the profile was derived from more
35than one DNA sample, the date on which the first of those
samples was taken).
(7)
The responsible chief officer of police or a specified chief officer of
police may apply to a District Judge (Magistrates’ Courts) for an order
extending the retention period.
(8)
40An application for an order under subsection (7) must be made within
the period of 3 months ending on the last day of the retention period.
(9)
An order under subsection (7) may extend the retention period by a
period which—
(a) begins with the end of the retention period, and
(b)
45ends with the end of the period of 2 years beginning with the
end of the retention period.
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(10)
The following persons may appeal to the Crown Court against an order
under subsection (7), or a refusal to make such an order—
(a) the responsible chief officer of police;
(b) a specified chief officer of police;
(c) 5the person from whom the material was taken.
(11)
Circumstances prescribed under subsection (5)(c) must include the fact
that the Commissioner for the Retention and Use of Biometric Material
has consented to the retention of the material concerned.
(12)
An order prescribing circumstances of the kind mentioned in
10subsection (11) may, in particular, make provision about—
(a)
the procedure to be followed in relation to any decision of the
Commissioner,
(b) an appeal against such a decision.
(13) In this section—
-
15“excluded offence”, in relation to a person, means a recordable
offence—(a)which—
(i)is not a qualifying offence,
(ii)is the only recordable offence of which the
20person has been convicted, and(iii)was committed when the person was aged
under 18, and(b)for which the person was not given a relevant custodial
sentence of 5 years or more, -
25“prescribed” means prescribed by order made by the Secretary of
State, -
“relevant custodial sentence” has the meaning given by section
63J(6), -
“a specified chief officer of police” means—
(a)30the chief officer of the police force of the area in which
the person from whom the material was taken resides,
or(b)a chief officer of police who believes that the person is in,
or is intending to come to, the chief officer’s police area.
(14) 35An order of the Secretary of State under this section—
(a) is to be made by statutory instrument,
(b) may include transitional, transitory or saving provision.
(15)
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
40approved by a resolution of, each House of Parliament.”
4 Persons arrested for or charged with a minor offence
After section 63F of the Police and Criminal Evidence Act 1984 (for which see
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section 3) insert—
“"63G
Retention of section 63D material: persons arrested for or charged with
a minor offence
(1) This section applies to section 63D material which—
(a) 5relates to a person who—
(i)
is arrested for or charged with a recordable offence other
than a qualifying offence,
(ii)
if arrested for or charged with more than one offence
arising out of a single course of action, is not also
10arrested for or charged with a qualifying offence, and
(iii)
is not convicted of the offence or offences in respect of
which the person is arrested or charged, and
(b)
was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of the
15offence or offences in respect of which the person is arrested or
charged.
(2)
If the person has previously been convicted of a recordable offence
which is not an excluded offence, the material may be retained
indefinitely.
(3)
20In this section “excluded offence” has the meaning given by section
63F(13).”
5 Persons convicted of a recordable offence
After section 63G of the Police and Criminal Evidence Act 1984 (for which see
section 4) insert—
“"63H
25Retention of section 63D material: persons convicted of a recordable
offence
(1) This section applies, subject to subsection (3), to—
(a) section 63D material which—
(i)
relates to a person who is convicted of a recordable
30offence, and
(ii)
was taken (or, in the case of a DNA profile, derived from
a sample taken) in connection with the investigation of
the offence, or
(b)
material taken under section 61(6) or 63(3B) which relates to a
35person who is convicted of a recordable offence.
(2) The material may be retained indefinitely.
(3)
This section does not apply to section 63D material to which section 63J
applies.”
6 Persons convicted of an offence outside England and Wales
40After section 63H of the Police and Criminal Evidence Act 1984 (for which see
Protection of Freedoms BillPage 6
section 5) insert—
“"63I
Retention of material: persons convicted of an offence outside
England and Wales
(1)
This section applies to material falling within subsection (2) relating to
5a person who is convicted of an offence under the law of any country
or territory outside England and Wales.
(2) Material falls within this subsection if it is—
(a)
fingerprints taken from the person under section 61(6D) (power
to take fingerprints without consent in relation to offences
10outside England and Wales), or
(b)
a DNA profile derived from a DNA sample taken from the
person under section 62(2A) or 63(3E) (powers to take intimate
and non-intimate samples in relation to offences outside
England and Wales).
(3) 15The material may be retained indefinitely.”
7 Persons under 18 convicted of first minor offence
After section 63I of the Police and Criminal Evidence Act 1984 (for which see
section 6) insert—
“"63J
Retention of section 63D material: exception for persons under 18
20convicted of first minor offence
(1) This section applies to section 63D material which—
(a) relates to a person who—
(i)
is convicted of a recordable offence other than a
qualifying offence,
(ii)
25has not previously been convicted of a recordable
offence, and
(iii) is aged under 18 at the time of the offence, and
(b)
was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of the
30offence.
(2)
Where the person is given a relevant custodial sentence of less than 5
years in respect of the offence, the material may be retained until the
end of the period consisting of the term of the sentence plus 5 years.
(3)
Where the person is given a relevant custodial sentence of 5 years or
35more in respect of the offence, the material may be retained
indefinitely.
(4)
Where the person is given a sentence other than a relevant custodial
sentence in respect of the offence, the material may be retained until—
(a)
in the case of fingerprints, the end of the period of 5 years
40beginning with the date on which the fingerprints were taken,
and
(b)
in the case of a DNA profile, the end of the period of 5 years
beginning with—
(i)
the date on which the DNA sample from which the
45profile was derived was taken, or
Protection of Freedoms BillPage 7
(ii)
if the profile was derived from more than one DNA
sample, the date on which the first of those samples was
taken.
(5)
But if, before the end of the period within which material may be
5retained by virtue of this section, the person is again convicted of a
recordable offence, the material may be retained indefinitely.
(6)
In this section, “relevant custodial sentence” means any of the
following—
(a)
a custodial sentence within the meaning of section 76 of the
10Powers of Criminal Courts (Sentencing) Act 2000;
(b)
a sentence of a period of detention and training (excluding any
period of supervision) which a person is liable to serve under an
order under section 211 of the Armed Forces Act 2006 or a
secure training order.”
8 15Persons given a penalty notice
After section 63J of the Police and Criminal Evidence Act 1984 (for which see
section 7) insert—
“"63K Retention of section 63D material: persons given a penalty notice
(1) This section applies to section 63D material which—
(a)
20relates to a person who is given a penalty notice under section 2
of the Criminal Justice and Police Act 2001, and
(b)
was taken (or, in the case of a DNA profile, derived from a
sample taken) from the person in connection with the
investigation of the offence to which the notice relates.
(2) 25The material may be retained—
(a)
in the case of fingerprints, for a period of 2 years beginning with
the date on which the fingerprints were taken,
(b)
in the case of a DNA profile, for a period of 2 years beginning
with—
(i)
30the date on which the DNA sample from which the
profile was derived was taken, or
(ii)
if the profile was derived from more than one DNA
sample, the date on which the first of those samples was
taken.”
9 35Material retained for purposes of national security
After section 63K of the Police and Criminal Evidence Act 1984 (for which see
section 8) insert—
“"63L Retention of section 63D material for purposes of national security
(1)
Section 63D material may be retained for as long as a national security
40determination 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
officer of police determines that it is necessary for any section 63D
material to be retained for the purposes of national security.
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(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 it is made, and
(c) 5may be renewed.”
10 Material given voluntarily
After section 63L of the Police and Criminal Evidence Act 1984 (for which see
section 9) insert—
“"63M Retention of section 63D material given voluntarily
(1) 10This section applies to the following section 63D material—
(a)
fingerprints taken with the consent of the person from whom
they were taken, and
(b)
a DNA profile derived from a DNA sample taken with the
consent of the person from whom the sample was taken.
(2)
15Material to which this section applies may be retained until it has
fulfilled the purpose for which it was taken or derived.
(3) Material to which this section applies which relates to—
(a) a person who is convicted of a recordable offence, or
(b)
a person who has previously been convicted of a recordable
20offence (other than a person who has only one exempt
conviction),
may be retained indefinitely.
(4)
For the purposes of subsection (3)(b), a conviction is exempt if it is in
respect of a recordable offence, other than a qualifying offence,
25committed when the person is aged under 18.”
11 Material retained with consent
After section 63M of the Police and Criminal Evidence Act 1984 (for which see
section 10) insert—
“"63N Retention of section 63D material with consent
(1) 30This section applies to the following material—
(a)
fingerprints (other than fingerprints taken under section
61(6A)) to which section 63D applies, and
(b) a DNA profile to which section 63D applies.
(2)
If the person to whom the material relates consents to material to which
35this section applies being retained, the material may be retained for as
long as that person consents to it being retained.
(3) Consent given under this section—
(a) must be in writing, and
(b) can be withdrawn at any time.”
12 40Material obtained for one purpose and used for another
After section 63N of the Police and Criminal Evidence Act 1984 (for which see
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section 11) insert—
“"63O Section 63D material obtained for one purpose and used for another
(1)
Subsection (2) applies if section 63D material which is taken (or, in the
case of a DNA profile, derived from a sample taken) from a person in
5connection with the investigation of an offence leads to the person to
whom the material relates being arrested for or charged with, or
convicted of, an offence other than the offence under investigation.
(2)
Sections 63E to 63N and sections 63P and 63S have effect in relation to
the material as if the material was taken (or, in the case of a DNA
10profile, derived from a sample taken) in connection with the
investigation of the offence in respect of which the person is arrested or
charged.”
13 Destruction of copies
After section 63O of the Police and Criminal Evidence Act 1984 (for which see
15section 12) insert—
“63P Destruction of copies of section 63D material
(1)
If fingerprints are required by section 63D to be destroyed, any copies
of the fingerprints held by the police must also be destroyed.
(2)
If a DNA profile is required by that section to be destroyed, no copy
20may be retained by the police except in a form which does not include
information which identifies the person to whom the DNA profile
relates.”
Destruction rules for samples and impressions of footwear subject to PACE
14 Destruction of samples
25After section 63P of the Police and Criminal Evidence Act 1984 (for which see
section 13) insert—
“63Q Destruction of samples
(1) This section applies to samples—
(a)
taken from a person under any power conferred by this Part of
30this Act, or
(b)
taken by the police, with the consent of the person from whom
they were taken, in connection with the investigation of an
offence by the police.
(2)
Samples to which this section applies must be destroyed if it appears to
35the responsible chief officer of police that—
(a) the taking of the samples was unlawful, or
(b)
the samples were taken from a person in connection with that
person’s arrest and the arrest was unlawful or based on
mistaken identity.
(3)
40Subject to this, the rule in subsection (4) or (as the case may be) (5)
applies.