Protection of Freedoms Bill (HC Bill 146)

(4) A DNA sample to which this section 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 beginning

with the date on which the sample was taken.

(5) 5Any other sample to which this section 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 speculative search, in relation to

samples to which this section applies, from being carried out within

10such time as may reasonably be required for the search if the

responsible chief officer of police considers the search to be desirable.”

15 Destruction of impressions of footwear

After section 63Q of the Police and Criminal Evidence Act 1984 (for which see

section 14) insert—

“63R 15Destruction of impressions of footwear

(1) This section applies to impressions of footwear—

(a) taken from a person under any power conferred by this Part of

this Act, or

(b) taken by the police, with the consent of the person from whom

20they were taken, in connection with the investigation of an

offence by the police.

(2) Impressions of footwear to which this section applies must be

destroyed unless they are retained under subsection (3).

(3) Impressions of footwear may be retained for as long as is necessary for

25purposes related to the prevention or detection of crime, the

investigation of an offence or the conduct of a prosecution.”

Supplementary provision for material subject to PACE

16 Use of retained material

After section 63R of the Police and Criminal Evidence Act 1984 (for which see

30section 15) insert—

“"63S Use of retained material

(1) Any material to which section 63D, 63Q or 63R applies must not be

used other than—

(a) in the interests of national security,

(b) 35for 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 prosecution, or

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

of the person to whom the material relates.

(2) 40Material which is required by section 63D, 63Q or 63R to be destroyed

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) In this section—

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

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

5person,

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

which—

(i) constitutes one or more criminal offences (whether

under the law of England and Wales or of any country

10or territory outside England and Wales), or

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

place in England and Wales, would constitute one or

more criminal offences, and

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

15references, respectively, to any investigation outside England

and Wales of any crime or suspected crime and to a prosecution

brought in respect of any crime in a country or territory outside

England and Wales.”

17 Exclusions for certain regimes

20After section 63S of the Police and Criminal Evidence Act 1984 (for which see

section 16) insert—

“"63T Exclusions for certain regimes

(1) Sections 63D to 63S do not apply to material to which paragraphs 20A

to 20I of Schedule 8 to the Terrorism Act 2000 (destruction, retention

25and use of material taken from terrorist suspects) apply.

(2) Any reference in those sections to a person being arrested for, or

charged with, an offence does not include a reference to a person—

(a) being arrested under section 41 of the Terrorism Act 2000, or

(b) being charged with an offence following an arrest under that

30section.

(3) Nothing in sections 63D to 63S affects any power conferred by—

(a) paragraph 18(2) of Schedule 2 to the Immigration Act 1971

(power to take reasonable steps to identify a person detained),

or

(b) 35section 20 of the Immigration and Asylum Act 1999 (disclosure

of police information to the Secretary of State for use for

immigration purposes).”

18 Interpretation and minor amendments of PACE

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) 40In section 65(1) (interpretation of Part 5)—

(a) after the definition of “appropriate consent” insert—

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

• “DNA sample” means any material that has come from a
  
  45human body and consists of or includes human cells;”,

(b) after the definition of “registered health care professional” insert—

• ““the responsible chief officer of police”, in relation to the
  
  taking or deriving of section 63D material or the taking
  
  of samples to which section 63Q applies, means the chief
  
  5officer of police for the police area—

  (a)

  in which the material concerned was taken or
  
  derived, or

  (b)

  in the case of a DNA profile, in which the sample
  
  from which the DNA profile was derived was
  
  10taken;

• “section 63D material” means fingerprints or DNA profiles
  
  to which section 63D applies;”, and

(c) after the definition of “terrorism” insert—

• ““terrorist investigation” has the meaning given by section
  
  1532 of that Act;”.

(3) After section 65(2) (meaning of references to a sample’s proving insufficient)

insert—

“(2A) In subsection (2), the reference to the destruction of a sample does not

include a reference to the destruction of a sample under section 63Q

20(requirement to destroy samples).

(2B) Any reference in sections 63F, 63G, 63O or 63T to a person being

charged with an offence includes a reference to a person being

informed that the person will be reported for an offence.”

(4) In section 65A(2) (list of “qualifying offences” for purposes of Part 5), in

25paragraph (j) (offences under the Theft Act 1968), for “section 9” substitute

“section 8, 9”.

(5) After section 65A insert—

“65B Persons convicted of an offence”

(1) For the purposes of this Part, any reference to a person who is convicted

30of an offence includes a reference to—

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

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

(b) a person who has been warned or reprimanded under section

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

(2) 35This Part, so far as it relates to persons convicted of an offence, has

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) 40If 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 sections 63F, 63G and

63M whether the person has been convicted of only one offence.”

Amendments of regimes other than PACE

19 Amendments of regimes other than PACE

Schedule 1 (which amends regimes other than the regime in the Police and

Criminal Evidence Act 1984 amended by sections 1 to 18) has effect.

5National security determinations

20 National security: appointment of Commissioner

(1) The Secretary of State must appoint a Commissioner to be known as the

Commissioner for the Retention and Use of Biometric Material (referred to in

this section and sections 21 and 22 as “the Commissioner”).

(2) 10It is the function of the Commissioner to keep under review—

(a) every national security determination made or renewed under—

(i) section 63L of the Police and Criminal Evidence Act 1984

(section 63D material retained for purposes of national

security),

(ii) 15paragraph 20E of Schedule 8 to the Terrorism Act 2000

(paragraph 20A material retained for purposes of national

security),

(iii) section 18B of the Counter-Terrorism Act 2008 (section 18

material retained for purposes of national security),

(iv) 20section 18G of the Criminal Procedure (Scotland) Act 1995

(certain material retained for purposes of national security), and

(v) paragraph 7 of Schedule 1 to this Act (material subject to the

Police and Criminal Evidence (Northern Ireland) Order 1989

retained for purposes of national security),

(b) 25the uses to which material retained pursuant to a national security

determination is being put.

(3) It is the duty of every person who makes or renews a national security

determination under a provision mentioned in subsection (2)(a) to—

(a) send to the Commissioner a copy of the determination or renewed

30determination, and the reasons for making or renewing the

determination, within 28 days of making or renewing it, and

(b) disclose or provide to the Commissioner such documents and

information as the Commissioner may require for the purpose of

carrying out the Commissioner’s functions.

(4) 35If, on reviewing a national security determination made or renewed under a

provision mentioned in subsection (2)(a), the Commissioner concludes that it

is not necessary for any material retained pursuant to the determination to be

so retained, the Commissioner may order the destruction of the material if the

condition in subsection (5) is met.

(5) 40The condition is that the material retained pursuant to the national security

determination is not otherwise capable of being lawfully retained.

(6) The Commissioner is to hold office in accordance with the terms of the Commissioner’s

appointment; and the Secretary of State may pay in respect of the Commissioner any

expenses, remuneration or allowances that the Secretary of State may determine.

(7) The Secretary of State may, after consultation with the Commissioner, provide the

Commissioner with—

(a) such staff, and

(b) such accommodation, equipment and other facilities,

5as the Secretary of State considers necessary for the carrying out of the Commissioner’s

functions.

21 Reports by Commissioner

(1) The Commissioner must make a report to the Secretary of State about the

carrying out of the Commissioner’s functions as soon as reasonably practicable

10after the end of—

(a) the period of 9 months beginning when this section comes into force,

and

(b) every subsequent 12 month period.

(2) The Commissioner may also, at any time, make such report to the Secretary of

15State on any matter relating to the carrying out of those functions as the

Commissioner considers appropriate.

(3) The Secretary of State may at any time require the Commissioner to report on

any matter relating to the retention or use of biometric material by a law

enforcement authority for the purposes of national security.

(4) 20On receiving a report from the Commissioner under this section, the Secretary

of State must—

(a) publish the report, and

(b) lay a copy of the published report before Parliament.

(5) The Secretary of State may, after consultation with the Commissioner, exclude

25from publication any part of a report under this section if, in the opinion of the

Secretary of State, the publication of that part would be contrary to the public

interest or prejudicial to national security.

(6) In this section “law enforcement authority” has the meaning given by section

18E(1) of the Counter-Terrorism Act 2008.

22 30Guidance on making a national security determination

(1) The Secretary of State must give guidance about making or renewing national

security determinations under a provision mentioned in section 20(2)(a).

(2) Any person authorised to make or renew any such national security

determination must have regard to any guidance given under this section.

(3) 35The Secretary of State may give different guidance for different purposes.

(4) In the course of preparing the guidance, or revising guidance already given,

the Secretary of State must consult the Commissioner and the Lord Advocate.

(5) Before giving guidance under this section, or revising guidance already given,

the Secretary of State must lay before Parliament—

(a) 40the proposed guidance or proposed revisions, and

(b) a draft of an order providing for the guidance, or revisions to the

guidance, to come into force.

(6) The Secretary of State must make the order, and issue the guidance or (as the

case may be) make the revisions to the guidance, if the draft of the order is

approved by a resolution of each House of Parliament.

(7) Guidance, or revisions to guidance, come into force in accordance with an

5order under this section.

(8) Such an order—

(a) is to be a statutory instrument, and

(b) may contain transitional, transitory or saving provision.

(9) The Secretary of State must publish any guidance given or revised under this

10section.

Other provisions

23 Inclusion of DNA profiles on National DNA Database

After section 63A of the Police and Criminal Evidence Act 1984 insert—

“63AA Inclusion of DNA profiles on National DNA Database

(1) 15This section applies to a DNA profile which is derived from a DNA

sample and which is retained under any power conferred by any of

sections 63E to 63K (including those sections as applied by section 63O).

(2) A DNA profile to which this section applies must be recorded on the

National DNA Database.”

24 20National DNA Database Strategy Board

After section 63AA of the Police and Criminal Evidence Act 1984 (for which see

section 23) insert—

“63AB National DNA Database Strategy Board

(1) The Secretary of State must make arrangements for a National DNA

25Database Strategy Board to oversee the operation of the National DNA

Database.

(2) The National DNA Database Strategy Board must issue guidance about

the destruction of DNA profiles which are, or may be, retained under

this Part of this Act.

(3) 30A chief officer of a police force in England and Wales must act in

accordance with guidance issued under this section.

(4) The Secretary of State must publish the governance rules of the

National DNA Database Strategy Board and lay a copy of the rules

before Parliament.

(5) 35The National DNA Database Strategy Board must make an annual

report to the Secretary of State about the exercise of its functions.

(6) The Secretary of State must publish the report and lay a copy of the

published report before Parliament.

(7) The Secretary of State may exclude from publication any part of the

40report if, in the opinion of the Secretary of State, the publication of that

part would be contrary to the public interest or prejudicial to national

security.”

25 Material taken before commencement

(1) The Secretary of State must by order make such transitional, transitory or

5saving provision as the Secretary of State considers appropriate in connection

with the coming into force of any provision of this Chapter.

(2) The Secretary of State must, in particular, provide for the destruction or

retention of PACE material taken, or (in the case of a DNA profile) derived

from a sample taken, before the commencement day in connection with the

10investigation of an offence.

(3) Such provision must, in particular, ensure—

(a) in the case of material taken or derived 3 years or more before the

commencement day from a person who—

(i) was arrested for, or charged with, the offence, and

(ii) 15has not been convicted of the offence,

the destruction of the material on the coming into force of the order if

the offence was a qualifying offence,

(b) in the case of material taken or derived less than 3 years before the

commencement day from a person who—

(i) 20was arrested for, or charged with, the offence, and

(ii) has not been convicted of the offence,

the destruction of the material within the period of 3 years beginning

with the day on which the material was taken or derived if the offence

was a qualifying offence, and

(c) 25in the case of material taken or derived before the commencement day

from a person who—

(i) was arrested for, or charged with, the offence, and

(ii) has not been convicted of the offence,

the destruction of the material on the coming into force of the order if

30the offence was an offence other than a qualifying offence.

(4) An order under this section may, in particular, provide for exceptions to

provision of the kind mentioned in subsection (3).

(5) Subsection (6) applies if an order under section 113(1) of the Police and

Criminal Evidence Act 1984 (application of that Act to Armed Forces) makes

35provision equivalent to sections 63D to 63T of that Act.

(6) The power to make an order under section 113(1) of the Act of 1984 includes

the power to make provision of the kind that may be made by an order under

this section; and the duties which apply to the Secretary of State under this

section in relation to an order under this section apply accordingly in relation

40to an order under section 113(1) of that Act.

(7) An order under this section is to be made by statutory instrument.

(8) A statutory instrument containing an order under this section is subject to

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

(9) In this section—

Protection of Freedoms BillPage 17

• “the commencement day” means the day on which section 1 comes into
  
  force,

• “PACE material” means material that would have been material to which
  
  section 63D or 63Q of the Police and Criminal Evidence Act 1984
  
  5applied if those provisions had been in force when it was taken or
  
  derived.

CHAPTER 2 Protection of biometric information of children in schools etc.

26 Requirement for consent before processing biometric information

(1) Subsection (2) applies in relation to any processing of a child’s biometric

10information by or on behalf of the relevant authority of—

(a) a school,

(b) a 16 to 19 Academy, or

(c) a further education institution.

(2) The relevant authority must ensure that a child’s biometric information is not

15processed unless—

(a) each parent of the child consents to the information being processed, or

(b) such consent is not required in one or more cases and is given in any

other case.

(3) See section 27 for further provision about consent (including when consent is

20not required).

(4) But if, at any time, the child—

(a) refuses to participate in, or continue to participate in, anything that

involves the processing of the child’s biometric information, or

(b) otherwise objects to the processing of that information,

25the relevant authority must ensure that the information is not processed,

irrespective of any consent given by a parent of the child under subsection (2).

(5) Subsection (6) applies in relation to any child whose biometric information, by

virtue of this section, may not be processed.

(6) The relevant authority must ensure that reasonable alternative means are

30available by which the child may do, or be subject to, anything which the child

would have been able to do, or be subject to, had the child’s biometric

information been processed.

27 Exceptions and further provision about consent

(1) For the purposes of section 26(2), the consent of a parent is not required if the

35relevant authority is satisfied that—

(a) the parent cannot be found,

(b) the parent lacks capacity (within the meaning of the Mental Capacity

Act 2005) to give consent,

(c) the welfare of the child requires that the parent is not contacted, or

(d) 40it is otherwise not reasonably practicable to obtain the consent of the

parent.

(2) Consent under section 26(2) may be withdrawn at any time.

(3) Consent under section 26(2) must be given, and (if withdrawn) withdrawn, in

writing.

(4) Section 26 and this section are in addition to the requirements of the Data

5Protection Act 1998.

28 Interpretation: Chapter 2

(1) In this Chapter—

• “biometric information” is to be read in accordance with subsections (2)
  
  and (3),

• 10“child” means a person under the age of 18,

• “further education institution” means an institution within the further
  
  education sector (within the meaning given by section 91(3)(a) to (c) of
  
  the Further and Higher Education Act 1992),

• “parent” is to be read in accordance with subsections (4) to (7),

• 15“parental responsibility” is to be read in accordance with the Children Act
  
  1989,

• “processing” has the meaning given by section 1(1) of the Data Protection
  
  Act 1998,

• “proprietor”, in relation to a school or 16 to 19 Academy, has the meaning
  
  20given by section 579(1) of the Education Act 1996, subject to the
  
  modification in subsection (8),

• “relevant authority” means—

  (a)

  in relation to a school, the proprietor of the school,

  (b)

  in relation to a 16 to 19 Academy, the proprietor of the
  
  25Academy,

  (c)

  in relation to a further education institution, the governing
  
  body of the institution (within the meaning given by
  
  paragraphs (a), (c) and (d) of the definition of “governing body”
  
  in section 90(1) of the Further and Higher Education Act 1992),

• 30“school” has the meaning given by section 4 of the Education Act 1996,
  
  subject to the modification in subsection (9),

• “16 to 19 Academy” has the meaning given by section 1B of the Academies
  
  Act 2010.”

(2) “Biometric information” means information about a person’s physical or

35behavioural characteristics or features which—

(a) is capable of being used in order to identify the person, and

(b) is obtained for the purpose of being so used.

(3) Biometric information may, in particular, include—

(a) information about the skin pattern and other physical characteristics or

40features of a person’s fingers or palms,

(b) information about the features of an iris or any other part of the eye,

and

(c) information about a person’s voice or handwriting.

(4) “Parent” means a parent of the child and any individual who is not a parent of

45the child but who has parental responsibility for the child.

(5) In a case where the relevant authority is satisfied that, by virtue of section 27(1),

the consent of no parent is required, “parent” is to be read as including each

individual who has care of the child but this is subject to subsections (6) and (7).

(6) In a case to which subsection (5) applies where the child is looked after by a

5local authority (within the meaning given by section 22(1) of the Children Act

1989), “parent” is to be read as meaning the local authority looking after the

child.

(7) In a case to which subsection (5) applies where the child is not looked after by

a local authority (within the meaning given by section 22(1) of the Children Act

101989) but a voluntary organisation has provided accommodation for the child

in accordance with section 59(1) of that Act by—

(a) placing the child with a foster parent, or

(b) maintaining the child in a children’s home,

“parent” is to be read as meaning the voluntary organisation that so placed or

15maintains the child.

(8) A reference to the proprietor of a school is to be read, in relation to a pupil

referral unit for which there is a management committee established by virtue

of paragraph 15 of Schedule 1 to the Education Act 1996, as a reference to that

committee; and for this purpose “pupil referral unit” has the meaning given by

20section 19(2) of that Act.

(9) A reference to a school is to be read as if it included a reference to any

independent educational institution (within the meaning given by section 92 of

the Education and Skills Act 2008).

Part 2 25Regulation of surveillance

CHAPTER 1 Regulation of CCTV and other surveillance camera technology

Code of practice

29 Code of practice for surveillance camera systems