Protection of Freedoms Bill (HC Bill 189)

(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 91

  (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) in relation to a recordable offence in England and Wales or

Northern Ireland—

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

45the offence which, at the time of the caution, the

person has admitted,

(ii) the person has been found not guilty of the offence

by reason of insanity,

(iii) the person has been found to be under a disability

and to have done the act charged in respect of the

offence, or

(iv) the person has been warned or reprimanded under

5section 65 of the Crime and Disorder Act 1998 for

the offence,

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

by imprisonment, has accepted or has been deemed to

accept—

(i) 10a conditional offer under section 302 of the

Criminal Procedure (Scotland) Act 1995,

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

Act,

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

(iv) 15a work offer under section 303ZA of that Act,

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

by imprisonment, has been acquitted on account of the

person’s insanity at the time of the offence or (as the case

may be) by virtue of section 51A of the Criminal Procedure

20(Scotland) Act 1995,

(d) a finding in respect of the person has been made under

section 55(2) of the Criminal Procedure (Scotland) Act 1995

in relation to an offence in Scotland punishable by

imprisonment,

(e) 25the 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

punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) 30(as the case may be) the sum which the person is

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

or

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

by imprisonment, has been discharged absolutely by order

35under section 246(3) of the Criminal Procedure (Scotland)

Act 1995.

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

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

the Rehabilitation of Offenders Act 1974.

(3) 40But 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 88 of the Protection of Freedoms Act 2011.

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

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

45previously been convicted—

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

recordable offence, or

(ii) in 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

offence, other than a qualifying offence, committed when

5the 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

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

10and

(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

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

(6) 15If 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

offence.

(7) 20Nothing 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

still in force in relation to that material.

20E (1) 25Paragraph 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

officer of police determines that it is necessary for any paragraph

3020A 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

date on which the determination is made, and

(c) 35may 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) If a DNA profile is required by that paragraph to be destroyed, no

40copy 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) samples taken under paragraph 10 or 12, or

(b) 45samples 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) the 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) 5Subject to this, the rule in sub-paragraph (4) or (as the case may be)

(5) applies.

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

destroyed—

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

10sample, or

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

beginning 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

15the date on which it was taken.

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

to samples to which this paragraph applies, 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

20desirable.

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

paragraph 20A(6).

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

used other than—

(a) 25in 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

prosecution, or

(d) 30for 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

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

be used—

(a) 35in evidence against the person to whom the material

relates, or

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

(3) In this paragraph—

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

40allowing 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

45under 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) 5the 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.

(4) 10Sub-paragraphs (1) and (3) do not form part of the law of Scotland.

20I In paragraphs 20A to 20H—

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

• “DNA sample” means any material that has come from a
  
  15human body and consists of or includes human cells;

• “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);

• 20“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
  
  London);

  (c)

  25the 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)

  the Police Service of Northern Ireland;

  (g)

  30the Police Service of Northern Ireland Reserve;

  (h)

  the Ministry of Defence Police;

  (i)

  the Royal Navy Police;

  (j)

  the Royal Military Police;

  (k)

  the Royal Air Force Police;

  (l)

  35the 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
  
  Criminal Evidence Act 1984, and

  (b)

  40in 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
  
  18(7A) of the Criminal Procedure (Scotland) Act 1995;

• 45“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)

  in which the material concerned was taken, or

  Protection of Freedoms BillPage 96

  (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
  
  5Scotland, 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)

  10in 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
  
  15Constable 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) 20In 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

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

under paragraph 20G of this Schedule.”

(8) 25In paragraph 15(2) for “paragraphs 10 to 14” substitute “paragraphs 10 to

13”.

Part 2 Material subject to the International Criminal Court Act 2001

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

30fingerprints 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) DNA profiles derived from such samples.

(2) The material must be destroyed—

(a) 35before 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) if later, as soon as it has fulfilled the purpose for which it

was taken or derived.

(3) 40If 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) If 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—

• “DNA profile” means any information derived from a DNA
  
  5sample;

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

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

3 10The 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) This section applies to fingerprints, DNA samples and DNA profiles

15that—

(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

20destroyed 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

25(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) 30supplied 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) 35In 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,

40or

(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

other such power which applies to it.

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

5checked 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

considers the check to be desirable.

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

10statutory restrictions”—

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

Evidence Act 1984;

(b) Articles 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) 15paragraphs 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) section 1(2) of the Intelligence Services Act 1994.

18A Retention of material: general

(1) 20Section 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

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

(2) The retention period is—

(a) 25in 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

30from 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

person who has previously been convicted of a recordable offence

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

35material is required to be destroyed by virtue of this section, may be

retained indefinitely.

18B Retention for purposes of national security

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

as long as a national security determination made by the responsible

40officer 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

retained for the purposes of national security.

(3) A national security determination—

(a) 45must 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) may 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

5must also be destroyed.

(2) If 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 10Use of retained material

(1) Section 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,

15the 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 section 18 to be destroyed must not at

20any 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) 25the 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

which—

(i) 30constitutes 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