Protection of Freedoms Bill (HC Bill 189)

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—

(i) 10taken 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

investigation of an offence by the police, and

(b) 15a 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

officer of police that—

(a) 20the 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

derived from a sample taken, from a person in connection with

25that 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

those sections as applied by section 63O).

(4) 30Section 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

section 63D material, from being carried out within such time as may

35reasonably 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

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

section 1) insert—

“63E 5Retention of section 63D material pending investigation or

proceedings

(1) This section applies to section 63D material taken (or, in the case of a

DNA profile, derived from a sample taken) in connection with the

investigation of an offence in which it is suspected that the person to

10whom 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

against the person for the offence, until the conclusion of those

proceedings.”

3 15Persons arrested for or charged with a qualifying offence

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

section 2) insert—

“"63F Retention of section 63D material: persons arrested for or charged with

a qualifying offence

(1) 20This section applies to section 63D material which—

(a) relates 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

25offence.

(2) If 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) 30Otherwise, material falling within subsection (4) or (5) may be retained

until 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) 35was taken (or, in the case of a DNA profile, derived from a

sample 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

40is not charged with that offence,

(b) it 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) 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

5with 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).

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

10police may apply to a District Judge (Magistrates’ Courts) for an order

extending the retention period.

(8) An 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

15period which—

(a) begins with the end of the retention period, and

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

end of the retention period.

(10) The following persons may appeal to the Crown Court against an order

20under 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) the person from whom the material was taken.

(11) Circumstances prescribed under subsection (5)(c) must include the fact

25that 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

subsection (11) may, in particular, make provision about—

(a) the procedure to be followed in relation to any decision of the

30Commissioner,

(b) an appeal against such a decision.

(13) In this section—

• “excluded offence”, in relation to a person, means a recordable
  
  offence—

  (a)

  35which—

  (i)

  is not a qualifying offence,

  (ii)

  is the only recordable offence of which the
  
  person has been convicted, and

  (iii)

  was committed when the person was aged
  
  40under 18, and

  (b)

  for which the person was not given a relevant custodial
  
  sentence of 5 years or more,

• “prescribed” means prescribed by order made by the Secretary of
  
  State,

• 45“relevant custodial sentence” has the meaning given by section
  
  63J(6),

• “a specified chief officer of police” means—

  Protection of Freedoms BillPage 4

  (a)

  the 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,
  
  5or is intending to come to, the chief officer’s police area.

(14) An 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

10be made unless a draft of the instrument has been laid before, and

approved 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

section 3) insert—

“"63G 15Retention of section 63D material: persons arrested for or charged with

a minor offence

(1) This section applies to section 63D material which—

(a) relates to a person who—

(i) is arrested for or charged with a recordable offence other

20than 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

arrested for or charged with a qualifying offence, and

(iii) is not convicted of the offence or offences in respect of

25which 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

offence or offences in respect of which the person is arrested or

charged.

(2) 30If the person has previously been convicted of a recordable offence

which is not an excluded offence, the material may be retained

indefinitely.

(3) In this section “excluded offence” has the meaning given by section

63F(13).”

5 35Persons convicted of a recordable offence

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

section 4) insert—

“"63H Retention of section 63D material: persons convicted of a recordable

offence

(1) 40This section applies, subject to subsection (3), to—

(a) section 63D material which—

(i) relates to a person who is convicted of a recordable

offence, 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

5person 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

10After section 63H of the Police and Criminal Evidence Act 1984 (for which see

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

15a 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

20outside 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) 25The 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

30convicted 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) 35has 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

40offence.

(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

more in respect of the offence, the material may be retained

indefinitely.

(4) Where the person is given a sentence other than a relevant custodial

5sentence 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

beginning 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

10beginning with—

(i) the 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

15taken.

(5) But if, before the end of the period within which material may be

retained 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

20following—

(a) a custodial sentence within the meaning of section 76 of the

Powers 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

25order under section 211 of the Armed Forces Act 2006 or a

secure training order.”

8 Persons given a penalty notice

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

section 7) insert—

“"63K 30Retention of section 63D material: persons given a penalty notice

(1) This section applies to section 63D material which—

(a) relates 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

35sample taken) from the person in connection with the

investigation of the offence to which the notice relates.

(2) The 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) 40in the case of a DNA profile, for a period of 2 years beginning

with—

(i) the 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

45sample, the date on which the first of those samples was

taken.”

9 Material 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) 5Section 63D 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 section 63D

10material 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 it is made, and

(c) 15may 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) 20This 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) 25Material 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

30offence (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,

35committed 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) 40This 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

5this 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 10Material obtained for one purpose and used for another

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

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

15case of a DNA profile, derived from a sample taken) from a person in

connection 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

20the material as if the material was taken (or, in the case of a DNA

profile, 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

25After section 63O of the Police and Criminal Evidence Act 1984 (for which see

section 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) 30If a DNA profile is required by that section to be destroyed, no copy

may 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 35Destruction of samples

After 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

this 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

5offence by the police.

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

the 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

10person’s arrest and the arrest was unlawful or based on

mistaken identity.

(3) Subject to this, the rule in subsection (4) or (as the case may be) (5)

applies.

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

(a) 15as 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) Any other sample to which this section applies must be destroyed

before the end of the period of 6 months beginning with the date on

20which 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

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

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

15 25Destruction of impressions of footwear

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

section 14) insert—

“63R Destruction of impressions of footwear

(1) This section applies to impressions of footwear—

(a) 30taken 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

they were taken, in connection with the investigation of an

offence by the police.

(2) 35Impressions 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

purposes related to the prevention or detection of crime, the

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

40Supplementary 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