PART 1 continued CHAPTER 1 continued
Protection of Freedoms BillPage 10
section 15) insert—
(1)
Any material to which section 63D, 63Q or 63R applies must not be
used other than—
(a) 5in 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)
for purposes related to the identification of a deceased person or
10of the person to whom the material relates.
(2)
Material 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) 15In 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
person,
(b)
the reference to crime includes a reference to any conduct
20which—
(i)
constitutes one or more criminal offences (whether
under the law of England and Wales or of any country
or territory outside England and Wales), or
(ii)
is, or corresponds to, any conduct which, if it all took
25place in England and Wales, would constitute one or
more criminal offences, and
(c)
the references to an investigation and to a prosecution include
references, respectively, to any investigation outside England
and Wales of any crime or suspected crime and to a prosecution
30brought in respect of any crime in a country or territory outside
England and Wales.”
After section 63S of the Police and Criminal Evidence Act 1984 (for which see
section 16) insert—
(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
and use of material taken from terrorist suspects) apply.
(2)
Any reference in those sections to a person being arrested for, or
40charged 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
section.
(3) Nothing in sections 63D to 63S affects any power conferred by—
Protection of Freedoms BillPage 11
(a)
paragraph 18(2) of Schedule 2 to the Immigration Act 1971
(power to take reasonable steps to identify a person detained),
or
(b)
section 20 of the Immigration and Asylum Act 1999 (disclosure
5of police information to the Secretary of State for use for
immigration purposes).”
(1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) In section 65(1) (interpretation of Part 5)—
(a) 10after 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
human body and consists of or includes human cells;”,
(b) 15after 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
officer of police for the police area—
20in which the material concerned was taken or
derived, or
in the case of a DNA profile, in which the sample
from which the DNA profile was derived was
taken;
25“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
32 of that Act;”.
(3)
30After 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
(requirement to destroy samples).
(2B)
35Any 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
paragraph (j) (offences under the Theft Act 1968), for “section 9” substitute
40“section 8, 9”.
(5) After section 65A insert—
(1)
For the purposes of this Part, any reference to a person who is convicted
of an offence includes a reference to—
(a)
45a person who has been given a caution in respect of the offence
which, at the time of the caution, the person has admitted,
Protection of Freedoms BillPage 12
(b)
a person who has been warned or reprimanded under section
65 of the Crime and Disorder Act 1998 for the offence,
(c)
a person who has been found not guilty of the offence by reason
of insanity, or
(d)
5a person who has been found to be under a disability and to
have done the act charged in respect of the offence.
(2)
This 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
10if that conviction is a disregarded conviction or caution by virtue of
section 88 of the Protection of Freedoms Act 2011.
(4)
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 sections 63F, 63G and
1563M whether the person has been convicted of only one offence.
(5)
See also section 65(3) (which deals with findings equivalent to those
mentioned in subsection (1)(c) or (d) by courts which exercise
jurisdiction under the laws of countries or territories outside England
and Wales).”
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.
(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) It is the function of the Commissioner to keep under review—
(a) 30every 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)
paragraph 20E of Schedule 8 to the Terrorism Act 2000
35(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)
section 18G of the Criminal Procedure (Scotland) Act 1995
40(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),
Protection of Freedoms BillPage 13
(b)
the 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)
5send to the Commissioner a copy of the determination or renewed
determination, 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
10carrying out the Commissioner’s functions.
(4)
If, 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
15condition in subsection (5) is met.
(5)
The 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
20the 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) 25such accommodation, equipment and other facilities,
as the Secretary of State considers necessary for the carrying out of the
Commissioner’s functions.
(1)
The Commissioner must make a report to the Secretary of State about the
30carrying out of the Commissioner’s functions as soon as reasonably practicable
after the end of—
(a)
the period of 9 months beginning when this section comes into force,
and
(b) every subsequent 12 month period.
(2)
35The Commissioner may also, at any time, make such report to the Secretary of
State 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
40enforcement authority for the purposes of national security.
(4)
On 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.
Protection of Freedoms BillPage 14
(5)
The Secretary of State may, after consultation with the Commissioner, exclude
from 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)
5In this section “law enforcement authority” has the meaning given by section
18E(1) of the Counter-Terrorism Act 2008.
(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)
10Any person authorised to make or renew any such national security
determination must have regard to any guidance given under this section.
(3) The 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)
15Before giving guidance under this section, or revising guidance already given,
the Secretary of State must lay before Parliament—
(a) the 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)
20The 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
order under this section.
(8) 25Such 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
section.
After section 63A of the Police and Criminal Evidence Act 1984 insert—
(1)
This section applies to a DNA profile which is derived from a DNA
35sample 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.”
Protection of Freedoms BillPage 15
After section 63AA of the Police and Criminal Evidence Act 1984 (for which see
section 23) insert—
(1)
5The Secretary of State must make arrangements for a National DNA
Database 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
10this Part of this Act.
(3)
A 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
15before Parliament.
(5)
The 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)
20The Secretary of State may exclude from publication any part of the
report 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.”
(1)
25The Secretary of State must by order make such transitional, transitory or
saving 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
30from a sample taken, before the commencement day in connection with the
investigation 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) 35was 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
the offence was a qualifying offence,
(b)
in the case of material taken or derived less than 3 years before the
40commencement day from a person who—
(i) was arrested for, or charged with, the offence, and
(ii) has not been convicted of the offence,
Protection of Freedoms BillPage 16
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)
in the case of material taken or derived before the commencement day
5from 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
the offence was an offence other than a qualifying offence.
(4)
10An 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
provision equivalent to sections 63D to 63T of that Act.
(6)
15The 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
to an order under section 113(1) of that Act.
(7) 20An 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—
“the commencement day” means the day on which section 1 comes into
25force,
“PACE material” means material that would have been material to which
section 63D or 63Q of the Police and Criminal Evidence Act 1984
applied if those provisions had been in force when it was taken or
derived.
(1)
Subsection (2) applies in relation to any processing of a child’s biometric
information by or on behalf of the relevant authority of—
(a) a school,
(b) 35a 16 to 19 Academy, or
(c) a further education institution.
(2)
The relevant authority must ensure that a child’s biometric information is not
processed unless—
(a) each parent of the child consents to the information being processed, or
(b)
40such consent is not required in one or more cases and is given in any
other case.
Protection of Freedoms BillPage 17
(3)
See section 27 for further provision about consent (including when consent is
not required).
(4) But if, at any time, the child—
(a)
refuses to participate in, or continue to participate in, anything that
5involves the processing of the child’s biometric information, or
(b) otherwise objects to the processing of that information,
the 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
10virtue of this section, may not be processed.
(6)
The relevant authority must ensure that reasonable alternative means are
available 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.
(1)
For the purposes of section 26(2), the consent of a parent is not required if the
relevant authority is satisfied that—
(a) the parent cannot be found,
(b)
the parent lacks capacity (within the meaning of the Mental Capacity
20Act 2005) to give consent,
(c) the welfare of the child requires that the parent is not contacted, or
(d)
it 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)
25Consent 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
Protection Act 1998.
(1) 30In this Chapter—
“biometric information” is to be read in accordance with subsections (2)
and (3),
“child” means a person under the age of 18,
“further education institution” means an institution within the further
35education 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),
“parental responsibility” is to be read in accordance with the Children Act
1989,
40“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
given by section 579(1) of the Education Act 1996, subject to the
modification in subsection (8),
Protection of Freedoms BillPage 18
“relevant authority” means—
in relation to a school, the proprietor of the school,
in relation to a 16 to 19 Academy, the proprietor of the
Academy,
5in 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),
“school” has the meaning given by section 4 of the Education Act 1996,
10subject 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
behavioural characteristics or features which—
(a) 15is 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
features of a person’s fingers or palms,
(b)
20information 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
the child but who has parental responsibility for the child.
(5)
25In 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
local authority (within the meaning given by section 22(1) of the Children Act
301989), “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
1989) but a voluntary organisation has provided accommodation for the child
35in 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
maintains the child.
(8)
40A 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
section 19(2) of that Act.
(9)
45A 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).
Protection of Freedoms BillPage 19
(1)
The Secretary of State must prepare a code of practice containing guidance
about surveillance camera systems.
(2) Such a code must contain guidance about one or more of the following—
(a) the development or use of surveillance camera systems,
(b)
10the use or processing of images or other information obtained by virtue
of such systems.
(3) Such a code may, in particular, include provision about—
(a) considerations as to whether to use surveillance camera systems,
(b) types of systems or apparatus,
(c) 15technical standards for systems or apparatus,
(d) locations for systems or apparatus,
(e) the publication of information about systems or apparatus,
(f)
standards applicable to persons using or maintaining systems or
apparatus,
(g)
20standards applicable to persons using or processing information
obtained by virtue of systems,
(h) access to, or disclosure of, information so obtained,
(i) procedures for complaints or consultation.
(4) Such a code—
(a)
25need not contain provision about every type of surveillance camera
system,
(b) may make different provision for different purposes.
(5) In the course of preparing such a code, the Secretary of State must consult—