Protection of Freedoms Bill (HL Bill 99)

(3) In any other case, paragraph 20A material must be destroyed
unless it is retained under any power conferred by paragraphs 20B
to 20E.

(4) Paragraph 20A material which ceases to be retained under a
5power mentioned in sub-paragraph (3) may continue to be
retained under any other such power which applies to it.

(5) Nothing in this paragraph prevents a relevant search, in relation
to paragraph 20A material, from being carried out within such
time as may reasonably be required for the search if the
10responsible chief officer of police considers the search to be
desirable.

(6) For the purposes of sub-paragraph (5), “a relevant search” is a
search carried out for the purpose of checking the material
against—

(a) 15other fingerprints or samples taken under paragraph 10 or
12 or a DNA profile derived from such a sample,

(b) any of the relevant physical data, samples or information
mentioned in section 19C(1) of the Criminal Procedure
(Scotland) Act 1995,

(c) 20any of the relevant physical data, samples or information
held by virtue of section 56 of the Criminal Justice
(Scotland) Act 2003,

(d) material to which section 18 of the Counter-Terrorism Act
2008 applies,

(e) 25any of the fingerprints, data or samples obtained under
paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention
and Investigation Measures Act 2011, or information
derived from such samples,

(f) any of the fingerprints, samples and information
30mentioned in section 63A(1)(a) and (b) of the Police and
Criminal Evidence Act 1984 (checking of fingerprints and
samples), and

(g) any of the fingerprints, samples and information
mentioned in Article 63A(1)(a) and (b) of the Police and
35Criminal Evidence (Northern Ireland) Order 1989
(checking of fingerprints and samples).

20B (1) This paragraph applies to paragraph 20A material relating to a
person who is detained under section 41.

(2) In the case of a person who has previously been convicted of a
40recordable 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
may be retained by virtue of this paragraph, the material may be
retained indefinitely.

(3) 45In 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) The retention period is—

(a) in the case of fingerprints or relevant physical data, the
period of 3 years beginning with the date on which the
fingerprints or relevant physical data were taken or
provided, and

(b) 5in 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
which the first of those samples was taken).

(5) 10The 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
made within the period of 3 months ending on the last day of the
15retention 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
otherwise be required to be destroyed under this
20paragraph, 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
against an order under sub-paragraph (5), or a refusal to make
25such 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) In Scotland—

(a) 30an 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
days of the relevant court’s decision, and the relevant
35appeal 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’
  Courts),

  (b)

  40in Scotland, the sheriff—

  (i)

  in whose sheriffdom the person to whom the
  material relates resides,

  (ii)

  in whose sheriffdom that person is believed
  by the applicant to be, or

  (iii)

  45to 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;

Protection of Freedoms BillPage 102

• “the relevant appeal court” means—

  (a)

  in England and Wales, the Crown Court,

  (b)

  in Scotland, the sheriff principal, and

  (c)

  in Northern Ireland, the County Court in Northern
  5Ireland;

• “a specified chief officer of police” means—

  (a)

  in England and Wales and Northern Ireland—

  (i)

  the chief officer of the police force of the area
  in which the person from whom the material
  10was taken resides, or

  (ii)

  a chief officer of police who believes that the
  person is in, or is intending to come to, the
  chief officer’s police area, and

  (b)

  in Scotland—

  (i)

  15the chief constable of the police force in the
  area in which the person who provided the
  material, or from whom it was taken, resides,
  or

  (ii)

  a chief constable who believes that the person
  20is 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
person who is detained under Schedule 7.

(2) In the case of a person who has previously been convicted of a
25recordable 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
may be retained by virtue of this paragraph, the material may be
retained indefinitely.

(3) 30In 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) The retention period is—

(a) in the case of fingerprints or relevant physical data, the
35period of 6 months beginning with the date on which the
fingerprints or relevant physical data were taken or
provided, and

(b) in the case of a DNA profile, the period of 6 months
beginning with the date on which the DNA sample from
40which 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) For the purposes of paragraphs 20B and 20C, a person is to be
treated as having been convicted of an offence if—

(a) 45 in relation to a recordable offence in England and Wales or
Northern Ireland—

(i) the person has been given a caution in respect of
the 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
5offence, or

(iv) the person has been warned or reprimanded under
section 65 of the Crime and Disorder Act 1998 for
the offence,

(b) the person, in relation to an offence in Scotland punishable
10by imprisonment, has accepted or has been deemed to
accept—

(i) a conditional offer under section 302 of the
Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that
15Act,

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

(iv) a 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
20person’s insanity at the time of the offence or (as the case
may be) by virtue of section 51A of the Criminal Procedure
(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
25in relation to an offence in Scotland punishable by
imprisonment,

(e) the 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
30punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (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) 35the person, in relation to an offence in Scotland punishable
by imprisonment, has been discharged absolutely by order
under section 246(3) of the Criminal Procedure (Scotland)
Act 1995.

(2) Paragraphs 20B and 20C and this paragraph, so far as they relate
40to persons convicted of an offence, have 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 90 of the Protection of Freedoms Act 2011.

(4) 45For the purposes of paragraphs 20B and 20C—

(a) a person has no previous convictions if the person has not
previously 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
5conviction is exempt if it is in respect of a recordable
offence, other than a qualifying offence, committed when
the 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
10committed in England and Wales, the meaning given by
section 65A of the Police and Criminal Evidence Act 1984,
and

(b) in relation to a conviction in respect of a recordable offence
committed in Northern Ireland, the meaning given by
15Article 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) 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 paragraph
2020B or 20C whether the person has been convicted of only one
offence.

(7) Nothing 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
257 when an existing retention period (whether or not extended) is
still in force in relation to that material.

20E (1) Paragraph 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) 30A national security determination is made if the responsible chief
officer of police determines that it is necessary for any paragraph
20A material to be retained for the purposes of national security.

(3) A national security determination—

(a) must be made in writing,

(b) 35has effect for a maximum of 2 years beginning with the
date on which the determination is made, and

(c) may 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
40physical data held by a police force must also be destroyed.

(2) If a DNA profile is required by that paragraph to be destroyed, no
copy 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) 45This paragraph applies to—

(a) samples taken under paragraph 10 or 12, or

(b) samples 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
5that person’s arrest under section 41 and the arrest was
unlawful or based on mistaken identity.

(3) Subject 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
10destroyed—

(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) 15Any other sample to which this paragraph 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 paragraph prevents a relevant search, in relation
to samples to which this paragraph applies, from being carried out
20within such time as may reasonably be required for the search if
the responsible chief officer of police considers the search to be
desirable.

(7) In sub-paragraph (6) “a relevant search” has the meaning given by
paragraph 20A(6).

20H (1) 25Any material to which paragraph 20A or 20G applies 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
30crime, 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) Subject to sub-paragraph (1), a relevant search (within the
35meaning given by paragraph 20A(6)) may be carried out in
relation to material to which paragraph 20A or 20G applies if the
responsible chief officer of police considers the search to be
desirable.

(3) Material which is required by paragraph 20A or 20G to be
40destroyed 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.

(4) 45In this paragraph—

(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
5which—

(i) constitutes 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

(ii) 10is, 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) the references to an investigation and to a prosecution
15include 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.

(5) Sub-paragraphs (1), (2) and (4) do not form part of the law of
20Scotland.

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
  25human 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);

• 30“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)

  35the 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)

  40the 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)

  45the 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

  Protection of Freedoms BillPage 107

  (b)

  in 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
  518(7A) of the Criminal Procedure (Scotland) Act 1995;

• “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)

  10in which the material concerned was taken, or

  (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
  15Scotland, 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)

  20in 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
  25Constable of the Police Service of Northern Ireland.”

(5) In paragraph 11(1)(a), for “paragraph 14(4),” substitute “a relevant search
(within the meaning given by paragraph 20A(6)) or for the purposes of”.

(6) In paragraph 15(1) for “paragraphs 10 to 14” substitute “paragraphs 10 to
13”.

(7) 30After paragraph 15(1) insert—

“(1A) In 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 63R of that Act is a reference to the destruction of a sample
35under paragraph 20G of this Schedule.”

(8) In 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 40In Schedule 4 of the International Criminal Court Act 2001 (taking of
fingerprints 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) 45The material must be destroyed—

(a) before 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
5was taken or derived.

(3) If 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-
10paragraph (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
  15sample;

• “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 20The 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
25that—

(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
30destroyed 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
35(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) 40supplied 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) In 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) 5as 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 it was taken.

(6) Section 18 material which ceases to be retained under a power
10mentioned 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
checked against other fingerprints, DNA samples or DNA profiles
held by a law enforcement authority within such time as may
15reasonably 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
statutory restrictions”—

(a) sections 63A and 63D to 63U of the Police and Criminal
20Evidence 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) paragraphs 20(3) or 20A to 20I of Schedule 8 to the Terrorism
Act 2000;

(d) 25section 2(2) of the Security Service Act 1989;

(e) section 1(2) of the Intelligence Services Act 1994.

18A Retention of material: general

(1) Section 18 material which is not a DNA sample and relates to a
person who has no previous convictions or only one exempt
30conviction 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) in the case of fingerprints, the period of 3 years beginning
with the date on which the fingerprints were taken, and

(b) 35in 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 which the first
of those samples was taken).

(3) 40Section 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
material is required to be destroyed by virtue of this section, may be
retained indefinitely.