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Protection of Freedoms BillPage 110

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
officer has effect in relation to it.

(2) 5A 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) must be made in writing,

(b) 10has 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
15of the fingerprints held by the law enforcement authority concerned
must 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
20person to whom the DNA profile relates.

18D Use 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) 25for 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) 30Subject to subsection (1), section 18 material may be checked against
other fingerprints, DNA samples or DNA profiles held by a law
enforcement authority or the Scottish Police Services Authority if the
responsible officer considers the check to be desirable.

(3) Material which is required by section 18 to be destroyed must not at
35any 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) In this section—

(a) 40the 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—

Protection of Freedoms BillPage 111

(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) is, or corresponds to, any conduct which, if it all took
5place 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
include references, respectively, to any investigation outside
the United Kingdom of any crime or suspected crime and to
10a prosecution brought in respect of any crime in a country or
territory outside the United Kingdom.

18E Sections 18 to 18E: supplementary provisions

(1) In sections 18 to 18D and this section—

(2) An order under subsection (1) is subject to negative resolution
procedure.

(3) For the purposes of section 18A, a person is to be treated as having
40been convicted of an offence if the person—

(a) has been given a caution in respect of the offence which, at
the time of the caution, the person has admitted,

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

(c) 45has been found not guilty of the offence by reason of insanity,
or

(d) has been found to be under a disability and to have done the
act charged in respect of the offence.

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(4) Sections 18A and this section, so far as they relate to persons
convicted of an offence, have effect despite anything in the
Rehabilitation of Offenders Act 1974.

(5) But a person is not to be treated as having been convicted of an
5offence if that conviction is a disregarded conviction or caution by
virtue of section 90 of the Protection of Freedoms Act 2011.

(6) For the purposes of section 18A—

(a) a person has no previous convictions if the person has not
previously been convicted in England and Wales or Northern
10Ireland of a recordable offence, and

(b) if the person has been previously so convicted of a recordable
offence, the conviction is exempt if it is in respect of a
recordable offence, other than a qualifying offence,
committed when the person was aged under 18.

(7) 15In subsection (6), “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,
and

(b) 20in 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)).

(8) If a person is convicted of more than one offence arising out of a
25single course of action, those convictions are to be treated as a single
conviction for the purposes of calculating under section 18A whether
the person has been convicted of only one offence.

Part 4 Material subject to the Terrorism Prevention and Investigation Measures Act
302011

5 After paragraph 10(2) of Schedule 6 to the Terrorism Prevention and
Investigation Measures Act 2011(fingerprints and samples) insert—

(2A) 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
35virtue of section 90 of the Protection of Freedoms Act 2011.

Part 5 Material subject to the Criminal Procedure (Scotland) Act 1995

6 (1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2) In section 18(3), for “18F” substitute “18G”.

(3) 40After section 18F insert—

18G Retention of samples etc: national security

(1) This section applies to—

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(a) relevant physical data taken from or provided by a person
under section 18(2) (including any taken or provided by
virtue of paragraph 20 of Schedule 8 to the Terrorism Act
2000),

(b) 5any sample, or any information derived from a sample, taken
from a person under section 18(6) or (6A) (including any
taken by virtue of paragraph 20 of Schedule 8 to the
Terrorism Act 2000),

(c) any relevant physical data, sample or information derived
10from a sample taken from, or provided by, a person under
section 19AA(3),

(d) any relevant physical data, sample or information derived
from a sample which is held by virtue of section 56 of the
Criminal Justice (Scotland) Act 2003, and

(e) 15any relevant physical data, sample or information derived
from a sample taken from a person—

(i) by virtue of any power of search,

(ii) by virtue of any power to take possession of evidence
where there is immediate danger of its being lost or
20destroyed, or

(iii) under the authority of a warrant.

(2) The relevant physical data, sample or information derived from a
sample may be retained for so long as a national security
determination made by the relevant chief constable has effect in
25relation to it.

(3) A national security determination is made if the relevant chief
constable determines that is necessary for the relevant physical data,
sample or information derived from a sample to be retained for the
purposes of national security.

(4) 30A 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) may be renewed.

(5) 35Any relevant physical data, sample or information derived from a
sample which is retained in pursuance of a national security
determination must be destroyed as soon as possible after the
determination ceases to have effect (except where its retention is
permitted by any other enactment).

(6) 40In this section, “the relevant chief constable” means the chief
constable of the police force of which the constable who took the
relevant physical data, or to whom it was provided, or who took or
directed the taking of the sample, was a member.

(4) In section 19C—

(a) 45in subsection (1), at the end of both paragraph (a) and paragraph (b)
insert “(including any taken or provided by virtue of paragraph 20 of
Schedule 8 to the Terrorism Act 2000)”,

(b) in subsection (2)—

(i) omit the word “or” at the end of paragraph (a), and

Protection of Freedoms BillPage 115

(ii) after paragraph (b) insert—

(c) in the interests of national security, or

(d) for the purposes of a terrorist investigation.,

(c) after subsection (2) insert—

(2A) 5Despite subsection (2), the relevant physical data, sample or
information derived from a sample may not be used for the
purposes mentioned in paragraphs (a) and (b) of that
subsection if its retention is lawful only by virtue of a national
security determination made under section 18G., and

(d) 10in subsection (6)—

(i) omit the word “and” at the end of paragraph (b), and

(ii) after paragraph (c) insert “, and

(d) terrorist investigation” has the meaning given by
section 32 of the Terrorism Act 2000.

15Part 6 Material subject to the Criminal Justice (Scotland) Act 2003

7 (1) Section 56 of the Criminal Justice (Scotland) Act 2003 (asp 7)2003 (asp 7) (retaining
sample or relevant physical data where given voluntarily) is amended as
follows.

(2) 20In subsection (2)—

(a) omit the word “or” at the end of paragraph (a), and

(b) after paragraph (b) insert—

(c) in the interests of national security, or

(d) for the purposes of a terrorist investigation.

(3) 25In subsection (8)—

(a) omit the word “and” at the end of the definition of “sample”, and

(b) after the definition of “relevant physical data” insert ; and

30Part 7 Material subject to the Police and Criminal Evidence (Northern Ireland)
Order 1989

8 (1) This paragraph applies to the following material—

(a) a DNA profile to which Article 64 of the 1989 Order (destruction of
35fingerprints and samples) applies, or

(b) fingerprints to which Article 64 of the 1989 Order applies, other than
fingerprints taken under Article 61(6A) of that Order.

(2) If the Chief Constable of the Police Service of Northern Ireland determines
that it is necessary for any material to which this paragraph applies to be
40retained for the purposes of national security—

(a) the material is not required to be destroyed in accordance with
Article 64 of the 1989 Order, and

(b) Article 64(3AB) of that Order does not apply to the material,

Protection of Freedoms BillPage 116

for as long as the determination has effect.

(3) A determination under sub-paragraph (2) (“a national security
determination”)—

(a) must be made in writing,

(b) 5has effect for a maximum of 2 years beginning with the date on
which the material would (but for this paragraph) first become liable
for destruction under the 1989 Order, and

(c) may be renewed.

(4) Material retained under this paragraph must not be used other than—

(a) 10in the interests of national security, or

(b) for the purposes of a terrorist investigation.

(5) This paragraph has effect despite any provision to the contrary in the 1989
Order.

(6) The reference in sub-paragraph (4) to using material includes a reference to
15allowing any check to be made against it and to disclosing it to any person.

(7) In this paragraph—

Part 8 25Corresponding Northern Ireland provision for excepted or reserved matters
etc.

9 (1) The Secretary of State may make an order under sub-paragraph (2) or (3) if
the Secretary of State considers that the subject-matter in relation to
Northern Ireland of any provision of an Act of the Northern Ireland
30Assembly made in 2011 or 2012 (whether before or after the passing of this
Act) is the same as the subject-matter in relation to England and Wales of any
provision made by any of sections 1 to 18 and 23 to 25 of this Act.

(2) The Secretary of State may by order make excepted or reserved provision in
relation to Northern Ireland which is about the same subject-matter as any
35provision made in relation to England and Wales by any of sections 1 to 18
and 23 to 25 of this Act.

(3) The Secretary of State may by order make such provision as the Secretary of
State considers appropriate in consequence of the Act of the Northern
Ireland Assembly or an order under sub-paragraph (2).

(4) 40The power to make an order under this paragraph—

(a) is exercisable by statutory instrument,

(b) includes power to make incidental, supplementary, transitional,
transitory or saving provision,

Protection of Freedoms BillPage 117

(c) may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
(including this Act).

(5) An order under this paragraph may not make provision which—

(a) 5deals with a transferred matter and, if it were contained in an Act of
the Northern Ireland Assembly, would be within the legislative
competence of the Northern Ireland Assembly,

(b) if it were contained in an Act of the Scottish Parliament, would be
within the legislative competence of the Scottish Parliament, or

(c) 10if it were contained in an Act of the National Assembly for Wales,
would be within the legislative competence of the National
Assembly for Wales.

(6) Subject to sub-paragraph (7), a statutory instrument containing an order
under this paragraph is not to be made unless a draft of the instrument has
15been laid before, and approved by a resolution of, each House of Parliament.

(7) A statutory instrument containing an order under this paragraph which
neither amends nor repeals any provision of primary legislation is subject to
annulment in pursuance of a resolution of either House of Parliament.

(8) In this paragraph—

Section 39(2)

SCHEDULE 2 Repeals etc. of powers of entry

35Part 1 Water and Environment

Public Health (Control of Disease) Act 1984

1 (1) Omit section 50 of the Public Health (Control of Disease) Act 1984 (power in
relation to England and Wales to enter and inspect canal boats).

(2) 40This paragraph extends to England and Wales only.

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Merchant Shipping Act 1995

2 (1) Omit section 258(4) of the Merchant Shipping Act 1995 (power of surveyor
of ships etc. to enter premises to determine whether provisions or water
intended for UK ships, including government ships, would be in accordance
5with safety regulations).

(2) Sub-paragraph (1) does not apply to section 258(4) of the Act of 1995 so far
as it applies for the purposes of section 256A of that Act (extension of power
of entry to any member of the staff of the Scottish Administration authorised
by the Scottish Ministers).

(3) 10This paragraph extends to England and Wales, Scotland and Northern
Ireland.

Environment Act 1995

3 (1) Section 108(15) of the Environment Act 1995 (powers of entry etc. of persons
authorised by enforcing authorities: interpretation) is amended as follows.

(2) 15After the definition of “authorised person” insert—

(3) After the definition of “enforcing authority” insert—

(4) In the definition of “pollution control functions” in relation to a waste
collection authority after “means” insert

(5) 30This paragraph extends to England and Wales only.

Part 2 Agriculture

Dairy Herd Conversion Premium Regulations 1973 (S.I. 1973/1642S.I. 1973/1642)

4 (1) Omit regulation 5 of the Dairy Herd Conversion Premium Regulations 1973
35(power of authorised officer to enter land to inspect livestock in respect of
which a premium has been applied for etc.).

(2) Also—

(a) in regulation 2(1) of those Regulations omit the definition of
“authorised officer”, and

(b) 40in regulation 7 of those Regulations, omit sub-paragraph (b) and the
word “or” before it.

(3) This paragraph extends to England and Wales only.

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Milk (Cessation of Production) Act 1985

5 (1) Omit section 2(1) of the Milk (Cessation of Production) Act 1985 (powers of
entry in connection with compensation payments).

(2) Also, in section 3(1) of that Act, omit paragraph (b) and the word “or” before
5it.

(3) This paragraph extends to England and Wales only.

Cereals Co-responsibility Levy Regulations 1988 (S.I. 1988/1001S.I. 1988/1001)

6 (1) Omit regulation 8 of the Cereals Co-responsibility Levy Regulations 1988
(power of authorised officer to enter premises used in relation to cereals).

(2) 10Also—

(a) in regulation 9 of those Regulations omit “or 8”, and

(b) in regulation 11(d) of those Regulations for “regulations 7 or 8”
substitute “regulation 7”.

(3) This paragraph extends to England and Wales only.

15Oilseeds Producers (Support System) Regulations 1992 (S.I. 1992/695S.I. 1992/695)

7 (1) Omit regulation 5 of the Oilseeds Producers (Support System) Regulations
1992 (power of authorised officer to enter and inspect oilseeds producers’
premises).

(2) Also—

(a) 20in regulation 2(1) of those Regulations omit the definitions of
“authorised officer”, “oilseeds” and “specified control measure”, and

(b) omit regulations 6, 9 and 10 of those Regulations.

(3) This paragraph extends to England and Wales only.

Older Cattle (Disposal) (England) Regulations 2005 (S.I. 2005/3522S.I. 2005/3522)

8 (1) 25Omit regulation 5 of the Older Cattle (Disposal) (England) Regulations 2005
(power of inspector to enter premises for the purposes of ensuring that
regulations are being complied with).

(2) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

30Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006
(S.I. 2006/2821S.I. 2006/2821)

9 (1) Omit regulation 6 of the Salmonella in Turkey Flocks and Slaughter Pigs
(Survey Powers) (England) Regulations 2006 (power of inspector to enter a
turkey holding or slaughterhouse for purposes relating to salmonella).

(2) 35This paragraph extends to England and Wales, Scotland and Northern
Ireland.

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