Protection of Freedoms Bill (HL Bill 99)

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) taken 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
5investigation of an offence by the police, and

(b) a 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
10officer of police that—

(a) the 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
15derived from a sample taken, from a person in connection with
that 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 63O (including
20those sections as applied by section 63P).

(4) Section 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
25section 63D material, 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.”

Modification of rule for particular circumstances

2 Material retained pending investigation or proceedings

30After section 63D of the Police and Criminal Evidence Act 1984 (for which see
section 1) insert—

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

(1) This section applies to section 63D material taken (or, in the case of a
35DNA profile, derived from a sample taken) in connection with the
investigation of an offence in which it is suspected that the person to
whom 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
40against the person for the offence, until the conclusion of those
proceedings.”

3 Persons 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) This section applies to section 63D material which—

(a) 5relates 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
offence.

(2) 10If 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) Otherwise, material falling within subsection (4) or (5) may be retained
15until 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) was taken (or, in the case of a DNA profile, derived from a
20sample 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
is not charged with that offence,

(b) 25it 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) the Commissioner for the Retention and Use of Biometric
Material has consented under section 63G to the retention of the
30material.

(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
35with 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
40police 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
45period 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
under subsection (7), or a refusal to make such an order—

(a) 5the responsible chief officer of police;

(b) a specified chief officer of police;

(c) the person from whom the material was taken.

(11) In this section—

• “excluded offence”, in relation to a person, means a recordable
  10offence—

  (a)

  which—

  (i)

  is not a qualifying offence,

  (ii)

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

  (iii)

  15was committed when the person was aged
  under 18, and

  (b)

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

• “relevant custodial sentence” has the meaning given by section
  2063K(6),

• “a specified chief officer of police” means—

  (a)

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

  (b)

  25a chief officer of police who believes that the person is in,
  or is intending to come to, the chief officer’s police area.

63G Retention of section 63D material by virtue of section 63F(5): consent
of Commissioner

(1) The responsible chief officer of police may apply under subsection (2)
30or (3) to the Commissioner for the Retention and Use of Biometric
Material for consent to the retention of section 63D material which falls
within section 63F(5)(a) and (b).

(2) The responsible chief officer of police may make an application under
this subsection if the responsible chief officer of police considers that
35the material was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of an offence where
any alleged victim of the offence was, at the time of the offence—

(a) under the age of 18,

(b) a vulnerable adult, or

(c) 40associated with the person to whom the material relates.

(3) The responsible chief officer of police may make an application under
this subsection if the responsible chief officer of police considers that—

(a) the material is not material to which subsection (2) relates, but

(b) the retention of the material is necessary to assist in the
45prevention or detection of crime.

(4) The Commissioner may, on an application under this section, consent
to the retention of material to which the application relates if the
Commissioner considers that it is appropriate to retain the material.

(5) But where notice is given under subsection (6) in relation to the
5application, the Commissioner must, before deciding whether or not to
give consent, consider any representations by the person to whom the
material relates which are made within the period of 28 days beginning
with the day on which the notice is given.

(6) The responsible chief officer of police must give to the person to whom
10the material relates notice of—

(a) an application under this section, and

(b) the right to make representations.

(7) A notice under subsection (6) may, in particular, be given to a person
by—

(a) 15leaving it at the person’s usual or last known address (whether
residential or otherwise),

(b) sending it to the person by post at that address, or

(c) sending it to the person by email or other electronic means.

(8) The requirement in subsection (6) does not apply if the whereabouts of
20the person to whom the material relates is not known and cannot, after
reasonable inquiry, be ascertained by the responsible chief officer of
police.

(9) An application or notice under this section must be in writing.

(10) In this section—

• 25“victim” includes intended victim,

• “vulnerable adult” has the meaning given by section 60(1) of the
  Safeguarding Vulnerable Groups Act 2006,

and the reference in subsection (2)(c) to a person being associated with
another person is to be read in accordance with section 62(3) to (7) of the
30Family Law Act 1996.”

4 Persons arrested for or charged with a minor offence

After section 63G of the Police and Criminal Evidence Act 1984 (for which see
section 3) insert—

“"63H Retention of section 63D material: persons arrested for or charged with
35a 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
than a qualifying offence,

(ii) 40if 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
which 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) 5If 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 10Persons convicted of a recordable offence

After section 63H of the Police and Criminal Evidence Act 1984 (for which see
section 4) insert—

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

(1) 15This 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
20a 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
person who is convicted of a recordable offence.

(2) The material may be retained indefinitely.

(3) 25This section does not apply to section 63D material to which section
63K applies.”

6 Persons convicted of an offence outside England and Wales

After section 63I of the Police and Criminal Evidence Act 1984 (for which see
section 5) insert—

“"63J 30Retention of material: persons convicted of an offence outside
England and Wales

(1) This section applies to material falling within subsection (2) relating to
a person who is convicted of an offence under the law of any country
or territory outside England and Wales.

(2) 35Material 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
outside England and Wales), or

(b) a DNA profile derived from a DNA sample taken from the
40person under section 62(2A) or 63(3E) (powers to take intimate
and non-intimate samples in relation to offences outside
England and Wales).

(3) The material may be retained indefinitely.”

7 Persons under 18 convicted of first minor offence

After section 63J of the Police and Criminal Evidence Act 1984 (for which see
section 6) insert—

“"63K Retention of section 63D material: exception for persons under 18
5convicted 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) 10has 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
15offence.

(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
20more in respect of the offence, the material may be retained
indefinitely.

(4) Where the person is given a sentence other than a relevant custodial
sentence 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
25beginning 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
beginning with—

(i) the date on which the DNA sample from which the
30profile 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
taken.

(5) But if, before the end of the period within which material may be
35retained 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
following—

(a) a custodial sentence within the meaning of section 76 of the
40Powers 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
order under section 211 of the Armed Forces Act 2006 or a
secure training order.”

8 45Persons given a penalty notice

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

section 7) insert—

“"63L Retention 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
5of the Criminal Justice and Police Act 2001 and in respect of
whom no proceedings are brought for the offence to which the
notice relates, and

(b) was taken (or, in the case of a DNA profile, derived from a
sample taken) from the person in connection with the
10investigation 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) in the case of a DNA profile, for a period of 2 years beginning
15with—

(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
20taken.”

9 Material retained for purposes of national security

After section 63L of the Police and Criminal Evidence Act 1984 (for which see
section 8) insert—

“"63M Retention of section 63D material for purposes of national security

(1) 25Section 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
30material 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) 35may be renewed.”

10 Material given voluntarily

After section 63M of the Police and Criminal Evidence Act 1984 (for which see
section 9) insert—

“"63N Retention of section 63D material given voluntarily

(1) 40This 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) Material to which this section applies may be retained until it has
fulfilled the purpose for which it was taken or derived.

(3) 5Material 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
offence (other than a person who has only one exempt
conviction),

10may 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,
committed when the person is aged under 18.”

11 Material retained with consent

15After section 63N of the Police and Criminal Evidence Act 1984 (for which see
section 10) insert—

“"63O Retention of section 63D material with consent

(1) This section applies to the following material—

(a) fingerprints (other than fingerprints taken under section
2061(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
this section applies being retained, the material may be retained for as
long as that person consents to it being retained.

(3) 25Consent given under this section—

(a) must be in writing, and

(b) can be withdrawn at any time.”

12 Material obtained for one purpose and used for another

After section 63O of the Police and Criminal Evidence Act 1984 (for which see
30section 11) insert—

“"63P 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
case 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
35whom the material relates being arrested for or charged with, or
convicted of, an offence other than the offence under investigation.

(2) Sections 63E to 63O and sections 63Q and 63T have effect in relation to
the material as if the material was taken (or, in the case of a DNA
profile, derived from a sample taken) in connection with the
40investigation of the offence in respect of which the person is arrested or
charged.”