Protection of Freedoms Bill (HL Bill 99)

13 Destruction of copies

After section 63P of the Police and Criminal Evidence Act 1984 (for which see
section 12) insert—

“63Q Destruction of copies of section 63D material

(1) 5If fingerprints are required by section 63D to be destroyed, any copies
of the fingerprints held by the police must also be destroyed.

(2) If 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
10relates.”

Destruction rules for samples and impressions of footwear subject to PACE

14 Destruction of samples

After section 63Q of the Police and Criminal Evidence Act 1984 (for which see
section 13) insert—

“63R 15Destruction 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
20they were taken, in connection with the investigation of an
offence 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) 25the samples were taken from a person in connection with that
person’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) 30A DNA sample to which this section applies must be destroyed—

(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) Any other sample to which this section applies must be destroyed
35before the end of the period of 6 months beginning with the date on
which 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
40responsible chief officer of police considers the search to be desirable.”

15 Destruction of impressions of footwear

After section 63R of the Police and Criminal Evidence Act 1984 (for which see
section 14) insert—

“63S Destruction of impressions of footwear

(1) 5This section applies to impressions of footwear—

(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
10offence by the police.

(2) Impressions 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
15investigation of an offence or the conduct of a prosecution.”

Supplementary provision for material subject to PACE

16 Use of retained material

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

“"63T 20Use of retained material

(1) Any material to which section 63D, 63R or 63S applies 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) Material which is required by section 63D, 63R or 63S to be destroyed
30must 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) In this section—

(a) the reference to using material includes a reference to allowing
35any 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—

(i) constitutes one or more criminal offences (whether
40under 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
place in England and Wales, would constitute one or
more criminal offences, and

(c) the references to an investigation and to a prosecution include
5references, respectively, to any investigation outside England
and Wales of any crime or suspected crime and to a prosecution
brought in respect of any crime in a country or territory outside
England and Wales.”

17 Exclusions for certain regimes

10After section 63T of the Police and Criminal Evidence Act 1984 (for which see
section 16) insert—

“"63U Exclusions for certain regimes

(1) Sections 63D to 63T do not apply to material to which paragraphs 20A
to 20I of Schedule 8 to the Terrorism Act 2000 (destruction, retention
15and use of material taken from terrorist suspects) apply.

(2) Any reference in those sections to a person being arrested for, or
charged 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
20section.

(3) Sections 63D to 63Q, 63S and 63T do not apply to material which is, or
may become, disclosable under—

(a) the Criminal Procedure and Investigations Act 1996, or

(b) a code of practice prepared under section 23 of that Act and in
25operation by virtue of an order under section 25 of that Act.

(4) Sections 63D to 63T do not apply to material which—

(a) is taken from a person, but

(b) relates to another person.

(5) Nothing in sections 63D to 63T affects any power conferred by—

(a) 30paragraph 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
of police information to the Secretary of State for use for
35immigration purposes).”

18 Interpretation and minor amendments of PACE

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) In section 65(1) (interpretation of Part 5)—

(a) after the definition of “appropriate consent” insert—

• 40““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) after 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 63R applies, means the chief
  5officer of police for the police area—

  (a)

  in which the material concerned was taken or
  derived, or

  (b)

  in the case of a DNA profile, in which the sample
  from which the DNA profile was derived was
  10taken;

• “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
  1532 of that Act;”.

(3) After 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 63R
20(requirement to destroy samples).

(2B) Any reference in sections 63F, 63H, 63P or 63U 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
25paragraph (j) (offences under the Theft Act 1968), for “section 9” substitute
“section 8, 9”.

(5) After section 65A insert—

“65B Persons convicted of an offence”

(1) For the purposes of this Part, any reference to a person who is convicted
30of an offence includes a reference to—

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

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

(c) 35a person who has been found not guilty of the offence by reason
of insanity, or

(d) a 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
40effect 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) If a person is convicted of more than one offence arising out of a single
45course of action, those convictions are to be treated as a single
conviction for the purposes of calculating under sections 63F, 63H and
63N 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).”

5Amendments of regimes other than PACE

19 Amendments of regimes other than PACE

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.

The Commissioner for the Retention and Use of Biometric Material

20 10Appointment and functions of Commissioner

(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 section 21 as “the Commissioner”).

(2) It is the function of the Commissioner to keep under review—

(a) 15every national security determination made or renewed under—

(i) section 63M 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
20(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) paragraph 11 of Schedule 6 to the Terrorism Prevention and
25Investigation Measures Act 2011 (paragraph 6 material retained
for purposes of national security),

(v) section 18G of the Criminal Procedure (Scotland) Act 1995
(certain material retained for purposes of national security), and

(vi) paragraph 8 of Schedule 1 to this Act (material subject to the
30Police and Criminal Evidence (Northern Ireland) Order 1989
retained for purposes of national security),

(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
35determination under a provision mentioned in subsection (2)(a) to—

(a) send 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
40information as the Commissioner may require for the purpose of
carrying out the Commissioner’s functions under subsection (2).

(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
condition 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) 5The Commissioner also has the function of keeping under review—

(a) the retention and use in accordance with sections 63A and 63D to 63T
of the Police and Criminal Evidence Act 1984 of—

(i) any material to which section 63D or 63R of that Act applies
(fingerprints, DNA profiles and samples), and

(ii) 10any copies of any material to which section 63D of that Act
applies (fingerprints and DNA profiles),

(b) the retention and use in accordance with paragraphs 20A to 20I of
Schedule 8 to the Terrorism Act 2000 of—

(i) any material to which paragraph 20A or 20G of that Schedule
15applies (fingerprints, relevant physical data, DNA profiles and
samples), and

(ii) any copies of any material to which paragraph 20A of that
Schedule applies (fingerprints, relevant physical data and DNA
profiles),

(c) 20the retention and use in accordance with sections 18 to 18E of the
Counter-Terrorism Act 2008 of—

(i) any material to which section 18 of that Act applies
(fingerprints, DNA samples and DNA profiles), and

(ii) any copies of fingerprints or DNA profiles to which section 18
25of that Act applies,

(d) the retention and use in accordance with paragraphs 5 to 14 of Schedule
6 to the Terrorism Prevention and Investigation Measures Act 2011 of—

(i) any material to which paragraph 6 or 12 of that Schedule
applies (fingerprints, relevant physical data, DNA profiles and
30samples), and

(ii) any copies of any material to which paragraph 6 of that
Schedule applies (fingerprints, relevant physical data and DNA
profiles).

(7) But subsection (6) does not apply so far as the retention or use of the material
35falls to be reviewed by virtue of subsection (2).

(8) In relation to Scotland—

(a) the reference in subsection (6)(b) to use of material, or copies of
material, in accordance with paragraphs 20A to 20I of Schedule 8 to the
Terrorism Act 2000 includes a reference to use of material, or copies of
40material, in accordance with section 19C(2)(c) and (d) of the Criminal
Procedure (Scotland) Act 1995, and

(b) the reference in subsection (6)(d) to use of material, or copies of
material, in accordance with paragraphs 5 to 14 of Schedule 6 to the
Terrorism Prevention and Investigation Measures Act 2011 is to be read
45as a reference to use only for a purpose mentioned in paragraph 13(1)(a)
or (b) of that Schedule to that Act.

(9) The Commissioner also has functions under sections 63F(5)(c) and 63G (giving
of consent in relation to the retention of certain section 63D material).

(10) 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
the Commissioner any expenses, remuneration or allowances that the
Secretary of State may determine.

(11) 5The Secretary of State may, after consultation with the Commissioner, provide
the Commissioner with—

(a) such staff, and

(b) such accommodation, equipment and other facilities,

as the Secretary of State considers necessary for the carrying out of the
10Commissioner’s functions.

21 Reports by Commissioner

(1) The Commissioner must make a report to the Secretary of State about the
carrying out of the Commissioner’s functions as soon as reasonably practicable
after the end of—

(a) 15the period of 9 months beginning when this section comes into force,
and

(b) every subsequent 12 month period.

(2) The Commissioner may also, at any time, make such report to the Secretary of
State on any matter relating to the Commissioner’s functions as the
20Commissioner considers appropriate.

(3) The Secretary of State may at any time require the Commissioner to report on
any matter relating to the Commissioner’s functions.

(4) On receiving a report from the Commissioner under this section, the Secretary
of State must—

(a) 25publish the report, and

(b) lay a copy of the published report before Parliament.

(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
30interest or prejudicial to national security.

(6) In this section “law enforcement authority” has the meaning given by section
18E(1) of the Counter-Terrorism Act 2008.

Other provisions

22 Guidance on making national security determinations

(1) 35The Secretary of State must give guidance about making or renewing national
security determinations under a provision mentioned in section 20(2)(a).

(2) Any 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) 40In the course of preparing the guidance, or revising guidance already given,
the Secretary of State must consult the Commissioner for the Retention and Use
of Biometric Material and the Lord Advocate.

(5) Before 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
5guidance, to come into force.

(6) The 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
10order under this section.

(8) Such 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
15section.

23 Inclusion of DNA profiles on National DNA Database

After section 63A of the Police and Criminal Evidence Act 1984 insert—

“63AA Inclusion of DNA profiles on National DNA Database

(1) This section applies to a DNA profile which is derived from a DNA
20sample and which is retained under any power conferred by any of
sections 63E to 63L (including those sections as applied by section 63P).

(2) A DNA profile to which this section applies must be recorded on the
National DNA Database.”

24 National DNA Database Strategy Board

25After section 63AA of the Police and Criminal Evidence Act 1984 (for which see
section 23) insert—

“63AB National DNA Database Strategy Board

(1) The Secretary of State must make arrangements for a National DNA
Database Strategy Board to oversee the operation of the National DNA
30Database.

(2) The National DNA Database Strategy Board must issue guidance about
the destruction of DNA profiles which are, or may be, retained under
this Part of this Act.

(3) A chief officer of a police force in England and Wales must act in
35accordance with guidance issued under subsection (2).

(4) The National DNA Database Strategy Board may issue guidance about
the circumstances in which applications may be made to the
Commissioner for the Retention and Use of Biometric Material under
section 63G.

(5) Before issuing any such guidance, the National DNA Database Strategy
Board must consult the Commissioner for the Retention and Use of
Biometric Material.

(6) The Secretary of State must publish the governance rules of the
5National DNA Database Strategy Board and lay a copy of the rules
before Parliament.

(7) The National DNA Database Strategy Board must make an annual
report to the Secretary of State about the exercise of its functions.

(8) The Secretary of State must publish the report and lay a copy of the
10published report before Parliament.

(9) The 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.”

25 15Material taken before commencement

(1) The 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
20retention of PACE material taken, or (in the case of a DNA profile) derived
from 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
25commencement day from 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 a qualifying offence,

(b) 30in the case of material taken or derived less than 3 years before the
commencement day from 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 within the period of 3 years beginning
35with 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
from a person who—

(i) was arrested for, or charged with, the offence, and

(ii) 40has 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) An 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 63U of that Act.

(6) The power to make an order under section 113(1) of the Act of 1984 includes
5the 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) An order under this section is to be made by statutory instrument.

(8) 10A 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
  force,

• 15“PACE material” means material that would have been material to which
  section 63D or 63R of the Police and Criminal Evidence Act 1984
  applied if those provisions had been in force when it was taken or
  derived.

CHAPTER 2 Protection of biometric information of children in schools etc.

26 20Requirement for consent before processing biometric information

(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) a 16 to 19 Academy, or

(c) 25a 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) such consent is not required in one or more cases and is given in any
30other case.

(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
35involves 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
40virtue 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