Protection of Freedoms Bill

Page 2, line 6, after “police” insert—

“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”

Page 2, line 8, leave out “or (ii)” and insert “, (ii) or (iii)”

Page 110, line 17, at end insert—

“(5A) The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—

(a) the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and

(b) the responsible chief officer of police considers that the condition in sub-paragraph (5B) is met.

(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a) disclosure to, or use by, a defendant, or

(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(5C) An application under sub-paragraph (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).

(5D) If, on an application made by the responsible chief officer of police under sub-paragraph (5A), the relevant court is satisfied that the condition in sub-paragraph (5B) is met, it may make an order under this sub-paragraph which—

(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and

(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.

(5E) An application for an order under sub-paragraph (5D) (other than an application for renewal)—

(a) may be made without notice of the application having been given to the person from whom the sample was taken, and

(b) may be heard and determined in private in the absence of that person.

(5F) In Scotland, an application for an order under sub-paragraph (5D) (including an application for renewal) is to be made by summary application.

(5G) A sample retained by virtue of an order under sub-paragraph (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(5H) A sample that ceases to be retained by virtue of an order under sub-paragraph (5D) must be destroyed.”

Page 110, leave out lines 23 and 24 and insert—

“(7) In this paragraph—

“ancillary offence”, in relation to an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008, means—

(a) aiding, abetting, counselling or procuring the commission of the offence, or

(b) inciting, attempting or conspiring to commit the offence;

“qualifying offence”—

(a) in relation to the investigation of an offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984,

(b) in relation to the investigation of an offence committed in Scotland, means a relevant offence, an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008 or an ancillary offence to an offence so listed, and

(c) in relation to the investigation of an offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));

“relevant court” means—

(a) in England and Wales, a District Judge (Magistrates’ Courts),

(b) in Scotland, the sheriff—

(i) in whose sheriffdom the person to whom the sample relates resides,

(ii) in whose sheriffdom that person is believed by the responsible chief officer of police to be, or

(iii) to whose sheriffdom that person is believed by the responsible chief officer of police to be intending to come; and

(c) in Northern Ireland, a district judge (magistrates’ court) in Northern Ireland;

“relevant offence” has the same meaning as in section 19A of the Criminal Procedure (Scotland) Act 1995;

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

Page 111, line 20, at end insert—

“20HA Paragraphs 20A to 20F and 20H do not apply to paragraph 20A material relating to a person detained under section 41 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 operation by virtue of an order under section 25 of that Act.”

Page 18, line 6, at end insert—

“( ) The rules shall provide for membership of the National DNA Database Strategy Board to include independent members.”

Line 4, at end insert “and the child”

Line 6, after “parent” insert “or child”

Page 19, line 39, at end insert—

“( ) The relevant authority must ensure that information is provided to each parent and child on their rights under this Chapter, in language capable of being readily understood by the parent and child.”

Page 21, line 25, leave out “the consent of no parent” and insert “there is no person falling within subsection (5) who must be notified or whose consent”

Page 29, line 44, at end insert—

“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

Insert the following new Clause—

“Matters subject to legal privilege

Investigatory powers: legal privilege

(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—

“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege;

(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—

“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.

(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(13) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;

(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”

(3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—

“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—

(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or

(b) matters subject to legal privilege.

(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—

(a) obtaining matters subject to legal privilege,

(b) providing access to any matters subject to legal privilege to another person, or

(c) disclosing matters subject to legal privilege.

(7) In subsection (5), “legal consultation” means—

(a) a consultation between a professional legal adviser and his client or any person representing his client, or

(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,

except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.

(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.

(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;

(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”

Page 42, line 3, leave out “and” and insert “or

(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers that it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention either because of time constraints or because of the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence or because of unacceptable risk to public safety or to security, and”

Page 52, line 20, at end insert—

“( ) in sub-paragraph (1) after paragraph (f) insert—

“(g) any work in a further education college, as defined under the Further and Higher Education Act 1992, where the normal duties of that work involve regular contact with children.””

Page 72, line 16, at end insert—

“120AD Registered persons: information provided in certain circumstances

(1) The Secretary of State must, in response to a request from a person acting as the registered person in relation to an application under section 113A or 113B, provide that person with a copy of the certificate if the following conditions are satisfied—

(a) a period of 28 days has elapsed since the certificate was issued to the applicant,

(b) the registered person has not been notified of the applicant’s decision to withdraw their application for the role in question, and

(c) no appeal has been made by the applicant against information contained within that certificate.”