Protection of Freedoms Bill (HL Bill 121)

(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 112

  (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 22, 63A and 63D to 63U of the Police and Criminal
20Evidence Act 1984;

(b) Articles 24, 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;

(f) paragraphs 5 to 14 of Schedule 6 to the Terrorism Prevention
and Investigation Measures Act 2011.

18A Retention of material: general

(1) 30Section 18 material which is not a DNA sample and relates to a
person who has no previous convictions or only one exempt
conviction may be retained by the law enforcement authority until
the end of the retention period specified in subsection (2), but this is
subject to subsection (5).

(2) 35The 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
with the date on which the DNA sample from which the
40profile 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) Section 18 material which is not a DNA sample and relates to a
person who has previously been convicted of a recordable offence
45(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.

(4) Section 18 material which is not a DNA sample may be retained
indefinitely if—

(a) it is held by the law enforcement authority in a form which
does not include information which identifies the person to
5whom the material relates, and

(b) the law enforcement authority does not know, and has never
known, the identity of the person to whom the material
relates.

(5) In a case where section 18 material is being retained by a law
10enforcement authority under subsection (4), if—

(a) the law enforcement authority comes to know the identity of
the person to whom the material relates, and

(b) the material relates to a person who has no previous
convictions or only one exempt conviction,

15the material may be retained by the law enforcement authority until
the end of the retention period specified in subsection (6).

(6) The retention period is the period of 3 years beginning with the date
on which the identity of the person to whom the material relates
comes to be known by the law enforcement authority.

18B 20Retention 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) A national security determination is made if the responsible officer
25determines 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) has effect for a maximum of 2 years beginning with the date
30on 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
of the fingerprints held by the law enforcement authority concerned
35must 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
person to whom the DNA profile relates.

18D 40Use 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) for purposes related to the prevention or detection of crime,
45the 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 subsection (1), section 18 material may be checked against
other fingerprints, DNA samples or DNA profiles held by a law
5enforcement 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
any time after it is required to be destroyed be used—

(a) in evidence against the person to whom the material relates,
10or

(b) for the purposes of the investigation of any offence.

(4) In this section—

(a) the reference to using material includes a reference to
allowing any check to be made against it and to disclosing it
15to any person,

(b) the reference to crime includes a reference to any conduct
which—

(i) constitutes one or more criminal offences (whether
under the law of a part of the United Kingdom or of a
20country or territory outside the United Kingdom), or

(ii) is, 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
25include 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.

18E Sections 18 to 18E: supplementary provisions

(1) 30In sections 18 to 18D and this section—

• “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;

• 35“fingerprints” means a record (in any form and produced by
  any method) of the skin pattern and other physical
  characteristics or features of a person’s fingers or either of a
  person’s palms;

• “law enforcement authority” means—

  (a)

  40a police force,

  (b)

  the Serious Organised Crime Agency,

  (c)

  the Commissioners for Her Majesty’s Revenue and
  Customs, or

  (d)

  a person formed or existing under the law of a
  45country or territory outside the United Kingdom so
  far as exercising functions which—

  (i)

  correspond to those of a police force, or

  (ii)

  otherwise involve the investigation or
  prosecution of offences;

Protection of Freedoms BillPage 117

• “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
  5London);

  (c)

  the 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 Police Service of Northern Ireland;

  (f)

  10the Police Service of Northern Ireland Reserve;

  (g)

  the Ministry of Defence Police;

  (h)

  the Royal Navy Police;

  (i)

  the Royal Military Police;

  (j)

  the Royal Air Force Police;

  (k)

  15the 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

  (b)

  20in relation to a conviction in Northern Ireland, the
  meaning given by Article 2(2) of the Police and
  Criminal Evidence (Northern Ireland) Order 1989
  (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

• “the responsible officer” means—

  (a)

  25in relation to material obtained or acquired by a police
  force in England and Wales, the chief officer of the
  police force;

  (b)

  in relation to material obtained or acquired by the
  Police Service of Northern Ireland or the Police
  30Service of Northern Ireland Reserve, the Chief
  Constable of the Police Service of Northern Ireland;

  (c)

  in relation to material obtained or acquired by the
  Ministry of Defence Police, the Chief Constable of the
  Ministry of Defence Police;

  (d)

  35in relation to material obtained or acquired by the
  Royal Navy Police, the Royal Military Police or the
  Royal Air Force Police, the Provost Marshal for the
  police force which obtained or acquired the material;

  (e)

  in relation to material obtained or acquired by the
  40British Transport Police, the Chief Constable of the
  British Transport Police;

  (f)

  in relation to material obtained or acquired by the
  Serious Organised Crime Agency, the Director
  General of the Serious Organised Crime Agency;

  (g)

  45in relation to material obtained or acquired by the
  Commissioners for Her Majesty’s Revenue and
  Customs, any of those Commissioners;

  (h)

  in relation to any other material, such person as the
  Secretary of State may by order specify;

• 50“section 18 material” has the meaning given by section 18(2);

Protection of Freedoms BillPage 118

• “terrorist investigation” has the meaning given by section 32 of
  the Terrorism Act 2000.

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

(3) 5For the purposes of section 18A, a person is to be treated as having
been 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
10Crime and Disorder Act 1998 for the offence,

(c) has 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.

(4) 15Sections 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
offence if that conviction is a disregarded conviction or caution by
20virtue of section 92 of the Protection of Freedoms Act 2012.

(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
Ireland of a recordable offence, and

(b) 25if 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) In subsection (6), “qualifying offence” has—

(a) 30in 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) in relation to a conviction in respect of a recordable offence
35committed 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
single course of action, those convictions are to be treated as a single
40conviction 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
2011

5 45After 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
virtue of section 92 of the Protection of Freedoms Act 2012.”

5Part 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) After section 18F insert—

“18G 10 Retention of samples etc: national security

(1) This section applies to—

(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
152000),

(b) any 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) 20any relevant physical data, sample or information derived
from 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
25Criminal Justice (Scotland) Act 2003, and

(e) any 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
30where there is immediate danger of its being lost or
destroyed, 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
35determination made by the relevant chief constable has effect in
relation 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
40purposes of national security.

(4) 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 the determination is made, and

(c) 45may be renewed.