Protection of Freedoms Bill (HL Bill 128)

(ii) the person has been found not guilty of the offence
by reason of insanity,

(iii) the person has been found to be under a disability
and to have done the act charged in respect of the
5offence, or

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

(b) the person, in relation to an offence in Scotland punishable
10by imprisonment, has accepted or has been deemed to
accept—

(i) a conditional offer under section 302 of the
Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that
15Act,

(iii) a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) the person, in relation to an offence in Scotland punishable
by imprisonment, has been acquitted on account of the
20person’s insanity at the time of the offence or (as the case
may be) by virtue of section 51A of the Criminal Procedure
(Scotland) Act 1995,

(d) a finding in respect of the person has been made under
section 55(2) of the Criminal Procedure (Scotland) Act 1995
25in relation to an offence in Scotland punishable by
imprisonment,

(e) the person, having been given a fixed penalty notice under
section 129(1) of the Antisocial Behaviour etc. (Scotland)
Act 2004 in connection with an offence in Scotland
30punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is
liable to pay by virtue of section 131(5) of that Act,
or

(f) 35the person, in relation to an offence in Scotland punishable
by imprisonment, has been discharged absolutely by order
under section 246(3) of the Criminal Procedure (Scotland)
Act 1995.

(2) Paragraphs 20B and 20C and this paragraph, so far as they relate
40to persons convicted of an offence, have effect 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 92 of the Protection of Freedoms Act 2012.

(4) 45For the purposes of paragraphs 20B and 20C—

(a) a person has no previous convictions if the person has not
previously been convicted—

(i) in England and Wales or Northern Ireland of a
recordable offence, or

(ii) in Scotland of an offence which is punishable by
imprisonment, and

(b) if the person has previously been convicted of a recordable
offence in England and Wales or Northern Ireland, the
5conviction is exempt if it is in respect of a recordable
offence, other than a qualifying offence, committed when
the person was aged under 18.

(5) In sub-paragraph (4), “qualifying offence” has—

(a) in relation to a conviction in respect of a recordable offence
10committed 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
committed in Northern Ireland, the meaning given by
15Article 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)).

(6) 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 conviction for the purposes of calculating under paragraph
2020B or 20C whether the person has been convicted of only one
offence.

(7) Nothing in paragraph 20B or 20C prevents the start of a new
retention period in relation to paragraph 20A material if a person
is detained again under section 41 or (as the case may be) Schedule
257 when an existing retention period (whether or not extended) is
still in force in relation to that material.

20E (1) Paragraph 20A 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) 30A national security determination is made if the responsible chief
officer of police determines that it is necessary for any paragraph
20A material to be retained for the purposes of national security.

(3) A national security determination—

(a) must be made in writing,

(b) 35has effect for a maximum of 2 years beginning with the
date on which the determination is made, and

(c) may be renewed.

20F (1) If fingerprints or relevant physical data are required by paragraph
20A to be destroyed, any copies of the fingerprints or relevant
40physical data held by a police force must also be destroyed.

(2) If a DNA profile is required by that paragraph to be destroyed, no
copy may be retained by a police force except in a form which does
not include information which identifies the person to whom the
DNA profile relates.

20G (1) 45This paragraph applies to—

(a) samples taken under paragraph 10 or 12, or

(b) samples taken by virtue of paragraph 20.

(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) The responsible chief officer of police may apply to a relevant
court for an order to retain a sample to which this paragraph
20applies 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) 25the responsible chief officer of police considers that the
condition in sub-paragraph (7) is met.

(7) 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
30the 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.

(8) 35An application under sub-paragraph (6) 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).

(9) If, on an application made by the responsible chief officer of police
under sub-paragraph (6), the relevant court is satisfied that the
40condition in sub-paragraph (7) 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-
45paragraph (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.

(10) An application for an order under sub-paragraph (9) (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
5taken, and

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

(11) In Scotland, an application for an order under sub-paragraph (9)
(including an application for renewal) is to be made by summary
10application.

(12) A sample retained by virtue of an order under sub-paragraph (9)
must not be used other than for the purposes of any proceedings
for the offence in connection with which the sample was taken.

(13) A sample that ceases to be retained by virtue of an order under
15sub-paragraph (9) must be destroyed.

(14) Nothing in this paragraph prevents a relevant search, in relation
to samples to which this paragraph applies, 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
20desirable.

(15) 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)

  25aiding, abetting, counselling or procuring the
  commission of the offence, or

  (b)

  inciting, attempting or conspiring to commit the
  offence;

• “qualifying offence”—

  (a)

  30in 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
  35committed 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
  40committed 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)

  45in 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,

  Protection of Freedoms BillPage 114

  (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
  5by 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
  10the Criminal Procedure (Scotland) Act 1995;

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

20H (1) Any material to which paragraph 20A or 20G applies must not be
used other than—

(a) 15in the interests of national security,

(b) for the purposes of a terrorist investigation,

(c) for purposes related to the prevention or detection of
crime, the investigation of an offence or the conduct of a
prosecution, or

(d) 20for 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
meaning given by paragraph 20A(6)) may be carried out in
relation to material to which paragraph 20A or 20G applies if the
25responsible chief officer of police considers the search to be
desirable.

(3) Material which is required by paragraph 20A or 20G to be
destroyed must not at any time after it is required to be destroyed
be used—

(a) 30in evidence against the person to whom the material
relates, or

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

(4) In this paragraph—

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

(i) constitutes one or more criminal offences (whether
40under 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 place in any one part of the United Kingdom,
45would 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 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
Scotland.

20I 5Paragraphs 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
10and in operation by virtue of an order under section 25 of
that Act.

20J In paragraphs 20A to 20I—

• “DNA profile” means any information derived from a DNA
  sample;

• 15“DNA sample” means any material that has come from a
  human 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
  20paragraph 20A(2);

• “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
  25London);

  (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 Scottish Police Services Authority;

  (f)

  30the Police Service of Northern Ireland;

  (g)

  the Police Service of Northern Ireland Reserve;

  (h)

  the Ministry of Defence Police;

  (i)

  the Royal Navy Police;

  (j)

  the Royal Military Police;

  (k)

  35the Royal Air Force Police;

  (l)

  the 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
  40Criminal Evidence Act 1984, and

  (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
  4518(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—

  Protection of Freedoms BillPage 116

  (a)

  in 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
  5relevant physical data or samples taken or provided in
  Scotland, 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
  10provided, 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
  fingerprints or samples taken in Northern Ireland, or a
  15DNA profile derived from a sample so taken, the Chief
  Constable 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
2013”.

(7) After 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
25section 63R of that Act is a reference to the destruction of a sample
under paragraph 20G of this Schedule.”

(8) In paragraph 15(2) for “paragraphs 10 to 14” substitute “paragraphs 10 to
13”.

Part 2 30Material subject to the International Criminal Court Act 2001

2 In 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) 35DNA profiles derived from such samples.

(2) The 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) 40if later, as soon as it has fulfilled the purpose for which it
was 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-
paragraph (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) 5In this paragraph—

• “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.”

10Part 3 Material subject to section 18 of the Counter-Terrorism Act 2008

3 The Counter-Terrorism Act 2008 is amended as follows.

4 For section 18 (material not subject to existing statutory restrictions)
substitute—

“18 15Destruction of material not subject to existing statutory restrictions

(1) This section applies to fingerprints, DNA samples and DNA profiles
that—

(a) are held by a law enforcement authority under the law of
England and Wales or Northern Ireland, and

(b) 20are not held subject to existing statutory restrictions.

(2) Material to which this section applies (“section 18 material”) must be
destroyed 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) 25obtained by the law enforcement authority pursuant to an
authorisation under Part 3 of the Police Act 1997
(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,
30authorised under Part 2 of the Regulation of Investigatory
Powers Act 2000,

(c) supplied to the law enforcement authority by another law
enforcement authority, or

(d) otherwise lawfully obtained or acquired by the law
35enforcement 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) 40A 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 it was taken.

(6) Section 18 material which ceases to be retained under a power
mentioned 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
5checked against other fingerprints, DNA samples or DNA profiles
held by a law enforcement authority within such time as may
reasonably 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
10statutory restrictions”—

(a) sections 22, 63A and 63D to 63U of the Police and Criminal
Evidence 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) 15paragraphs 20(3) or 20A to 20J of Schedule 8 to the Terrorism
Act 2000;

(d) section 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
20and Investigation Measures Act 2011.

18A Retention of material: general

(1) Section 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
25the end of the retention period specified in subsection (2), but this is
subject to subsection (5).

(2) 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) 30in the case of a DNA profile, the period of 3 years beginning
with 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).

(3) 35Section 18 material which is not a DNA sample and relates to a
person who has previously been convicted of a recordable offence
(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) 40Section 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
whom the material relates, and

(b) 45the 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
enforcement 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) 5the material relates to a person who has no previous
convictions or only one exempt conviction,

the 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
10on which the identity of the person to whom the material relates
comes to be known by the law enforcement authority.

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
15officer has effect in relation to it.

(2) A 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) 20must 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.

18C Destruction of copies

(1) 25If fingerprints are required by section 18 to be destroyed, any copies
of 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
30in a form which does not include information which identifies the
person 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) 35for the purposes of a terrorist investigation,

(c) for 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
40or 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
enforcement authority or the Scottish Police Services Authority if the
responsible officer considers the check to be desirable.