Protection of Freedoms Bill (HL Bill 128)

(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,
or

(b) 5for 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
to any person,

(b) 10the 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
country or territory outside the United Kingdom), or

(ii) 15is, 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
include references, respectively, to any investigation outside
20the 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) In sections 18 to 18D and this section—

• 25“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;

• “fingerprints” means a record (in any form and produced by
  30any 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)

  a police force,

  (b)

  35the 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
  country or territory outside the United Kingdom so
  40far as exercising functions which—

  (i)

  correspond to those of a police force, or

  (ii)

  otherwise involve the investigation or
  prosecution of offences;

• “police force” means any of the following—

  (a)

  45the 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)

  the City of London police force;

  Protection of Freedoms BillPage 121

  (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)

  the Police Service of Northern Ireland Reserve;

  (g)

  5the Ministry of Defence Police;

  (h)

  the Royal Navy Police;

  (i)

  the Royal Military Police;

  (j)

  the Royal Air Force Police;

  (k)

  the British Transport Police;

• 10“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)

  in relation to a conviction in Northern Ireland, the
  15meaning 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)

  in relation to material obtained or acquired by a police
  20force 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
  Service of Northern Ireland Reserve, the Chief
  25Constable 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)

  in relation to material obtained or acquired by the
  30Royal 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
  British Transport Police, the Chief Constable of the
  35British 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)

  in relation to material obtained or acquired by the
  40Commissioners 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;

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

• 45“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) For the purposes of section 18A, a person is to be treated as having
50been 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
Crime and Disorder Act 1998 for the offence,

(c) 5has 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) Sections 18A and this section, so far as they relate to persons
10convicted 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
virtue of section 92 of the Protection of Freedoms Act 2012.

(6) 15For 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) if the person has been previously so convicted of a recordable
20offence, 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) in relation to a conviction in respect of a recordable offence
25committed 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 Article
3053A 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
conviction for the purposes of calculating under section 18A whether
35the person has been convicted of only one offence.”

Part 4 Material subject to the Terrorism Prevention and Investigation Measures Act
2011

5 After paragraph 10(2) of Schedule 6 to the Terrorism Prevention and
40Investigation 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.”

Part 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) 5After section 18F insert—

“18G 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
10virtue of paragraph 20 of Schedule 8 to the Terrorism Act
2000),

(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
15Terrorism Act 2000),

(c) any 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
20from a sample which is held by virtue of section 56 of the
Criminal 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) 25by virtue of any power to take possession of evidence
where 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
30sample may be retained for so long as a national security
determination 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,
35sample or information derived from a sample to be retained for the
purposes 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
40on which the determination is made, and

(c) may be renewed.

(5) Any relevant physical data, sample or information derived from a
sample which is retained in pursuance of a national security
determination must be destroyed as soon as possible after the
45determination ceases to have effect (except where its retention is
permitted by any other enactment).

(6) In this section, “the relevant chief constable” means the chief
constable of the police force of which the constable who took the
relevant physical data, or to whom it was provided, or who took or
directed the taking of the sample, was a member.”

5Part 6 Material subject to the Police and Criminal Evidence (Northern Ireland)
Order 1989

7 (1) This paragraph applies to the following material—

(a) a DNA profile to which Article 64 of the 1989 Order (destruction of
10fingerprints and samples) applies, or

(b) fingerprints to which Article 64 of the 1989 Order applies, other than
fingerprints taken under Article 61(6A) of that Order.

(2) If the Chief Constable of the Police Service of Northern Ireland determines
that it is necessary for any material to which this paragraph applies to be
15retained for the purposes of national security—

(a) the material is not required to be destroyed in accordance with
Article 64 of the 1989 Order, and

(b) Article 64(3AB) of that Order does not apply to the material,

for as long as the determination has effect.

(3) 20A determination under sub-paragraph (2) (“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 material would (but for this paragraph) first become liable
25for destruction under the 1989 Order, and

(c) may be renewed.

(4) Material retained under this paragraph must not be used other than—

(a) in the interests of national security,

(b) for the purposes of a terrorist investigation,

(c) 30for 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.

(5) This paragraph has effect despite any provision to the contrary in the 1989
35Order.

(6) In 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 which—

(i) 40constitutes one or more criminal offences (whether under the
law of Northern Ireland or of any country or territory outside
Northern Ireland), or

(ii) is, or corresponds to, any conduct which, if it all took place in
Northern Ireland, would constitute one or more criminal
45offences, and

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

(7) In this paragraph—

• “the 1989 Order” means the Police and Criminal Evidence (Northern
  Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

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

• 10“DNA sample” means any material that has come from a human body
  and consists of or includes human cells;

• “offence”, in relation to any country or territory outside Northern
  Ireland, includes an act punishable under the law of that country or
  territory, however it is described;

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

Part 7 Corresponding Northern Ireland provision for excepted or reserved matters
etc.

8 (1) 20The Secretary of State may make an order under sub-paragraph (2) or (3) if
the Secretary of State considers that the subject-matter in relation to
Northern Ireland of any provision of an Act of the Northern Ireland
Assembly made in 2011 or 2012 (whether before or after the passing of this
Act) is the same as the subject-matter in relation to England and Wales of any
25provision made by any of sections 1 to 18 and 23 to 25 of this Act.

(2) The Secretary of State may by order make excepted or reserved provision in
relation to Northern Ireland which is about the same subject-matter as any
provision made in relation to England and Wales by any of sections 1 to 18
and 23 to 25 of this Act.

(3) 30The Secretary of State may by order make such provision as the Secretary of
State considers appropriate in consequence of the Act of the Northern
Ireland Assembly or an order under sub-paragraph (2).

(4) The power to make an order under this paragraph—

(a) is exercisable by statutory instrument,

(b) 35includes power to make incidental, supplementary, transitional,
transitory or saving provision,

(c) may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
(including this Act).

(5) 40An order under this paragraph may not make provision which—

(a) if it were contained in an Act of the Northern Ireland Assembly,
would be within the legislative competence of the Northern Ireland
Assembly and would deal with a transferred matter without being
ancillary to other provision (whether in the Act or previously
45enacted) which deals with an excepted or reserved matter,

(b) if it were contained in an Act of the Scottish Parliament, would be
within the legislative competence of the Scottish Parliament, or

(c) if it were contained in an Act of the National Assembly for Wales,
would be within the legislative competence of the National
Assembly for Wales.

(6) Subject to sub-paragraph (7), a statutory instrument containing an order
5under this paragraph is not to be made unless a draft of the instrument has
been laid before, and approved by a resolution of, each House of Parliament.

(7) A statutory instrument containing an order under this paragraph which
neither amends nor repeals any provision of primary legislation is subject to
annulment in pursuance of a resolution of either House of Parliament.

(8) 10In this paragraph—

• “enactment” includes an Act of the Scottish Parliament, a Measure or
  Act of the National Assembly for Wales and Northern Ireland
  legislation,

• “excepted or reserved matter” have the meanings given by section 4(1)
  15of the Northern Ireland Act 1998,

• “excepted or reserved provision” means provision which—

  (a)

  forms part of the law of Northern Ireland, and

  (b)

  is not prohibited by sub-paragraph (5)(a),

• “primary legislation” means—

  (a)

  20a public general Act,

  (b)

  an Act of the Scottish Parliament,

  (c)

  a Measure or Act of the National Assembly for Wales, and

  (d)

  Northern Ireland legislation,

• “transferred matter” has the meaning given by section 4(1) of the
  25Northern Ireland Act 1998.

Section 39(2)

SCHEDULE 2 Repeals etc. of powers of entry

Part 1 Water and Environment

30Public Health (Control of Disease) Act 1984

1 (1) Omit section 50 of the Public Health (Control of Disease) Act 1984 (power in
relation to England and Wales to enter and inspect canal boats).

(2) This paragraph extends to England and Wales only.

Merchant Shipping Act 1995

2 (1) 35Omit section 258(4) of the Merchant Shipping Act 1995 (power of surveyor
of ships etc. to enter premises to determine whether provisions or water
intended for UK ships, including government ships, would be in accordance
with safety regulations).

(2) Sub-paragraph (1) does not apply to section 258(4) of the Act of 1995 so far
40as it applies for the purposes of section 256A of that Act (extension of power

of entry to any member of the staff of the Scottish Administration authorised
by the Scottish Ministers).

(3) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

5Environment Act 1995

3 (1) Section 108(15) of the Environment Act 1995 (powers of entry etc. of persons
authorised by enforcing authorities: interpretation) is amended as follows.

(2) After the definition of “authorised person” insert—

• ““domestic property” has the meaning given by section 75(5)(a)
  10of the Environmental Protection Act 1990;”.

(3) After the definition of “enforcing authority” insert—

• ““English waste collection authority” has the same meaning as
  in section 45A of the Environmental Protection Act 1990;”.

(4) In the definition of “pollution control functions” in relation to a waste
15collection authority after “means” insert “—

• (a)

  in relation to an English waste collection authority,
  the functions conferred or imposed on it by or under
  Part 2 of the Environmental Protection Act 1990 (other
  than sections 45, 45A and 46 of that Act so far as
  20relating to the collection of household waste from
  domestic property); and

  (ii)

  in relation to any other waste collection authority,”.

(5) This paragraph extends to England and Wales only.

Part 2 25Agriculture

Dairy Herd Conversion Premium Regulations 1973 (S.I. 1973/1642S.I. 1973/1642)

4 (1) Omit regulation 5 of the Dairy Herd Conversion Premium Regulations 1973
(power of authorised officer to enter land to inspect livestock in respect of
which a premium has been applied for etc.).

(2) 30Also—

(a) in regulation 2(1) of those Regulations omit the definition of
“authorised officer”, and

(b) in regulation 7 of those Regulations, omit sub-paragraph (b) and the
word “or” before it.

(3) 35This paragraph extends to England and Wales only.

Milk (Cessation of Production) Act 1985

5 (1) Omit section 2(1) of the Milk (Cessation of Production) Act 1985 (powers of
entry in connection with compensation payments).

(2) Also, in section 3(1) of that Act, omit paragraph (b) and the word “or” before
40it.

(3) This paragraph extends to England and Wales only.

Cereals Co-responsibility Levy Regulations 1988 (S.I. 1988/1001S.I. 1988/1001)

6 (1) Omit regulation 8 of the Cereals Co-responsibility Levy Regulations 1988
(power of authorised officer to enter premises used in relation to cereals).

(2) 5Also—

(a) in regulation 9 of those Regulations omit “or 8”, and

(b) in regulation 11(d) of those Regulations for “regulations 7 or 8”
substitute “regulation 7”.

(3) This paragraph extends to England and Wales only.

10Oilseeds Producers (Support System) Regulations 1992 (S.I. 1992/695S.I. 1992/695)

7 (1) Omit regulation 5 of the Oilseeds Producers (Support System) Regulations
1992 (power of authorised officer to enter and inspect oilseeds producers’
premises).

(2) Also—

(a) 15in regulation 2(1) of those Regulations omit the definitions of
“authorised officer”, “oilseeds” and “specified control measure”, and

(b) omit regulations 6, 9 and 10 of those Regulations.

(3) This paragraph extends to England and Wales only.

Older Cattle (Disposal) (England) Regulations 2005 (S.I. 2005/3522S.I. 2005/3522)

8 (1) 20Omit regulation 5 of the Older Cattle (Disposal) (England) Regulations 2005
(power of inspector to enter premises for the purposes of ensuring that
regulations are being complied with).

(2) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

25Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006
(S.I. 2006/2821S.I. 2006/2821)

9 (1) Omit regulation 6 of the Salmonella in Turkey Flocks and Slaughter Pigs
(Survey Powers) (England) Regulations 2006 (power of inspector to enter a
turkey holding or slaughterhouse for purposes relating to salmonella).

(2) 30This paragraph extends to England and Wales, Scotland and Northern
Ireland.

Part 3 Miscellaneous

Distribution of German Enemy Property (No 1) Order 1950 (S.I. 1950/1642S.I. 1950/1642)

10 (1) 35Omit article 22 of the Distribution of German Enemy Property (No 1) Order
1950 (power of constable to enter premises under warrant to search for and
seize German enemy property).

(2) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

Hypnotism Act 1952

11 (1) Omit section 4 of the Hypnotism Act 1952 (constable’s power to enter
5premises where entertainment is held if there is reasonable cause to believe
that there is a contravention of the Act).

(2) This paragraph extends to England and Wales only.

Landlord and Tenant Act 1985

12 (1) Omit section 8(2) of the Landlord and Tenant Act 1985 (power of landlord to
10enter premises to view their state and condition).

(2) This paragraph extends to England and Wales only.

Gas Appliances (Safety) Regulations 1995 (S.I. 1995/1629S.I. 1995/1629)

13 (1) Omit regulation 24(6) of the Gas Appliances (Safety) Regulations 1995
(power of authorised officer to enter premises for the purposes of
15surveillance of manufacturer’s compliance with requirements).

(2) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

Cross-border Railway Services (Working Time) Regulations 2008 (2008/1660)

14 (1) Omit paragraph 2(2)(a), (b) and (c) of Schedule 2 to the Cross-border
20Railway Services (Working Time) Regulations 2008 (power of Office of Rail
Regulation’s inspector to enter premises for the purpose of carrying the
regulations into effect).

(2) This paragraph extends to England and Wales and Scotland only.

Payment Services Regulations 2009 (S.I. 2009/209S.I. 2009/209)

15 (1) 25Omit regulation 83 of the Payment Services Regulations 2009 (power of an
officer of the Financial Services Authority to enter premises used in relation
to payment services).

(2) This paragraph extends to England and Wales, Scotland and Northern
Ireland.

Section 53

30SCHEDULE 3 Corresponding code of practice for Welsh devolved powers of entry

Code of practice

1 (1) The Welsh Ministers may prepare a code of practice containing guidance
about the exercise of—

(a) 35powers of entry, or