Counter-Terrorism and Border Security Bill (HL Bill 131)

Counter-Terrorism and Border Security BillPage 30

(4) Condition 2 is met if the further fingerprints were taken from the
person in England or Wales under—

(a) paragraph 10 of Schedule 8 to the Terrorism Act 2000,

(b) paragraph 1 of Schedule 6 to the Terrorism Prevention and
5Investigation Measures Act 2011, or

(c) paragraph 27 of Schedule 3 to the Counter-Terrorism and
Border Security Act 2018.

(5) Condition 3 is met if the further fingerprints—

(a) are material to which section 18 of the Counter-Terrorism Act
102008 applies, and

(b) are held under the law of England and Wales.

(6) Where a determination under this section is made in respect of the
further fingerprints—

(a) the further fingerprints may be retained for as long as the
15original fingerprints are retained under a power conferred by
sections 63E to 63O (including those sections as applied by
section 63P), and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long their retention is
20authorised by paragraph (a).

(7) Subsection (6)(a) does not prevent the further fingerprints being
retained after the original fingerprints fall to be destroyed if the
continued retention of the further fingerprints is authorised under
any enactment.

(8) 25A written record must be made of a determination under this
section.”

Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))

5 (1) The Police and Criminal Evidence (Northern Ireland) Order 1989 is
amended as follows.

(2) 30In Article 63D (retention of Article 63B material: persons arrested for or
charged with a qualifying offence) (as inserted by Schedule 2 to the Criminal
Justice Act (Northern Ireland) 2013 (c. 7 N.I.))—

(a) in paragraph (1), for sub-paragraph (a) substitute—

(a) relates to a person who—

(i) 35is arrested for a qualifying offence other
than a terrorism-related qualifying offence
but is not charged with that offence, or

(ii) is charged with any qualifying offence but
is not convicted of that offence, and”;

(b) 40in paragraph (14), after the definition of “prescribed” insert—

  • ““terrorism-related qualifying offence” means—

    (a)

    an offence for the time being listed in section
    41(1) of the Counter-Terrorism Act 2008 (see
    Article 53A(2)(r)), or

    (b)

    45an ancillary offence, as defined by Article
    53A(4), relating to an offence for the time
    being listed in section 41(1) of that Act.”

Counter-Terrorism and Border Security BillPage 31

(3) After Article 63D insert—

Retention of Article 63B material: persons arrested for terrorism-related
qualifying offence

63DA (1) This Article applies to Article 63B material which—

(a) 5relates to a person who is arrested for a terrorism-related
qualifying offence but is not charged with that offence, and

(b) was taken (or, in the case of a DNA profile, derived from a
sample taken) in connection with the investigation of the
offence.

(2) 10If the person has previously been convicted of a recordable offence
which is not an excluded offence, or is so convicted before the
material is required to be destroyed by virtue of this Article, the
material may be retained indefinitely.

(3) Otherwise, the material may be retained—

(a) 15in the case of fingerprints, for the period of 3 years
beginning with the date on which the fingerprints were
taken;

(b) in the case of a DNA profile, for the period of 3 years
beginning with the date on which the DNA sample from
20which 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).

(4) In this Article—

  • “excluded offence”, in relation to a person, means a
    25recordable offence—

    (a)

    which—

    (i)

    is not a qualifying offence,

    (ii)

    is the only recordable offence of which the
    person has been convicted, and

    (iii)

    30was committed when the person was aged
    under 18, and

    (b)

    for which the person was not given a custodial
    sentence of 5 years or more;

  • “terrorism-related qualifying offence” means—

    (a)

    35an offence for the time being listed in section 41(1) of
    the Counter-Terrorism Act 2008 (see Article
    53A(2)(r)), or

    (b)

    an ancillary offence, as defined by Article 53A(4),
    relating to an offence for the time being listed in
    40section 41(1) of that Act.”

Criminal Procedure (Scotland) Act 1995

6 The Criminal Procedure (Scotland) Act 1995 is amended as follows.

7 (1) Section 18G (retention of samples etc: national security) is amended as
follows.

(2) 45In subsection (2) for “the relevant chief constable” substitute “the chief
constable of the Police Service of Scotland”.

Counter-Terrorism and Border Security BillPage 32

(3) In subsection (3) for “the relevant chief constable” substitute “the chief
constable of the Police Service of Scotland”.

(4) In subsection (4)(b) for “2 years” substitute “5 years”.

(5) Omit subsection (6).

8 5After section 18G insert—

18GA Retention of further fingerprints

(1) This section applies where—

(a) relevant physical data to which section 18G applies has been
taken from or provided by a person, and

(b) 10the data is or includes the person’s fingerprints (“the original
fingerprints”).

(2) A constable may make a determination under this section in respect
of any further fingerprints taken from, or provided by, the same
person (“the further fingerprints”) if—

(a) 15the further fingerprints were taken under or by virtue of—

(i) any provision, power or authority mentioned in
section 18G(1), or

(ii) paragraph 4 of Schedule 6 to the Terrorism
Prevention and Investigation Measures Act 2011, and

(b) 20the further fingerprints or the original fingerprints were
taken—

(i) in connection with a terrorist investigation, as defined
by section 32 of the Terrorism Act 2000, or

(ii) under a power conferred by virtue of paragraph 35 of
25Schedule 3 to the Counter-Terrorism and Border
Security Act 2018.

(3) Where a determination under this section is made in respect of the
further fingerprints—

(a) the further fingerprints may be retained for as long as the
30original fingerprints are retained in accordance with this
Part, and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long their retention is
authorised by paragraph (a).

(4) 35Subsection (3)(a) does not prevent the further fingerprints being
retained after the original fingerprints fall to be destroyed if the
continued retention of the further fingerprints is authorised under
any enactment.

(5) A written record must be made of a determination under this
40section.”

Terrorism Act 2000

9 Part 1 of Schedule 8 to the Terrorism Act 2000 (treatment of persons detained
under section 41 of, or Schedule 7 to, that Act) is amended as follows.

10 (1) Paragraph 20E is amended as follows.

Counter-Terrorism and Border Security BillPage 33

(2) In sub-paragraph (1), for “the responsible” substitute “a”.

(3) In sub-paragraph (2), for “the responsible” substitute “a”.

(4) In sub-paragraph (3)(b), for “2 years” substitute “5 years”.

(5) After sub-paragraph (3) insert—

(4) 5In this paragraph “chief officer of police” means—

(a) a chief officer of police of a police force in England and
Wales,

(b) the chief constable of the Police Service of Scotland, or

(c) the Chief Constable of the Police Service of Northern
10Ireland.”

11 After paragraph 20E insert—

20EA (1) This paragraph applies where paragraph 20A material is or
includes a person’s fingerprints (“the original fingerprints”).

(2) A constable may make a determination under this paragraph in
15respect of any further fingerprints taken from, or provided by, the
same person (“the further fingerprints”) if conditions 1 and 2 are
met.

(3) Condition 1 is met if the further fingerprints—

(a) are paragraph 20A material,

(b) 20are taken or provided under or by virtue of—

(i) Part 5 of the Police and Criminal Evidence Act
1984,

(ii) Article 61 of the Police and Criminal Evidence
(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.
2512)),

(iii) any provision, power or authority mentioned in
section 18G(1) of the Criminal Procedure
(Scotland) Act 1995,

(iv) paragraph 1 or 4 of Schedule 6 to the Terrorism
30Prevention and Investigation Measures Act 2011,
or

(v) paragraph 27 of Schedule 3 to the Counter-
Terrorism and Border Security Act 2018, or

(c) are material to which section 18 of the Counter-Terrorism
35Act 2008 applies.

(4) Condition 2 is met if—

(a) in a case where the further fingerprints are material to
which section 18 of the Counter-Terrorism Act 2008
applies, the original fingerprints and the further
40fingerprints are held under the law of the same part of the
United Kingdom;

(b) in any other case, the original fingerprints and the further
fingerprints were taken from or provided by the person in
the same part of the United Kingdom.

(5) 45Where a determination under this paragraph is made in respect of
the further fingerprints—

Counter-Terrorism and Border Security BillPage 34

(a) the further fingerprints may be retained for as long as the
original fingerprints are retained under any power
conferred by paragraphs 20B to 20E, and

(b) a requirement under any enactment to destroy the further
5fingerprints does not apply for as long their retention is
authorised by paragraph (a).

(6) Sub-paragraph (5)(a) does not prevent the further fingerprints
being retained after the original fingerprints fall to be destroyed if
the continued retention of the further fingerprints is authorised
10under any enactment.

(7) A written record must be made of a determination under this
paragraph.

(8) In this paragraph—

(a) “enactment” includes—

(i) 15an enactment comprised in, or in an instrument
made under, an Act of the Scottish Parliament, and

(ii) an enactment comprised in, or in an instrument
made under, Northern Ireland legislation;

(b) references to a part of the United Kingdom are references
20to—

(i) England and Wales,

(ii) Scotland, or

(iii) Northern Ireland.”

Counter-Terrorism Act 2008

12 25The Counter-Terrorism Act 2008 is amended as follows.

13 (1) Section 18B (retention for purposes of national security) is amended as
follows.

(2) In subsection (1) after “responsible officer” insert “, or by a chief officer of
police,”.

(3) 30In subsection (2) after “responsible officer” insert “, or a chief officer of
police,”.

(4) In subsection (3)(b) for “2 years” substitute “5 years”.

(5) After subsection (3) insert—

(4) In this section “chief officer of police” means a person other than the
35responsible officer who is—

(a) the chief officer of police of a police force in England and
Wales, or

(b) the Chief Constable of the Police Service of Northern
Ireland.”

14 40After section 18B insert—

18BA Retention of further fingerprints

(1) This section applies where section 18 material is or includes a
person’s fingerprints (“the original fingerprints”).

Counter-Terrorism and Border Security BillPage 35

(2) An appropriate officer may make a determination under this section
in respect of any further fingerprints taken from the same person
(“the further fingerprints”) if conditions 1 and 2 are met.

(3) Condition 1 is met if the further fingerprints—

(a) 5are section 18 material, or

(b) are taken under—

(i) Part 5 of the Police and Criminal Evidence Act 1984,

(ii) Article 61 of the Police and Criminal Evidence
(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.
1012)),

(iii) paragraph 10 of Schedule 8 to the Terrorism Act 2000,

(iv) paragraph 1 of Schedule 6 to the Terrorism
Prevention and Investigation Measures Act 2011, or

(v) paragraph 27 of Schedule 3 to the Counter-Terrorism
15and Border Security Act 2018.

(4) Condition 2 is met if the both the original fingerprints and the further
fingerprints—

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

(b) 20are held by a law enforcement authority under the law of
Northern Ireland.

(5) Where a determination under this section is made in respect of the
further fingerprints—

(a) the further fingerprints may be retained for as long as the
25original fingerprints are retained under a power conferred by
section 18A or 18B, and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long their retention is
authorised by paragraph (a).

(6) 30Subsection (5)(a) does not prevent the further fingerprints being
retained after the original fingerprints fall to be destroyed if the
continued retention of the further fingerprints is authorised under
any enactment.

(7) A written record must be made of a determination under this section.

(8) 35In this section—

  • “appropriate officer” means—

    (a)

    a constable, or

    (b)

    an officer of Revenue and Customs who is not below
    such grade as is designated for the purposes of this
    40section by the Commissioners for Her Majesty’s
    Revenue and Customers;

  • “enactment” includes an enactment comprised in, or in an
    instrument made under, Northern Ireland legislation.”

Terrorism Prevention and Investigation Measures Act 2011

15 45Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011
(fingerprints and samples) is amended as follows.

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16 (1) Paragraph 11 is amended as follows.

(2) In sub-paragraph (1), for “the responsible” substitute “a”.

(3) In sub-paragraph (2), for “the responsible” substitute “a”.

(4) in sub-paragraph (3)(b), for “2 years” substitute “5 years”.

(5) 5After sub-paragraph (3) insert—

(4) In this paragraph “chief officer of police” means—

(a) a chief officer of police of a police force in England and
Wales,

(b) the chief constable of the Police Service of Scotland, or

(c) 10the Chief Constable of the Police Service of Northern
Ireland.”

17 After paragraph 11 insert—

11A (1) This paragraph applies where paragraph 6 material is or includes
a person’s fingerprints (“the original fingerprints”).

(2) 15A constable may make a determination under this paragraph in
respect of any further fingerprints taken from, or provided by, the
same person (“the further fingerprints”) if conditions 1 and 2 are
met.

(3) Condition 1 is met if the further fingerprints—

(a) 20are paragraph 6 material,

(b) are taken or provided under or by virtue of—

(i) Part 5 of the Police and Criminal Evidence Act
1984,

(ii) Article 61 of the Police and Criminal Evidence
25(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.
12)),

(iii) any provision, power or authority mentioned in
section 18G(1) of the Criminal Procedure
(Scotland) Act 1995,

(iv) 30paragraph 10 of Schedule 8 to the Terrorism Act
2000, or

(v) paragraph 27 of Schedule 3 to the Counter-
Terrorism and Border Security Act 2018, or

(c) are material to which section 18 of the Counter-Terrorism
35Act 2008 applies.

(4) Condition 2 is met if—

(a) in a case where the further fingerprints are material to
which section 18 of the Counter-Terrorism Act 2008
applies, the original fingerprints and the further
40fingerprints are held under the law of the same part of the
United Kingdom;

(b) in any other case, the original fingerprints and the further
fingerprints were taken from or provided by the person in
the same part of the United Kingdom.

(5) 45Where a determination under this paragraph is made in respect of
the further fingerprints—

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(a) the further fingerprints may be retained for as long as the
original fingerprints are retained under any power
conferred by paragraph 8, 9 or 11, and

(b) a requirement under any enactment to destroy the further
5fingerprints does not apply for as long their retention is
authorised by paragraph (a).

(6) Sub-paragraph (5)(a) does not prevent the further fingerprints
being retained after the original fingerprints fall to be destroyed if
the continued retention of the further fingerprints is authorised
10under any enactment.

(7) A written record must be made of a determination under this
paragraph.

(8) In this paragraph—

(a) “enactment” includes—

(i) 15an enactment comprised in, or in an instrument
made under, an Act of the Scottish Parliament, and

(ii) an enactment comprised in, or in an instrument
made under, Northern Ireland legislation;

(b) references to a part of the United Kingdom are references
20to—

(i) England and Wales,

(ii) Scotland, or

(iii) Northern Ireland.”

Protection of Freedoms Act 2012

18 25Part 6 of Schedule 1 to the Protection of Freedoms Act 2012 (material subject
to the Police and Criminal Evidence (Northern Ireland) Order 1989) is
amended as follows.

19 In paragraph 7, in sub-paragraph (3)(b) for “2 years” substitute “5 years”.

20 After paragraph 7 insert—

7A (1) 30This paragraph applies where—

(a) fingerprints to which paragraph 7 applies have been taken
from a person (“the original fingerprints”), and

(b) a national security determination under that paragraph is
made in relation to the original fingerprints.

(2) 35A constable may make a determination under this paragraph in
respect of any further fingerprints taken from the same person
(“the further fingerprints”) if condition 1 or condition 2 is met.

(3) Condition 1 is met if—

(a) the further fingerprints are fingerprints to which
40paragraph 7 applies, and

(b) the further fingerprints or the original fingerprints were
taken in connection with a terrorist investigation, as
defined by section 32 of the Terrorism Act 2000.

(4) Condition 2 is met if the further fingerprints were taken from the
45person in Northern Ireland under—

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(a) paragraph 10 of Schedule 8 to the Terrorism Act 2000,

(b) paragraph 1 of Schedule 6 to the Terrorism Prevention and
Investigation Measures Act 2011, or

(c) paragraph 27 of Schedule 3 to the Counter-Terrorism and
5Border Security Act 2018.

(5) Where a determination under this paragraph is made in respect of
the further fingerprints—

(a) the national security determination made in relation to the
original fingerprints also applies in relation to the further
10fingerprints, and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long as the national
security determination has effect.

(6) A written record must be made of a determination under this
15paragraph.

(7) In this paragraph “enactment” includes an enactment comprised
in, or in an instrument made under, Northern Ireland legislation.”

Section 21

SCHEDULE 3 Border security

20 Part 1 Powers

Power to stop, question and detain

1 (1) An examining officer may question a person for the purpose of determining
whether the person appears to be a person who is, or has been, engaged in
25hostile activity if condition 1 or condition 2 is met.

(2) Condition 1 is met if—

(a) the person is at a port or in the border area, and

(b) the examining officer believes that the person’s presence at the port
or in the border area is connected with the person’s—

(i) 30entry into, or departure from, Great Britain or Northern
Ireland, or

(ii) travel by air within Great Britain or Northern Ireland.

(3) Condition 2 is met if the person is on a ship or aircraft which has arrived at
any place in Great Britain or Northern Ireland (whether from within or
35outside Great Britain or Northern Ireland).

(4) An examining officer may exercise the powers under this paragraph
whether or not there are grounds for suspecting that a person is or has been
engaged in hostile activity.

(5) A person is or has been engaged in hostile activity for the purposes of this
40Schedule if the person is or has been concerned in the commission,
preparation or instigation of a hostile act that is or may be—

Counter-Terrorism and Border Security BillPage 39

(a) carried out for, or on behalf of, a State other than the United
Kingdom, or

(b) otherwise in the interests of a State other than the United Kingdom.

(6) An act is a “hostile act” if it—

(a) 5threatens national security,

(b) threatens the economic well-being of the United Kingdom, or

(c) is an act of serious crime.

(7) For the purposes of this paragraph—

(a) it is immaterial—

(i) 10whether a person is aware that activity in which they are or
have been engaged is hostile activity, or

(ii) whether a State for or on behalf of which, or in the interests
of which, a hostile act is carried out has instigated,
sanctioned, or is otherwise aware of, the carrying out of the
15act;

(b) “State” includes the government of a State and any organ of its
government;

(c) references to a State other than the United Kingdom include
references to any territory outside the United Kingdom;

(d) 20the reference to serious crime is to crime where—

(i) the offence, or one of the offences, which is or would be
constituted by the conduct concerned is an offence for which
a person who has reached the age of 18 (or, in relation to
Scotland or Northern Ireland, 21) and has no previous
25convictions could reasonably be expected to be sentenced to
imprisonment for a term of 3 years or more, or

(ii) the conduct involves the use of violence, results in substantial
financial gain or is conduct by a large number of persons in
pursuit of a common purpose.

2 30An examining officer may question a person who is in the border area for the
purpose of determining whether the person’s presence in the area is
connected with the person’s entry into, or departure from, Northern Ireland.

3 A person (“P”) questioned under paragraph 1 or 2 must—

(a) give the examining officer any information in P’s possession that the
35officer requests;

(b) give the examining officer on request either a valid passport which
includes a photograph or another document which establishes P’s
identity;

(c) declare whether any documents of a kind specified by the examining
40officer are in P’s possession;

(d) give the examining officer on request any such document.

4 (1) For the purposes of exercising a power under paragraph 1 or 2 an examining
officer may—

(a) stop a person or vehicle;

(b) 45detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining
officer may authorise the person’s removal from a ship, aircraft or vehicle.