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Clause 15: Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989
51. Clause 15 makes provision for Northern Ireland equivalent to that made for England and Wales by clause 14.
Clause 16: Material subject to the Terrorism Act 2000
52. Paragraph 14 of Schedule 8 to the Terrorism Act 2000 currently provides for the retention of fingerprints and samples (and DNA profiles derived from samples) taken from persons detained under section 41 of or Schedule 7 to the Terrorism Act 2000 (that is persons arrested as a suspected terrorist or persons detained under the ports and borders provisions in Schedule 7). Paragraph 14 of Schedule 8 to the 2000 Act sets out the purposes for which these fingerprints, samples and profiles may be used while they are retained, but permits retention without reference to a retention period.
53. Clause 16 substitutes for paragraph 14 a new paragraph 14 to 14I, making provision for a destruction and retention regime broadly equivalent to that in the amendments to PACE. New paragraph 14A makes provision for the destruction of samples, which must be destroyed within 6 months of being taken, or in the case of a DNA sample, as soon as a profile has been derived from it. Paragraphs 14B to 14E provide for retention periods broadly equivalent to those provided in PACE as amended by clause 14. The time limits for retention depend on the age of the person, whether the person has previous convictions and whether the person is detained under section 41 (arrest on suspicion of terrorism) or under Schedule 7 (detention at ports and borders). But where the person is convicted for a recordable offence in England and Wales or Northern Ireland (or where the person already has such a conviction, other than a conviction for a minor offence committed when they were under 18), the material need not be destroyed.
54. As in relation to the PACE provisions, where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the new provisions, if a chief officer of police determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years (new paragraph 14G). It is open to a chief officer to make further determinations to retain the material, which have effect for a maximum of 2 years.
55. Paragraph 14I largely replicates the existing provision in paragraph 14 (as prospectively amended by section 16 of the Counter-Terrorism Act 2008) in relation to the use to which retained material may be put: it may be used in the interests of national security, in a terrorist investigation, for the investigation of crime or for identification-related purposes (sub-paragraphs (1) and (4)). Sub-paragraph (2) replicates the existing provision in paragraph 14 about the material against which fingerprints and samples taken under the Terrorism Act 2000 may be checked. Sub-paragraph (3) is new, and provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence.
Clause 17: Material subject to the International Criminal Court Act 2001
56. Fingerprints and samples may be taken from a person under Schedule 4 to the International Criminal Court Act 2001 if the International Criminal Court requests assistance in obtaining evidence of the identity of a person (who will usually be a person suspected of committing an “ICC crime” such as genocide or war crimes). Clause 17 amends Schedule 4 to make provision about the retention and destruction of material taken under that Schedule, so that all material must be destroyed within six months of it being transferred to the International Criminal Court, or, if later, as soon as it has fulfilled the purposes for which it was taken. But a chief officer of police may determine that, for reasons of national security, the material may be retained for up to two further years. It is open to chief officers to make further determinations to retain material where the necessity continues to exist.
Clause 18: Other material
57. Section 18 of the Counter-Terrorism Act 2008 (yet to be brought into force) makes provision for the retention by law enforcement authorities in England and Wales and Northern Ireland of DNA samples and profiles and fingerprints obtained by or supplied to the authority in the way described in subsection (3) of that section (which includes covertly acquired material and material supplied by overseas authorities) and which is not held subject to “existing statutory restrictions” such as those set out in PACE or in Schedule 8 to the Terrorism Act 2000. This includes material which is on the police ‘counter-terrorism database’. Section 18 sets out the purposes for which this material may be used while it is retained, but permits retention without reference to a retention period.
58. Clause 18 amends section 18 of the 2008 Act to introduce the requirement to destroy any DNA sample referred to in section 18 as soon as a profile has been derived from it or, if sooner, within 6 months of the sample coming into the authority’s possession (new subsection (3A) of section 18). New subsection (3B) provides that fingerprints or DNA profiles (“material”) relating to an identifiable individual aged under 16 at the time they came into the authority’s possession must be destroyed within 3 years. New subsection (3C) provides for destruction of such material relating to a person aged 16 or over within 6 years of that material coming into the authority’s possession. In each case, where the person is convicted of a recordable offence in England and Wales or Northern Ireland (or where the person already has such a conviction, other than a conviction for a minor offence committed when they were under 18), the material need not be destroyed.
59. Where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the new provisions, if the Commissioner of the Metropolitan Police determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years (new subsections (3E) and (3F) of section 18). The Commissioner may make further determinations to retain the material, which again have effect for a maximum of 2 years.
60. New subsections (3G) and (3H) of section 18 replicate the provisions in PACE (as amended by this Bill) about the destruction of copies of fingerprints and DNA profiles, and new subsection (3I) and substituted sections (4) and (4B) (inserted by subsection (5) of clause 18) make provision about the uses to which the material may be put (which largely reproduces what is currently in section 18(2) and (4)).
61. Subsection (8) inserts a new section 18A into the Counter-Terrorism Act 2008 which provides definitions of terms used in section 18 (as amended by the Bill).
Clause 19: Destruction of material taken before commencement
62. Clause 19 requires the Secretary of State to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point this legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material, while recognising that this exercise may take some time to complete; there are some 850,000 profiles of unconvicted persons on the National DNA Database. The statutory instrument will be subject to the negative resolution procedure.
Clause 20: National DNA Database Strategy Board
63. Clause 20 provides for the Secretary of State to make arrangements for a National DNA Database Strategy Board. Such a Board already exists, and reports to the Home Secretary, providing strategic oversight of the application of powers under PACE for taking and using DNA. The principal partners are the Association of Chief Police Officers, the Association of Police Authorities and the Home Office. This clause puts this body on a statutory footing.
Domestic violence
Clause 21: Power to issue a domestic violence protection notice
64. Clause 21 creates a new power for a senior police officer to issue a Domestic Violence Protection Notice (DVPN). The purpose of a DVPN is to secure the immediate protection of a victim of domestic violence (V) from future violence or a threat of violence from a suspected perpetrator (P). A DVPN prohibits P from molesting V and, where they cohabit, may require P to leave those premises.
65. The issue of a DVPN triggers an application for a Domestic Violence Protection Order (DVPO). This is an order lasting between 14 and 28 days, which prohibits P from molesting V and may also make provision about access to shared accommodation by P and V. Clauses 24 to 27 deal with DVPOs.
66. Clause 21 sets out the conditions and considerations that must be met in order for the police to issue a DVPN.
67. Subsection (1) creates the power for a senior police officer, of rank of superintendent or higher (the “authorising officer”), to issue a DVPN.
68. Subsection (2) sets out the test for issuing a DVPN. A DVPN may be issued where the authorising officer has reasonable grounds for believing that, firstly, P has been violent or has threatened violence towards an associated person, V, and that, secondly, the issue of a notice is necessary in order to secure the protection of V from violence or the threat of violence. “Associated person” is defined in subsection (9) (see below).
69. Subsections (3) and (4) set out particular matters that the authorising officer must take into consideration before issuing a DVPN. The authorising officer must take reasonable steps to find out the opinion of V as to whether the DVPN should be issued. Consideration must also be given to any representation P makes in relation to the issuing of the DVPN. Reasonable steps must also be taken to find out the opinion of any other associated person who lives in the premises to which the DVPN would apply.
70. While the authorising officer must take reasonable steps to discover V’s opinion, and must take this into consideration, the issue of the notice is not dependent upon V’s consent, as the authorising officer may nevertheless have reason to believe that V requires protection from P. Subsection (5) specifies that an authorising officer may issue a DVPN, regardless of consent from V.
71. Subsection (6) ensures that a DVPN must contain provision to prohibit P from molesting V for the duration of the DVPN. As set out in subsection (7), this may include molestation in general, particular acts of molestation, or both.
72. Subsection (8) specifies that where P and V share living premises, the DVPN may explicitly: prohibit P from evicting or excluding V from the premises; prohibit P from entering the premises; require P to leave the premises; or prohibit P from coming within a certain distance of the premises (as specified in the DVPN) for the duration of the DVPN. It does not matter for these purposes whether the premises are owned or rented in the name of P or V.
73. Subsection (9) specifies the definition of “associated person”, for whom the DVPN would seek to provide protection. The definition is that given in section 62 of the Family Law Act 1996 and includes persons:
- who are, or have been, married to each other or civil partners of each other;
- who are cohabitants or former cohabitants;
- who live, or have lived, in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
- who have agreed to marry one another or to enter into a civil partnership agreement (whether or not that agreement has been terminated);
- who have or have had an intimate personal relationship with each other which is or was of significant duration.
74. Under subsections (10) and (11), where a DVPN is issued which prevents P from entering premises, and the authorising officer believes that P is subject to service law and the premises are service living accommodation then the authorising officer must make reasonable efforts to inform P’s commanding officer that the notice has been issued. “Service living accommodation” carries the same meaning as in section 96(1)(a) of the Armed Forces Act 2006, being a building or part of a building which is occupied for the purposes of Her Majesty’s Armed Forces and is provided exclusively for use as living accommodation. Clause 29 provides for the issuing of a DVPN in respect of such premises by the Ministry of Defence Police.
Clause 22: Contents and service of a domestic violence protection notice
75. Subsection (1) sets out the details that must be specified in the DVPN, which include the grounds for issuing a DVPN; the fact that a power of arrest attaches to the DVPN; the fact that the police will make an application for a DVPO which will be heard in court within a 48 hour period; the fact that the DVPN will continue to be in effect until the DVPO application is determined; and the provisions that may be included in a subsequent DVPO.
76. Subsection (2) of this clause specifies the procedure for issuing a DVPN. A DVPN can only be served on P by a constable, and must be personally served and in writing.
77. Subsection (3) requires the constable serving the DVPN to ask P to supply an address in order to enable P to be given notice of the hearing for the DVPO.
Clause 23: Breach of a domestic violence protection notice
78. Should P breach the conditions of the DVPN, then a constable may arrest P without warrant as set out in subsection (1)(b) of clause 22.
79. Subsection (1) requires that if P is arrested, P must be held in custody and brought before the magistrates’ court that will hear the application for the DVPO. P must be brought before this court at the latest within a period of 24 hours beginning with the time of arrest. However, if the DVPO hearing has already been arranged to take place within that 24 hour period, then P is to be brought before the court for that hearing.
80. If P is brought before the court in advance of the DVPO hearing, then the court may remand P under subsection (2).
81. If the court adjourns the DVPO hearing by virtue of subsection (8) of clause 24, the court may remand the person under subsection (3).
82. In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Sundays, Christmas Day, Good Friday and all other bank holidays (in England and Wales, as per the Banking and Financial Dealings Act 1971) are to be disregarded (see subsection (4)).
Clause 24: Application for a domestic violence protection order
83. Subsections (1) and (2) specify that once a DVPN has been issued, a police constable must apply to the magistrates’ court for a DVPO.
84. Subsection (3) states that the magistrates court hearing must be no later than 48 hours after the time when the DVPN was served. Sundays, Christmas Day, Good Friday and all other bank holidays (in England and Wales, as per the Banking and Financial Dealings Act 1971) are to be excluded from this 48-hour period (see subsection (4)).
85. Subsections (5) to (7) cover the steps to be taken to give P notice of the DVPO hearing. Under subsection (5), notice of the hearing must be given to P. If P gave an address for the purposes of service at the point of issue of the DVPN, then the notice is deemed given if it is left at that address. Where no address has been given by P, then under subsection (7) the court must be satisfied that reasonable efforts have been made to give P the notice of the hearing.
86. Subsection (8) provides that the magistrates’ court may adjourn the hearing of an application for a DVPO. If the hearing is adjourned, under subsection (9) the DVPN continues in effect until the application is determined by the court.
87. Subsection (10) operates to prevent V being compelled, under section 97 of the Magistrates’ Courts Act 1980, to attend the hearing of an application for a DVPO or to answer questions, unless V has given oral or written evidence at the hearing.
Clause 25: Conditions for and contents of a domestic violence protection order
88. Clause 25 details the two conditions that must be met for a DVPO to be made, as set out in subsections (2) and (3).
89. The first condition is that the court must be satisfied on the balance of probabilities that P has been violent, or threatened violence, towards an associated person, V.
90. The second condition is that the court thinks the DVPO is necessary to secure the protection of V from violence, or the threat of violence, from P.
91. Subsection (4) specifies particular matters a court must consider prior to making a DVPO, where it is made aware of these matters. These are the opinion of V and also the opinion of any other associated person who lives in the premises to which the DVPO would relate.
92. It is not necessary that V consent to the order. Subsection (5) specifies that a court may issue a DVPO regardless of whether or not V consents.
93. Subsection (6) provides that a DVPO must contain provision explicitly prohibiting P from molesting V for the duration of the DVPO. As set out in subsection (7), this may include molestation in general, particular acts of molestation, or both.
94. Subsection (8) specifies that where P and V share living premises, the DVPO may explicitly: prohibit P from evicting or excluding V from the premises; prohibit P from entering the premises; require P to leave the premises; or prohibit P from coming within a certain distance of the premises (as specified in the DVPO) for the duration of the DVPO. This provision can be made irrespective of who owns the premises.
95. Subsection (9) attaches a power of arrest to the DVPO which can be exercised if a police constable has reasonable grounds for believing that P is in breach of the DVPO. In these circumstances, the constable may arrest P without warrant.
96. Subsections (10) and (11) specify the duration of the DVPO. A DVPO may be in force for a minimum of 14 days from the day on which it is made, to a maximum of 28 days from the day on which it is made. The DVPO must state the period for which it is to be in force.
Clause 26: Breach of a domestic violence protection order
97. Subsection (1) requires that if P is arrested by virtue of clause 25(9) (which provides that a DVPO must state that a person may be arrested on breach of a DVPO), P must be held in custody and brought before a magistrates’ court within a period of 24 hours beginning with the time of arrest. Subsection (2) specifies that if the matter is not disposed of when P is brought before the court, the court may remand the person.
98. In calculating when the period of 24 hours mentioned in subsection (1) ends, Sundays, Christmas Day, Good Friday and all other bank holidays (in England and Wales, as per the Banking and Financial Dealings Act 1971) are to be disregarded (see subsection (3)).
Clause 27: Further provision about remand
99. Clause 27 makes further provision about remand of a person by a magistrates’ court under clause 23(2) or (3) or clause 26(2).
100. Subsection (2) makes a minor modification to section 128 of the Magistrates’ Courts Act (which makes provision about remand in custody or on bail) in its application to these provisions.
101. Subsection (3) gives the court the power to remand P for the purposes of allowing a medical report to be made, and subsections (4) and (5) provide that, in such a case, the adjournment may not be for more than three weeks at a time if P is remanded in custody and not for more than four weeks at a time if P is remanded on bail.
102. Subsection (6) gives the court the same power as it has in respect of an accused person to make an order under section 35 of the Mental Health Act 1983 if it suspects that P is suffering from a mental disorder. Section 35 of that Act enables a court to remand an individual to a hospital specified by the court for a report on his mental condition. Such a remand may not be for more than 28 days at a time or for more than 12 weeks in total.
103. Under subsection (7), when remanding a person on bail, the court may impose requirements which appear to the court as necessary to ensure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
Clause 28: Guidance
104. Clause 28 provides that the Secretary of State may, after consultation with specified stakeholders, issue and publish guidance. Subsection (2) requires that when exercising functions to which the guidance relates, police officers must have regard to it.
Clause 29: Ministry of Defence Police
105. Clause 29 creates a new power for a senior officer in the Ministry of Defence Police to issue a DVPN under clause 21 for the protection of an associated person, V, in relation to premises that are occupied for the purposes of the Armed Forces and are provided as living accommodation.
106. Subsection (1) creates the power for a senior officer in the Ministry of Defence Police, not below the rank of superintendent (the “authorising officer”), to issue a DVPN for the protection of V, but only if V or P lives in service living accommodation.
107. Subsection (2) specifies that where a member of the Ministry of Defence police issues a DVPN under subsection (1) the DVPN may, by virtue of clause 21(8), also apply to any other premises in England or Wales lived in by P and V.
Clause 30: Pilot schemes
108. Clause 30 provides that the Secretary of State may make an order to allow any provision under clauses 21 to 29 to come into force for a limited period of time. The purpose of such an order is to allow an assessment of the effectiveness of the provision in practice.
109. Subsections (2) and (3) provide that the Secretary of State may make different provision for different areas, and that more than one order may be issued under this clause.
Gang-related violence
110. Injunctions to prevent gang-related violence were established in the Policing and Crime Act 2009 (“the 2009 Act”). Such an injunction may be granted where the court is satisfied that a person has engaged in, or has encouraged or assisted, gang-related violence, and where the court thinks the injunction necessary to grant the injunction for the purpose of preventing the person from continuing to do so or for the purpose of protecting the person from gang-related violence.
Clause 31: Grant of injunction: minimum age
111. Clause 31 amends section 34 of the 2009 Act so that injunctions may only be obtained against persons aged 14 or over.
Clause 32: Review on respondent to injunction becoming 18
112. Clause 32 in the first place inserts a new subsection into section 36 of the 2009 Act.
113. Section 36 allows the court to review the terms of an injunction at any time, and requires the court to review an injunction after one year. The new subsection has the effect of requiring the court to review an injunction where it is granted in respect of a respondent under the age of 18 and remains effective after the respondent reaches 18.
114. Secondly, the clause amends section 42 of the 2009 Act so as secure that it is not necessary for a review hearing to be held if the injunction is varied within the 4 weeks preceding the respondent’s 18th birthday.
Clause 33: Consultation of youth offending team
115. Clause 33 amends section 38 of the 2009 Act to insert a new requirement for injunction applicants to consult youth offending teams before applying for an injunction in relation to a person under 18 years of age.
116. The youth offending team to be consulted is the one for the area in which it appears the proposed respondent resides.
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