Crime and Security Bill

House of Commons

Session 2009 - 10
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Other Bills before Parliament

Crime and Security Bill

Crime and Security Bill
64

(b)
in the case of a DNA profile, of which the constable who took
(or directed the taking of) the sample from which the profile
was derived was a member.
20I   (1)
Any material to which paragraph 20(3) applies which is retained
after it has fulfilled the purpose for which it was taken or derived
5
must not be used other than—
(a)
in the interests of national security,
(b)
for the purposes of a terrorist investigation,
(c)
for purposes related to the prevention or detection of crime,
the investigation of an offence or the conduct of a
10
prosecution, or
(d)
for purposes related to the identification of a deceased person
or of the person to whom the material relates.
      (2)
Subject to sub-paragraph (1), the material may be checked against—
(a)
other material to which paragraph 20(3) applies,
15
(b)
material to which paragraph 14 applies,
(c)
material to which section 18 of the Counter-Terrorism Act
2008 applies,
(d)
any of the relevant physical data, samples and information to
which section 20 of the Criminal Procedure (Scotland) Act
20
1995 applies, and
(e)
any of the fingerprints, samples and information mentioned
in—
(i)
section 63A(1)(a) and (b) of the Police and Criminal
Evidence Act 1984, or
25
(ii)
Article 63A(1)(a) and (b) of the Police and Criminal
Evidence (Northern Ireland) Order 1989.
      (3)
Material which is required to be destroyed by virtue of any of
paragraphs 20A to 20E and 20H must not at any time after it is
required to be destroyed be used—
30
(a)
in 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
35
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)
constitutes one or more criminal offences (whether
40
under 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, would
constitute one or more criminal offences, and
45
(c)
the reference 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

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65

prosecution brought in respect of any crime in a country or
territory outside the United Kingdom.”
(4)
Paragraph 21 (as inserted by section 17(3) of the Counter-Terrorism Act 2008)
is repealed.
19
Material subject to the International Criminal Court Act 2001
5
In the International Criminal Court Act 2001, in Schedule 4 (taking of
fingerprints or non-intimate samples), for paragraph 8 there is substituted—
“8    (1)
This paragraph applies to the following material—
(a)
fingerprints and samples taken under this Schedule, and
(b)
DNA profiles derived from such samples.
10
      (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)
if later, as soon as it has fulfilled the purpose for which it was
15
taken or derived.
      (3)
If fingerprints are required to be destroyed by virtue of sub-
paragraph (2), any copies of the fingerprints must also be destroyed.
      (4)
If a DNA profile is required to be destroyed by virtue of sub-
paragraph (2), no copy may be kept except in a form which does not
20
include information from which the person to whom the DNA
profile relates can be identified.
      (5)
Sub-paragraph (6) applies if a person makes a request to the
responsible chief officer of police to be notified when any of the
following material is destroyed under this paragraph—
25
(a)
fingerprints or a sample taken in England and Wales, or
(b)
a DNA profile derived from such a sample.
      (6)
The responsible chief officer of police or a person authorised by the
chief officer or on the chief officer’s behalf must within three months
of the request issue the person with a certificate recording the
30
destruction.
      (7)
For the purposes of this paragraph “responsible chief officer of
police” means the chief officer of police for the police area—
(a)
in which the fingerprints were or sample was taken, or
(b)
in the case of a DNA profile, in which the sample from which
35
the DNA profile was derived was taken.
      (8)
Sub-paragraph (9) applies if a person makes a request to the Chief
Constable of the Police Service of Northern Ireland to be notified
when any of the following material is destroyed under this
paragraph—
40
(a)
fingerprints or a sample taken in Northern Ireland, or
(b)
a DNA profile derived from such a sample.
      (9)
The Chief Constable or a person authorised by the Chief Constable
or on the Chief Constable’s behalf must within three months of the
request issue the person with a certificate recording the destruction.
45

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66

     (10)
In 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.”
5
20
Material subject to the Counter-Terrorism Act 2008 (Scotland)
(1)
The Counter-Terrorism Act 2008 is amended as follows.
(2)
In section 11—
(a)
in subsection (6), for the words from “may be retained” to the end there
is substituted “must be destroyed before the end of the period of 2 years
10
beginning with the date on which the person ceases to be subject to a
control order”;
(b)
after subsection (6) there is inserted—
“(6A)
Subsection (6) applies only if the person to whom the data,
sample or information relates has no previous convictions or
15
only one exempt conviction.
(6B)
For the purpose of subsection (6A), a person has no previous
convictions or only one exempt conviction if the person would
have no previous convictions or only one exempt conviction for
the purposes of paragraphs 20B to 20E of Schedule 8 to the
20
Terrorism Act 2000 (see paragraph 20F of that Schedule).
(6C)
Where something is required to be destroyed under subsection
(6)—
(a)
in any case (except a DNA profile), any copies of the
thing must also be destroyed,
25
(b)
in the case of a DNA profile, no copy may be kept except
in a form that does not include information which
identifies the person to whom the profile relates.
(6D)
If a person makes a request to the chief constable to be notified
when anything relating to the person is destroyed under
30
subsection (6), the chief constable or a person authorised by the
chief constable (or on the chief constable’s behalf) must within
3 months of the request issue the person with a certificate
recording the destruction.
(6E)
The references in subsection (6D) to the chief constable are to be
35
construed in accordance with section 11A(6).”;
(c)
in subsection (7), after paragraph (a) there is inserted—
“(aa)
any material to which paragraph 14 or 20(3) of Schedule
8 to the Terrorism Act 2000 applies,”;
(d)
in subsection (8)—
40
(i)
after the opening words there is inserted—

““DNA profile” has the meaning given by section 11A(9)”;
(ii)
the definition of “terrorist investigation” is repealed.

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(3)
After section 11 there is inserted—
“11A
Retention and use of material: Scotland
(1)
This section applies to the following material if it is required to be
destroyed under section 11(6)—
(a)
relevant physical data or samples, and
5
(b)
a DNA profile derived from a DNA sample falling within
paragraph (a).
(2)
Material to which this section applies may be retained—
(a)
if (at any time) the person to whom it relates consents in writing
to its retention, and
10
(b)
for as long as the consent is not withdrawn.
(3)
Material to which this section applies may be retained without limit of
time if, before the material would (but for this section) be required to be
destroyed under section 11(6), the person to whom it relates is
convicted of—
15
(a)
an offence in Scotland which is punishable by imprisonment, or
(b)
a recordable offence in England and Wales or Northern Ireland
(as falling to be construed for the purposes of paragraphs 20B to
20E of Schedule 8 to the Terrorism Act 2000 (see paragraph
20F(2) of that Schedule)).
20
(4)
Material to which this section applies may be retained—
(a)
if the chief constable determines that it is necessary for the
material to be retained for the purposes of national security, and
(b)
for as long as the determination has effect.
(5)
A determination mentioned in subsection (4)—
25
(a)
has effect for a maximum of 2 years beginning with the date on
which the material would (but for this section) be required to be
destroyed under section 11(6),
(b)
may be renewed.
(6)
The reference in subsection (4) to the chief constable is a reference to the
30
chief constable of the police force—
(a)
of which the constable who took (or directed the taking of) the
material was a member, or
(b)
in the case of a DNA profile, of which the constable who took
(or directed the taking of) the sample from which the profile
35
derived was a member.
(7)
Material retained under section 11 or this section must not be used
other than—
(a)
in the interests of national security, or
(b)
for the purposes of a terrorist investigation.
40
(8)
Section 11(6) is subject to this section.
(9)
In this section—
“DNA profile” means any information derived from a DNA
sample,
“DNA sample” means any material that has come from a human
45
body and consists of or includes human cells,

Crime and Security Bill
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“terrorist investigation” has the meaning given by section 32 of the
Terrorism Act 2000.”
21
Other material
(1)
Section 18 of the Counter-Terrorism Act 2008 (material not subject to existing
statutory restrictions) is amended as follows.
5
(2)
For subsection (2) there is substituted—
“(2)
Subject to subsections (3A) to (3C), material to which this section
applies that is held by a law enforcement authority in England and
Wales or Northern Ireland may be retained by that authority after it has
fulfilled the purpose for which it was obtained or acquired by the
10
authority if the following condition is met.”
(3)
In subsection (3)(c) for “subsection (2)” there is substituted “subsection (3J)”.
(4)
After subsection (3) there is inserted—
“(3A)
A DNA sample to which this section applies must be destroyed—
(a)
as soon as a DNA profile has been derived from the sample, or
15
(b)
if sooner, before the end of the period of 6 months beginning
with the date on which the sample was obtained or acquired.
(3B)
DNA profiles and fingerprints—
(a)
to which this section applies,
(b)
relating to a person who, at the time they were obtained or
20
acquired by the authority retaining them—
(i)
has no previous convictions or only one exempt
conviction, and
(ii)
is aged under 16, and
(c)
which are held in a form which includes information which
25
identifies the person to whom they relate,

must be destroyed before the end of the period of 3 years beginning
with the date on which they were obtained or acquired by the
authority.
(3C)
DNA profiles and fingerprints—
30
(a)
to which this section applies,
(b)
relating to a person who, at the time they were obtained or
acquired by the authority retaining them—
(i)
has no previous convictions or only one exempt
conviction, and
35
(ii)
is aged 16 or over, and
(c)
which are held in a form which includes information which
identifies the person to whom they relate,

must be destroyed before the end of the period of 6 years beginning
with the date on which they were obtained or acquired by the
40
authority.
(3D)
If, before material is required to be destroyed by virtue of subsection
(3B) or (3C), the person to whom the material relates is convicted of a
recordable offence in England and Wales or Northern Ireland, that
subsection ceases to have effect in relation to the material.
45

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(3E)
If the responsible officer determines that it is necessary for any material
to which subsection (3B) or (3C) applies to be retained for the purposes
of national security—
(a)
the material is not required to be destroyed in accordance with
that subsection, and
5
(b)
subsection (4A) does not apply to the material,

for as long as the determination has effect.
(3F)
A determination under subsection (3E) has effect for a maximum of two
years beginning with the date on which the material would otherwise
be required to be destroyed, but a determination may be renewed.
10
(3G)
“Responsible officer” means—
(a)
in relation to material obtained or acquired by a police force in
England and Wales, the chief officer of the police force;
(b)
in relation to material obtained or acquired by the Police Service
of Northern Ireland or the Police Service of Northern Ireland
15
Reserve, the Chief Constable of the Police Service of Northern
Ireland;
(c)
in relation to material obtained or acquired by the Ministry of
Defence Police, the Chief Constable of the Ministry of Defence
Police;
20
(d)
in relation to material obtained or acquired by the Royal Navy
Police, the Royal Military Police or the Royal Air Force Police,
the Provost Marshal for the police force which obtained or
acquired the material;
(e)
in relation to material obtained or acquired by the British
25
Transport Police, the Chief Constable of the British Transport
Police;
(f)
in relation to material obtained or acquired by the Serious
Organised Crime Agency, the Director General of the Serious
Organised Crime Agency;
30
(g)
in relation to material obtained or acquired by the
Commissioners for Her Majesty’s Revenue and Customs, any of
those Commissioners.
(3H)
If fingerprints are required to be destroyed by virtue of subsection (3B)
or (3C), any copies of the fingerprints must also be destroyed.
35
(3I)
If a DNA profile is required to be destroyed by virtue of subsection (3B)
or (3C), no copy may be kept except in a form which does not include
information which identifies the person to whom the DNA profile
relates.
(3J)
Any material to which this section applies which is retained after it has
40
fulfilled the purpose for which it was obtained or acquired must not be
used other than—
(a)
in the interests of national security,
(b)
for the purposes of a terrorist investigation,
(c)
for purposes related to the prevention or detection of crime, the
45
investigation of an offence or the conduct of a prosecution,
(d)
for purposes related to the identification of a deceased person or
of the person to whom the material relates.”

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(5)
For subsection (4) there is substituted—
“(4)
Subject to subsection (3J), checks may be made against material to
which this section applies and it may be disclosed to any person.
(4A)
Material which is required to be destroyed by virtue of this section
must not at any time after it is required to be destroyed be used—
5
(a)
in evidence against the person to whom the material relates, or
(b)
for the purposes of the investigation of any offence.
(4B)
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
10
person,
(b)
the reference to crime includes a reference to any conduct
which—
(i)
constitutes one or more criminal offences (whether
under the law of a part of the United Kingdom or of a
15
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, would
constitute one or more criminal offences, and
(c)
the references to an investigation and to a prosecution include
20
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.”
(6)
In subsection (5), at the end there is inserted—
25
““terrorist investigation” has the meaning given by section 32 of
the Terrorism Act 2000.”
(7)
In subsection (6)—
(a)
in paragraph (a), after “64” there is inserted “to 64ZN”;
(b)
in paragraph (b), after “64” there is inserted “to 64ZN”;
30
(c)
in paragraph (c), for “paragraph 14” there is substituted “paragraphs 14
to 14I”.
(8)
After section 18 of that Act there is inserted—
“18A
Section 18: supplementary provisions
(1)
In section 18 and this section, “recordable offence” has—
35
(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 meaning
given by Article 2(2) of the Police and Criminal Evidence
40
(Northern Ireland) Order 1989.
(2)
For the purposes of subsections (3B) and (3C) of section 18—
(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
45
(b)
if the person has been previously so convicted of a recordable
offence, the conviction is exempt if it is in respect of a recordable