Protection of Freedoms Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
1

A
Bill
To
Provide for the destruction, retention, use and other regulation of certain evidential material;
to impose consent and other requirements in relation to certain processing of biometric
information relating to children; to provide for a code of practice about surveillance camera
systems and for the appointment and role of the Surveillance Camera Commissioner; to
provide for judicial approval in relation to certain authorisations and notices under the
Regulation of Investigatory Powers Act 2000; to provide for the repeal or rewriting of powers
of entry and associated powers and for codes of practice and other safeguards in relation to
such powers; to make provision about vehicles left on land; to provide for a maximum
detention period of 14 days for terrorist suspects; to replace certain stop and search powers
and to provide for a related code of practice; to amend the Safeguarding Vulnerable Groups
Act 2006; to make provision about criminal records; to disregard convictions and cautions for
certain abolished offences; to make provision about the release and publication of datasets
held by public authorities and to make other provision about freedom of information and the
Information Commissioner; to repeal certain enactments; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Regulation of biometric data
Chapter 1
Destruction, retention and use of fingerprints etc.
Destruction rule for fingerprints and DNA profiles subject to PACE
5
1
Destruction of fingerprints and DNA profiles
After section 63C of the Police and Criminal Evidence Act 1984 insert—
“63D
Destruction of fingerprints and DNA profiles
(1)
This section applies to—
(a)
fingerprints—
10

Bill 146
55/1

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
2

(i)
taken from a person under any power conferred by this
Part of this Act, or
(ii)
taken by the police, with the consent of the person from
whom they were taken, in connection with the
investigation of an offence by the police, and
5
(b)
a DNA profile derived from a DNA sample taken as mentioned
in paragraph (a)(i) or (ii).
(2)
Fingerprints and DNA profiles to which this section applies (“section
63D material”) must be destroyed if it appears to the responsible chief
officer of police that—
10
(a)
the taking of the fingerprint or, in the case of a DNA profile, the
taking of the sample from which the DNA profile was derived,
was unlawful, or
(b)
the fingerprint was taken, or, in the case of a DNA profile, was
derived from a sample taken, from a person in connection with
15
that person’s arrest and the arrest was unlawful or based on
mistaken identity.
(3)
In any other case, section 63D material must be destroyed unless it is
retained under any power conferred by sections 63E to 63N (including
those sections as applied by section 63O).
20
(4)
Section 63D material which ceases to be retained under a power
mentioned in subsection (3) may continue to be retained under any
other such power which applies to it.
(5)
Nothing in this section prevents a speculative search, in relation to
section 63D material, from being carried out within such time as may
25
reasonably be required for the search if the responsible chief officer of
police considers the search to be desirable.”
Modification of rule for particular circumstances
2
Material retained pending investigation or proceedings
After section 63D of the Police and Criminal Evidence Act 1984 (for which see
30
section 1) insert—
“63E
Retention of section 63D material pending investigation or
proceedings
(1)
This section applies to section 63D material taken (or, in the case of a
DNA profile, derived from a sample taken) in connection with the
35
investigation of an offence in which it is suspected that the person to
whom the material relates has been involved.
(2)
The material may be retained until the conclusion of the investigation
of the offence or, where the investigation gives rise to proceedings
against the person for the offence, until the conclusion of those
40
proceedings.”
3
Persons arrested for or charged with a qualifying offence
After section 63E of the Police and Criminal Evidence Act 1984 (for which see

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
3

section 2) insert—
"63F
Retention of section 63D material: persons arrested for or charged with
a qualifying offence
(1)
This section applies to section 63D material which—
(a)
relates to a person who is arrested for, or charged with, a
5
qualifying offence but is not convicted of 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)
If the person has previously been convicted of a recordable offence
10
which is not an excluded offence, or is so convicted before the material
is required to be destroyed by virtue of this section, the material may be
retained indefinitely.
(3)
Otherwise, material falling within subsection (4) or (5) may be retained
until the end of the retention period specified in subsection (6).
15
(4)
Material falls within this subsection if it—
(a)
relates to a person who is charged with a qualifying offence but
is not convicted of 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
20
offence.
(5)
Material falls within this subsection if—
(a)
it relates to a person who is arrested for a qualifying offence but
is not charged with that offence,
(b)
it was taken (or, in the case of a DNA profile, derived from a
25
sample taken) in connection with the investigation of the
offence, and
(c)
any prescribed circumstances apply.
(6)
The retention period is—
(a)
in the case of fingerprints, the period of 3 years beginning with
30
the date on which the fingerprints were taken, and
(b)
in 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
35
samples was taken).
(7)
The responsible chief officer of police or a specified chief officer of
police may apply to a District Judge (Magistrates’ Courts) for an order
extending the retention period.
(8)
An application for an order under subsection (7) must be made within
40
the period of 3 months ending on the last day of the retention period.
(9)
An order under subsection (7) may extend the retention period by a
period which—
(a)
begins with the end of the retention period, and
(b)
ends with the end of the period of 2 years beginning with the
45
end of the retention period.

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
4

(10)
The following persons may appeal to the Crown Court against an order
under subsection (7), or a refusal to make such an order—
(a)
the responsible chief officer of police;
(b)
a specified chief officer of police;
(c)
the person from whom the material was taken.
5
(11)
Circumstances prescribed under subsection (5)(c) must include the fact
that the Commissioner for the Retention and Use of Biometric Material
has consented to the retention of the material concerned.
(12)
An order prescribing circumstances of the kind mentioned in
subsection (11) may, in particular, make provision about—
10
(a)
the procedure to be followed in relation to any decision of the
Commissioner,
(b)
an appeal against such a decision.
(13)
In this section—
“excluded offence”, in relation to a person, means a recordable
15
offence—
(a)
which—
(i)
is not a qualifying offence,
(ii)
is the only recordable offence of which the
person has been convicted, and
20
(iii)
was committed when the person was aged
under 18, and
(b)
for which the person was not given a relevant custodial
sentence of 5 years or more,
“prescribed” means prescribed by order made by the Secretary of
25
State,
“relevant custodial sentence” has the meaning given by section
63J(6),
“a specified chief officer of police” means—
(a)
the chief officer of the police force of the area in which
30
the person from whom the material was taken resides,
or
(b)
a chief officer of police who believes that the person is in,
or is intending to come to, the chief officer’s police area.
(14)
An order of the Secretary of State under this section—
35
(a)
is to be made by statutory instrument,
(b)
may include transitional, transitory or saving provision.
(15)
A statutory instrument containing an order under this section 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.”
40
4
Persons arrested for or charged with a minor offence
After section 63F of the Police and Criminal Evidence Act 1984 (for which see

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
5

section 3) insert—
"63G
Retention of section 63D material: persons arrested for or charged with
a minor offence
(1)
This section applies to section 63D material which—
(a)
relates to a person who—
5
(i)
is arrested for or charged with a recordable offence other
than a qualifying offence,
(ii)
if arrested for or charged with more than one offence
arising out of a single course of action, is not also
arrested for or charged with a qualifying offence, and
10
(iii)
is not convicted of the offence or offences in respect of
which the person is arrested or charged, 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 or offences in respect of which the person is arrested or
15
charged.
(2)
If the person has previously been convicted of a recordable offence
which is not an excluded offence, the material may be retained
indefinitely.
(3)
In this section “excluded offence” has the meaning given by section
20
63F(13).”
5
Persons convicted of a recordable offence
After section 63G of the Police and Criminal Evidence Act 1984 (for which see
section 4) insert—
"63H
Retention of section 63D material: persons convicted of a recordable
25
offence
(1)
This section applies, subject to subsection (3), to—
(a)
section 63D material which—
(i)
relates to a person who is convicted of a recordable
offence, and
30
(ii)
was taken (or, in the case of a DNA profile, derived from
a sample taken) in connection with the investigation of
the offence, or
(b)
material taken under section 61(6) or 63(3B) which relates to a
person who is convicted of a recordable offence.
35
(2)
The material may be retained indefinitely.
(3)
This section does not apply to section 63D material to which section 63J
applies.”
6
Persons convicted of an offence outside England and Wales
After section 63H of the Police and Criminal Evidence Act 1984 (for which see
40

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
6

section 5) insert—
"63I
Retention of material: persons convicted of an offence outside
England and Wales
(1)
This section applies to material falling within subsection (2) relating to
a person who is convicted of an offence under the law of any country
5
or territory outside England and Wales.
(2)
Material falls within this subsection if it is—
(a)
fingerprints taken from the person under section 61(6D) (power
to take fingerprints without consent in relation to offences
outside England and Wales), or
10
(b)
a DNA profile derived from a DNA sample taken from the
person under section 62(2A) or 63(3E) (powers to take intimate
and non-intimate samples in relation to offences outside
England and Wales).
(3)
The material may be retained indefinitely.”
15
7
Persons under 18 convicted of first minor offence
After section 63I of the Police and Criminal Evidence Act 1984 (for which see
section 6) insert—
"63J
Retention of section 63D material: exception for persons under 18
convicted of first minor offence
20
(1)
This section applies to section 63D material which—
(a)
relates to a person who—
(i)
is convicted of a recordable offence other than a
qualifying offence,
(ii)
has not previously been convicted of a recordable
25
offence, and
(iii)
is aged under 18 at the time of the 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.
30
(2)
Where the person is given a relevant custodial sentence of less than 5
years in respect of the offence, the material may be retained until the
end of the period consisting of the term of the sentence plus 5 years.
(3)
Where the person is given a relevant custodial sentence of 5 years or
more in respect of the offence, the material may be retained
35
indefinitely.
(4)
Where the person is given a sentence other than a relevant custodial
sentence in respect of the offence, the material may be retained until—
(a)
in the case of fingerprints, the end of the period of 5 years
beginning with the date on which the fingerprints were taken,
40
and
(b)
in the case of a DNA profile, the end of the period of 5 years
beginning with—
(i)
the date on which the DNA sample from which the
profile was derived was taken, or
45

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
7

(ii)
if the profile was derived from more than one DNA
sample, the date on which the first of those samples was
taken.
(5)
But if, before the end of the period within which material may be
retained by virtue of this section, the person is again convicted of a
5
recordable offence, the material may be retained indefinitely.
(6)
In this section, “relevant custodial sentence” means any of the
following—
(a)
a custodial sentence within the meaning of section 76 of the
Powers of Criminal Courts (Sentencing) Act 2000;
10
(b)
a sentence of a period of detention and training (excluding any
period of supervision) which a person is liable to serve under an
order under section 211 of the Armed Forces Act 2006 or a
secure training order.”
8
Persons given a penalty notice
15
After section 63J of the Police and Criminal Evidence Act 1984 (for which see
section 7) insert—
"63K
Retention of section 63D material: persons given a penalty notice
(1)
This section applies to section 63D material which—
(a)
relates to a person who is given a penalty notice under section 2
20
of the Criminal Justice and Police Act 2001, and
(b)
was taken (or, in the case of a DNA profile, derived from a
sample taken) from the person in connection with the
investigation of the offence to which the notice relates.
(2)
The material may be retained—
25
(a)
in the case of fingerprints, for a period of 2 years beginning with
the date on which the fingerprints were taken,
(b)
in the case of a DNA profile, for a period of 2 years beginning
with—
(i)
the date on which the DNA sample from which the
30
profile was derived was taken, or
(ii)
if the profile was derived from more than one DNA
sample, the date on which the first of those samples was
taken.”
9
Material retained for purposes of national security
35
After section 63K of the Police and Criminal Evidence Act 1984 (for which see
section 8) insert—
"63L
Retention of section 63D material for purposes of national security
(1)
Section 63D material may be retained for as long as a national security
determination made by the responsible chief officer of police has effect
40
in relation to it.
(2)
A national security determination is made if the responsible chief
officer of police determines that it is necessary for any section 63D
material to be retained for the purposes of national security.