Protection of Freedoms Bill

House of Commons

Session 2010 - 11
Internet Publications
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.
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(3)
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 it is made, and
(c)
may be renewed.”
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10
Material given voluntarily
After section 63L of the Police and Criminal Evidence Act 1984 (for which see
section 9) insert—
"63M
Retention of section 63D material given voluntarily
(1)
This section applies to the following section 63D material—
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(a)
fingerprints taken with the consent of the person from whom
they were taken, and
(b)
a DNA profile derived from a DNA sample taken with the
consent of the person from whom the sample was taken.
(2)
Material to which this section applies may be retained until it has
15
fulfilled the purpose for which it was taken or derived.
(3)
Material to which this section applies which relates to—
(a)
a person who is convicted of a recordable offence, or
(b)
a person who has previously been convicted of a recordable
offence (other than a person who has only one exempt
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conviction),

may be retained indefinitely.
(4)
For the purposes of subsection (3)(b), a conviction is exempt if it is in
respect of a recordable offence, other than a qualifying offence,
committed when the person is aged under 18.”
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Material retained with consent
After section 63M of the Police and Criminal Evidence Act 1984 (for which see
section 10) insert—
"63N
Retention of section 63D material with consent
(1)
This section applies to the following material—
30
(a)
fingerprints (other than fingerprints taken under section
61(6A)) to which section 63D applies, and
(b)
a DNA profile to which section 63D applies.
(2)
If the person to whom the material relates consents to material to which
this section applies being retained, the material may be retained for as
35
long as that person consents to it being retained.
(3)
Consent given under this section—
(a)
must be in writing, and
(b)
can be withdrawn at any time.”
12
Material obtained for one purpose and used for another
40
After section 63N 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.
9

section 11) insert—
"63O
Section 63D material obtained for one purpose and used for another
(1)
Subsection (2) applies if section 63D material which is taken (or, in the
case of a DNA profile, derived from a sample taken) from a person in
connection with the investigation of an offence leads to the person to
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whom the material relates being arrested for or charged with, or
convicted of, an offence other than the offence under investigation.
(2)
Sections 63E to 63N and sections 63P and 63S have effect in relation to
the material as if the material was taken (or, in the case of a DNA
profile, derived from a sample taken) in connection with the
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investigation of the offence in respect of which the person is arrested or
charged.”
13
Destruction of copies
After section 63O of the Police and Criminal Evidence Act 1984 (for which see
section 12) insert—
15
“63P
Destruction of copies of section 63D material
(1)
If fingerprints are required by section 63D to be destroyed, any copies
of the fingerprints held by the police must also be destroyed.
(2)
If a DNA profile is required by that section to be destroyed, no copy
may be retained by the police except in a form which does not include
20
information which identifies the person to whom the DNA profile
relates.”
Destruction rules for samples and impressions of footwear subject to PACE
14
Destruction of samples
After section 63P of the Police and Criminal Evidence Act 1984 (for which see
25
section 13) insert—
“63Q
Destruction of samples
(1)
This section applies to samples—
(a)
taken from a person under any power conferred by this Part of
this Act, or
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(b)
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.
(2)
Samples to which this section applies must be destroyed if it appears to
the responsible chief officer of police that—
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(a)
the taking of the samples was unlawful, or
(b)
the samples were taken from a person in connection with that
person’s arrest and the arrest was unlawful or based on
mistaken identity.
(3)
Subject to this, the rule in subsection (4) or (as the case may be) (5)
40
applies.

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
10

(4)
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
(b)
if sooner, before the end of the period of 6 months beginning
with the date on which the sample was taken.
(5)
Any other sample to which this section applies must be destroyed
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before the end of the period of 6 months beginning with the date on
which it was taken.
(6)
Nothing in this section prevents a speculative search, in relation to
samples to which this section applies, from being carried out within
such time as may reasonably be required for the search if the
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responsible chief officer of police considers the search to be desirable.”
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Destruction of impressions of footwear
After section 63Q of the Police and Criminal Evidence Act 1984 (for which see
section 14) insert—
“63R
Destruction of impressions of footwear
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(1)
This section applies to impressions of footwear—
(a)
taken from a person under any power conferred by this Part of
this Act, or
(b)
taken by the police, with the consent of the person from whom
they were taken, in connection with the investigation of an
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offence by the police.
(2)
Impressions of footwear to which this section applies must be
destroyed unless they are retained under subsection (3).
(3)
Impressions of footwear may be retained for as long as is necessary for
purposes related to the prevention or detection of crime, the
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investigation of an offence or the conduct of a prosecution.”
Supplementary provision for material subject to PACE
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Use of retained material
After section 63R of the Police and Criminal Evidence Act 1984 (for which see
section 15) insert—
30
"63S
Use of retained material
(1)
Any material to which section 63D, 63Q or 63R applies must not be
used other than—
(a)
in the interests of national security,
(b)
for the purposes of a terrorist investigation,
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(c)
for 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.
(2)
Material which is required by section 63D, 63Q or 63R to be destroyed
40
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

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
11

(b)
for the purposes of the investigation of any offence.
(3)
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,
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(b)
the reference to crime includes a reference to any conduct
which—
(i)
constitutes one or more criminal offences (whether
under the law of England and Wales or of any country
or territory outside England and Wales), or
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(ii)
is, or corresponds to, any conduct which, if it all took
place in England and Wales, 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 England
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and Wales of any crime or suspected crime and to a prosecution
brought in respect of any crime in a country or territory outside
England and Wales.”
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Exclusions for certain regimes
After section 63S of the Police and Criminal Evidence Act 1984 (for which see
20
section 16) insert—
"63T
Exclusions for certain regimes
(1)
Sections 63D to 63S do not apply to material to which paragraphs 20A
to 20I of Schedule 8 to the Terrorism Act 2000 (destruction, retention
and use of material taken from terrorist suspects) apply.
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(2)
Any reference in those sections to a person being arrested for, or
charged with, an offence does not include a reference to a person—
(a)
being arrested under section 41 of the Terrorism Act 2000, or
(b)
being charged with an offence following an arrest under that
section.
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(3)
Nothing in sections 63D to 63S affects any power conferred by—
(a)
paragraph 18(2) of Schedule 2 to the Immigration Act 1971
(power to take reasonable steps to identify a person detained),
or
(b)
section 20 of the Immigration and Asylum Act 1999 (disclosure
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of police information to the Secretary of State for use for
immigration purposes).”
18
Interpretation and minor amendments of PACE
(1)
The Police and Criminal Evidence Act 1984 is amended as follows.
(2)
In section 65(1) (interpretation of Part 5)—
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(a)
after the definition of “appropriate consent” insert—
““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;”,
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Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
12

(b)
after the definition of “registered health care professional” insert—
““the responsible chief officer of police”, in relation to the
taking or deriving of section 63D material or the taking
of samples to which section 63Q applies, means the chief
officer of police for the police area—
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(a)
in which the material concerned was taken or
derived, or
(b)
in the case of a DNA profile, in which the sample
from which the DNA profile was derived was
taken;
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“section 63D material” means fingerprints or DNA profiles
to which section 63D applies;”, and
(c)
after the definition of “terrorism” insert—
““terrorist investigation” has the meaning given by section
32 of that Act;”.
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(3)
After section 65(2) (meaning of references to a sample’s proving insufficient)
insert—
“(2A)
In subsection (2), the reference to the destruction of a sample does not
include a reference to the destruction of a sample under section 63Q
(requirement to destroy samples).
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(2B)
Any reference in sections 63F, 63G, 63O or 63T to a person being
charged with an offence includes a reference to a person being
informed that the person will be reported for an offence.”
(4)
In section 65A(2) (list of “qualifying offences” for purposes of Part 5), in
paragraph (j) (offences under the Theft Act 1968), for “section 9” substitute
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“section 8, 9”.
(5)
After section 65A insert—
“65B
“Persons convicted of an offence”
(1)
For the purposes of this Part, any reference to a person who is convicted
of an offence includes a reference to—
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(a)
a person who has been given a caution in respect of the offence
which, at the time of the caution, the person has admitted, or
(b)
a person who has been warned or reprimanded under section
65 of the Crime and Disorder Act 1998 for the offence.
(2)
This Part, so far as it relates to persons convicted of an offence, has
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effect despite anything in the Rehabilitation of Offenders Act 1974.
(3)
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 82 of the Protection of Freedoms Act 2011.
(4)
If a person is convicted of more than one offence arising out of a single
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course of action, those convictions are to be treated as a single
conviction for the purposes of calculating under sections 63F, 63G and
63M whether the person has been convicted of only one offence.”