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 7 — Miscellaneous and general
82

102
Transitional, transitory or saving provision
The Secretary of State may by order made by statutory instrument make such
transitional, transitory or saving provision as the Secretary of State considers
appropriate in connection with the coming into force of any provision of this
Act (other than Chapter 1 of Part 1).
5
103
Financial provisions
(1)
There is to be paid out of money provided by Parliament—
(a)
any expenditure incurred by a Minister of the Crown by virtue of this Act, and
(b)
any increase attributable to this Act in the sums payable by virtue of any other
Act out of money so provided.
10
(2)
There is to be paid into the Consolidated Fund any sums received by a Minister of the
Crown by virtue of this Act.
104
Channel Islands and Isle of Man
Her Majesty may by Order in Council provide for Chapters 1 and 2 of Part 5
(and Parts 5 and 6 of Schedules 7 and 8) to extend, with or without
15
modifications, to any of the Channel Islands or to the Isle of Man.
105
Extent
(1)
The following provisions extend to England and Wales only—
(a)
sections 1 to 18, 23 and 24,
(b)
Chapter 2 of Part 1,
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(c)
Chapter 1 of Part 2,
(d)
Chapter 2 of Part 3,
(e)
Part 5,
(f)
sections 99 and 100,
(g)
Parts 3 and 5 to 8 of Schedule 7 (subject to subsection (7)(i)),
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(h)
Parts 3, 5, 6, 9 and 10 of Schedule 8 (subject to subsection (7)(i)), and
(i)
any provision which extends to England and Wales only by virtue of
subsection (5) or (6).
(2)
Part 2 of Schedule 1 extends to England and Wales and Northern Ireland only.
(3)
Parts 4 and 5 of Schedule 1 extend to Scotland only.
30
(4)
Part 6 of Schedule 1, section 62 and Schedule 6 extend to Northern Ireland only.
(5)
The following provisions have the extent provided for in those provisions—
(a)
Schedule 2 (see each paragraph), and
(b)
Part 2 of Schedule 8 (see the notes to that Part).
(6)
The amendments, repeals and revocations made by Parts 1 and 4 of Schedules
35
7 and 8 have the same extent as the enactment amended, repealed or revoked.
(7)
The following provisions extend to England and Wales, Scotland and Northern
Ireland—
(a)
sections 19 to 22 (excluding Parts 2 and 4 to 6 of Schedule 1) and 25,
(b)
Chapter 2 of Part 2,
40
(c)
Chapter 1 of Part 3 (excluding Schedule 2),

Protection of Freedoms Bill
Part 7 — Miscellaneous and general
83

(d)
Part 4 (excluding section 62 and Schedule 6),
(e)
Part 6,
(f)
sections 101 to 104 (excluding Schedules 7 and 8), this section and
sections 106 and 107,
(g)
Part 2 of Schedule 7,
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(h)
Parts 7 and 8 of Schedule 8,
(i)
the repeal of section 330(5)(b) of the Criminal Justice Act 2003 in Part 8
of Schedule 7 and Part 9 of Schedule 8, and
(j)
any provision which extends to England and Wales, Scotland and
Northern Ireland by virtue of subsection (5) or (6).
10
(8)
Sections 104 and 107 (and this section and section 106 so far as relating to those
sections) also extend to the Channel Islands and the Isle of Man.
106
Commencement
(1)
Subject as follows, this Act comes into force on such day as the Secretary of
State may by order made by statutory instrument appoint; and different days
15
may be appointed for different purposes.
(2)
The provisions mentioned in subsection (3) come into force on such day as the
Welsh Ministers may by order made by statutory instrument appoint; and
different days may be appointed for different purposes.
(3)
The provisions are—
20
(a)
Chapter 2 of Part 1 so far as relating to schools in Wales and further
education institutions in Wales,
(b)
sections 39(1), 40, 41 and 43 to 46 so far as they confer functions on the
Welsh Ministers,
(c)
section 53 and Schedule 3, and
25
(d)
section 56 and Schedule 4 so far as relating to land in Wales.
(4)
The following provisions come into force at the end of the period of two
months beginning with the day on which this Act is passed—
(a)
section 39(2) and Schedule 2, and
(b)
Part 2 of Schedule 8 (and section 101(2) so far as relating to that Part of
30
that Schedule).
(5)
The following provisions come into force on the day on which this Act is
passed—
(a)
section 99, Part 8 of Schedule 7 and Part 9 of Schedule 8 (and section
101(1) and (2) so far as relating to those Parts of those Schedules), and
35
(b)
sections 101(3) to (7) and 102 to 105, this section and section 107.
107
Short title
This Act may be cited as the Protection of Freedoms Act 2011.

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
84

Schedules
Schedule 1
Section 19

Amendments of regimes other than PACE
Part 1
Material subject to the Terrorism Act 2000
5
1     (1)
Schedule 8 to the Terrorism Act 2000 (treatment of persons detained under
section 41 or Schedule 7 of that Act) is amended as follows.
      (2)
Omit paragraph 14 (retention of material: England and Wales and Northern
Ireland).
      (3)
In paragraph 20 (retention of material: Scotland)—
10
(a)
in sub-paragraph (3), omit the words from “but” to the end of the
sub-paragraph, and
(b)
omit sub-paragraph (4).
      (4)
After paragraph 20 insert—
“Destruction and retention of fingerprints and samples etc: United Kingdom
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20A   (1)
This paragraph applies to—
(a)
fingerprints taken under paragraph 10,
(b)
a DNA profile derived from a DNA sample taken under
paragraph 10 or 12,
(c)
relevant physical data taken or provided by virtue of
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paragraph 20, and
(d)
a DNA profile derived from a DNA sample taken by virtue
of paragraph 20.
      (2)
Fingerprints, relevant physical data and DNA profiles to which
this paragraph applies (“paragraph 20A material”) must be
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destroyed if it appears to the responsible chief officer of police
that—
(a)
the taking or providing of the material or, in the case of a
DNA profile, the taking of the sample from which the
DNA profile was derived, was unlawful, or
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(b)
the material was taken or provided, or (in the case of a
DNA profile) was derived from a sample taken, from a
person in connection with that person’s arrest under
section 41 and the arrest was unlawful or based on
mistaken identity.
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Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
85

      (3)
In any other case, paragraph 20A material must be destroyed
unless it is retained under any power conferred by paragraphs 20B
to 20E.
      (4)
Paragraph 20A material which ceases to be retained under a
power mentioned in sub-paragraph (3) may continue to be
5
retained under any other such power which applies to it.
      (5)
Nothing in this paragraph prevents a relevant search, in relation
to paragraph 20A material, from being carried out within such
time as may reasonably be required for the search if the
responsible chief officer of police considers the search to be
10
desirable.
      (6)
For the purposes of sub-paragraph (5), “a relevant search” is a
search carried out for the purpose of checking the material
against—
(a)
other fingerprints or samples taken under paragraph 10 or
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12 or a DNA profile derived from such a sample,
(b)
any of the relevant physical data, samples or information
mentioned in section 19C(1) of the Criminal Procedure
(Scotland) Act 1995,
(c)
any of the relevant physical data, samples or information
20
held by virtue of section 56 of the Criminal Justice
(Scotland) Act 2003,
(d)
material to which section 18 of the Counter-Terrorism Act
2008 applies,
(e)
any of the fingerprints, samples and information
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mentioned in section 63A(1)(a) and (b) of the Police and
Criminal Evidence Act 1984 (checking of fingerprints and
samples), and
(f)
any of the fingerprints, samples and information
mentioned in Article 63A(1)(a) and (b) of the Police and
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Criminal Evidence (Northern Ireland) Order 1989
(checking of fingerprints and samples).
20B   (1)
This paragraph applies to paragraph 20A material relating to a
person who is detained under section 41.
      (2)
In the case of a person who has previously been convicted of a
35
recordable offence (other than a single exempt conviction), or an
offence in Scotland which is punishable by imprisonment, or is so
convicted before the end of the period within which the material
may be retained by virtue of this paragraph, the material may be
retained indefinitely.
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      (3)
In the case of a person who has no previous convictions, or only
one exempt conviction, the material may be retained until the end
of the retention period specified in sub-paragraph (4).
      (4)
The retention period is—
(a)
in the case of fingerprints or relevant physical data, the
45
period of 3 years beginning with the date on which the
fingerprints or relevant physical data were taken or
provided, and

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
86

(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 samples was taken).
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      (5)
The responsible chief officer of police or a specified chief officer of
police may apply to a relevant court for an order extending the
retention period.
      (6)
An application for an order under sub-paragraph (5) must be
made within the period of 3 months ending on the last day of the
10
retention period.
      (7)
An order under sub-paragraph (5) may extend the retention
period by a period which—
(a)
begins with the date on which the material would
otherwise be required to be destroyed under this
15
paragraph, and
(b)
ends with the end of the period of 2 years beginning with
that date.
      (8)
The following persons may appeal to the relevant appeal court
against an order under sub-paragraph (5), or a refusal to make
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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.
      (9)
In Scotland—
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(a)
an application for an order under sub-paragraph (5) is to
be made by summary application;
(b)
an appeal against an order under sub-paragraph (5), or a
refusal to make such an order, must be made within 21
days of the relevant court’s decision, and the relevant
30
appeal court’s decision on any such appeal is final.
     (10)
In this paragraph—
“relevant court” means—
(a)
in England and Wales, a District Judge (Magistrates’
Courts),
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(b)
in Scotland, the sheriff—
(i)
in whose sheriffdom the person to whom the
material relates resides,
(ii)
in whose sheriffdom that person is believed
by the applicant to be, or
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(iii)
to whose sheriffdom that person is believed
by the applicant to be intending to come; and
(c)
in Northern Ireland, a district judge (magistrates’
court) in Northern Ireland;
“the relevant appeal court” means—
45
(a)
in England and Wales, the Crown Court,
(b)
in Scotland, the sheriff principal, and

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
87

(c)
in Northern Ireland, the County Court in Northern
Ireland;
“a specified chief officer of police” means—
(a)
in England and Wales and Northern Ireland—
(i)
the chief officer of the police force of the area
5
in which the person from whom the material
was taken resides, or
(ii)
a chief officer of police who believes that the
person is in, or is intending to come to, the
chief officer’s police area, and
10
(b)
in Scotland—
(i)
the chief constable of the police force in the
area in which the person who provided the
material, or from whom it was taken, resides,
or
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(ii)
a chief constable who believes that the person
is in, or is intending to come to, the area of the
chief constable’s police force.
20C   (1)
This paragraph applies to paragraph 20A material relating to a
person who is detained under Schedule 7.
20
      (2)
In the case of a person who has previously been convicted of a
recordable offence (other than a single exempt conviction), or an
offence in Scotland which is punishable by imprisonment, or is so
convicted before the end of the period within which the material
may be retained by virtue of this paragraph, the material may be
25
retained indefinitely.
      (3)
In the case of a person who has no previous convictions, or only
one exempt conviction, the material may be retained until the end
of the retention period specified in sub-paragraph (4).
      (4)
The retention period is—
30
(a)
in the case of fingerprints or relevant physical data, the
period of 6 months beginning with the date on which the
fingerprints or relevant physical data were taken or
provided, and
(b)
in the case of a DNA profile, the period of 6 months
35
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 samples was taken).
20D   (1)
For the purposes of paragraphs 20B and 20C, a person is to be
40
treated as having been convicted of an offence if—
(a)
the person has been given a caution in respect of the
offence which, at the time of the caution, the person has
admitted,
(b)
the person has been warned or reprimanded under section
45
65 of the Crime and Disorder Act 1998 for the offence,
(c)
the person, in relation to an offence in Scotland punishable
by imprisonment, has accepted or has been deemed to
accept—

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
88

(i)
a conditional offer under section 302 of the
Criminal Procedure (Scotland) Act 1995,
(ii)
a compensation offer under section 302A of that
Act,
(iii)
a combined offer under section 302B of that Act, or
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(iv)
a work offer under section 303ZA of that Act,
(d)
the person, having been given a fixed penalty notice under
section 129(1) of the Antisocial Behaviour etc. (Scotland)
Act 2004 in connection with an offence in Scotland
punishable by imprisonment, has paid—
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(i)
the fixed penalty, or
(ii)
(as the case may be) the sum which the person is
liable to pay by virtue of section 131(5) of that Act,
or
(e)
the person, in relation to an offence in Scotland punishable
15
by imprisonment, has been discharged absolutely by order
under section 246(3) of the Criminal Procedure (Scotland)
Act 1995.
      (2)
Paragraphs 20B and 20C and this paragraph, so far as they relate
to persons convicted of an offence, have effect despite anything in
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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)
For the purposes of paragraphs 20B and 20C—
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(a)
a person has no previous convictions if the person has not
previously been convicted—
(i)
in England and Wales or Northern Ireland of a
recordable offence, or
(ii)
in Scotland of an offence which is punishable by
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imprisonment, and
(b)
if the person has previously been convicted of a recordable
offence in England and Wales or Northern Ireland, the
conviction is exempt if it is in respect of a recordable
offence, other than a qualifying offence, committed when
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the person was aged under 18.
      (5)
In sub-paragraph (4), “qualifying offence” has—
(a)
in relation to a conviction in respect of a recordable offence
committed in England and Wales, the meaning given by
section 65A of the Police and Criminal Evidence Act 1984,
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and
(b)
in relation to a conviction in respect of a recordable offence
committed in Northern Ireland, the meaning given by
Article 53A of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
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      (6)
If a person is convicted of more than one offence arising out of a
single course of action, those convictions are to be treated as a
single conviction for the purposes of calculating under paragraph
20B or 20C whether the person has been convicted of only one
offence.
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