Protection of Freedoms Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
89

      (7)
Nothing in paragraph 20B or 20C prevents the start of a new
retention period in relation to paragraph 20A material if a person
is detained again under section 41 or (as the case may be) Schedule
7 when an existing retention period (whether or not extended) is
still in force in relation to that material.
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20E   (1)
Paragraph 20A material may be retained for as long as a national
security determination made by the responsible chief officer of
police has effect 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 paragraph
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20A material to be retained for the purposes of national security.
      (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 the determination is made, and
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(c)
may be renewed.
20F   (1)
If fingerprints or relevant physical data are required by paragraph
20A to be destroyed, any copies of the fingerprints or relevant
physical data held by a police force must also be destroyed.
      (2)
If a DNA profile is required by that paragraph to be destroyed, no
20
copy may be retained by a police force except in a form which does
not include information which identifies the person to whom the
DNA profile relates.
20G   (1)
This paragraph applies to—
(a)
samples taken under paragraph 10 or 12, or
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(b)
samples taken by virtue of paragraph 20.
      (2)
Samples to which this paragraph applies must be destroyed if it
appears to the responsible chief officer of police that—
(a)
the taking of the sample was unlawful, or
(b)
the sample was taken from a person in connection with
30
that person’s arrest under section 41 and the arrest was
unlawful or based on mistaken identity.
      (3)
Subject to this, the rule in sub-paragraph (4) or (as the case may be)
(5) applies.
      (4)
A DNA sample to which this paragraph applies must be
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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.
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      (5)
Any other sample to which this paragraph applies must be
destroyed 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 relevant search, in relation to
samples to which this paragraph applies, from being carried out
45
within such time as may reasonably be required for the search if

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
90

the responsible chief officer of police considers the search to be
desirable.
      (7)
In sub-paragraph (6) “a relevant search” has the meaning given by
paragraph 20A(6).
20H   (1)
Any material to which paragraph 20A or 20G applies must not be
5
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)
Material which is required by paragraph 20A or 20G to be
destroyed must not at any time after it is required to be destroyed
15
be used—
(a)
in evidence against the person to whom the material
relates, or
(b)
for the purposes of the investigation of any offence.
      (3)
In this paragraph—
20
(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,
(b)
the reference to crime includes a reference to any conduct
which—
25
(i)
constitutes one or more criminal offences (whether
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
30
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 references, respectively, to any investigation
35
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.
      (4)
Sub-paragraphs (1) and (3) do not form part of the law of Scotland.
20I
In paragraphs 20A to 20H—
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“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;
“fingerprints” has the meaning given by section 65(1) of the
45
Police and Criminal Evidence Act 1984 (Part 5 definitions);
“paragraph 20A material” has the meaning given by
paragraph 20A(2);

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 1 — Material subject to the Terrorism Act 2000
91

“police force” means any of the following—
(a)
the metropolitan police force;
(b)
a police force maintained under section 2 of the Police
Act 1996 (police forces in England and Wales outside
London);
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(c)
the City of London police force;
(d)
any police force maintained under or by virtue of
section 1 of the Police (Scotland) Act 1967;
(e)
the Scottish Police Services Authority;
(f)
the Police Service of Northern Ireland;
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(g)
the Police Service of Northern Ireland Reserve;
(h)
the Ministry of Defence Police;
(i)
the Royal Navy Police;
(j)
the Royal Military Police;
(k)
the Royal Air Force Police;
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(l)
the British Transport Police;
“recordable offence” has—
(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
20
(b)
in relation to a conviction in Northern Ireland, the
meaning given by Article 2(2) of the Police and
Criminal Evidence (Northern Ireland) Order 1989;
“relevant physical data” has the meaning given by section
18(7A) of the Criminal Procedure (Scotland) Act 1995;
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“responsible chief officer of police” means, in relation to
fingerprints or samples taken in England or Wales, or a
DNA profile derived from a sample so taken, the chief
officer of police for the police area—
(a)
in which the material concerned was taken, or
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(b)
in the case of a DNA profile, in which the sample from
which the DNA profile was derived was taken;
“responsible chief officer of police” means, in relation to
relevant physical data or samples taken or provided in
Scotland, or a DNA profile derived from a sample so taken
35
or provided, the chief constable of the police force for the
area—
(a)
in which the material concerned was taken or
provided, or
(b)
in the case of a DNA profile, in which the sample from
40
which the DNA profile was derived was taken;
“responsible chief officer of police” means, in relation to
fingerprints or samples taken in Northern Ireland, or a
DNA profile derived from a sample so taken, the Chief
Constable of the Police Service of Northern Ireland.”
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      (5)
In paragraph 11(1)(a), for “paragraph 14(4)” substitute “paragraph 20H”.
      (6)
In paragraph 15(1) for “paragraphs 10 to 14” substitute “paragraphs 10 to
13”.

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 3 — Material subject to section 18 of the Counter-Terrorism Act 2008
92

      (7)
After paragraph 15(1) insert—
   “(1A)
In the application of section 65(2A) of the Police and Criminal
Evidence Act 1984 for the purposes of sub-paragraph (1) of this
paragraph, the reference to the destruction of a sample under
section 63Q of that Act is a reference to the destruction of a sample
5
under paragraph 20G of this Schedule.”
      (8)
In paragraph 15(2) for “paragraphs 10 to 14” substitute “paragraphs 10 to
13”.
Part 2
Material subject to the International Criminal Court Act 2001
10
2
In Schedule 4 of the International Criminal Court Act 2001 (taking of
fingerprints or non-intimate samples) for paragraph 8 substitute—
“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.
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      (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
20
was taken or derived.
      (3)
If fingerprints are required to be destroyed by virtue of sub-
paragraph (2), any copies of the fingerprints held by the police
must also be destroyed.
      (4)
If a DNA profile is required to be destroyed by virtue of sub-
25
paragraph (2), no copy may be retained by the police except in a
form which does not include information from which the person
to whom the DNA profile relates can be identified.
      (5)
In this paragraph—
“DNA profile” means any information derived from a DNA
30
sample;
“DNA sample” means any material that has come from a
human body and consists of or includes human cells.”
Part 3
Material subject to section 18 of the Counter-Terrorism Act 2008
35
3
The Counter-Terrorism Act 2008 is amended as follows.
4
For section 18 (material not subject to existing statutory restrictions)
substitute—
“18
Destruction of material not subject to existing statutory restrictions
(1)
This section applies to fingerprints, DNA samples and DNA profiles
40
that—

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 3 — Material subject to section 18 of the Counter-Terrorism Act 2008
93

(a)
are held by a law enforcement authority under the law of
England and Wales or Northern Ireland, and
(b)
are not held subject to existing statutory restrictions.
(2)
Material to which this section applies (“section 18 material”) must be
destroyed if it appears to the responsible officer that the condition in
5
subsection (3) is not met.
(3)
The condition is that the material has been—
(a)
obtained by the law enforcement authority pursuant to an
authorisation under Part 3 of the Police Act 1997
(authorisation of action in respect of property),
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(b)
obtained by the law enforcement authority in the course of
surveillance, or use of a covert human intelligence source,
authorised under Part 2 of the Regulation of Investigatory
Powers Act 2000,
(c)
supplied to the law enforcement authority by another law
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enforcement authority, or
(d)
otherwise lawfully obtained or acquired by the law
enforcement authority for any of the purposes mentioned in
section 18D(1).
(4)
In any other case, section 18 material must be destroyed unless it is
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retained by the law enforcement authority under any power
conferred by section 18A or 18B, but this is subject to subsection (5).
(5)
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
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(b)
if sooner, before the end of the period of 6 months beginning
with the date on which it was taken.
(6)
Section 18 material which ceases to be retained under a power
mentioned in subsection (4) may continue to be retained under any
other such power which applies to it.
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(7)
Nothing in this section prevents section 18 material from being
checked against other fingerprints, DNA samples or DNA profiles
held by a law enforcement authority within such time as may
reasonably be required for the check, if the responsible officer
considers the check to be desirable.
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(8)
For the purposes of subsection (1), the following are “existing
statutory restrictions”—
(a)
sections 63A and 63D to 63T of the Police and Criminal
Evidence Act 1984;
(b)
Articles 63A and 64 of the Police and Criminal Evidence
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(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));
(c)
paragraphs 20(3) or 20A to 20I of Schedule 8 to the Terrorism
Act 2000;
(d)
section 2(2) of the Security Service Act 1989;
(e)
section 1(2) of the Intelligence Services Act 1994.
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