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
Schedule 1 — Amendments of regimes other than PACE
Part 3 — Material subject to section 18 of the Counter-Terrorism Act 2008
94

18A
Retention of material: general
(1)
Section 18 material which is not a DNA sample and relates to a
person who has no previous convictions or only one exempt
conviction may be retained by the law enforcement authority until
the end of the retention period specified in subsection (2).
5
(2)
The retention period is—
(a)
in the case of fingerprints, the period of 3 years beginning
with 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
10
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).
(3)
Section 18 material which is not a DNA sample and relates to a
person who has previously been convicted of a recordable offence
15
(other than a single exempt conviction), or is so convicted before the
material is required to be destroyed by virtue of this section, may be
retained indefinitely.
18B
Retention for purposes of national security
(1)
Section 18 material which is not a DNA sample may be retained for
20
as long as a national security determination made by the responsible
officer has effect in relation to it.
(2)
A national security determination is made if the responsible officer
determines that it is necessary for any such section 18 material to be
retained for the purposes of national security.
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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 the determination is made, and
(c)
may be renewed.
30
18C
Destruction of copies
(1)
If fingerprints are required by section 18 to be destroyed, any copies
of the fingerprints held by the law enforcement authority concerned
must also be destroyed.
(2)
If a DNA profile is required by that section to be destroyed, no copy
35
may be retained by the law enforcement authority concerned except
in a form which does not include information which identifies the
person to whom the DNA profile relates.
18D
Use of retained material
(1)
Section 18 material must not be used other than—
40
(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
prosecution, or
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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
95

(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 18 to be destroyed 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,
5
or
(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
10
to any 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
20
include 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.
18E
Sections 18 to 18E: supplementary provisions
25
(1)
In sections 18 to 18D and this section—
“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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“fingerprints” means a record (in any form and produced by
any method) of the skin pattern and other physical
characteristics or features of a person’s fingers or either of a
person’s palms;
“law enforcement authority” means—
35
(a)
a police force,
(b)
the Serious Organised Crime Agency,
(c)
the Commissioners for Her Majesty’s Revenue and
Customs, or
(d)
a person formed or existing under the law of a
40
country or territory outside the United Kingdom so
far as exercising functions which—
(i)
correspond to those of a police force, or
(ii)
otherwise involve the investigation or
prosecution of offences;
45
“police force” means any of the following—
(a)
the metropolitan police force;

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
96

(b)
a police force maintained under section 2 of the Police
Act 1996 (police forces in England and Wales outside
London);
(c)
the City of London police force;
(d)
any police force maintained under or by virtue of
5
section 1 of the Police (Scotland) Act 1967;
(e)
the Police Service of Northern Ireland;
(f)
the Police Service of Northern Ireland Reserve;
(g)
the Ministry of Defence Police;
(h)
the Royal Navy Police;
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(i)
the Royal Military Police;
(j)
the Royal Air Force Police;
(k)
the British Transport Police;
“recordable offence” has—
(a)
in relation to a conviction in England and Wales, the
15
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 (Northern Ireland) Order 1989
20
(S.I. 1989/1341 (N.I. 12));
“the 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;
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(b)
in relation to material obtained or acquired by the
Police Service of Northern Ireland or the Police
Service of Northern Ireland Reserve, the Chief
Constable of the Police Service of Northern Ireland;
(c)
in relation to material obtained or acquired by the
30
Ministry of Defence Police, the Chief Constable of the
Ministry of Defence Police;
(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
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police force which obtained or acquired the material;
(e)
in relation to material obtained or acquired by the
British Transport Police, the Chief Constable of the
British Transport Police;
(f)
in relation to material obtained or acquired by the
40
Serious Organised Crime Agency, the Director
General of the Serious Organised Crime Agency;
(g)
in relation to material obtained or acquired by the
Commissioners for Her Majesty’s Revenue and
Customs, any of those Commissioners;
45
(h)
in relation to any other material, such person as the
Secretary of State may by order specify;
“section 18 material” has the meaning given by section 18(2);
“terrorist investigation” has the meaning given by section 32 of
the Terrorism Act 2000.
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Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 4 — Material subject to the Criminal Procedure (Scotland) Act 1995
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(2)
An order under subsection (1) is subject to negative resolution
procedure.
(3)
For the purposes of section 18A, a person is to be treated as having
been convicted of an offence if the person—
(a)
has been given a caution in respect of the offence which, at
5
the time of the caution, the person has admitted, or
(b)
has been warned or reprimanded under section 65 of the
Crime and Disorder Act 1998 for the offence.
(4)
Sections 18A and this section, so far as they relate to persons
convicted of an offence, have effect despite anything in the
10
Rehabilitation of Offenders Act 1974.
(5)
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.
(6)
For the purposes of section 18A—
15
(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
(b)
if the person has been previously so convicted of a recordable
offence, the conviction is exempt if it is in respect of a
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recordable offence, other than a qualifying offence,
committed when the person was aged under 18.
(7)
In subsection (6), “qualifying offence” has—
(a)
in relation to a conviction in respect of a recordable offence
committed in England and Wales, the meaning given by
25
section 65A of the Police and Criminal Evidence Act 1984,
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)
30
Order 1989 (S.I. 1989/1341 (N.I. 12)).
(8)
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 section 18A whether
the person has been convicted of only one offence.”
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Part 4
Material subject to the Criminal Procedure (Scotland) Act 1995
5     (1)
The Criminal Procedure (Scotland) Act 1995 is amended as follows.
      (2)
In section 18(3), for “18F” substitute “18G”.
      (3)
After section 18F insert—
40
“18G
Retention of samples etc: national security
(1)
This section applies to—
(a)
relevant physical data taken from or provided by a person
under section 18(2) (including any taken or provided by

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 4 — Material subject to the Criminal Procedure (Scotland) Act 1995
98

virtue of paragraph 20 of Schedule 8 to the Terrorism Act
2000),
(b)
any sample, or any information derived from a sample, taken
from a person under section 18(6) or (6A) (including any
taken by virtue of paragraph 20 of Schedule 8 to the
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Terrorism Act 2000),
(c)
any relevant physical data, sample or information derived
from a sample taken from, or provided by, a person under
section 19AA(3),
(d)
any relevant physical data, sample or information derived
10
from a sample which is held by virtue of section 56 of the
Criminal Justice (Scotland) Act 2003, and
(e)
any relevant physical data, sample or information derived
from a sample taken from a person—
(i)
by virtue of any power of search,
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(ii)
by virtue of any power to take possession of evidence
where there is immediate danger of its being lost or
destroyed, or
(iii)
under the authority of a warrant.
(2)
The relevant physical data, sample or information derived from a
20
sample may be retained for so long as a national security
determination made by the relevant chief constable has effect in
relation to it.
(3)
A national security determination is made if the relevant chief
constable determines that is necessary for the relevant physical data,
25
sample or information derived from a sample to be retained for the
purposes of national security.
(4)
A national security determination—
(a)
must be made in writing,
(b)
has effect for a maximum of 2 years beginning with the date
30
on which the determination is made, and
(c)
may be renewed.
(5)
Any relevant physical data, sample or information derived from a
sample which is retained in pursuance of a national security
determination must be destroyed as soon as possible after the
35
determination ceases to have effect (except where its retention is
permitted by any other enactment).
(6)
In this section, “the relevant chief constable” means the chief
constable of the police force of which the constable who took the
relevant physical data, or to whom it was provided, or who took or
40
directed the taking of the sample, was a member.”
      (4)
In section 19C—
(a)
in subsection (1), at the end of both paragraph (a) and paragraph (b)
insert “(including any taken or provided by virtue of paragraph 20 of
Schedule 8 to the Terrorism Act 2000)”,
45
(b)
in subsection (2)—
(i)
omit the word “or” at the end of paragraph (a), and
(ii)
after paragraph (b) insert—
“(c)
in the interests of national security, or

Protection of Freedoms Bill
Schedule 1 — Amendments of regimes other than PACE
Part 6 — Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989
99

(d)
for the purposes of a terrorist investigation.”,
(c)
after subsection (2) insert—
“(2A)
Despite subsection (2), the relevant physical data, sample or
information derived from a sample may not be used for the
purposes mentioned in paragraphs (a) and (b) of that
5
subsection if its retention is lawful only by virtue of a national
security determination made under section 18G.”, and
(d)
in subsection (6)—
(i)
omit the word “and” at the end of paragraph (b), and
(ii)
after paragraph (c) insert “, and
10
“(d)
“terrorist investigation” has the meaning given by
section 32 of the Terrorism Act 2000.”
Part 5
Material subject to the Criminal Justice (Scotland) Act 2003
6     (1)
Section 56 of the Criminal Justice (Scotland) Act 2003 (asp 7) (retaining
15
sample or relevant physical data where given voluntarily) is amended as
follows.
      (2)
In subsection (2)—
(a)
omit the word “or” at the end of paragraph (a), and
(b)
after paragraph (b) insert—
20
“(c)
in the interests of national security, or
(d)
for the purposes of a terrorist investigation.”
      (3)
In subsection (8)—
(a)
omit the word “and” at the end of the definition of “sample”, and
(b)
after the definition of “relevant physical data” insert “; and
25
“terrorist investigation” has the meaning given by
section 32 of the Terrorism Act 2000.”
Part 6
Material subject to the Police and Criminal Evidence (Northern Ireland)
Order 1989
30
7     (1)
This paragraph applies to the following material—
(a)
a DNA profile to which Article 64 of the 1989 Order (destruction of
fingerprints and samples) applies, or
(b)
fingerprints to which Article 64 of the 1989 Order applies, other than
fingerprints taken under Article 61(6A) of that Order.
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      (2)
If the Chief Constable of the Police Service of Northern Ireland determines
that it is necessary for any material to which this paragraph applies to be
retained for the purposes of national security—
(a)
the material is not required to be destroyed in accordance with
Article 64 of the 1989 Order, and
40
(b)
Article 64(3AB) of that Order does not apply to the material,

for as long as the determination has effect.

Protection of Freedoms Bill
Schedule 2 — Repeals etc. of powers of entry
Part 1 — Water and Environment
100

      (3)
A determination under sub-paragraph (2) (“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 material would (but for this paragraph) first become liable
5
for destruction under the 1989 Order, and
(c)
may be renewed.
      (4)
Material retained under this paragraph must not be used other than—
(a)
in the interests of national security, or
(b)
for the purposes of a terrorist investigation.
10
      (5)
This paragraph has effect despite any provision to the contrary in the 1989
Order.
      (6)
The reference in sub-paragraph (4) to using material includes a reference to
allowing any check to be made against it and to disclosing it to any person.
      (7)
In this paragraph—
15
“the 1989 Order” means the Police and Criminal Evidence (Northern
Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));
“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;
20
“terrorist investigation” has the meaning given by section 32 of the
Terrorism Act 2000.
Schedule 2
Section 39(2)

Repeals etc. of powers of entry
Part 1
25
Water and Environment
Public Health (Control of Disease) Act 1984
1     (1)
Omit section 50 of the Public Health (Control of Disease) Act 1984 (power in
relation to England and Wales to enter and inspect canal boats).
      (2)
This paragraph extends to England and Wales only.
30
Merchant Shipping Act 1995
2     (1)
Omit section 258(4) of the Merchant Shipping Act 1995 (power of surveyor
of ships etc. to enter premises to determine whether provisions or water
intended for UK ships, including government ships, would be in accordance
with safety regulations).
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      (2)
Sub-paragraph (1) does not apply to section 258(4) of the Act of 1995 so far
as it applies for the purposes of section 256A of that Act (extension of power
of entry to any member of the staff of the Scottish Administration authorised
by the Scottish Ministers).