Protection of Freedoms Act 2012

Publication Date:January 01, 2012


Protection of Freedoms Act 2012

2012 CHAPTER 9

An Act 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 amend the maximum detention period for terrorist suspects; to replace certain stop and search powers and to provide for a related code of practice; to make provision about the safeguarding of vulnerable groups and about criminal records including provision for the establishment of the Disclosure and Barring Service and the dissolution of the Independent Safeguarding Authority; 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 make provision about the trafficking of people for exploitation and about stalking; to repeal certain enactments; and for connected purposes.

[1st May 2012]

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:-

1 Regulation of biometric data

Part 1

Regulation of biometric data

Destruction rule for fingerprints and DNA profiles subject to PACE

CHAPTER 1

Destruction, retention and use of fingerprints etc

Destruction rule for fingerprints and DNA profiles subject to PACE

S-1 Destruction of fingerprints and DNA profiles

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-

(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

(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-

(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 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 63O (including those sections as applied by section 63P)

(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 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

Modification of rule for particular circumstances

S-2 Material retained pending investigation or proceedings

2 Material retained pending investigation or proceedings

After section 63D of the Police and Criminal Evidence Act 1984 (for which see 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 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 proceedings."

S-3 Persons arrested for or charged with a qualifying offence

3 Persons arrested for or charged with a qualifying offence

After section 63E of the Police and Criminal Evidence Act 1984 (for which see 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 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 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).

(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 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 sample taken) in connection with the investigation of the offence, an d

(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.

(6)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 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).

(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 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 end of the retention period.

(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.

(11)In this section-
"excluded offence", in relation to a person, means a recordable offence-
(a)which-

(i) is not a qualifying offence,

(ii) is the only recordable offence of which the person has been convicted, and

(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,

"relevant custodial sentence" has the meaning given by section 63K(6),

"a specified chief officer of police" means-

(a) the chief officer of the police force of the area in which 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.

63G Retention of section 63D material by virtue of section 63F(5): consent of Commissioner

(1) The responsible chief officer of police may apply under subsection (2) or (3) to the Commissioner for the Retention and Use of Biometric Material for consent to the retention of section 63D material which falls within section 63F(5)(a) and (b).

(2)The responsible chief officer of police may make an application under this subsection if the responsible chief officer of police considers that the material was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of an offence where any alleged victim of the offence was, at the time of the offence-

(a) under the age of 18,

(b) a vulnerable adult, or

(c) associated with the person to whom the material relates.

(3)The responsible chief officer of police may make an application under this subsection if the responsible chief officer of police considers that-

(a) the material is not material to which subsection (2) relates, but

(b) the retention of the material is necessary to assist in the prevention or detection of crime.

(4) The Commissioner may, on an application under this section, consent to the retention of material to which the application relates if the Commissioner considers that it is appropriate to retain the material.

(5) But where notice is given under subsection (6) in...

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