Schedule 1: Amendments of regimes other than PACE
Part 1: Material subject to the Terrorism Act 2000
113.Paragraph 14 of Schedule 8 to the Terrorism Act 2000 (“the 2000 Act”) as originally enacted provides for the retention of fingerprints and samples (and DNA profiles derived from samples) taken from persons detained under section 41 of or Schedule 7 to the 2000 Act (that is persons arrested as a suspected terrorist or persons detained under the ports and border control provisions in Schedule 7) without reference to a retention period. Paragraph 14 of Schedule 8 also sets out the purposes for which these fingerprints, samples and profiles may be used.
114.Paragraph 14 of Schedule 8 to the 2000 Act is repealed by Part 1 of Schedule 1 to this Act. Paragraph 1(4) inserts new paragraphs 20A to 20I into Schedule 8 of the 2000 Act, which make provision for a destruction and retention regime broadly equivalent to that set out in new sections 63D to 63T of PACE. It is a general feature that material must be destroyed unless it is retained under a power conferred under new paragraphs 20B to 20E; except in the case of samples which must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample and in any event within six months of taking the sample (new paragraph 20G). New paragraphs 20(6) to 20(13) replicate the provisions in new sections 63R(6) to (12) of PACE (see paragraph 101 above) to provide that samples may be retained for a longer period than six months in certain circumstances. The time limits for retention depend on whether the person has previous convictions or one exempt conviction (that is, a conviction for a minor offence committed when they were under 18) and whether the person has been detained under section 41 (arrest on reasonable suspicion of being a terrorist) of, or under Schedule 7 (detention at ports and borders) to, the 2000 Act. Where, following detention under section 41 or Schedule 7, the person is convicted of a recordable offence in England and Wales or Northern Ireland or an offence punishable by imprisonment in Scotland (or where the person already has such a conviction in England and Wales or Northern Ireland, other than an exempt conviction), the material need not be destroyed and may be retained indefinitely.
115.As is the case in relation to section 63D material in PACE, where fingerprints or DNA profiles would otherwise need to be destroyed, if a chief officer of police (or chief constable in Northern Ireland) determines that it is necessary to retain that material for the purposes of national security, that material may be further retained for up to two years (new paragraph 20E). It is open to that chief officer to renew a national security determination in respect of the same material to further extend the retention period by up to two years at a time.
116.New paragraph 20F replicates the effect of the new provisions in new section 63Q of PACE in relation to the destruction of copies of fingerprints and DNA profiles. New paragraph 20H largely replicates the provisions as originally enacted in paragraph 14 of Schedule 8 to the 2000 Act (as prospectively amended by section 16 of the Counter-Terrorism Act 2008 (“the 2008 Act”)) in relation to the uses to which retained material may be put; it may be used in the interests of national security, for the purposes of a terrorist investigation, for the investigation of crime or for identification-related purposes (sub-paragraph (1)). Where a responsible chief officer of police considers that a relevant search (that is, the checking of fingerprints or DNA profiles against other material held) is desirable, paragraph 20H(2) provides an express power to carry out such a search. Paragraph 20H(3) is also new, and provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence.
117.New paragraph 20I replicates the new section 63U(3) of PACE (see section 17) to provide that material taken from a person detained under section 41 of the 2000 Act need not be destroyed where it may fall to be disclosed under the Criminal Procedure and Investigations Act 1996 or its Code of Practice. Where material is retained in order to comply with that Act, it will be removed from the relevant database and held only in hard copy on the police case file, where it will be available for use only in connection with that particular case.
118.Paragraph 1(5) to (8) makes further consequential amendments to Schedule 8 to the 2000 Act.
Part 2: Material subject to the International Criminal Court Act 2001
119.Fingerprints and samples may be taken from a person under Schedule 4 to the International Criminal Court Act 2001 if the International Criminal Court (“ICC”) requests assistance in obtaining evidence of the identity of a person (who will usually be a person suspected of committing an “ICC crime” such as genocide or war crimes). Under new section 63U(3) of PACE, inserted by section 17 of this Act, the regime in Chapter 1 of Part 1 of this Act does not apply to such material. Part 2 of Schedule 1 instead substitutes a new paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 to make provision for the retention and destruction of material taken under that Schedule, so that all material must be destroyed within six months of it being transferred to the ICC or, if later, as soon as it has fulfilled the purposes for which it was taken.
Part 3: National security material subject to section 18 of the Counter-Terrorism Act 2008
120.Part 3 inserts a new section 18 and new sections 18A to 18E into the 2008 Act (section 18 of the 2008 Act has not been brought into force). New section 18 makes provision for the destruction of national security material that is not subject to existing statutory restrictions.
121.New section 18 makes provision for the retention, by law enforcement authorities under the law of England and Wales and Northern Ireland, of fingerprints, DNA samples and profiles on national security grounds which has been obtained by or supplied to the authority in the way described in section 18(3) (mostly covertly acquired material and material supplied by overseas authorities) and which is not subject to “existing statutory restrictions”, such as those set out in the Immigration Act 1971, PACE, the PACE (Northern Ireland) Order 1989, or in Schedule 8 to the 2000 Act. It is a general feature that material must be destroyed unless it is retained under a power conferred under new sections 18A and 18B; except in the case of samples which must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample and in any event within six months of taking the sample.
122.New section 18A makes provision for limited retention of material taken from persons with no previous convictions. New section 18B provides for extended retention for the purposes of national security. Where fingerprints or DNA profiles would otherwise need to be destroyed (because of the expiry of a time limit set out in the new provisions), if the ‘responsible officer’ determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years. It is open to that chief officer to renew a national security determination in respect of the same material to further extend the retention period by up to two years at a time. ‘Responsible officer’ is defined in new section 18E.
123.New section 18C replicates the effect of the new provisions in new section 63Q of PACE (destruction of copies) and new paragraph 20F of Schedule 8 to the 2000 Act about the destruction of copies of fingerprints and DNA profiles that are held by a law enforcement agency. New section 18D makes provision about the purposes for which material may be used which are the same as those now included in new section 63T of PACE. It also includes (new section 18(2)) an express power for section 18 material to be checked against other material (held by law enforcement authorities or the Scottish Police Services Authority). New section 18D(3) provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence. New section 18E provides definitions of terms used in new sections 18 to 18D.
Part 4: Material subject to the Terrorism Prevention and Investigation Measures Act 2011
124.Paragraph 5 amends Schedule 6 to the Terrorism Prevention and Investigation Measures (“TPIM”) Act 2011 which makes provision for the taking and retention of biometric material from a person subject to a TPIM notice. This paragraph makes similar provision to new section 65B(3) of PACE (see section 18), namely that for the purpose of the rules set down in Schedule 6 to the TPIM Act governing the retention of fingerprints and DNA profiles, a person is not to be regarded as having been convicted of or cautioned for an offence under section 12 (buggery) or 13 (gross indecency between men) of the Sexual Offences Act 1956 (and similar offences) if that conviction or caution is disregarded under the provisions of Chapter 4 of Part 5 of the Act.
Part 5: Material subject to the Criminal Procedure (Scotland) Act 1995
125.Paragraph 6(3) inserts new section 18G into the Criminal Procedure (Scotland) Act 1995 This provides that where relevant physical data, samples or information derived from samples taken under the powers mentioned in that new section would otherwise need to be destroyed because of the expiry of a time limit set out in the new provisions, if the ‘relevant chief constable’ determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years. The relevant chief constable may make further determinations to retain the material, which again have effect for a maximum of two years. ‘Relevant chief constable’ is defined in new section 18G(6) and paragraph 6(2) makes a consequential amendment to the Criminal Procedure (Scotland) Act.
Part 6: Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989
126.This Part makes provision in respect of Northern Ireland equivalent to that in section 9 (material retained for the purposes of national security) in respect of England and Wales.
Part 7: Corresponding Northern Ireland provision for excepted or reserved matters etc.
127.Part 7 confers two order-making powers on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order 1989 in respect of the retention and destruction of fingerprints and DNA for excepted or reserved purposes, that is, where retention is in the interests of national security or for the purposes of a terrorist investigation, and in respect of a transferred matter where that matter is ancillary to a reserved or excepted matter. The Police and Criminal Evidence (Northern Ireland) Order 1989 makes provision for the taking, retention and destruction of fingerprints and DNA by police in Northern Ireland for transferred purposes and closely reflects the provisions in Part 5 of PACE which operates in England and Wales. The order making powers conferred on the Secretary of State by paragraph 8(2) and (3) are required as the Northern Ireland Assembly is expected to legislate in the near future, following public consultation, in relation to the taking and retention of fingerprints and DNA for transferred purposes (in response to the ECtHR judgment in the case of S and Marper v UK [2008] ECHR 1581). It is only when this legislation is enacted that the Secretary of State can make certain further provision in relation to excepted and reserved matters. By virtue of paragraph 8(6) and (7), an order made under this paragraph is subject to the affirmative resolution procedure if it amends or repeals primary legislation but is otherwise subject to the negative resolution procedure.
