New Clause 1 — Destruction of samples etc: England and Wales

Part of Commission for the Compact – in the House of Commons at 4:36 pm on 19th May 2009.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means 4:36 pm, 19th May 2009

With this it will be convenient to discuss the following:

New clause 2— Destruction of samples etc: service offences

'(1) Section 113 of the Police and Criminal Evidence Act 1984 (c. 60) (application to armed forces) is amended as follows—

(2) After subsection (1) insert—

"(1A) After a person is released without charge or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or sample being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample must be held for a period of three years, after which it must be destroyed."'.

New clause 3— Destruction of samples etc (Northern Ireland)

'(1) That Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/3141 (N.I 12)) is amended as follows—

(2) After Article 64A insert—

"Destruction of samples etc

"(1) After a person is not charged or acquitted of the offence for which a sample has been taken that sample shall be destroyed within one month of the fingerprints or samples being taken or the person being acquitted, unless the offence was of a violent or sexual nature.

(2) If the offence was of a violent or sexual nature that sample should be held for a period of three years, and then be destroyed.

(3) This section applies to the following material—

(a) photographs falling within a description specified in the regulations,

(b) fingerprints taken from a person in connection with the investigation of an offence,

(c) impressions of footwear so taken from a person,

(d) DNA and other samples so taken from a person,

(e) information derived from DNA samples so taken from a person.

(4) For the purposes of this section—

(a) "photograph" includes a moving image, and

(b) the reference to a DNA sample is a reference to any material that has come from a human body and consists of or includes human cells."'.

New clause 31— Retention of voluntary samples etc.

'(1) That the Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

(2) After section 64(1A)(b) insert—

"(c) any other provision in this Part does not prohibit or restrict their retention or require their destruction.".

(3) For section 64(3AC) substitute—

"3AC Retention of voluntary samples etc.

Where a person from whom a fingerprint, impression of footwear or sample has been taken consents in writing to its retention—

(a) that sample need not be destroyed under subsection (3) above;

(b) subsection (3AB) above shall not restrict the use that may be made of the sample or of any information derived from it; and

(c) that consent shall be treated as comprising a consent for the purposes of section 63A(1C) above; provided that—

(1) No sample or information derived from any sample may be retained on any child under the age of 10 years; and

(2) Consent given for the purposes of this subsection shall be capable of being withdrawn by such person upon making written application to the responsible chief officer of police or person authorised by the Secretary of State for such purpose whereupon such sample and any information derived therefrom shall be destroyed as soon as possible following receipt of such written application."'.

New clause 32— Retention of samples following arrest

'(1) The Police and Criminal Evidence Act 1984 (c.60) is amended as follows.

(2) After section 64A insert—

"64B Retention of samples

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has been given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.

(2) Subsection (1) above shall not apply—

(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or

(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or

(c) where sections 64C or 64D apply.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of the (1) the lapse of any applicable appeal period and (2) a decision is made not to appeal such proceedings.

64C Retention of samples etc (violent and sexual offences)

(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.

(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than:

(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or

(b) such later date as may be ordered under subsection (3).

(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.

(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.

(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(6) Subsection (2) does not apply where—

(a) an application under subsection (3) above has been made but has not been determined.

(b) the period within which an appeal may be brought under subsection (5) above against a decision to refuse an application has not elapsed; or

(c) such an appeal has been brought but has not been withdrawn or finally determined.

(7) Where—

(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or

(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2), the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.

(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.

64D Retention of Samples - Residual Power

(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed if it has reasonable grounds to believe that:

(a) there is a serious risk of harm to the public or a section of the public; and

(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.

(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.

(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.

(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined.

(3) At end of section 113(1) insert—

"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applied to persons investigated or under arrest under such Acts.".'.

Amendment 28, page 116, line 16, leave out Clause 95.

Government amendment 112.

Amendment 29, page 117, line 32, leave out Clause 96.

Amendment 30, page 118, line 3, leave out Clause 97.

Government amendment 113.

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