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New Clause 1 — Retention, destruction and use of fingerprints and samples

Part of Crime and Security Bill – in the House of Commons at 4:00 pm on 8th March 2010.

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Photo of John Bercow John Bercow Chair, Members Estimate Committee, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons 4:00 pm, 8th March 2010

With this it will be convenient to discuss the following: new clause 5- Destruction of fingerprints and samples-

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

(2) After section 64A insert-

"64B Destruction of fingerprints and samples etc.

(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has 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 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.

(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of-

(a) the lapse of any applicable appeal period, and

(b) a decision not to appeal such proceedings.

(4) Material falls within this subsection if it is-

(a) fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence;

(b) a DNA profile derived from a DNA sample so taken;

(c) photographs falling within a description specified in the regulations; or

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

(5) 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 6- Retention of voluntary samples-

'(1) 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) 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-

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

(ii) 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 7- Repeal of section 82 of the Criminal Justice and Police Act 2001-

'Section 82 of the Criminal Justice and Police Act 2001 is repealed.'.

New clause 9- National DNA Database Reviewer-

'(1) Within 12 months of the coming into force of any of sections 14 to 21, the Secretary of State shall appoint a Reviewer to be known as the National DNA Database Reviewer.

(2) Subject to subsection (4), the National DNA Database Reviewer shall keep under review-

(a) the exercise and performance, of the powers and duties conferred or imposed by section 64ZI(5) of the Police and Criminal Evidence Act 1984;

(b) the exercise and performance of the powers conferred by section 64ZK of the Police and Criminal Evidence Act 1984;

(c) the exercise and performance of the powers and duties conferred or imposed by Article 64ZI(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(d) the exercise and performance of the powers conferred by Article 64ZK of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(e) the exercise and performance of the powers and duties conferred or imposed by paragraph 14F(5) of Schedule 8 to the Terrorism Act 2000;

(f) the exercise and performance of the powers and duties conferred or imposed by paragraph 14G of Schedule 8 to the Terrorism Act 2000; and

(g) the exercise and performance of the powers and duties conferred or imposed by section 18(3E) of the Counter-Terrorism Act 2008.

(3) Within 12 months of his appointment, and every 12 months thereafter, the National DNA Database Reviewer must lay a report of the findings of his review before both Houses of Parliament.

(4) Each report of the National DNA Database Reviewer must include consideration of-

(a) the number of decisions taken during the proceeding 12 months period under each of the powers in subsection (2);

(b) the grounds for any decisions taken during any preceding 12 month period under each of the powers in subsection (2);

(c) an equality impact assessment of the exercise of the powers in subsection (2) over the preceding 12 month period; and

(d) an assessment of the operation of each of the powers in subsection (2).'.

Government amendments 8 to 10.

Amendment 30, in clause 6, page 13, line 21, at end insert-

'15A Fingerprints and non-intimate samples may only be taken under sections 61(5A), 61(5B), 63(3ZA) and 63(3A) from a person at a police station.'.

Government amendments 11 to 13.

Amendment 3, in page 28, line 20, leave out Clauses 14 to 21.

Amendment 29, in page 28, line 20, leave out Clauses 14 to 20.

Amendment 36, in clause 14, page 31, line 5, leave out from 'offence' to end of line 6.

Amendment 37, page 31, leave out lines 11 to 23 and insert-

'(3) Subject to subsections (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.

(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Part who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA 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), such date being the "initial DNA retention date"; or

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

(3AB) On application made by the responsible chief officer of police within the period of three months before the initial retention date or the initial DNA retention date as the case may be, 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 fingerprint, impression of footwear or DNA profile.

(3AC) An order under subsection (3AB) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA profile.

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

(3AE) Subsection (3AA) does not apply where-

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

(b) the period within which an appeal may be brought under subsection (3AD) 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.

(3AF) Where-

(a) the period within which an appeal referred to in subsection (3AD) 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 (3AC), the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.

(3AG) For the purposes of this section 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.

(3AH) An order under this section must be made by statutory instrument.

(3AI) A statutory instrument containing an order under subsection (3AH) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.'.

Amendment 38, page 31, line 27, leave out from beginning to end of line 10 on page 35.

Amendment 33, page 37, line 26, at end insert-

'(5) For the purposes of subsection (1), "for the purposes of national security" means for the purposes of investigating significant threats to the security of the United Kingdom arising from-

(a) terrorist activities;

(b) nuclear weapons and other weapons of mass destruction;

(c) trans-national organised crime;

(d) global instability and conflict;

(e) civil emergencies; or

(f) state-led threats to the United Kingdom.'.

Amendment 34, page 37, line 26, at end insert-

'64ZKA Approval required for retention for the purposes of national security

(1) This section applies where a chief officer determines that retention for the purposes of national security is necessary.

(2) Subject to subsection (3), the determination shall not take effect until such time (if any) as-

(a) the determination has been approved by the Information Commissioner; and

(b) written notice of the Commissioner's decision to approve the determination has been given, in accordance with subsection (3), to the chief officer who made the original determination.

(3) Where subsection (2) applies-

(a) the Information Commissioner shall give his approval under this section to the authorisation if, and only if, he is satisfied that there are reasonable grounds for believing that the requirements of section 64ZK(1) are satisfied in the case of the determination; and

(b) the Information Commissioner shall, as soon as reasonably practicable after making that decision, give written notice of his decision to the Chief Constable.

(4) Any determination under paragraph (1) includes a decision that a determination should be renewed pursuant to section 64ZK(3).'.

Amendment 39, in clause 15, page 41, line 46, leave out from 'offence' to end of line 47.

Amendment 40, page 42, leave out lines 5 to 17 and insert-

'(3) Subject to paragraphs (3AA) to (3AI), the material must be destroyed as soon as it has fulfilled the purpose for which it was taken or supplied.

(3AA) Where any fingerprint, impression of footwear or DNA profile has been taken from a person under this Order who is arrested for or charged with a sexual offence or violent offence, the fingerprint, impression of footwear or DNA profile shall be destroyed no later than-

(a) in the case of fingerprints or impressions of footwear, before the end of the period of three years beginning with the date on which the fingerprints or impression were taken, such date being the "initial retention date"; or

(b) in the case of a DNA profile, before the end of the period of three years beginning with the date on which the DNA sample from which the DNA 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), such date being the "initial DNA retention date"; or

(c) such later date as may be ordered under paragraph (3AB).

(3AB) On application made by the Chief Constable within the period of three months before the initial retention date or the initial DNA retention date as the case may be, 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 fingerprint, impression of footwear or DNA profile.

(3AC) An order under paragraph (3AB) shall not specify a date more than two years later than-

(a) the initial retention date in relation to fingerprints or impressions of footwear, or

(b) the initial DNA retention date in the case of a DNA profile.

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

(3AE) Paragraph (3AA) does not apply where-

(a) an application under paragraph (3AB) above has been made but has not been determined;

(b) the period within which an appeal may be brought under paragraph (3AD) 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.

(3AF) Where-

(a) the period within which an appeal referred to in paragraph (3AD) 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 paragraph (3AC), the fingerprint, impression of footwear or DNA profile shall be destroyed as soon as possible thereafter.'.

Amendment 41, page 42, line 21, leave out from beginning to end of line 2 on page 46.

Amendment 42, page 49, line 29, at end insert-

'(5) For the purposes of this section 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 the Police and Criminal Evidence (Northern Ireland) Order 1989.

(6) An order under this section must be made by statutory instrument.

(7) A statutory instrument containing an order under subsection (6) above shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.'.

Amendment 4, in clause 22, page 71, line 24, leave out from first 'of' to 'which' and insert

'section [Retention, destruction and use of fingerprints and samples]'.

Amendment 5, page 71, line 31, leave out 'sections 64 to 64ZN' and insert 'section 64'.

Amendment 35, page 72, line 2, at end insert-

'(6) A statutory instrument containing an order under this section must be laid before Parliament within 12 months of Royal Assent to this Act.'.

Government amendments 14 to 16.

Amendment 6, in clause 58, page 106, line 30, leave out subsections (4) to (8).

Amendment 7, page 106, line 30, leave out '20 to' and insert '22 and'.