New Clause 36 - Retention of biometric data and recordable offences

Data Protection and Digital Information Bill – in the House of Commons at 4:15 pm on 29 November 2023.

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“(1) Part 1 of the Counter-Terrorism Act 2008 (powers to gather and share information) is amended in accordance with subsections (2) to (10).

(2) In section 18A(3) (retention of material: general), after “recordable offence” insert “or recordable-equivalent offence”.

(3) Section 18E (supplementary provision) is amended in accordance with subsections (4) to (10).

(4) In subsection (1), after the definition of “recordable offence” insert—

““recordable-equivalent offence” means an offence under the law of a country or territory outside England and Wales and Northern Ireland where the act constituting the offence would constitute a recordable offence if done in England and Wales or Northern Ireland (whether or not the act constituted such an offence when the person was convicted);”.

(5) In subsection (3), in the words before paragraph (a), after “offence” insert “in England and Wales or Northern Ireland”.

(6) After subsection (5) insert—

“(5A) For the purposes of section 18A, a person is to be treated as having been convicted of an offence in a country or territory outside England and Wales and Northern Ireland if, in respect of such an offence, a court exercising jurisdiction under the law of that country or territory has made a finding equivalent to—

(a) a finding that the person is not guilty by reason of insanity, or

(b) a finding that the person is under a disability and did the act charged against the person in respect of the offence.”

(7) In subsection (6)(a)—

(a) after “convicted” insert “—

(i) ‘”, and

(b) after “offence,” insert “or

(ii) in a country or territory outside England and Wales and Northern Ireland, of a recordable-equivalent offence,”.

(8) In subsection (6)(b)—

(a) omit “of a recordable offence”, and

(b) for “a recordable offence, other than a qualifying offence” substitute “an offence, other than a qualifying offence or qualifying-equivalent offence”.

(9) In subsection (7), for “subsection (6)” substitute “this section”.

(10) After subsection (7) insert—

“(7A) In subsection (6), “qualifying-equivalent offence” means an offence under the law of a country or territory outside England and Wales and Northern Ireland where the act constituting the offence would constitute a qualifying offence if done in England and Wales or Northern Ireland (whether or not the act constituted such an offence when the person was convicted).”

(11) The amendments made by this section apply only in connection with the retention of section 18 material that is or was obtained or acquired by a law enforcement authority—

(a) on or after the commencement day, or

(b) in the period of 3 years ending immediately before the commencement day.

(12) Subsection (13) of this section applies where—

(a) at the beginning of the commencement day, a law enforcement authority has section 18 material which it obtained or acquired in the period of 3 years ending immediately before the commencement day,

(b) at a time before the commencement day (a “pre-commencement time”), the law enforcement authority was required by section 18(4) of the Counter-Terrorism Act 2008 to destroy the material, and

(c) at the pre-commencement time, the law enforcement authority could have retained the material under section 18A of the Counter-Terrorism Act 2008, as it has effect taking account of the amendments made by subsections (2) to (10) of this section, if those amendments had been in force.

(13) Where this subsection applies—

(a) the law enforcement authority is to be treated as not having been required to destroy the material at the pre-commencement time, but

(b) the material may not be used in evidence against the person to whom the material relates—

(i) in criminal proceedings in England and Wales, Northern Ireland or Scotland in relation to an offence where those proceedings, or other criminal proceedings in relation to the person and the offence, were instituted before the commencement day, or

(ii) in criminal proceedings in any other country or territory.

(14) In this section—

“the commencement day” means the day on which this Act is passed;

“law enforcement authority” has the meaning given by section 18E(1) of the Counter-Terrorism Act 2008;

“section 18 material” has the meaning given by section 18(2) of that Act.

(15) For the purposes of this section, proceedings in relation to an offence are instituted—

(a) in England and Wales, when they are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985 (see section 15(2) of that Act);

(b) in Northern Ireland, when they are instituted for the purposes of Part 2 of the Justice (Northern Ireland) Act 2002 (see section 44(1) and (2) of that Act);

(c) in Scotland, when they are instituted for the purposes of Part 3 of the Proceeds of Crime Act 2002 (see section 151(1) and (2) of that Act).”—(Sir John Whittingdale.)

This new clause enables a law enforcement authority to retain fingerprints and DNA profiles where a person has been convicted of an offence equivalent to a recordable offence in a jurisdiction outside England and Wales and Northern Ireland.

Brought up, read the First and Second time, and added to the Bill.