Protection of Freedoms Act 2012

Provision 1· GB, PoFA2012, section s1

Protection of Freedoms Act 2012, section 1 (1) After section 63C of the Police and Criminal Evidence Act 1984 insert— Destruction of fingerprints and DNA profiles (63D) (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 sam [...]

Provision 2· GB, PoFA2012, section s2

Protection of Freedoms Act 2012, section 2 (2) After section 63D of the Police and Criminal Evidence Act 1984 (for which see section 1) insert— Retention of section 63D material pending investigation or proceedings (63E) (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. Persons arrested for or charged with a qualifying offence

Provision 3· GB, PoFA2012, section s3

Protection of Freedoms Act 2012, section 3 (3) After section 63E of the Police and Criminal Evidence Act 1984 (for which see section 2) insert— Retention of section 63D material: persons arrested for or charged with a qualifying offence (63F) (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 [...]

Provision 4· GB, PoFA2012, section s3

Protection of Freedoms Act 2012, section 3 (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 t [...]

Provision 5· GB, PoFA2012, section s3

Protection of Freedoms Act 2012, section 3 Retention of section 63D material by virtue of section 63F(5): consent of Commissioner (63G) (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) [...]

Provision 6· GB, PoFA2012, section s3

Protection of Freedoms Act 2012, section 3 (a) an application under this section, and (b) the right to make representations. (7) A notice under subsection (6) may, in particular, be given to a person by— (a) leaving it at the person's usual or last known address (whether residential or otherwise), (b) sending it to the person by post at that address, or (c) sending it to the person by email or other electronic means. (8) The requirement in subsection (6) does not apply if the whereabouts of the person to whom the material relates is not known and cannot, after reasonable inquiry, be ascertained by the responsible chief officer of police. (9) An application or notice under this section must be in writing. (10) In this section— “victim” includes intended victim, “vulnerable adult” means a pe [...]

Provision 7· GB, PoFA2012, section s4

Protection of Freedoms Act 2012, section 4 (4) After section 63G of the Police and Criminal Evidence Act 1984 (for which see section 3) insert— Retention of section 63D material: persons arrested for or charged with a minor offence (63H) (1) This section applies to section 63D material which— (a) relates to a person who— (i) is arrested for or charged with a recordable offence other than a qualifying offence, (ii) if arrested for or charged with more than one offence arising out of a single course of action, is not also arrested for or charged with a qualifying offence, and (iii) is not convicted of the offence or offences in respect of which the person is arrested or charged, and (b) was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investiga [...]

Provision 8· GB, PoFA2012, section s5

Protection of Freedoms Act 2012, section 5 (5) After section 63H of the Police and Criminal Evidence Act 1984 (for which see section 4) insert— Retention of material: persons convicted of a recordable offence (63I) (1) This section applies, subject to subsection (3), to— (a) section 63D material which— (i) relates to a person who is convicted of a recordable offence, and (ii) was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence, or (b) material taken under section 61(6) or 63(3B) which relates to a person who is convicted of a recordable offence. (2) The material may be retained indefinitely. (3) This section does not apply to section 63D material to which section 63K applies. Persons convicted of an offence outside E [...]

Provision 9· GB, PoFA2012, section s6

Protection of Freedoms Act 2012, section 6 (6) After section 63I of the Police and Criminal Evidence Act 1984 (for which see section 5) insert— Retention of material: persons convicted of an offence outside England and Wales (63J) (1) This section applies to material falling within subsection (2) relating to a person who is convicted of an offence under the law of any country or territory outside England and Wales. (2) Material falls within this subsection if it is— (a) fingerprints taken from the person under section 61(6D) (power to take fingerprints without consent in relation to offences outside England and Wales), or (b) a DNA profile derived from a DNA sample taken from the person under section 62(2A) or 63(3E) (powers to take intimate and non-intimate samples in relation to offences [...]

Provision 10· GB, PoFA2012, section s7

Protection of Freedoms Act 2012, section 7 (7) After section 63J of the Police and Criminal Evidence Act 1984 (for which see section 6) insert— Retention of section 63D material: exception for persons under 18 convicted of first minor offence (63K) (1) This section applies to section 63D material which— (a) relates to a person who— (i) is convicted of a recordable offence other than a qualifying offence, (ii) has not previously been convicted of a recordable offence, and (iii) is aged under 18 at the time of the 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) Where the person is given a relevant custodial sentence of less than 5 years in respect of the offence, the material may be retained u [...]

Provision 11· GB, PoFA2012, section s7

Protection of Freedoms Act 2012, section 7 (6) In this section, “relevant custodial sentence” means any of the following— (a) a custodial sentence within the meaning of section 76 of the Powers of Criminal Courts (Sentencing) Act 2000; (b) a sentence of a period of detention and training (excluding any period of supervision) which a person is liable to serve under an order under section 211 of the Armed Forces Act 2006 or a secure training order. Persons given a penalty notice

Provision 12· GB, PoFA2012, section s8

Protection of Freedoms Act 2012, section 8 (8) After section 63K of the Police and Criminal Evidence Act 1984 (for which see section 7) insert— Retention of section 63D material: persons given a penalty notice (63L) (1) This section applies to section 63D material which— (a) relates to a person who is given a penalty notice under section 2 of the Criminal Justice and Police Act 2001 and in respect of whom no proceedings are brought for the offence to which the notice relates, and (b) was taken (or, in the case of a DNA profile, derived from a sample taken) from the person in connection with the investigation of the offence to which the notice relates. (2) The material may be retained— (a) in the case of fingerprints, for a period of 2 years beginning with the date on which the fingerprints [...]

Provision 13· GB, PoFA2012, section s9

Protection of Freedoms Act 2012, section 9 (9) After section 63L of the Police and Criminal Evidence Act 1984 (for which see section 8) insert— Retention of section 63D material for purposes of national security (63M) (1) Section 63D material may be retained for as long as a national security determination made by the responsible chief officer of police has effect in relation to it. (2) A national security determination is made if the responsible chief officer of police determines that it is necessary for any section 63D material to be retained for the purposes of national security. (3) A national security determination— (a) must be made in writing, (b) has effect for a maximum of 2 years beginning with the date on which it is made, and (c) may be renewed. Material given voluntarily

Provision 14· GB, PoFA2012, section s10

Protection of Freedoms Act 2012, section 10 (10) After section 63M of the Police and Criminal Evidence Act 1984 (for which see section 9) insert— Retention of section 63D material given voluntarily (63N) (1) This section applies to the following section 63D material— (a) fingerprints taken with the consent of the person from whom they were taken, and (b) a DNA profile derived from a DNA sample taken with the consent of the person from whom the sample was taken. (2) Material to which this section applies may be retained until it has fulfilled the purpose for which it was taken or derived. (3) Material to which this section applies which relates to— (a) a person who is convicted of a recordable offence, or (b) a person who has previously been convicted of a recordable offence (other than a p [...]

Provision 15· GB, PoFA2012, section s11

Protection of Freedoms Act 2012, section 11 (11) After section 63N of the Police and Criminal Evidence Act 1984 (for which see section 10) insert— Retention of section 63D material with consent (63O) (1) This section applies to the following material— (a) fingerprints (other than fingerprints taken under section 61(6A)) to which section 63D applies, and (b) a DNA profile to which section 63D applies. (2) If the person to whom the material relates consents to material to which this section applies being retained, the material may be retained for as long as that person consents to it being retained. (3) Consent given under this section— (a) must be in writing, and (b) can be withdrawn at any time. Material obtained for one purpose and used for another

Provision 16· GB, PoFA2012, section s12

Protection of Freedoms Act 2012, section 12 (12) After section 63O of the Police and Criminal Evidence Act 1984 (for which see section 11) insert— Section 63D material obtained for one purpose and used for another (63P) (1) Subsection (2) applies if section 63D material which is taken (or, in the case of a DNA profile, derived from a sample taken) from a person in connection with the investigation of an offence leads to the person to whom the material relates being arrested for or charged with, or convicted of, an offence other than the offence under investigation. (2) Sections 63E to 63O and sections 63Q and 63T have effect in relation to the material as if the material was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the of [...]

Provision 17· GB, PoFA2012, section s13

Protection of Freedoms Act 2012, section 13 (13) After section 63P of the Police and Criminal Evidence Act 1984 (for which see section 12) insert— Destruction of copies of section 63D material (63Q) (1) If fingerprints are required by section 63D to be destroyed, any copies of the fingerprints held by the police must also be destroyed. (2) If a DNA profile is required by that section to be destroyed, no copy may be retained by the police except in a form which does not include information which identifies the person to whom the DNA profile relates. Destruction rules for samples and impressions of footwear subject to PACE Destruction of samples

Provision 18· GB, PoFA2012, section s14

Protection of Freedoms Act 2012, section 14 (14) After section 63Q of the Police and Criminal Evidence Act 1984 (for which see section 13) insert— Destruction of samples (63R) (1) This section applies to samples— (a) taken from a person under any power conferred by this Part of this Act, or (b) 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. (2) Samples to which this section applies must be destroyed if it appears to the responsible chief officer of police that— (a) the taking of the samples was unlawful, or (b) the samples were taken from a person in connection with that person's arrest and the arrest was unlawful or based on mistaken identity. (3) Subject to this, the rule in subsection (4) o [...]

Provision 19· GB, PoFA2012, section s14

Protection of Freedoms Act 2012, section 14 (7) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of— (a) disclosure to, or use by, a defendant, or (b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely. (8) An application under subsection (6) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5). (9) If, on an application made by the responsible chief officer of police under subsection (6), the District Judge (Magistrates' Courts) is satisfied that the conditio [...]

Provision 20· GB, PoFA2012, section s14

Protection of Freedoms Act 2012, section 14 (13) Nothing in this section prevents a speculative search, in relation to samples to which this section applies, 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. Destruction of impressions of footwear

Provision 21· GB, PoFA2012, section s15

Protection of Freedoms Act 2012, section 15 (15) After section 63R of the Police and Criminal Evidence Act 1984 (for which see section 14) insert— Destruction of impressions of footwear (63S) (1) This section applies to impressions of footwear— (a) taken from a person under any power conferred by this Part of this Act, or (b) 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. (2) Impressions of footwear to which this section applies must be destroyed unless they are retained under subsection (3). (3) Impressions of footwear may be retained for as long as is necessary for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. Suppl [...]

Provision 22· GB, PoFA2012, section s16

Protection of Freedoms Act 2012, section 16 (16) After section 63S of the Police and Criminal Evidence Act 1984 (for which see section 15) insert— Use of retained material (63T) (1) Any material to which section 63D, 63R or 63S applies must not be used other than— (a) in the interests of national security, (b) for the purposes of a terrorist investigation, (c) for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or (d) for purposes related to the identification of a deceased person or of the person to whom the material relates. (2) Material which is required by section 63D, 63R or 63S to be destroyed must not at any time after it is required to be destroyed be used— (a) in evidence against the person to whom the mate [...]

Provision 23· GB, PoFA2012, section s17

Protection of Freedoms Act 2012, section 17 (17) After section 63T of the Police and Criminal Evidence Act 1984 (for which see section 16) insert— Exclusions for certain regimes (63U) (1) Sections 63D to 63T do not apply to material to which paragraphs 20A to 20J of Schedule 8 to the Terrorism Act 2000 (destruction, retention and use of material taken from terrorist suspects) apply. (2) Any reference in those sections to a person being arrested for, or charged with, an offence does not include a reference to a person— (a) being arrested under section 41 of the Terrorism Act 2000, or (b) being charged with an offence following an arrest under that section. (3) Sections 63D to 63T do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requir [...]

Provision 24· GB, PoFA2012, section s18

Protection of Freedoms Act 2012, section 18 (18) (1) The Police and Criminal Evidence Act 1984 is amended as follows. (2) In section 65(1) (interpretation of Part 5)— (a) after the definition of “appropriate consent” insert— “DNA profile” means any information derived from a DNA sample; “DNA sample” means any material that has come from a human body and consists of or includes human cells;, (b) after the definition of “registered health care professional” insert— “the responsible chief officer of police”, in relation to material to which section 63D or 63R applies, means the chief officer of police for the police area— (a) in which the material concerned was taken, or (b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken; “section 63D materi [...]

Provision 25· GB, PoFA2012, section s18

Protection of Freedoms Act 2012, section 18 (a) a person who has been given a caution in respect of the offence which, at the time of the caution, the person has admitted, (b) a person who has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence, (c) a person who has been found not guilty of the offence by reason of insanity, or (d) a person who has been found to be under a disability and to have done the act charged in respect of the offence. (2) This Part, so far as it relates to persons convicted of an offence, has effect despite anything in the Rehabilitation of Offenders Act 1974. (3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 of the [...]