The Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) Order 2013

• Citation: S.I. 2013/1813
• Sections: 14

Section 1 Citation, commencement and interpretation

(1) This Order may be cited as the Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) Order 2013.

(2) This Order shall come into force on 31st October 2013 other than article 3 which shall come into force on 31st January 2014.

(3) In this Order—

(a) “ the Act ” means the Protection of Freedoms Act 2012;

(b) “law enforcement authority” has the meaning given by paragraphs (a) to (c) of the definition of that term in section 18E(1) of the Counter-Terrorism Act 2008 .

Section 2 Material taken before commencement

Subject to the provisions of this Order, the following provisions of the Act shall apply in respect of PACE material taken, or (in the case of a DNA profile) derived from a sample taken, before 31st October 2013, as if the material were taken on or after that date—

(a) sections 1 to 12;

(b) section 13 insofar as it inserts section 63Q(2) into the Police and Criminal Evidence Act 1984 ;

(c) sections 14 to 18; and

(d) section 22.

Section 2A Material taken before commencement

Notwithstanding the insertion by section 1 of the Act of section 63D(2)(a) of the Police and Criminal Evidence Act 1984, any fingerprints which were taken, and any DNA profile which was derived from a sample taken, before 31st October 2013 may be retained if they were taken from a person who—

(a) was convicted of a recordable offence (other than an excluded offence within the meaning of section 63F(11) of that Act); and

(b) at the time the fingerprints or sample were taken, gave purported consent to them being taken.

Section 3 Material taken before commencement

Subject to the provisions of this Order, section 13 of the Act insofar as it inserts section 63Q(1) into the Police and Criminal Evidence Act 1984 shall apply in respect of copies of fingerprints taken before 31st January 2014 as if the material were taken on or after that date.

Section 4 Material taken before commencement

In its application to PACE material taken, or (in the case of a DNA profile) derived from a sample taken, before 31st October 2013, section 3 of the Act has effect as if—

(a) the words “or (5)” in section 63F(3), and sections 63F(5) and 63G of the Police and Criminal Evidence Act 1984 were omitted, and

(b) section 63F(7) to (10) applied only in a case where the retention period expired on or after 31st January 2014.

Section 5 Material taken before commencement

In its application to such material, section 14 of the Act has effect as if section 63R of the Police and Criminal Evidence Act 1984 did not apply—

(a) to samples which are, or may become, disclosable under—

(i) the Criminal Procedure and Investigations Act 1996 , or

(ii) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act; and

(b) to samples which—

(i) were 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

(ii) are or may be required for purposes related to the identification of a missing person.

Section 5A Material taken before commencement

In its application to PACE material taken, or (in the case of a DNA profile) derived from a sample taken, before 31st October 2013 from a person who was liable to have material taken from him under section 63(3B) of the Police and Criminal Evidence Act 1984, section 18(3) of the Act has effect as if it did not insert subsection (2A) into section 65 of the Police and Criminal Evidence Act 1984.

Section 6 Material taken before commencement

In its application to PACE material taken, or (in the case of a DNA profile) derived from a sample taken, before 31st October 2013 and identified by a law enforcement authority as material requiring consideration under section 63M of the Police and Criminal Evidence Act 1984 , section 1 of the Act has effect as if section 63(D)(3) of that Act did not apply until 31st October 2016 .

Section 7 Material taken before commencement

Other than in relation to Northern Ireland material, the following provisions of the Act shall apply from 31st October 2016 to material taken, held, or (in the case of a DNA profile) derived from a sample taken, under the Terrorism Act 2000 , the Counter-Terrorism Act 2008 or the Terrorism Prevention and Investigation Measures Act 2011 before 31st October 2013—

(a) paragraph 1(1) to (3) of Schedule 1 (amendment of regimes other than PACE);

(b) paragraph 1(4) of Schedule 1 except for the purpose of the application of paragraph 20G of Schedule 8 to the Terrorism Act 2000 to samples which are, or may become, disclosable under—

(i) the Criminal Procedure and Investigations Act 1996, or

(ii) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act;

(c) paragraph 1(5) to (8) of Schedule 1;

(d) paragraphs 2 to 5 of Schedule 1.

Section 7A Material taken before commencement

In relation to Northern Ireland material, the provisions of the Act set out in paragraphs (a) to (d) of article 7 shall apply from 31st October 2024 .

Section 7B Material taken before commencement

In articles 7 and 7A “Northern Ireland material” means material—

(a) taken,

(b) held, or

(c) (in the case of a DNA profile) derived from a sample taken,

in Northern Ireland, under the Terrorism Act 2000, the Counter-Terrorism Act 2008 or the Terrorism Prevention and Investigation Measures Act 2011 before 31st October 2013.

Section 8 Material taken before commencement

Paragraph 6 of Schedule 1 to the Act shall apply in respect of material taken, or (in the case of a DNA profile) derived from a sample taken, under the Criminal Procedure (Scotland) Act 1995 or the Criminal Justice (Scotland) Act 2003 before 31st October 2013 as if the material were taken on or after that date.

Section 9 Transitory and saving provision

Until 30th September 2014, the requirement to destroy material imposed by section 63D(3) of the Police and Criminal Evidence Act 1984 shall not prevent material first being recorded on the National DNA Database or on a database for the retention of fingerprints, and checked against material on that database for a period of up to 63 days from the day the material was taken.

Section 10 Transitional provision

(1) Paragraph (2) applies where—

(a) section 63D material is or was taken (or, in the case of a DNA profile, derived from a sample taken) before 30th September 2014 from a person in connection with the investigation of an offence, and

(b) subsequent to the taking of the material or sample, the person is or was arrested for or charged with a different offence, or convicted of or given a penalty notice for a different offence.

(2) Sections 63E to 63O and sections 63Q and 63T have effect in relation to the section 63D material as if the material were also taken (or, in the case of a DNA profile, derived from a sample taken) –

(a) in connection with the investigation of the offence mentioned in paragraph (1)(b),

(b) on the date on which the person was arrested for that offence (or charged with it or given a penalty notice for it, if the person was not arrested).

(3) In this article “section 63D material” has the meaning given in section 65(1) of the Police and Criminal Evidence Act 1984.