The Act Commentary on Sections Part 1: Regulation of biometric data Part 3: National security material subject to section 18 of the Counter-Terrorism Act 2008
120.Part 3 inserts a new section 18 and new sections 18A to 18E into the 2008 Act (section 18 of the 2008 Act has not been brought into force). New section 18 makes provision for the destruction of national security material that is not subject to existing statutory restrictions.
121.New section 18 makes provision for the retention, by law enforcement authorities under the law of England and Wales and Northern Ireland, of fingerprints, DNA samples and profiles on national security grounds which has been obtained by or supplied to the authority in the way described in section 18(3) (mostly covertly acquired material and material supplied by overseas authorities) and which is not subject to “existing statutory restrictions”, such as those set out in the Immigration Act 1971, PACE, the PACE (Northern Ireland) Order 1989, or in Schedule 8 to the 2000 Act. It is a general feature that material must be destroyed unless it is retained under a power conferred under new sections 18A and 18B; except in the case of samples which must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample and in any event within six months of taking the sample.
122.New section 18A makes provision for limited retention of material taken from persons with no previous convictions. New section 18B provides for extended retention for the purposes of national security. Where fingerprints or DNA profiles would otherwise need to be destroyed (because of the expiry of a time limit set out in the new provisions), if the ‘responsible officer’ determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years. It is open to that chief officer to renew a national security determination in respect of the same material to further extend the retention period by up to two years at a time. ‘Responsible officer’ is defined in new section 18E.
123.New section 18C replicates the effect of the new provisions in new section 63Q of PACE (destruction of copies) and new paragraph 20F of Schedule 8 to the 2000 Act about the destruction of copies of fingerprints and DNA profiles that are held by a law enforcement agency. New section 18D makes provision about the purposes for which material may be used which are the same as those now included in new section 63T of PACE. It also includes (new section 18(2)) an express power for section 18 material to be checked against other material (held by law enforcement authorities or the Scottish Police Services Authority). New section 18D(3) provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence. New section 18E provides definitions of terms used in new sections 18 to 18D.