The Act Commentary on Sections Part 1: Regulation of biometric data Section 3: Persons arrested for or charged with a qualifying offence
86.Section 3 inserts new section 63F into PACE which provides for the further retention of material taken from persons (both adults and juveniles) arrested for or charged with a qualifying offence, but not subsequently convicted. The concept of a qualifying offence is used to distinguish between serious and less serious offences for the purposes of the retention regime. A list of qualifying offences is contained in section 65A(2) of PACE (as inserted by section 7 of the Crime and Security Act 2010 (“the 2010 Act”)); the list broadly covers serious violent, sexual and terrorist offences. Where a person who is arrested for, but not convicted of, a qualifying offence has previously been convicted of a recordable offence, that is not an ‘excluded offence’, his or her section 63D material may be retained indefinitely (new section 63F(2)). A recordable offence is defined in section 118 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other non-imprisonable offences which are specified in regulations made under section 27 of PACE. An excluded offence for these purposes is defined in new section 63F(11) of PACE (inserted by the section) as a conviction for a minor (that is, non-qualifying) offence, committed when the person was under the age of 18, for which a sentence of less than five years imprisonment (or equivalent) was imposed.
87.Where a person who is charged with, but not convicted of, a qualifying offence has no previous convictions, his or her section 63D material may be retained for three years (new sections 63F(3), (4) and (6)). Where a person with no previous convictions is arrested for a qualifying offence, but is not subsequently charged or convicted, his or her section 63D material may be retained for three years only if a successful application is made under new section 63G to the independent Commissioner for the Retention and Use of Biometric Material appointed under section 20(1) of the Act (new section 63F(5)).
88.The standard three-year retention period (whether following being charged with a qualifying offence, or arrested for such an offence and a successful application to the Commissioner) may be extended on a case by case basis with the approval of a District Judge (Magistrates’ Courts). In any particular case, the police may apply during the last three months of the three-year period to a District Judge (Magistrates’ Court) for an order extending the retention period by an additional two years (new section 63F(7), (8) and (9)). The retention period cannot be extended beyond five years in total under this process. The police may appeal to the Crown Court against a refusal by a District Judge (Magistrates’ Court) to grant such an order and the person from whom the material was taken may similarly appeal to the Crown Court against the making of such an order (new section 63F(10)). Separate arrangements (see new section 63M, inserted by section 9) apply in cases where the retention period is to be extended on national security grounds.
89.New section 63G sets out the procedure for the police to apply to the independent Commissioner for the Retention and Use of Biometric Material to retain section 63D material from a person with no previous convictions who has been arrested for a qualifying offence, but not subsequently charged or convicted. Applications may be made on the basis that either the victim of the alleged offence is vulnerable (which is defined as being under the age of 18, a vulnerable adult or in a close personal relationship with the arrested person) or, in other cases, where the police consider that retention is necessary for the prevention or detection of crime (new section 63G(2) and (3)). Notice of such an application must be given to the person to whom the section 63D material relates (new section 63G(6) to (8)) and that person may make representations to the Commissioner in respect of an application (new section 63G(5)).