Part 1: Counter-terrorism Chapter 3: Counter-terrorism powers Section 19 and Schedule 2: Retention of biometric data for counter-terrorism purposes etc
Section 19 gives effect to Schedule 2 which amends the legislative regimes governing the retention of fingerprints and DNA samples and profiles by the police for counter-terrorism purposes. Those regimes are to be found in the following enactments:
Part 5 of PACE in respect of persons arrested in England and Wales;
Part 6 of the Police and Criminal Evidence (Northern Ireland) Order 1989 in respect of persons arrested in Northern Ireland;
Part 2 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") in respect of persons arrested in Scotland;
Schedule 8 to the 2000 Act in respect of persons arrested under section 41 of that Act on suspicion of being a terrorist or detained at a port under Schedule 7 to that Act;
Section 18B of the 2008 Act in respect of fingerprints and DNA profiles retained on national security grounds and which are not subject to the other schemes listed here;
Schedule 6 to the 2011 Act in respect of persons subject to a TPIM notice (see glossary in Annex A);
Schedule 1 to the Protection of Freedoms Act 2012 ("the 2012 Act") (which prospectively amends provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989) in respect of persons arrested in Northern Ireland.
	These schemes proceed on the basis that fingerprints and DNA profiles must be destroyed unless they are retained under a power conferred by the applicable regime. Under PACE, where an adult is convicted of a recordable offence his or her biometric material may be retained indefinitely. Where a person is charged with a qualifying offence (broadly speaking serious sexual, violent and terrorism offences), but not convicted, his or her biometric material may be retained for three years, extendable on a case-by-case basis for a further two years with the approval of a District Judge. See Annex B for further details.
	Section 63M of PACE provides that where a person’s biometric material would otherwise fall to be destroyed, it may be retained for up to two years if the responsible chief officer of police determines that it is necessary to retain it for the purposes of national security (a "national security determination"). A responsible chief officer may renew a national security determination in respect of the same material, thus further extending the retention period for up to two years at a time. The regimes under the other enactments are broadly analogous to that provided for in PACE. In particular, each provides for the retention pursuant to a national security determination of biometric material that would otherwise fall to be destroyed.
	The Commissioner for the Retention and Use of Biometric Material (known as the Biometric Commissioner), appointed under section 20 of the 2012 Act has a function of keeping under review every national security determination made or renewed under the various regimes listed above. The Biometric Commissioner may order the destruction of material subject to a national security determination if he concludes that it is not necessary for the material to be retained. Section 22 of the 2012 Act requires the Home Secretary to issue guidance about making or renewing national security determinations; the current guidance is available here.
	Paragraph 2 of Schedule 2 amends section 63F of PACE which provides for the retention of biometric material where a person has been arrested or charged with a qualifying offence, but not convicted of that offence. In the case of a person arrested for, but not charged with, a qualifying offence (and who does not have a conviction for a recordable offence), section 63F(5) provides that biometric material taken in connection with the investigation of the offence may be retained for three years with the consent of the Biometrics Commissioner if necessary for the purpose of preventing or detecting crime. Where retention is necessary for the purposes of national security, section 63M applies (see paragraph 121 above). Paragraph 2 additionally provides for an automatic three-year retention period under section 63F where a person has been arrested, but not charged, with a terrorist offence listed in section 41(1) of the 2008 Act (or a related ancillary offence, such as attempting or conspiring to commit the offence). This change aligns the provisions in PACE with those under paragraph 20B of Schedule 8 to the 2000 Act such that the fingerprints and DNA profile of a person arrested for, but not charged with, a terrorism offence or a terrorism-related offence will automatically be retained for three years, whichever of the two applicable powers of arrest (PACE or the 2000 Act) was used. Paragraph 5 makes a like change to the retention regime under the Police and Criminal Evidence (Northern Ireland) Order 1989 as prospectively amended by Schedule 2 to the Criminal Justice Act (Northern Ireland) 2013.
	Paragraph 3 of Schedule 2 makes two changes to section 63M of PACE which provides for the retention of biometric material pursuant to a national security determination. As currently drafted, section 63M requires a national security determination to be made by the "responsible chief officer of police", that is the chief officer for the police area where the fingerprints or DNA sample were taken (see section 65(1) of PACE). The first change would enable any chief officer of police to make a national security determination in respect of biometric material. It may be the case, for example, that the person to whom the biometric material relates is under investigation in one police force area and is then arrested in another police force area, but no further action is taken in respect of that later arrest; in such a case, the chief officer of police for the force with an ongoing investigation may be better placed to make a determination. Paragraphs 10(2), (3) and (5), 13(2), (3) and (5) and 16(2) and (4) make a like change to the retention regimes under the 2000 Act, 2008 Act and 2011 Act respectively. Paragraph 7(2) and (3) update section 18G of the 1995 Act to take account of the fact that there is now a single police force in Scotland, the Police Service of Scotland.
	The second change made by paragraph 3 is to extend the duration of a national security determination from a maximum of two years to a maximum of five years. Paragraphs 7(4), 10(4), 13(4), 16(3) and 19 make a like change to the retention regimes under the 1995 Act, 2000 Act, 2008 Act, 2011 Act and 2012 Act respectively.
	The Act also makes provision for the merging of fingerprint records for the purposes of ensuring separate national security determinations do not run concurrently. The issue that is addressed by these provisions can be illustrated by example. If a person is arrested under PACE in April 2017, subsequently detained under Schedule 7 to the 2000 Act in June 2017, and then arrested again under section 41 of the 2000 Act in September 2017, then three different sets of fingerprints may be taken from him or her by the police. The provisions governing the retention of such fingerprints under each of those regimes would currently require each set of fingerprints to be managed as a discreet record, each with its own retention period, so that the police would need to make three separate national security determinations at different times if it was necessary to retain the fingerprints.
	Where the original set of fingerprints is taken under PACE, new section 63PA of PACE (as inserted by paragraph 4 of Schedule 2), enables a single national security determination to be made covering multiple sets of fingerprints where one of three conditions apply. The first condition is that the second, or subsequent, set of fingerprints was taken under PACE and that one of the sets of fingerprints held by the police (be it the original set or another set) was taken in connection with a terrorist investigation. The second condition is that the further set (or sets) of fingerprints was taken under Schedule 8 to the 2000 Act, Schedule 6 to the 2011 Act or Schedule 3 to the Act. The third condition is that the further set of fingerprints is material to which section 18 of the 2008 Act applies. Where one of these conditions is met, the retention regime in sections 63E to 63O of PACE would apply to each set of fingerprints. Consequently, a national security determination made under section 63M of PACE in respect of the original set of fingerprints would also authorise the retention of any subsequent set of fingerprints taken or held under PACE or one of the other regimes, but the subsequent set(s) of fingerprints would fall to be destroyed on expiry of that national security determination. If the original set of fingerprints is required to be destroyed under the provisions in PACE, it may still be possible to retain the second and any subsequent set of fingerprints if the relevant retention regime applicable to those fingerprints so provides. Paragraphs 8, 11, 14, 17 and 20 make analogous provision under the retention regimes provided for in the 1995 Act, 2000 Act, 2008 Act, 2011 Act and 2012 Act respectively. It is a feature of each of the analogous provisions that each set of fingerprints must have been taken from a person arrested or detained or made subject to a TPIM notice in the relevant jurisdiction, or in the case of material to which section 18 of the 2008 Act applies is held under the law of the same part of the UK. So, for example, a single national security determination could not be made in respect of two sets of fingerprints, one taken under PACE by a police force in England and Wales and the other taken by Police Scotland under the 1995 Act.