Schedule 1, Part 2: Permission and notices Section 25 and Schedule 6: Fingerprints and samples
123.This section gives effect to Schedule 6. Schedule 6 makes provision for the taking and retention of biometric material from individuals subject to a TPIM notice.
124.Paragraph 1 makes provision for England, Wales and Northern Ireland relating to the taking of fingerprints and non-intimate samples from individuals subject to a TPIM notice.
125.“Fingerprints” and “non-intimate samples” have the same meaning as that given in section 65 of the Police and Criminal Evidence Act 1984 (“PACE”) (see paragraph 14). That is, “fingerprints” include palm prints and “non-intimate samples” means a sample of hair other than pubic hair; a sample taken from a nail or from under a nail; a swab taken from any part of a person’s body including the mouth but not any other body orifice; saliva and a footprint or a similar impression of any part of a person’s body other than a part of his or her hand.
126.Paragraph 2 provides that a constable in England, Wales and Northern Ireland may only take the fingerprints or samples from an individual once under the same TPIM notice, unless there is a technical deficiency with material taken previously taken under the same notice.
127.Paragraph 3 provides a constable in England, Wales and Northern Ireland with powers to require a person who is subject to a TPIM notice to attend a police station (on notice) for the purposes of having his or her fingerprints and/or non-intimate samples taken. In the event that such a request is not complied with, the person may be arrested without a warrant. This is in line with the general provision allowing constables to require specified individuals to attend a police station for the purposes contained in Schedule 2A to PACE, which was inserted by section 6 of the 2010 Act.
128.Paragraph 4 makes provision for Scotland relating to the taking of relevant physical data and samples from an individual subject to a TPIM notice. In line with current procedures in Scotland, constables would need authorisation from an officer of the rank of inspector or above to take certain types of non-intimate samples (non-pubic hair or nail samples and external body fluid samples) from individuals subject to a TPIM notice. A constable does not require such authorisation to take fingerprints, palm prints, other external body prints and saliva samples. In contrast, current procedures in England, Wales and Northern Ireland allow constables to take fingerprints and all non-intimate samples when individuals are arrested under PACE or the Police and Criminal Evidence (Northern Ireland) Order 1989 (“PACE NI”) without such authorisation. The differences in the approach in Scotland – and the differing definitions of the material to be taken – arise because the provisions in this Schedule are intended to be in line with existing police procedures and legislation in each country.
129.Paragraph 5 provides a power to check the biometric material of an individual subject to a TPIM notice against other such material held under a variety of powers. These reflect the equivalent provision contained in the Protection of Freedoms Bill currently before Parliament that allows for the checking of biometric material taken under Schedule 8 to the Terrorism Act 2000 (“the 2000 Act”) against other specified material.
130.Paragraphs 6 to 12 make provision relating to the destruction and retention of material taken from individuals subject to a TPIM notice by virtue of the powers conferred on constables in the previous paragraphs. Where an individual has no relevant previous convictions, fingerprints and DNA profiles may only be kept for six months after the TPIM notice ceases to be in force. This is subject to the provision that, in the event that the TPIM notice is quashed, the material may be retained until there is no further possibility of an appeal against the quashing. In addition, should the TPIM notice be revived or a new TPIM notice imposed during the six month period following the cessation of the TPIM notice that was in force when the material was taken, or within or immediately after the end of the period during which any appeal may be made, the material may be retained for a further six months after the revived or subsequent TPIM notice ceases to be in force (or until there is no further possibility of an appeal against any quashing of that TPIM notice).
131.As provided in the Protection of Freedoms Bill for material for example taken under PACE or that is subject to the 2000 Act or the 2008 Act, the material need not be destroyed if a chief officer of police (or chief constable in Scotland or Northern Ireland) determines that it is necessary to retain that material for purposes of national security. In such circumstances it may be 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 extend further the retention period by up to two years at a time. The independent Commissioner for the Retention and Use of Biometric Material (provided for under the Protection of Freedoms Bill) will keep under review such national security determinations and the uses to which material so retained is put.
132.Paragraph 13 covers the uses to which material taken and retained under the previous paragraphs can be put. These are the same as those set out in relation to material taken under PACE, PACE NI, the 2000 Act and the 2008 Act.