Commentary on Sections Retention, destruction and use of fingerprints and samples etc Section 21: Other material
70.Section 18 of the Counter-Terrorism Act 2008 (which, when the Crime and Security Act 2010 received Royal Assent, had not been brought into force) makes provision for the retention by law enforcement authorities in England and Wales and Northern Ireland of DNA samples and profiles and fingerprints obtained by or supplied to the authority in the way described in subsection (3) of that section (which includes covertly acquired material and material supplied by overseas authorities) and which is not held subject to “existing statutory restrictions” such as those set out in PACE or in Schedule 8 to the Terrorism Act 2000. This includes material which is on the police ‘counter-terrorism database’. Section 18 sets out the purposes for which this material may be used while it is retained, but permits retention without reference to a retention period.
71.Section 21 amends section 18 of the 2008 Act to introduce the requirement to destroy any DNA sample referred to in section 18 as soon as a profile has been derived from it or, if sooner, within 6 months of the sample coming into the authority’s possession (new subsection (3A) of section 18). New subsection (3B) provides that fingerprints or DNA profiles (“material”) relating to an identifiable individual aged under 16 at the time they came into the authority’s possession must be destroyed within 3 years. New subsection (3C) provides for destruction of such material relating to a person aged 16 or over within 6 years of that material coming into the authority’s possession. In each case, where the person is convicted of a recordable offence in England and Wales or Northern Ireland (or where the person already has such a conviction, other than a conviction for a minor offence committed when they were under 18), the material need not be destroyed.
72.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 (new subsections (3E) and (3F) of section 18). The responsible officer may make further determinations to retain the material, which again have effect for a maximum of 2 years. ‘Responsible officer’ is defined in new subsection (3G) as the chief officer of the police force or organisation which obtained or acquired the material.
73.New subsections (3H) and (3I) of section 18 replicate the provisions in PACE (as amended by this Act) about the destruction of copies of fingerprints and DNA profiles, and new subsection (3J) and substituted sections (4) and (4B) (inserted by subsection (5) of section 18) make provision about the uses to which the material may be put (which largely reproduces what is currently in section 18(2) and (4)).
74.Subsection (8) inserts a new section 18A into the Counter-Terrorism Act 2008 which provides definitions of terms used in section 18 (as amended by the Act).