New Clause 37: Data Protection and Digital  Information Bill
New Clause 37 - Retention of pseudonymised biometric data
“(1) Part 1 of the Counter-Terrorism Act 2008 (powers to gather and share information) is amended in accordance with subsections (2) to (6).
(2) Section 18A (retention of material: general) is amended in accordance with subsections (3) to (5).
(3) In subsection (1), for “subsection (5)” substitute “subsections (4) to (9)”.
(4) In subsection (4)(a), after “relates” insert “(a “pseudonymised form”)”.
(5) After subsection (6) insert—
“(7) Section 18 material which is not a DNA sample may be retained indefinitely by a law enforcement authority if—
(a) the authority obtains or acquires the material directly or indirectly from an overseas law enforcement authority,
(b) the authority obtains or acquires the material in a form which includes information which identifies the person to whom the material relates,
(c) as soon as reasonably practicable after obtaining or acquiring the material, the authority takes the steps necessary for it to hold the material in a pseudonymised form, and
(d) having taken those steps, the law enforcement authority continues to hold the material in a pseudonymised form.
(8) In a case where section 18 material is being retained by a law enforcement authority under subsection (7), if—
(a) the law enforcement authority ceases to hold the material in a pseudonymised form, and
(b) the material relates to a person who has no previous convictions or only one exempt conviction,
the material may be retained by the law enforcement authority until the end of the retention period specified in subsection (9).
(9) The retention period is the period of 3 years beginning with the date on which the law enforcement authority first ceases to hold the material in a pseudonymised form.”
(6) In section 18E(1) (supplementary provision)—
(a) in the definition of “law enforcement authority”, for paragraph (d) substitute—
“(d) an overseas law enforcement authority;”, and
(b) after that definition insert—
““overseas law enforcement authority” means a person formed or existing under the law of a country or territory outside the United Kingdom so far as exercising functions which—
(a) correspond to those of a police force, or
(b) otherwise involve the investigation or prosecution of offences;”.
(7) The amendments made by this section apply only in connection with the retention of section 18 material that is or was obtained or acquired by a law enforcement authority—
(a) on or after the commencement day, or
(b) in the period of 3 years ending immediately before the commencement day.
(8) Subsections (9) to (12) of this section apply where, at the beginning of the commencement day, a law enforcement authority has section 18 material which it obtained or acquired in the period of 3 years ending immediately before the commencement day.
(9) Where the law enforcement authority holds the material in a pseudonymised form at the beginning of the commencement day, the authority is to be treated for the purposes of section 18A(7)(c) and (d) of the Counter-Terrorism Act 2008 as having—
(a) taken the steps necessary for it to hold the material in a pseudonymised form as soon as reasonably practicable after obtaining or acquiring the material, and
(b) continued to hold the material in a pseudonymised form until the commencement day.
(10) Where the law enforcement authority does not hold the material in a pseudonymised form at the beginning of the commencement day, the authority is to be treated for the purposes of section 18A(7)(c) of the Counter-Terrorism Act 2008 as taking the steps necessary for it to hold the material in a pseudonymised form as soon as reasonably practicable after obtaining or acquiring the material if it takes those steps on, or as soon as reasonably practicable after, the commencement day.
(11) Subsection (12) of this section applies where, at a time before the commencement day (a “pre-commencement time”), the law enforcement authority was required by section 18(4) of the Counter-Terrorism Act 2008 to destroy the material but—
(a) at the pre-commencement time, the law enforcement authority could have retained the material under section 18A(7) to (9) of the Counter-Terrorism Act 2008 (as inserted by this section) if those provisions had been in force, or
(b) on or after the commencement day, the law enforcement authority may retain the material under those provisions by virtue of subsection (9) or (10) of this section.
(12) Where this subsection applies—
(a) the law enforcement authority is to be treated as not having been required to destroy the material at the pre-commencement time, but
(b) the material may not be used in evidence against the person to whom the material relates—
(i) in criminal proceedings in England and Wales, Northern Ireland or Scotland in relation to an offence where those proceedings, or other criminal proceedings in relation to the person and the offence, were instituted before the commencement day, or
(ii) in criminal proceedings in any other country or territory.
(13) In this section—
“the commencement day” , “law enforcement authority” and “section 18 material” have the meaning given in section (Retention of biometric data and recordable offences)(14);
“instituted” , in relation to proceedings, has the meaning given in section (Retention of biometric data and recordable offences)(15);
“in a pseudonymised form” has the meaning given by section 18A(4) and (10) of the Counter-Terrorism Act 2008 (as amended or inserted by this section).”—(Sir John Whittingdale.)