Justice Bill — As Introduced
A
Bill
to
AbilltoAmend the law about the retention and destruction of fingerprints and DNA profiles under Part 6 of the Police and Criminal Evidence (Northern Ireland) Order 1989; to amend the law about the release of children on bail and about their detention; to permit the use of live links for the exercise of certain police functions; to make other provision in connection with the administration of justice; and for connected purposes.
Be it enacted by being passed by the Northern Ireland Assembly and assented to by His Majesty as follows:
PART Part 1
Biometric data: retention etc
Part 1 Biometric data: retention etc
Retention of fingerprints and DNA profiles
1.-(1) After Article 63A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (destruction and retention of fingerprints and DNA profiles) insert—
Retention and destruction of fingerprints, samples and profiles
Destruction of fingerprints and DNA profiles: introductory
63B.-(1) This Article applies to—
(a) fingerprints taken in the circumstances set out in paragraph (2), and
(b) a DNA profile derived from a DNA sample taken in those circumstances.
(2) The circumstances are that the fingerprints or sample are—
(a) taken from a person under any power conferred by this Part, or
(b) taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police.
(3) In this Part—
(a) “Article 63B material” means fingerprints and DNA profiles to which this Article applies;
(b) “P”, in relation to any Article 63B material, means the person to whom the material relates (and “P’s material” means Article 63B material relating to P);
(c) references (however expressed) to the taking of Article 63B material are references—
(i) in the case of fingerprints, to the taking of those fingerprints;
(ii) in the case of a DNA profile, to the taking of the DNA sample (or samples) from which the DNA profile was derived;
(d) “consensual material” means Article 63B material taken as mentioned in paragraph (2)(b);
(e) “non-consensual material” means Article 63B material taken as mentioned in paragraph (2)(a).
(4) See Article 63Y for exclusions relating to certain Article 63B material.
Destruction of fingerprints and DNA profiles: the basic rule
63C.-(1) Article 63B material must be destroyed unless the material is retained in accordance with Articles 63D to 63U.
(2) In addition, Article 63B material must be destroyed if—
(a) it is being retained by virtue of an Article other than Article 63F, and
(b) it appears to the Chief Constable that—
(i) the taking of the material was unlawful, or
(ii) the material was taken from P in connection with P’s arrest and the arrest was unlawful or based on mistaken identity.
(3) Nothing in this Article prevents a speculative search, in relation to Article 63B material, from being carried out within such time as may reasonably be required for the search if the Chief Constable considers the search to be desirable.
Retention of consensual material
63D. Consensual material may be retained only until it has fulfilled the purpose for which it was taken.
Retention of non-consensual material: overview and interpretation
63E.-(1) Non-consensual material may be retained only in accordance with Articles 63F to 63U, which—
(a) set out circumstances in which non-consensual material may be retained, and
(b) provide for how long the material may be retained in those circumstances.
(2) Where P’s material may be retained by virtue of any of Articles 63F to 63S, all non-consensual material relating to P may be retained by virtue of that Article.
(3) Accordingly, where P’s material may be retained by virtue of more than one of those Articles, all of P’s non-consensual material may be retained until the latest date provided by any of them (“the last retention date”).
(4) Non-consensual material retained by virtue of any of Articles 63G to 63S must be destroyed on the day following the last retention date.
(5) Non-consensual material retained by virtue of Article 63F must be destroyed as soon as reasonably practicable after the last retention date, and in any event before the end of the period of 14 days beginning with that date.
(6) Non-consensual material may not be retained, by virtue of any of Articles 63F to 63S, by virtue of any circumstance that occurs after the last retention date.
(7) Paragraphs (4) to (6) are without prejudice to Article 63C(2).
(8) Paragraphs (9) and (10) apply for the purposes of Articles 63F to 63U.
(9) Any reference to a person being convicted of an offence includes a reference to the making of an order for absolute or conditional discharge in respect of that offence, despite Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (conviction with absolute or conditional discharge deemed not to be a conviction).
(10) Any reference to a person being given a caution (including any reference to a person being convicted which, by virtue of Article 53B(1)(a), includes a reference to the person being given a caution) includes a reference to the person being given an informed warning or a restorative caution.
(11) The Department may by regulations amend paragraph (10) to reflect a change in nomenclature of the disposals mentioned in that paragraph.
Retention of non-consensual material
Retention of Article 63B material pending investigation or proceedings
63F.-(1) This Article applies where—
(a) non-consensual material relating to P is taken in connection with the investigation of an offence, and
(b) it is suspected that P has been involved in the offence.
(2) This Article also applies where—
(a) non-consensual material relating to P is taken in connection with the investigation of one offence, and
(b) P is arrested for or charged with another offence.
(3) P’s material may be retained—
(a) until the conclusion of the investigation (or, if there is more than one, the investigations) into the offence or offences, or
(b) where the investigation (or any of the investigations) gives rise to proceedings against P or any other person for an offence, until the conclusion of all of those proceedings.
(4) See Article 63T regarding the review of material retained by virtue of this Article.
Persons arrested for or charged with a qualifying offence
63G.-(1) This Article applies where P—
(a) is arrested for a qualifying offence other than an excepted offence but is not charged with that offence, or
(b) is charged with any qualifying offence but is not convicted of that offence.
(2) But this Article does not apply where Article 63I applies (charges left on the books).
(3) If P is charged with a qualifying offence but is not convicted of that offence, P’s material may be retained until the end of the period of 3 years beginning with the date on which P is charged with the offence (but see also Article 63H).
(4) If—
(a) P is arrested for a qualifying offence other than an excepted offence but is not charged with that offence,
(b) any prescribed circumstances apply, and
(c) the Northern Ireland Commissioner for the Retention of Biometric Material (see Article 63Z) has consented under paragraph (5) to the retention of the material,
(5) The Commissioner may consent to the retention of material as mentioned in paragraph (4) if—
(a) an application is made to the Commissioner for the retention of that material, and
(b) the Commissioner considers it appropriate to retain the material.
(6) Regulations under paragraph (4)(b) may, in particular, make provision about the procedure to be followed in relation to any application to the Commissioner under paragraph (5).
(7) In this Article—
Courts’ power to extend period under Article 63G
63H.-(1) This Article applies where material is retained under Article 63G.
(2) The Chief Constable may apply to a district judge (magistrates’ courts) for an order which, in relation to particular material, extends the 3 year period set out in Article 63G(3) or (4) by a further period of 2 years beginning with the end of that 3 year period.
(3) An application for an order under paragraph (2) must be made within the period of 3 months ending on the last day of the 3 year period.
(4) The following persons may appeal to the county court against an order under paragraph (2), or a refusal to make such an order—
(a) the Chief Constable;
(b) P.
(5) If an order is made under paragraph (2), the material may be retained in accordance with that order.
(6) If an application is made under paragraph (2) and (apart from this paragraph) the material would be required to be destroyed before the application is finally determined (including any proceedings on appeal), the material may be retained until—
(a) proceedings on the application (including any proceedings on appeal) have been concluded, and
(b) any period during which an appeal may ordinarily be made has ended.
Persons with recordable offence count left on the books
63I.-(1) This Article applies where—
(a) P is charged with a recordable offence, and
(b) paragraph (2) applies to P in relation to that offence.
(2) This paragraph applies to P in relation to an offence if—
(a) P is charged with the offence in a count on an indictment, and
(b) the Crown Court orders that the count is to be left on the books not to be proceeded with against P without the consent of that Court or the Court of Appeal.
(3) Paragraph (2) does not apply if P is, in the same proceedings in which the count is ordered to be left on the books, convicted of a recordable offence.
(4) If the offence mentioned in paragraph (1) is a qualifying offence, P’s material may be retained until the end of the period of 3 years beginning with the date on which the Crown Court makes the order mentioned in paragraph (2)(b).
(5) If the offence mentioned in paragraph (1) is a recordable offence other than a qualifying offence, P’s material may be retained until the end of the period of 12 months beginning with the date on which the Crown Court makes the order mentioned in paragraph (2)(b).
Persons convicted of a qualifying offence
63J.-(1) This Article applies where P is convicted of a qualifying offence.
(2) P’s material may be retained until the end of the period of 75 years beginning with the date on which P is convicted of the offence.
(3) See also Article 63N regarding the application of this Article where P is convicted outside Northern Ireland.
Persons aged 18 or over convicted of recordable offence other than qualifying offence
63K.-(1) This Article applies where—
(a) P is convicted of a recordable offence other than a qualifying offence, and
(b) P is aged 18 or over at the time of the offence.
(2) If P is given a custodial sentence in respect of the offence, P’s material may be retained until the end of the period of 50 years beginning with the date on which P is convicted of the offence.
(3) If paragraph (2) does not apply, P’s material may be retained until the end of the period of 25 years beginning with the date on which P is convicted of the offence.
(4) In this Article, “custodial sentence” has the same meaning as in Chapter 2 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008.
(5) See also Article 63N regarding the application of this Article where P is convicted outside Northern Ireland.
Persons under 18 convicted of recordable offence other than qualifying offence
63L.-(1) This Article applies where—
(a) P is convicted of a recordable offence other than a qualifying offence, and
(b) P is aged under 18 at the time of the offence.
(2) But this Article does not apply where Article 63M (first minor offence) applies.
(3) If P is given a custodial sentence of 5 years or more in respect of the offence, P’s material may be retained until the end of the period of 50 years beginning with the date on which P is convicted of the offence.
(4) If paragraph (3) does not apply, P’s material may be retained until the end of the period of 25 years beginning with the date on which P is convicted of the offence.
(5) In this Article, “custodial sentence” has the same meaning as in Chapter 2 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008.
(6) See also Article 63N regarding the application of this Article where P is convicted outside Northern Ireland.
Exception for persons under 18 convicted of first minor offence
63M.-(1) This Article applies where—
(a) P is convicted of a recordable offence other than a qualifying offence,
(b) P is aged under 18 at the time of committing the offence, and
(c) the offence is P’s first offence (see paragraph (2)).
(2) For the purposes of paragraph (1)(c), an offence is P’s first offence if, at the time of committing the offence, P has not—
(a) been convicted of a recordable offence,
(b) been convicted of an offence under the law of a country or territory outside Northern Ireland where the act constituting the offence would constitute a recordable offence if done in Northern Ireland,
(c) been given a caution in respect of a recordable offence, or
(d) completed the diversionary youth conference process or the community-based restorative justice scheme process with respect to a recordable offence;
(3) This Article does not apply where, in the proceedings in which P is convicted of the offence mentioned in paragraph (1)(a), P is convicted of another recordable offence.
(4) If P is given a custodial sentence of 5 years or more in respect of the offence, P’s material may be retained until the end of the period of 50 years beginning with the date on which P is convicted of the offence.
(5) If P is given a custodial sentence of less than 5 years in respect of the offence, P’s material may be retained until the end of the period consisting of the term of the sentence plus 5 years, beginning with the date on which P is convicted of the offence.
(6) If neither paragraph (4) nor paragraph (5) applies, P’s material may be retained until the end of the period of 5 years beginning with the date on which P is convicted of the offence.
(7) For the purposes of paragraph (2)(b) it does not matter whether the act would have constituted a recordable offence at the time when P was convicted.
(8) In paragraphs (4) and (5) “custodial sentence” has the same meaning as in Chapter 2 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008.
(9) For the purposes of paragraph (5), “the term of the sentence”, in the case of a juvenile justice centre order under Article 39 of the Criminal Justice (Children) (Northern Ireland) Order 1998, is the period for which the person is detained under the order.
(10) See also Article 63N regarding the application of this Article where P is convicted outside Northern Ireland.
Persons convicted of offence outside Northern Ireland: application of Articles 63J to 63M
63N.-(1) This Article provides for the application of Articles 63J to 63M where P is convicted of an offence outside Northern Ireland.
(2) The reference in Article 63J(1) to being convicted of a qualifying offence includes being convicted of an offence under the law of a country or territory outside Northern Ireland where the act constituting the offence would constitute a qualifying offence if done in Northern Ireland.
(3) The references in Articles 63K(1), 63L(1) and 63M(1)(a) to being convicted of a recordable offence other than a qualifying offence include being convicted of an offence under the law of a country or territory outside Northern Ireland where the act constituting the offence, if done in Northern Ireland—
(a) would constitute a recordable offence, but
(b) would not constitute a qualifying offence.
(4) For the purposes of paragraphs (2) and (3) it does not matter whether the act would have constituted such an offence at the time when P was convicted.
(5) Where Articles 63J to 63M apply in accordance with this Article, any reference in them to a custodial sentence is to be read as a reference to a sentence of imprisonment or other form of detention.
Persons under 18 given a caution
63O.-(1) This Article applies where P—
(a) is given a caution in respect of a recordable offence which, at the time of the caution, the person admitted, and
(b) is aged under 18 at the time of the offence.
(2) P’s material may be retained until the end of the period of 5 years beginning with the date on which P is given the caution.
Persons completing diversionary youth conference or community-based restorative justice scheme
63P.-(1) This Article applies where P has completed either of the following with respect to a recordable offence—
(a) the diversionary youth conference process;
(b) the community-based restorative justice scheme process.
(2) P’s material may be retained until the end of the period of 5 years beginning with the date on which P completed the process.
(3) For the purposes of this Article, P completes the diversionary youth conference process with respect to an offence if (and only if)—
(a) a diversionary youth conference under Part 3A of the Criminal Justice (Children) (Northern Ireland) Order 1998 has been completed with respect to P and that offence, and
(b) the Director of Public Prosecutions, having considered the report of the youth conference co-ordinator, has determined not to institute proceedings against P in respect of the offence or, as the case may be, not to continue proceedings already instituted against P in respect of the offence.
(4) For the purposes of this Article, P completes the community-based restorative justice process with respect to an offence if (and only if)—
(a) P has completed a plan, or any other requirements for successful completion, established with respect to that offence in accordance with a community-based restorative justice scheme within the meaning of section 43 of the Justice and Security (Northern Ireland) Act 2007, and
(b) the Director of Public Prosecutions, having been informed by the Chief Constable of that completion, has determined not to institute proceedings against P in respect of the offence or, as the case may be, not to continue proceedings already instituted against P in respect of the offence.
Persons given a penalty notice
63Q.-(1) This Article applies where—
(a) P is given a penalty notice under section 60 of the Justice Act (Northern Ireland) 2011 in respect of a recordable offence, and
(b) no proceedings are brought against P for the offence.
(2) P’s material may be retained until the end of the period of 2 years beginning with the date on which P was given the penalty notice.
Persons subject to notification requirements
63R.-(1) This Article applies where P is subject to a notification requirement.
(2) P’s material may be retained until P ceases to be subject to the notification requirement.
(3) For the purposes of this Article, P is subject to a notification requirement if—
(a) P is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (within the meaning of that Part);
(b) P is subject to the notification requirements of Part 2 of Schedule 3 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015;
(c) P is subject to the notification requirements of Part 8 of the Justice Act (Northern Ireland) 2015;
(d) the notification requirements imposed by section 14 of the Protection from Stalking Act (Northern Ireland) 2022 apply to P.
(4) The Department of Justice may by regulations amend the list of notification requirements set out in paragraph (3).
Courts’ power to extend period
63S.-(1) This Article applies where P’s material is retained by virtue of any of Articles 63I to 63R.
(2) The Chief Constable may, in relation to any particular material, apply to a district judge (magistrates’ courts) for an order permitting the continued retention of the material beyond the day on which it would otherwise be required to be destroyed.
(3) An order under paragraph (2) may not be made in relation to material if a determination under paragraph 7 of Schedule 1 to the Protection of Freedoms Act 2012 (retention of material for the purposes of national security) is in effect in relation to that material.
(4) In addition, an order under paragraph (2) may be made only if the district judge is satisfied that the following conditions are met—
(a) there are substantial grounds for believing that the retention of the material will assist in achieving a purpose set out in paragraph (5), and
(b) the continued retention of the material is a proportionate means of achieving that purpose.
(5) The purposes are—
(a) protecting life or preventing serious harm to an individual;
(b) preventing serious crime or disorder;
(c) identifying an individual (including an individual who is dead or missing).
(6) The district judge, in considering whether the conditions set out in paragraph (4) are met, must consider (in particular)—
(a) P’s offending history (including the nature and seriousness of any offences committed by P);
(b) the nature and seriousness of any risk to the public if the purposes set out in paragraph (5) cannot be achieved due to the destruction of P’s material;
(c) any risk that P will commit further offences and whether the retention of P’s material might assist in the investigation of those offences;
(d) any difficulty there may be in locating and arresting P, and therefore taking further material from P, in the event that P is suspected of committing further offences.
(7) An order under paragraph (2)—
(a) must specify a period, of not more than 2 years, for which the continued retention of the material is permitted;
(b) may be varied by a further order extending that period by not more than 2 years at any one time.
(8) An application under paragraph (2) must be made—
(a) within the period of 3 months ending with the day before the day mentioned in that paragraph, or
(b) if an order has previously been made under paragraph (2), within the last 3 months of the period specified in that order.
(9) The following persons may appeal to the county court against an order under paragraph (2), or a refusal to make such an order—
(a) the Chief Constable;
(b) P.
(10) If an order is made under paragraph (2), the material may be retained in accordance with that order.
(11) If an application is made under paragraph (2) and (apart from this paragraph) the material would be required to be destroyed before the application is finally determined (including any proceedings on appeal), the material may be retained until—
(a) proceedings on the application (including any proceedings on appeal) have been concluded, and
(b) any period during which an appeal may ordinarily be made has ended.
Review of continued retention
Review of retention where material retained for investigations
63T.-(1) This Article applies where there is an investigation into an offence (or offences) and any of P’s material is retained by virtue of Article 63F in connection with that investigation.
(2) The Chief Constable must conduct a review of the retention of P’s material—
(a) before the end of the period of 5 years beginning with the date on which P is arrested for, or charged with, the offence or offences (or, if there is more than one such date, the latest of them), and
(b) thereafter, before the end of each period of 5 years beginning with the previous review under this Article.
(3) On a review under this Article, the Chief Constable must consider—
(a) whether P remains, or should remain, a suspect in the investigation (or investigations), and
(b) whether P’s material has, or may have, evidential value in that investigation (or those investigations) or in any proceedings to which that investigation (or those investigations) may give rise.
(4) If the Chief Constable, following a review under this Article, determines that P’s material should no longer be retained by virtue of Article 63F, all of P’s material that is retained by virtue of that Article must be destroyed, unless it may be retained by virtue of any other Article.
(5) The Department of Justice may in regulations set out additional factors that the Chief Constable must consider, or factors that the Chief Constable may or must not consider, in conducting a review.
(6) In particular, the regulations may provide that—
(a) material of a specified description;
(b) material relating to persons of a specified description;
(7) “Specified” means specified in the regulations.
(8) Before making regulations under paragraph (5), the Department must consult such persons as the Department considers appropriate.
Review of retention where material retained for long term
63U.-(1) The Department of Justice must by regulations require the Chief Constable, where any of P’s material is retained by virtue of Articles 63J(2), 63K(2) and (3), 63L(3) and (4) and 63M(4), to conduct a review of the retention of P’s material.
(2) The review is to be of all of P’s material that is retained by virtue of Articles 63D, 63G to 63Q and 63S.
(3) The regulations may, in particular, make provision—
(a) about when, and in what circumstances, the reviews must be conducted;
(b) enabling P to request that a review be conducted, subject to such conditions as may be specified;
(c) requiring that P be notified of the outcome of the review;
(d) conferring a right of appeal against a determination made on a review and about the procedure on such appeals (including the payment of fees).
(4) The regulations may set out factors that the Chief Constable must, may or must not consider in conducting a review.
(5) In particular, the regulations may provide that—
(a) material of a specified description;
(b) material relating to persons of a specified description; must, or must not, be retained following a review.
(6) “Specified” means specified in the regulations.
(7) If the Chief Constable, following a review under this Article, determines that P’s material should no longer be retained by virtue of Articles 63D, 63G to 63Q and 63S, all of P’s material that is retained by virtue of any of those Articles must be destroyed, unless it may be retained by virtue of Article 63F or 63R.
(8) Before making regulations under paragraph (1), the Department must consult such persons as the Department considers appropriate.
Destruction and use of material
Destruction of copies
63V.-(1) If fingerprints are required by Article 63C to be destroyed, any copies of the fingerprints held by the police must also be destroyed.
(2) If a DNA profile is required by that Article to be destroyed, no copy may be retained by the police except in a form which does not include information which identifies the person to whom the DNA profile relates.
Destruction of samples
63W.-(1) This Article applies to samples—
(a) taken from a person under any power conferred by this Part, or
(b) taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence by the police.
(2) A DNA sample to which this Article applies must be destroyed—
(a) as soon as a DNA profile has been derived from the sample, or
(b) if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken.
(3) Any other sample to which this Article applies must be destroyed before the end of the period of 6 months beginning with the date on which it was taken.
(4) Nothing in this Article prevents a speculative search, in relation to samples to which this Article applies, from being carried out within such time as may reasonably be required for the search if the Chief Constable considers the search to be desirable.
Use of retained material
63X.-(1) Any material to which Article 63B or 63W applies must not be used other than—
(a) for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or
(b) for purposes related to the identification of a deceased person or of the person to whom the material relates.
(2) Material which is required by Article 63C or 63W to be destroyed must not at any time after it is required to be destroyed be used—
(a) in evidence against the person to whom the material relates, or
(b) for the purposes of the investigation of any offence.
(3) In this Article—
(a) the reference to using material includes a reference to allowing any check to be made against it and to disclosing it to any person,
(b) the reference to crime includes a reference to any conduct which—
(i) constitutes one or more criminal offences (whether under the law of Northern Ireland or of any country or territory outside Northern Ireland), or
(ii) is, or corresponds to, any conduct which, if it all took place in Northern Ireland, would constitute one or more criminal offences, and
(c) the references to an investigation and to a prosecution include references, respectively, to any investigation outside Northern Ireland of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside Northern Ireland.
Exclusions
Exclusion for certain regimes
63Y.-(1) Articles 63B to 63X do not apply to material to which paragraphs 20A to 20J of Schedule 8 to the Terrorism Act 2000 (destruction, retention and use of material taken from terrorist suspects) apply.
(2) Any reference in those Articles to a person being arrested for, or charged with, an offence does not include a reference to a person—
(a) being arrested under section 41 of that Act, or
(b) being charged with an offence following an arrest under that section.
(3) Articles 63B to 63X do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requirement to destroy material) applies.
(4) Articles 63B to 63X do not apply to material to which paragraph 6 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (requirement to destroy material) applies.
(5) Articles 63B to 63X do not apply to material to which paragraphs 43 to 51 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 (destruction, retention and use of material) apply.
(6) Articles 63B to 63X do not apply to material to which—
(a) Part 4 of Schedule 6 to the National Security Act 2023 (dealing with fingerprints and samples etc: UK) applies, or
(b) paragraph 6 of Schedule 12 to that Act (requirement to destroy material) applies.
(7) Articles 63B to 63X do not apply to material which is, or may become, disclosable under—
(a) the Criminal Procedure and Investigations Act 1996, or
(b) a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.
(8) A sample that—
(a) falls within paragraph (7), and
(b) but for that paragraph would be required to be destroyed under Article 63W,
(9) A sample that once fell within paragraph (7) but no longer does, and so becomes a sample to which Article 63W applies, must be destroyed immediately if the time specified for its destruction under that Article has already passed.
(10) Articles 63B to 63X do not apply to material which—
(a) is taken from a person, but
(b) relates to another person.
(11) Articles 63B to 63X do not apply to a DNA sample, or to a DNA profile derived from a sample, if—
(a) the DNA sample was taken before Article 63B came into operation, and
(b) the sample or (as the case may be) the profile is held in a non-searchable format for the purposes only of forensic processing and analysis.
(12) Nothing in Articles 63B to 63X affects any power conferred by—
(a) paragraph 18(2) of Schedule 2 to the Immigration Act 1971 (power to take reasonable steps to identify a person detained), or
(b) section 20 of the Immigration and Asylum Act 1999 (disclosure of police information to the Secretary of State for use for immigration purposes).
Commissioner for the Retention of Biometric Material
Northern Ireland Commissioner for the Retention of Biometric Material
63Z.-(1) The Department of Justice must appoint a Commissioner to be known as the Northern Ireland Commissioner for the Retention of Biometric Material.
(2) Schedule 2B (which makes provision about the Commissioner and the exercise of the Commissioner’s functions) has effect.
(3) The Commissioner must keep under review—
(a) the acquisition, in accordance with this Part, of Article 63B material, and
(b) the retention and use, in accordance with Articles 63A and 63B to 63X, of any material to which Article 63B or 63W applies and of any copies of any Article 63B material.
(4) The Commissioner must also keep under review the use and development of existing and new biometric technologies used by, or capable of being used by, law enforcement authorities for the prevention and detection of crime in Northern Ireland (including technologies that are being used or developed outside the United Kingdom).
(5) The Commissioner may issue guidance about—
(a) the acquisition of Article 63B material in accordance with this Part, and
(b) the handling, retention and destruction of material in accordance with Articles 63C to 63X;
(6) The Chief Constable must have regard to any guidance issued under paragraph (5).
(7) In addition to the functions conferred by this Article—
(a) the Commissioner has functions under Article 63G(4)(c) and (5);
(b) regulations under Article 63U(3)(d) may confer functions on the Commissioner.
Reports by Commissioner
63Z1.-(1) The Commissioner appointed under Article 63Z must make a report to the Department of Justice about the carrying out of the Commissioner’s functions as soon as reasonably practicable after the end of—
(a) the period of 12 months beginning with the date on which this Article comes into operation, and
(b) every subsequent 12 month period.
(2) The Commissioner may also, at any time, make such reports to the Department of Justice on any matter relating to the Commissioner’s functions as the Commissioner considers appropriate.
(3) The Department of Justice may at any time require the Commissioner to report on any matter relating to the Commissioner’s functions.
(4) On receiving a report from the Commissioner under this Article, the Department must—
(a) publish the report, and
(b) lay a copy of the published report before the Assembly.
(5) The Department may, after consultation with the Commissioner, exclude from publication any part of a report under this Article if, in the opinion of the Department, the publication of that part would be contrary to the public interest.
.
(2) Schedule 1 inserts new Schedule 2B into the Police and Criminal Evidence (Northern Ireland) Order 1989, relating to the Northern Ireland Commissioner for the Retention of Biometric Material.
Retention of fingerprints and DNA profiles: amendments
In Schedule 2—
(a) Part 1 makes further amendments of Articles 63B to 63Z1 (as inserted by section 1), relating to certain sentencing disposals;
(b) Part 2 makes minor and consequential amendments.
Retention of fingerprints and DNA profiles: supplementary
3.-(1) Nothing in section 1 or Schedule 1 or 2 affects the operation of Article 63DA of the Police and Criminal Evidence (Northern Ireland) Order 1989, as inserted by paragraph 5(3) of Schedule 2 to the Counter-Terrorism and Border Security Act 2019 (or the operation of Articles 63B to 63R of that Order, as inserted by section 9 of and Schedule 2 to the Criminal Justice Act (Northern Ireland) 2013, so far as they relate to Article 63DA).
(2) The provisions inserted by that section and those Schedules (“the new provisions”) apply in relation to fingerprints and in relation to DNA profiles and DNA samples regardless of when the fingerprints or, as the case may be, DNA sample was taken; but this is subject to subsections (3) to (9).
(3) Subsections (4) and (5) apply where fingerprints were taken, or a DNA sample was taken, before commencement day from a person (“P”) with P’s consent, in connection with the investigation of an offence.
(4) If P was not a suspect in the investigation at the time of the taking of the fingerprints or sample, the material is to be treated as consensual material (and, accordingly, the material may be retained only in accordance with Article 63D).
(5) If P was a suspect in the investigation at the time of the taking of the fingerprints or sample, the material is to be treated as non-consensual material (and, accordingly, P’s material may be retained only in accordance with Articles 63F to 63U).
(6) If fingerprints taken before commencement day are required, by virtue of the new provisions, to be destroyed, the fingerprints (and any copy of them) are not required to be destroyed—
(a) in the case of fingerprints (or a copy) held in printed form, before the end of the period of 2 years beginning with commencement day;
(b) in any other case, before the end of the period of 6 months beginning with commencement day.
(7) If—
(a) a DNA sample was taken before commencement day, and
(b) the sample or a DNA profile derived from it is required, by virtue of the new provisions, to be destroyed,
(8) In the case of fingerprints or a DNA sample or DNA profile which would, but for subsection (6)(a) or (b) or (7), be required to be destroyed before the end of the period mentioned in that provision, Articles 63G(4) to (6), 63H, 63S and 63W (extension of retention periods) do not apply.
(9) In the case of material taken before commencement day, the first review under Article 63T must be conducted before the end of the period of 4 years beginning with commencement day (and this requirement applies in place of Article 63T(2)(a)).
(10) The Department may by regulations make such further transitional, transitory or saving provision as the Department considers appropriate in connection with the coming into force of this section.
(11) The provision that may be made under subsection (10) includes provision modifying the effect of subsections (3) to (9).
(12) In this section, “commencement day” means the day on which section 1 comes into operation.
PART Part 2
Children
Part 2 Children
Bail
Custody on sentencing
Custody on remand or committal
Supplementary
PART Part 3
Use of live links
Part 3 Use of live links
Interviews
20.-(1) Article 40 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (responsibilities in relation to persons detained) is amended as follows.
(2) In paragraph (2)(a), for “a police officer investigating an offence for which that person is in police detention” substitute “another police officer at the police station where the person is in police detention, for the purpose of an interview that is part of the investigation of an offence for which the person is in police detention or otherwise in connection with the investigation of such an offence”.
(3) After paragraph (3) insert—
(3A) Paragraphs (3B) and (3C) apply if the custody officer, in accordance with any code of practice issued under this Order, transfers or permits the transfer of a person in police detention to an officer mentioned in paragraph (2)(a) for the purpose of an interview that is to be conducted to any extent by means of a live link by another police officer who is investigating the offence but is not at the police station where the person in police detention is held at the time of the interview.
(3B) The officer who is not at the police station has the same duty as the officer mentioned in paragraph (2)(a) to ensure that the person is treated in accordance with the provisions of this Order and of any such codes of practice as are mentioned in paragraph (1).
(3C) If the person detained is subsequently returned to the custody of the custody officer, the officer who is not at the police station also has the same duty under paragraph (3) as the officer mentioned in paragraph (2)(a).
(3D) For the purpose of paragraph (3C), paragraph (3) applies as if the reference to “in his custody” were a reference to “being interviewed”.
(3E) In paragraph (3A), “live link” means an arrangement by which the officer who is not at the police station is able to see and hear, and to be seen and heard by, the person in police detention, any legal representative of that person and the officer who has custody of that person at the police station (and for this purpose any impairment of eyesight or hearing is to be disregarded).
.
Detention
21.-(1) The Police and Criminal Evidence (Northern Ireland) Order 1989 is amended as follows.
(2) After Article 46 (detention before charge: supplementary) insert—
Use of live links
Functions of extending detention: use of live links
46ZA.-(1) The functions of a police officer under Article 43(1) or (2) may be performed, in relation to an arrested person who is held at a police station, by an officer who is not present at the police station but has access to the use of a live link if—
(a) a custody officer considers that the use of the live link is appropriate,
(b) the arrested person has had advice from a solicitor on the use of the live link, and
(c) the appropriate consent to the use of the live link has been given.
(2) In paragraph (1)(c), “the appropriate consent” means—
(a) in relation to a person who has attained the age of 18, the consent of the person;
(b) in relation to a person who has not attained the age of 18 but has attained the age of 14, the consent of the person and of the person’s parent or guardian;
(c) in relation to a person who has not attained the age of 14, the consent of the person’s parent or guardian.
(3) The consent of a person who has not attained the age of 18 (but has attained the age of 14), or who is a vulnerable adult, may only be given in the presence of an appropriate adult.
(4) Article 43 applies with the modifications set out in paragraphs (5) to (7) in any case where the functions of a police officer under that Article are, by virtue of paragraph (1), performed by an officer who is not at the police station where the arrested person is held.
(5) Paragraphs (4)(b) and (8)(b)(iii) and (iv) of that Article are each to be read as if, instead of requiring the officer to make a record, they required the officer to cause another police officer to make a record.
(6) Paragraph (5) of that Article is to be read as if it required the officer to give the persons mentioned in that paragraph an opportunity to make representations—
(a) if facilities exist for the immediate transmission of written representations to the officer, either in writing by means of those facilities or orally by means of the live link, or
(b) in any other case, orally by means of the live link.
(7) Paragraph (8) of that Article is to be read as if the reference in sub-paragraph (b) to the right conferred by Article 59 were omitted.
(8) In this Article—
(9) In paragraph (8)—
(a) in both definitions of “appropriate adult”, “police purposes” has the meaning given by section 77(1) of the Police (Northern Ireland) Act 2000;
(b) in the definition of “appropriate adult” in relation to a person aged under 18, “authority” and “voluntary organisation” have the meanings given by Article 2 of the Children (Northern Ireland) Order 1995.
Warrants for further detention: use of live links
46ZB.-(1) A magistrates’ court may give a live link direction for the purpose of the hearing of a complaint under Article 44 for a warrant authorising further detention of a person, or the hearing of a complaint under Article 45 for an extension of such a warrant, if—
(a) a custody officer considers that the use of a live link for that purpose is appropriate,
(b) the person to whom the complaint relates has had legal advice on the use of the live link,
(c) the appropriate consent to the use of the live link has been given, and
(d) it is not contrary to the interests of justice to give the direction.
(2) In paragraph (1)(c), “the appropriate consent” means—
(a) in relation to a person who has attained the age of 18, the consent of the person;
(b) in relation to a person who has not attained the age of 18 but has attained the age of 14, the consent of the person and of the person’s parent or guardian;
(c) in relation to a person who has not attained the age of 14, the consent of the person’s parent or guardian.
(3) The consent of a person who has not attained the age of 18 (but has attained the age of 14), or who is a vulnerable adult, may only be given in the presence of an appropriate adult.
(4) Where a live link direction is given, the requirement under Article 44(2)(b) for the person to whom the complaint relates to be brought before the court for the hearing does not apply.
(5) In this Article—
(6) In paragraph (5)—
(a) in both definitions of “appropriate adult”, “police purposes” has the meaning given by section 77(1) of the Police (Northern Ireland) Act 2000;
(b) in the definition of “appropriate adult” in relation to a person aged under 18, “authority” and “voluntary organisation” have the meanings given by Article 2 of the Children (Northern Ireland) Order 1995.
.
(3) In Article 46A (use of video-conferencing facilities for decisions about detention)—
(a) for the heading substitute “Use of live links for other decisions about detention”;
(b) in paragraph (1)—
(i) for “the Secretary of State” substitute “the Department of Justice”;
(ii) in sub-paragraph (b), for the words from “video-conferencing facilities” to the end substitute “a live link”;
(c) in paragraph (3), for “the facilities mentioned in paragraph (1)” substitute “a live link”;
(d) in paragraph (7), in each of sub-paragraphs (a)(i) and (b), for “the video-conferencing facilities” substitute “the live link”;
(e) for paragraph (9) substitute—
(9) In this Article, “live link”, in relation to any functions, means an arrangement by which the functions may be performed by an officer who is not present at the police station where an arrested person is held but who is able (for the purpose of the functions) to see and hear, and to be seen and heard by, the arrested person and any legal representative of that person (and for this purpose any impairment of eyesight or hearing is to be disregarded).
.
(4) In consequence of the amendments made by subsection (3), in Article 41A (use of telephone for review under Article 41)—
(a) in paragraph (2)(a), for “video conferencing facilities” substitute “a live link”;
(b) in paragraph (5) “video-conferencing facilities” substitute “live link”.
PART Part 4
Administration of Justice
Part 4 Administration of Justice
Functions relating to the police
Criminal proceedings
Legal aid
Criminal records certificates
Court security
PART Part 5
Final provisions
Part 5 Final provisions
Further provision
31.-(1) The Department of Justice may by regulations make—
(a) such supplementary, incidental or consequential provision;
(b) such transitory, transitional or saving provision,
(2) Regulations under subsection (1) may amend, repeal, revoke or otherwise modify any statutory provision (including this Act).
(3) Regulations under subsection (1)—
(a) except where they amend primary legislation, are subject to negative resolution;
(b) if they amend primary legislation, may not be made unless a draft of the regulations has been laid before and approved by a resolution of the Assembly.
(4) In subsection (3) “primary legislation” means—
(a) any Northern Ireland legislation;
(b) any Act of Parliament.
Interpretation
Commencement
33.-(1) The following come into operation on the day after the day on which this Act receives Royal Assent—
(a) sections 22, 23, 24, 25, 27 and 29 (which contain miscellaneous amendments relating to the administration of justice);
(b) this Part.
(2) The following come into operation at the end of the period of 2 months beginning with the day on which this Act receives Royal Assent—
(a) sections 4 to 7 (which relate to bail for children);
(b) sections 9 to 19 and Schedules 3 and 4 (which relate to custody of children).
(3) The other provisions of this Act come into operation on such day or days as the Department of Justice may by order appoint.
Short title
Schedules
Schedule 1 Section 1.
Northern Ireland Commissioner for the Retention of Biometric Material
Schedule 1 Section 1. Northern Ireland Commissioner for the Retention of Biometric Material After Schedule 2A to the Police and Criminal Evidence (Northern Ireland) Order 1989 (as inserted by the Crime and Security Act 2010) insert—
Schedule 2B Article 63Z.
Northern Ireland Commissioner For The Retention Of Biometric Material
Schedule 2B Article 63Z. Northern Ireland Commissioner For The Retention Of Biometric Material
1. 1. (1) The Northern Ireland Commissioner for the Retention of Biometric Material is to hold office in accordance with the terms of the Commissioner’s appointment. (2) Sub-paragraph (1) is subject to paragraphs 2 to 4.
2. The term for which the Commissioner is appointed must not exceed 4 years.
3. The Commissioner may not be appointed for more than 2 terms.
4. The Department of Justice may remove the Commissioner from office if the Department is satisfied that the Commissioner—
5. The Department of Justice may—
6. 6. (1) The Commissioner may authorise, to such extent as the Commissioner determines, any person to perform any of the functions mentioned in sub-paragraph (2). (2)
The functions are—
(a) the Commissioner’s functions under Article 63G(4)(c) and (5);
(b) any functions conferred on the Commissioner by regulations under Article 63U(3)(d).
(3)
The giving of authority under sub-paragraph (1) does not—
(a) affect the Commissioner’s responsibility for the performance of the functions, or
(b) prevent the Commissioner from performing the functions.
.
Schedule 2 Section 2.
Retention of fingerprints and dna profiles: amendments
Schedule 2 Section 2. Retention of fingerprints and dna profiles: amendments
PART Part 1
Further provision in relation to certain disposals
Part 1 Further provision in relation to certain disposals
1. The provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 which are inserted by section 1 are amended as follows.
2. In Article 63E(10), after the words “the person being given”, in the second place where they occur, insert “a conditional caution under section 71 of the Justice Act (Northern Ireland) 2011,”.
3. After Article 63P insert—
Persons given a prosecutorial fine notice
63PA.-(1) This Article applies where P is given a prosecutorial fine notice under section 18 of the Justice Act (Northern Ireland) 2015.
(2) P’s material may be retained until the end of the period of 2 years beginning with the date on which P was given the prosecutorial fine notice.
.
PART Part 2
Minor and consequential amendments
Part 2 Minor and consequential amendments
Police and Criminal Evidence (Northern Ireland) Order 1989
Police (Amendment) (Northern Ireland) Order 1995
Criminal Justice and Police Act 2001
Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007
Counter-Terrorism Act 2008
Crime and Security Act 2010
Protection of Freedoms Act 2012
Criminal Justice Act (Northern Ireland) 2013
Justice Act (Northern Ireland) 2015
Counter-Terrorism and Border Security Act 2019
National Security Act 2023
Northern Ireland Troubles (Legacy and Reconciliation) Act 2023
Schedule 3 Section 12.
Youth custody and supervision orders: breach of supervision requirements
Schedule 3 Section 12. Youth custody and supervision orders: breach of supervision requirements In the Criminal Justice (Children) (Northern Ireland) Order 1998, after Schedule 1A insert—
Schedule 1B Article 38E.
Youth Custody And Supervision Orders: Breach Of Supervision Requirement
Schedule 1B Article 38E. Youth Custody And Supervision Orders: Breach Of Supervision Requirement
Interpretation
1. In this Schedule—
Breach of a supervision requirement: issue of summons or warrant
2. 2. (1)
Sub-paragraph (2) applies where—
(a) a youth custody and supervision order has been made in respect of an offender, and
(b) it appears upon a complaint made to a lay magistrate that the offender has breached a supervision requirement under the order.
(2)
The magistrate may—
(a) issue a summons directed to the offender requiring the offender to appear before a court of summary jurisdiction specified in the summons, or
(b) if the complaint is in writing and on oath, issue a warrant for the offender’s arrest requiring the offender to be brought before a court of summary jurisdiction specified in the warrant.
Power of court to deal with offender for breach of supervision requirement
3. 3. (1) If it is proved to the satisfaction of the court that the offender has, without reasonable excuse, breached a supervision requirement the court may deal with the matter under paragraph 4 or 5. (2) In making an order under paragraph 4 or imposing a fine under paragraph 5, the court must take into account the extent to which the offender has complied with any supervision requirement under the youth custody and supervision order. (3)
In this paragraph and in paragraphs 4 and 5—
the court means the court before which an offender appears or is brought under paragraph 2; the offender means the offender referred to in that paragraph; the youth custody and supervision order means the order referred to in that paragraph.
Further period of detention
4. 4. (1) Where the youth custody and supervision order is in force, the court may order the offender to be detained for a period not exceeding the remainder of the period during which the order has effect. (2) If the offender is an adult when the order under sub-paragraph (1) is made, the offender must be detained in a young offenders centre. (3) Where the court makes an order under sub-paragraph (1), any remaining period of supervision is to be reduced by the further period of detention. (4)
A further period of detention is to be treated for the purposes of any statutory provision as being ordered by the youth custody and supervision order and, accordingly—
(a) the offender is to be treated as being detained under the youth custody and supervision order during any such period, and
(b) any reference to the period for which a person is detained under a youth custody and supervision order includes any further period of detention.
Fine
5. 5. (1) The court may impose on the offender a fine not exceeding £1,000. (2)
Where a court imposes a fine—
(a) if the offender is under the age of 16, it must order that the fine is to be paid by the parent or guardian of the offender instead of by the offender, unless it is satisfied that there is a good reason for not doing so, and
(b) if the offender is aged 16 or over but is under the age of 18, it may order that the fine is to be paid by the parent or guardian of the offender instead of by the offender.
(3) A fine ordered to be paid by a parent or guardian may be recovered from the parent or guardian by distress or by imprisonment in default of payment in the same manner as if the order had been made on the conviction of the parent or guardian of the offence for which the youth custody and supervision order was made. (4) A parent or guardian may appeal to a county court against an order under sub-paragraph (2).
.
Schedule 4 Section 18.
Child bail and custody: minor and consequential amendments
Schedule 4 Section 18. Child bail and custody: minor and consequential amendments
PART Part 1
Amendments relating to bail
Part 1 Amendments relating to bail
Criminal Justice (Children) (Northern Ireland) Order 1998
Criminal Justice (Northern Ireland) Order 2003
Criminal Justice Act 2003
Criminal Justice (Northern Ireland) Order 2008
PART Part 2
Amendments relating to custody on sentencing, remand and committal
Part 2 Amendments relating to custody on sentencing, remand and committal
