PART 6INVESTIGATION ORDERS AND WARRANTS

SECTION 8: ORDERS FOR THE RETENTION OF FINGERPRINTS, ETC.

Application to extend retention period6.35.

(1)

This rule applies where a magistrates’ court can make an order extending the period for which there may be retained material consisting of—

(a)

fingerprints taken from a person—

(i)

under a power conferred by Part V of the Police and Criminal Evidence Act 1984135,

(ii)

with that person’s consent, in connection with the investigation of an offence by the police, or

(iii)

under a power conferred by Schedule 8 to the Terrorism Act 2000136 in relation to a person detained under section 41 of that Act;

(b)

a DNA profile derived from a DNA sample so taken; or

(c)

a sample so taken.

(2)

A chief officer of police who wants the court to make such an order must—

(a)

apply in writing—

(i)

within the period of 3 months ending on the last day of the retention period, where the application relates to fingerprints or a DNA profile, or

(ii)

before the expiry of the retention period, where the application relates to a sample;

(b)

in the application—

(i)

identify the material,

(ii)

state when the retention period expires,

(iii)

give details of any previous such application relating to the material, and

(iv)

outline the circumstances in which the material was acquired;

(c)

serve the application on the court officer, in every case; and

(d)

serve the application on the person from whom the material was taken, where—

(i)

the application relates to fingerprints or a DNA profile, or

(ii)

the application is for the renewal of an order extending the retention period for a sample.

(3)

An application to extend the retention period for fingerprints or a DNA profile must explain why that period should be extended.

(4)

An application to extend the retention period for a sample must explain why, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a)

disclosure to, or use by, a defendant; or

(b)

responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(5)

On an application to extend the retention period for fingerprints or a DNA profile, the applicant must serve notice of the court’s decision on any respondent where—

(a)

the court makes the order sought; and

(b)

the respondent was absent when it was made.

[Note. See rule 6.1(6)(a). The powers to which rule 6.35 applies may be exercised only by a District Judge (Magistrates’ Courts).

The time limits for making an application under this rule are prescribed by sections 63F(8) and 63R(8) of the Police and Criminal Evidence Act 1984137, and by paragraphs 20B(6) and 20G(8) of Schedule 8 to the Terrorism Act 2000138. They may be neither extended nor shortened.
Sections 63D and 63R of the 1984 Act139, and paragraphs 20A and 20G of Schedule 8 to the 2000 Act140, provide for the circumstances in which there must be destroyed the material to which this rule applies.

Section 63F of the 1984 Act, and paragraph 20B of Schedule 8 to the 2000 Act, provide for the circumstances in which fingerprints and DNA profiles may be retained instead of being destroyed. Under section 63F(7) and paragraph 20B(5), a chief officer of police to whom those provisions apply may apply for an order extending the statutory retention period of 3 years by up to another 2 years.

Section 63R of the 1984 Act and paragraph 20G of Schedule 8 to the 2000 Act provide for the circumstances in which samples taken from a person may be retained instead of being destroyed. Under section 63R(6) of the 1984 Act and paragraph 20G(6) of Schedule 8 to the 2000 Act, a chief officer of police to whom those provisions apply may apply for an order to retain a sample for up to 12 months after the date on which it would otherwise have to be destroyed. Under section 63R(9) and paragraph 20G(9), such an order may be renewed, on one or more occasions, for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.]