The Protection of Freedoms Act 2012

The Protection of Freedoms Bill, published on the 10th February 2011 and chosen to pilot the new public reading stage, aimed to cut back on what many consider to be an intrusion of privacy and an invasion of liberty.

The Protection of Freedoms Act has now received Royal Assent.

The Protection of Freedoms Bill, published on the 10th February 2011 and chosen to pilot the new public reading stage, aimed to cut back on what many consider to be an intrusion of privacy and an invasion of liberty. The Bill addressed amongst other things, the retention of DNA.

Some of you may recall that the European Court of Human Rights said the database in England and Wales was illegal because it allowed police to indefinitely retain the profiles of people who had been arrested – but were never actually charged or found guilty of a crime. The ECHR's judgement had been delivered in the case of S and Marper v United Kingdom in December 2008. The ECHR took exception to the blanket and indefinite retention of DNA and fingerprints of innocent people which they considered to be in breach of Article 8 of the European Convention of Human Rights.

However, it said the Scottish part of the database was legal. The police in Scotland delete most of the profiles falling into this controversial category. The Scottish system is seen as fairer.

The government's response at the time was to come up with a blanket six year policy with limited exceptions, this came amidst concerns that the proposals were indeed confirmation of the government's stubborn determination to hold on to its desire to build a national DNA database by stealth. There were also concerns whether the blanket six year policy, with only limited exceptions, would be enough to satisfy the European Court of Human Rights' concerns over such a policy infringing privacy laws.

We have also had the opportunity of listening to the views of the father of DNA, Sir Alec Jefferys, who entered the debate. Despite reservations and a healthy debate in Parliament, the controversial provisions to introduce a 6 year period of retention for persons who have not been convicted found their way onto the statute books in the form of the Crime and Security Bill which was passed on the 7 April 2010. The General Election in May 2010 prevented implementation of the measures as a new Code of Practice for which approval was also needed.


The Act now provides important safeguards to ensure that biometric material is destroyed if it is found that the material was taken unlawfully, following an unlawful arrest or in the case of mistaken identity.


In addition many will welcome the specific provisions dealing with the length of time biometric data may be held. We are told that, as in Scotland, the biometric data of those charged with, but not convicted of, a serious 'qualifying' offence can be retained for an initial period of 3 years. This initial period may be extended for a single further period of 2 years with the approval of a District Judge (Magistrates' Courts). Many of you will recognise and appreciate the significance of the need for the approval of a judge, a principle which can be found elsewhere in due processes as a safeguard. Noticeably the Act does not allow for repeated renewals but only a single extension thereby avoiding the possibility of indefinite retention by another means. There are other safeguards.


Other matters included in the Act include:

  • introduces a code of practice for surveillance camera systems and provides for judicial approval of certain surveillance activities by local authorities;

  • provides for a code of practice to cover officials’ powers of entry, with these powers being subject to review and repeal;

  • outlaws wheel-clamping on private land;

  • introduces a new regime for police stop and search powers under the Terrorism Act 2000 and reduces the maximum pre-charge detention period under that Act from 28 to 14 days.

This would appear to be a victory for common sense and a willingness to conform with the decisions of the European Court of Human Rights. I am sure we will all have more to discuss, regarding the Act and its significance, in the future.

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