Counter-Terrorism and Border Security Bill (HC Bill 219)

(b) in the interests of the economic well-being of the United Kingdom,

(c) for the purpose of preventing or detecting an act of serious crime, or

(d) for the purpose of preventing death or significant injury.

(5) The second condition is that the Commissioner is satisfied that—

(a) 25arrangements are in place that are sufficient for ensuring that any
confidential material contained in the copy is retained securely, and

(b) the material will be used only so far as necessary and proportionate
for a relevant purpose.

(6) If the Commissioner does not proceed under sub-paragraph (3) in relation to
30a copy, the Commissioner must (subject to sub-paragraph (7)) direct that the
copy is destroyed.

(7) Sub-paragraph (6) does not apply if the copy is further retained under a
power conferred by paragraph 14(3)(b) or (c).

(8) In authorising the retention and use of a copy under sub-paragraph (3) the
35Commissioner may impose whatever conditions the Commissioner thinks
appropriate in relation to its retention and use.

(9) For the purposes of sub-paragraph (5)(b), the use of material is necessary for
a relevant purpose if it is necessary—

(a) in the interests of national security,

(b) 40in the interests of the economic well-being of the United Kingdom,

(c) for the purpose of preventing or detecting serious crime, or

(d) for the purpose of preventing death or significant injury.

(10) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, exercises a function under this paragraph in relation to a
45copy, an affected party may ask the Investigatory Powers Commissioner to
decide whether to approve the way in which the function was exercised.

Counter-Terrorism and Border Security BillPage 44

(11) In this paragraph—

  • “affected party” has the meaning given by paragraph 13(3);

  • “confidential material” has the meaning given by paragraph 12(10) and
    (11).

5Offences

16 (1) A person commits an offence if the person—

(a) wilfully fails to comply with a duty imposed under or by virtue of
this Part of this Schedule, or

(b) wilfully obstructs, or seeks to frustrate, a search or examination
10under or by virtue of this Part of this Schedule.

(2) A person guilty of an offence under this paragraph is liable—

(a) on summary conviction in England and Wales, to imprisonment for
a term not exceeding 51 weeks, or to a fine not exceeding level 4 on
the standard scale, or to both;

(b) 15on summary conviction in Scotland or Northern Ireland, to
imprisonment for a term not exceeding 3 months, or to a fine not
exceeding level 4 on the standard scale, or to both.

(3) In relation to an offence committed before the coming into force of section
281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain
20summary offences: England and Wales), the reference in sub-paragraph
(2)(a) to 51 weeks is to be read as a reference to 3 months.

(4) Proceedings for an offence under this paragraph are not to be started—

(a) in England and Wales, except with the consent of the Director of
Public Prosecutions;

(b) 25in Northern Ireland, except with the consent of the Director of Public
Prosecutions for Northern Ireland.

(5) But if it appears to the Director of Public Prosecutions or the Director of
Public Prosecutions for Northern Ireland that an offence under this
paragraph has been committed for a purpose wholly or partly connected
30with the affairs of a country other than the United Kingdom, consent may be
given for the purposes of this paragraph only with the permission—

(a) in the case of the Director of Public Prosecutions, of the Attorney
General, and

(b) in the case of the Director of Public Prosecutions for Northern
35Ireland, of the Advocate General for Northern Ireland.

Exercise of powers

17 The powers conferred by this Part of this Schedule are exercisable in spite of
the rights conferred by section 1 of the Immigration Act 1971 (general
principles regulating entry into and staying in the United Kingdom).

Counter-Terrorism and Border Security BillPage 45

Part 2 Detention

Place of detention

18 (1) A detainee may be detained at a place designated under paragraph 1(1) of
5Schedule 8 to the Terrorism Act 2000 as a place where persons may be
detained under Schedule 7 to that Act.

(2) A detainee may be taken in the custody of an examining officer or of a
person acting under an examining officer’s authority to and from any place
where the detainee’s attendance is required for the purpose of—

(a) 10the detainee’s examination under Part 1 of this Schedule,

(b) establishing the detainee’s nationality or citizenship, or

(c) making arrangements for the detainee’s admission to a country or
territory outside the United Kingdom.

(3) Where a detainee is arrested in one part of the United Kingdom and all or
15part of the detainee’s detention takes place in another part, the provisions of
this Part of this Schedule which apply to detention in a particular part of the
United Kingdom apply in relation to the detainee while detained in that
part.

(4) In this Part of this Schedule—

(a) 20references to a police station include references to any place that is
designated as mentioned in sub-paragraph (1);

(b) “detainee” means a person detained under Part 1 of this Schedule.

Identification

19 (1) An examining officer may take any steps which are reasonably necessary
25for—

(a) photographing the detainee,

(b) measuring the detainee, or

(c) identifying the detainee.

(2) This paragraph does not confer the power to take—

(a) 30fingerprints, non-intimate samples or intimate samples (see instead
paragraph 27 below for power to take fingerprints and non-intimate
samples), or

(b) relevant physical data or samples as mentioned in section 18 of the
Criminal Procedure (Scotland) Act 1995 as applied by paragraph 35
35below (see instead that paragraph).

Video recording of interviews

20 (1) This paragraph applies to any interview by a constable of a detainee that
takes place in a police station.

(2) The video recording (with sound) of interviews to which this paragraph
40applies must be carried out in accordance with any relevant code of practice
under Part 4 of this Schedule.

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Status

21 A detainee is to be deemed to be in legal custody throughout the period of
the detainee’s detention.

Rights: England, Wales and Northern Ireland

22 (1) 5Subject to paragraph 25, a detainee who is detained at a place in England,
Wales or Northern Ireland is entitled, if the detainee so requests, to have one
named person informed as soon as is reasonably practicable that the
detainee is being detained there.

(2) The person named must be—

(a) 10a friend of the detainee,

(b) a relative, or

(c) a person who is known to the detainee or who is likely to take an
interest in the detainee’s welfare.

(3) Where a detainee is transferred from one place to another, the detainee is to
15be entitled to exercise the right under this paragraph in respect of the place
to which the detainee is transferred.

23 (1) Subject to paragraphs 25 and 26, a detainee who is detained in England,
Wales or Northern Ireland is entitled, if the detainee so requests, to consult
a solicitor as soon as is reasonably practicable, privately and at any time.

(2) 20Where a request is made under sub-paragraph (1), the request and the time
at which it was made must be recorded.

24 (1) This paragraph applies where a detainee makes a request to consult a
solicitor.

(2) The examining officer may not question the detainee under paragraph 1 or
252 until the detainee has consulted a solicitor (or no longer wishes to do so).

(3) Sub-paragraph (2) does not apply if the examining officer reasonably
believes that postponing the questioning until then would be likely to
prejudice determination of the relevant matters.

(4) The powers conferred by paragraph 8 (search powers where a person is
30questioned under paragraph 1) may be used when questioning is postponed
because of sub-paragraph (2).

(5) The detainee is entitled to consult a solicitor in person.

(6) Sub-paragraph (5) does not apply if the examining officer reasonably
believes that the time it would take to consult a solicitor in person would be
35likely to prejudice determination of the relevant matters.

(7) In that case the examining officer may require any consultation to take place
in another way.

(8) In this paragraph “the relevant matters” means the matters the examining
officer seeks to determine under paragraph 1 or 2.

25 (1) 40A police officer of at least the rank of superintendent may authorise a
delay—

(a) in informing the person named by a detainee under paragraph 22;

(b) in permitting a detainee to consult a solicitor under paragraph 23.

Counter-Terrorism and Border Security BillPage 47

(2) An officer may give an authorisation under sub-paragraph (1) only if the
officer has reasonable grounds for believing—

(a) in the case of an authorisation under sub-paragraph (1)(a), that
informing the named person of the detainee’s detention will have
5any of the consequences specified in sub-paragraph (3), or

(b) in the case of an authorisation under sub-paragraph (1)(b), that the
exercise of the right under paragraph 23 at the time when the
detainee desires to exercise it will have any of the consequences
specified in sub-paragraph (3).

(3) 10Those consequences are—

(a) interference with or harm to evidence of an indictable offence,

(b) interference with or physical injury to any person,

(c) the alerting of persons who are suspected of having committed an
indictable offence but who have not been arrested for it,

(d) 15the hindering of the recovery of property obtained as a result of an
indictable offence, or

(e) interference with the gathering of information about the
commission, preparation or instigation of acts carried out in
connection with a person’s engagement in hostile activity.

(4) 20If an authorisation under sub-paragraph (1) is given orally, the person
giving it must confirm it in writing as soon as is reasonably practicable.

(5) Where an authorisation under sub-paragraph (1) is given—

(a) the detainee is to be told the reason for the delay as soon as is
reasonably practicable, and

(b) 25the reason is to be recorded as soon as is reasonably practicable.

(6) Where the reason for authorising delay ceases to subsist there may be no
further delay in permitting the exercise of the right in the absence of a further
authorisation under sub-paragraph (1).

26 (1) A direction under this paragraph may provide that a detainee who wishes
30to exercise the right under paragraph 23 may consult a solicitor only in the
sight and hearing of a qualified officer.

(2) A direction under this paragraph may be given—

(a) where the detainee is detained in England or Wales, by a police
officer of at least the rank of Commander or Assistant Chief
35Constable, or

(b) where the detainee is detained in Northern Ireland, by a police
officer of at least the rank of Assistant Chief Constable.

(3) A direction under this paragraph may be given only if the officer giving it
has reasonable grounds for believing—

(a) 40that, unless the direction is given, the exercise of the right by the
detainee will have any of the consequences specified in paragraph
25(3), or

(b) that the detainee has benefited from the detainee’s criminal conduct
and that, unless the direction is given, the exercise of the right by the
45detainee will hinder the recovery of the value of the property
constituting the benefit.

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(4) For the purposes of sub-paragraph (3) the question whether a person has
benefitted from the person’s criminal conduct is to be decided in accordance
with Part 2 of the Proceeds of Crime Act 2002.

(5) In this paragraph “a qualified officer” means a police officer who—

(a) 5is of at least the rank of inspector, and

(b) in the opinion of the officer giving the direction, has no connection
with the detainee’s case.

(6) A direction under this paragraph ceases to have effect once the reason for
giving it ceases to subsist.

10Fingerprints and samples: England, Wales and Northern Ireland

27 (1) This paragraph applies where a detainee is detained in England, Wales or
Northern Ireland.

(2) Fingerprints may be taken from the detainee only if they are taken by a
constable—

(a) 15with the appropriate consent given in writing, or

(b) without that consent under sub-paragraph (4).

(3) A non-intimate sample may be taken from the detainee only if it is taken by
a constable—

(a) with the appropriate consent given in writing, or

(b) 20without that consent under sub-paragraph (4).

(4) Fingerprints or a non-intimate sample may be taken from the detainee
without the appropriate consent only if—

(a) the detainee is detained at a police station and a police officer of at
least the rank of superintendent authorises the fingerprints or
25sample to be taken, or

(b) the detainee has been convicted of a recordable offence and, where a
non-intimate sample is to be taken, was convicted of the offence on
or after 10th April 1995 (or 29th July 1996 where the non-intimate
sample is to be taken in Northern Ireland).

(5) 30An officer may give an authorisation under sub-paragraph (4)(a) only if—

(a) in the case of the taking of fingerprints or samples, condition 1 is met,
or

(b) in the case of the taking of fingerprints, condition 2 is met.

(6) Condition 1 is met if the officer is satisfied that it is necessary for the
35fingerprints or sample to be taken in order to assist in determining whether
the detainee is or has been engaged in hostile activity.

(7) Condition 2 is met if—

(a) the officer is satisfied that the fingerprints of the detainee will
facilitate the ascertainment of the detainee’s identity, and

(b) 40the detainee has refused to identify himself or herself or the officer
has reasonable grounds for suspecting that the detainee is not who
the detainee claims to be.

(8) In this paragraph references to ascertaining a person’s identity include
references to showing that the person is not a particular person.

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(9) If an authorisation under sub-paragraph (4)(a) is given orally, the person
giving it must confirm it in writing as soon as is reasonably practicable.

28 (1) Before fingerprints or a sample are taken from a person under paragraph 27,
the person must be informed—

(a) 5that the fingerprints or sample may be used for the purposes of—

(i) a relevant search, as defined by paragraph 36(6),

(ii) section 63A(1) of the Police and Criminal Evidence Act 1984,
or

(iii) Article 63A(1) of the Police and Criminal Evidence (Northern
10Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)), and

(b) where the fingerprints or sample are to be taken under paragraph
27(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or
sample.

(2) Before fingerprints or a sample are taken from a detainee upon an
15authorisation given under paragraph 27(4)(a), the detainee must be
informed—

(a) that the authorisation has been given,

(b) of the grounds upon which it has been given, and

(c) where relevant, of the nature of the offence in which it is suspected
20that the detainee has been involved.

(3) After fingerprints or a sample are taken under paragraph 27, any of the
following which apply must be recorded as soon as reasonably practicable—

(a) the fact that the person has been informed in accordance with sub-
paragraphs (1) and (2),

(b) 25the reason referred to in sub-paragraph (1)(b),

(c) the authorisation given under paragraph 27(4)(a),

(d) the grounds upon which that authorisation has been given, and

(e) the fact that the appropriate consent has been given.

(4) Where a sample of hair is to be taken under paragraph 27, the sample may
30be taken either by cutting hairs or by plucking hairs with their roots so long
as no more are plucked than the person taking the sample reasonably
considers to be necessary for a sufficient sample.

29 (1) In the application of paragraphs 19, 27 and 28 in relation to a person
detained in England or Wales, the following expressions have the meaning
35given by section 65 of the Police and Criminal Evidence Act 1984—

(a) “appropriate consent”,

(b) “fingerprints”,

(c) “intimate sample”,

(d) “non-intimate sample”, and

(e) 40“sufficient”.

(2) In the application of section 65(2A) of the Police and Criminal Evidence Act
1984 for the purposes of sub-paragraph (1) of this paragraph, the reference
to the destruction of a sample under section 63R of that Act is a reference to
the destruction of a sample under paragraph 36 of this Schedule.

(3) 45In the application of paragraphs 19, 27 and 28 in relation to a person
detained in Northern Ireland, the expressions listed in sub-paragraph (1)