Counter-Terrorism and Border Security Bill (HC Bill 249)

Counter-Terrorism and Border Security BillPage 50

have the meaning given by Article 53 of the Police and Criminal Evidence
(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)S.I. 1989/1341 (N.I.12)).

(4) In paragraph 27 “recordable offence” has—

(a) in relation to a detainee in England or Wales, the meaning given by
5section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a detainee in Northern Ireland, the meaning given by
Article 2(2) of the Police and Criminal Evidence (Northern Ireland)
Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)).

Rights: Scotland

30 (1) 10A detainee who is detained at a place in Scotland is entitled to have
intimation of the detention and of the place sent without delay to a solicitor
and to another person named by the detainee.

(2) The person named must be—

(a) a friend of the detainee,

(b) 15a 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) A detainee who is transferred from one place to another is entitled to
exercise the right under sub-paragraph (1) in respect of the place to which
20the detainee is transferred.

(4) A police officer not below the rank of superintendent may authorise a delay
in making intimation where, in the officer’s view, the delay is necessary on
one of the grounds mentioned in paragraph 32(3) or where paragraph 32(4)
applies.

(5) 25Where a detainee requests that the intimation be made, the time when the
request—

(a) is made, and

(b) is complied with,

must be recorded.

(6) 30A person detained as mentioned in sub-paragraph (1) is entitled to consult a
solicitor at any time, without delay.

(7) A police officer not below the rank of superintendent may authorise a delay
in holding the consultation where, in the officer’s view, the delay is
necessary on one of the grounds mentioned in paragraph 32(3) or where
35paragraph 32(4) applies.

(8) Subject to paragraph 32, the consultation must be held in private.

31 (1) This paragraph applies where a detainee in Scotland requests to consult a
solicitor.

(2) The examining officer may not question the detainee under paragraph 1 or
402 until the person 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.

Counter-Terrorism and Border Security BillPage 51

(4) The powers given by paragraph 8 (search powers where a person is
questioned 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) 5Sub-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
likely 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) 10In this paragraph “the relevant matters” means the matters the examining
officer seeks to determine under paragraph 1 or 2.

32 (1) A police officer not below the rank of Assistant Chief Constable may direct
that the consultation mentioned in paragraph 30(6) is to be held in the
presence of a uniformed police officer not below the rank of inspector if it
15appears to the officer giving the direction to be necessary on one of the
grounds mentioned in sub-paragraph (3).

(2) A uniformed officer directed to be present during a consultation must be an
officer who, in the opinion of the officer giving the direction, has no
connection with the case.

(3) 20The grounds mentioned in paragraph 30(4) and (7) and in sub-paragraph (1)
are—

(a) that it is in the interests of the investigation or prevention of crime;

(b) that it is in the interests of the apprehension, prosecution or
conviction of offenders;

(c) 25that it will further the recovery of property obtained as a result of the
commission of an offence;

(d) that it will further the operation of Part 2 or 3 of the Proceeds of
Crime Act 2002 or the Proceeds of Crime (Northern Ireland) Order
1996 (S.I. 1996/1299 (N.I. 9)S.I. 1996/1299 (N.I. 9)) (confiscation of the proceeds of an
30offence);

(e) that it will further 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) This sub-paragraph applies where an officer mentioned in paragraph 30(4)
35or (7) has reasonable grounds for believing that—

(a) the detainee has benefited from the detainee’s criminal conduct, and

(b) the recovery of the value of the property constituting the benefit will
be hindered by—

(i) informing the named person of the detainee’s detention (in
40the case of an authorisation under paragraph 30(4)), or

(ii) the exercise of the entitlement under paragraph 30(6) (in the
case of an authorisation under paragraph 30(7)).

(5) For the purposes of sub-paragraph (4) the question whether a person has
benefited from the person’s criminal conduct is to be decided in accordance
45with Part 3 of the Proceeds of Crime Act 2002.

(6) Where delay is authorised in the exercising of any of the rights mentioned in
paragraph 30(1) and (6)

Counter-Terrorism and Border Security BillPage 52

(a) if the authorisation is given orally, the person giving it must confirm
it in writing as soon as is reasonably practicable,

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

(c) 5the reason must be recorded as soon as is reasonably practicable.

33 (1) Paragraphs 30 to 32 have effect in relation to a detainee in place of any
enactment or rule of law under or by virtue of which a person arrested or
detained may be entitled to communicate or consult with any other person.

(2) But where the detainee appears to a constable to be a child—

(a) 10the other person named by the detainee in pursuance of paragraph
30(1) must be the detainee’s parent,

(b) intimation is to be made under paragraph 30(1) whether the detainee
requests that it be made or not, and

(c) section 40 of the Criminal Justice (Scotland) Act 2016 (right of under
1518s to have access to other person) applies as if the detainee were a
person in police custody for the purposes of that section.

(3) In relation to a detainee who is detained at a place other than a police station,
sub-paragraph (2) applies as if references to a constable included an
examining officer.

(4) 20For the purposes of sub-paragraph (2)

  • “child” means a person under 16 years of age;

  • “parent” includes guardian and any person who has the care of the
    child.

34 (1) Subject to sub-paragraph (2), where a detainee is permitted to consult a
25solicitor, the solicitor is to be allowed to be present at any interview carried
out in connection with an investigation carried out for the purposes of Part
1 of this Schedule.

(2) A police officer not below the rank of Assistant Chief Constable may direct
that the solicitor is not to be allowed to be present at an interview (or part of
30an interview) if the officer is satisfied that the solicitor’s behaviour during
the interview would interfere with, or obstruct, the conduct of the interview.

Fingerprints and samples: Scotland

35 (1) Subject to the following modification, section 18 of the Criminal Procedure
(Scotland) Act 1995 (procedure for taking certain prints and samples)
35applies to a detainee detained at a police station in Scotland under Part 1 of
this Schedule as it applies to a person arrested.

(2) The modification is that section 18 applies as if—

(a) for subsection (2) of that section the following were substituted—

(2) Subject to subsection (2A), a constable may take from a
40detained person or require a detained person to provide
relevant physical data only if the officer is satisfied that it is
necessary to do so in order to assist in determining whether
that person is or has been engaged in hostile activity.

(2A) A constable may also take fingerprints from a detained
45person or require the person to provide them if—

Counter-Terrorism and Border Security BillPage 53

(a) the constable is satisfied that the fingerprints will
facilitate the ascertainment of the person’s identity;
and

(b) the person has refused to identify himself or herself or
5the constable has reasonable grounds for suspecting
that the person is not who the person claims to be.”;

(b) subsections (3) to (5) were omitted;

(c) after subsection (8) there were inserted—

(9) In this section—

(a) 10references to a “detained person” are references to a
person detained under Part 1 of Schedule 3 to the
Counter-Terrorism and Border Security Act 2018;

(b) the reference to engagement in hostile activity is to be
read in accordance with paragraph 1 of that
15Schedule.”

Destruction and retention of fingerprints and samples etc: United Kingdom

36 (1) This paragraph applies to—

(a) fingerprints taken under paragraph 27,

(b) a DNA profile derived from a DNA sample taken under paragraph
2027,

(c) relevant physical data taken or provided by virtue of paragraph 35,
and

(d) a DNA profile derived from a DNA sample taken by virtue of
paragraph 35.

(2) 25Fingerprints, relevant physical data and DNA profiles to which this
paragraph applies (“paragraph 36 material”) must be destroyed if it appears
to the responsible chief officer of police that the taking or providing of the
material or, in the case of a DNA profile, the taking of the sample from which
the DNA profile was derived, was unlawful.

(3) 30In any other case, paragraph 36 material must be destroyed unless it is
retained under a power conferred by paragraph 37, 39 or 40.

(4) Paragraph 36 material which ceases to be retained under a power mentioned
in sub-paragraph (3) may continue to be retained under any other power
which applies to it.

(5) 35Nothing in this paragraph prevents a relevant search, in relation to
paragraph 36 material, from being carried out within such time as may
reasonably be required for the search if the responsible chief officer of police
considers the search to be desirable.

(6) For the purposes of sub-paragraph (5), “a relevant search” is a search carried
40out for the purpose of checking the material against—

(a) other fingerprints or samples taken under paragraph 27 or a DNA
profile derived from such a sample,

(b) any of the relevant physical data, samples or information mentioned
in section 19C(1) of the Criminal Procedure (Scotland) Act 1995,

(c) 45fingerprints or samples taken under paragraph 10 or 12 of Schedule
8 to the Terrorism Act 2000 or a DNA profile derived from a sample
taken under one of those paragraphs,

Counter-Terrorism and Border Security BillPage 54

(d) any of the relevant physical data, samples or information held by
virtue of section 56 of the Criminal Justice (Scotland) Act 2003,

(e) material to which section 18 of the Counter-Terrorism Act 2008
applies,

(f) 5any of the fingerprints, data or samples obtained under paragraph 1
or 4 of Schedule 6 to the Terrorism Prevention and Investigation
Measures Act 2011, or information derived from such samples,

(g) any of the fingerprints, samples and information mentioned in
section 63A(1)(a) and (b) of the Police and Criminal Evidence Act
101984 (checking of fingerprints and samples), and

(h) any of the fingerprints, samples and information mentioned in
Article 63A(1)(a) and (b) of the Police and Criminal Evidence
(Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)) (checking of
fingerprints and samples).

37 (1) 15Paragraph 36 material may be retained indefinitely in the case of a detainee
who—

(a) has previously been convicted of a recordable offence (other than a
single exempt conviction), or an offence in Scotland which is
punishable by imprisonment, or

(b) 20is so convicted before the end of the period within which the material
may be retained by virtue of this paragraph.

(2) In sub-paragraph (1)—

(a) the reference to a recordable offence includes an offence under the
law of a country or territory outside the United Kingdom where the
25act constituting the offence would constitute—

(i) a recordable offence under the law of England and Wales if
done there, or

(ii) a recordable offence under the law of Northern Ireland if
done there,

30(and, in the application of sub-paragraph (1) where a person has
previously been convicted, this applies whether or not the act
constituted such an offence when the person was convicted);

(b) the reference to an offence in Scotland which is punishable by
imprisonment includes an offence under the law of a country or
35territory outside the United Kingdom where the act constituting the
offence would constitute an offence under the law of Scotland which
is punishable by imprisonment if done there (and, in the application
of sub-paragraph (1) where a person has previously been convicted,
this applies whether or not the act constituted such an offence when
40the person was convicted).

(3) In the case of a person who has no previous convictions, or only one exempt
conviction, the material may be retained until the end of the retention period
specified in sub-paragraph (4).

(4) The retention period is—

(a) 45in the case of fingerprints or relevant physical data, the period of 6
months beginning with the date on which the fingerprints or
relevant physical data were taken or provided, and

(b) in the case of a DNA profile, the period of 6 months beginning with
the date on which the DNA sample from which the profile was

Counter-Terrorism and Border Security BillPage 55

derived was taken (or, if the profile was derived from more than one
DNA sample, the date on which the first of those samples was taken).

38 (1) For the purposes of paragraph 37, a person is to be treated as having been
convicted of an offence if—

(a) 5in relation to a recordable offence in England and Wales or Northern
Ireland—

(i) the person has been given a caution in respect of the offence
which, at the time of the caution, the person has admitted,

(ii) the person has been found not guilty of the offence by reason
10of insanity,

(iii) the person has been found to be under a disability and to
have done the act charged in respect of the offence, or

(iv) the person has been warned or reprimanded under section 65
of the Crime and Disorder Act 1998 for the offence,

(b) 15in relation to an offence in Scotland punishable by imprisonment, the
person has accepted or has been deemed to accept—

(i) a conditional offer under section 302 of the Criminal
Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that Act,

(iii) 20a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) in relation to an offence in Scotland punishable by imprisonment, the
person has been acquitted on account of the person’s insanity at the
time of the offence or (as the case may be) by virtue of section 51A of
25the Criminal Procedure (Scotland) Act 1995,

(d) a finding in respect of the person has been made under section 55(2)
of the Criminal Procedure (Scotland) Act 1995 in relation to an
offence in Scotland punishable by imprisonment,

(e) the person, having been given a fixed penalty notice under section
30129(1) of the Antisocial Behaviour etc (Scotland) Act 2004 in
connection with an offence in Scotland punishable by imprisonment,
has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the person is liable to pay
35by virtue of section 131(5) of that Act, or

(f) in relation to an offence in Scotland punishable by imprisonment, the
person has been discharged absolutely by order under section 246(3)
of the Criminal Procedure (Scotland) Act 1995.

(2) Paragraph 37 and this paragraph, so far as they relate to persons convicted
40of an offence, have effect despite anything in the Rehabilitation of Offenders
Act 1974.

(3) But a person is not to be treated as having been convicted of an offence if that
conviction is a disregarded conviction or caution by virtue of section 92 or
101A of the Protection of Freedoms Act 2012.

(4) 45For the purposes of paragraph 37

(a) a person has no previous convictions if the person has not previously
been convicted—

(i) in England and Wales or Northern Ireland of a recordable
offence, or

Counter-Terrorism and Border Security BillPage 56

(ii) in Scotland of an offence which is punishable by
imprisonment, and

(b) if the person has previously been convicted of a recordable offence in
England and Wales or Northern Ireland, the conviction is exempt if
5it is in respect of a recordable offence, other than a qualifying offence,
committed when the person was aged under 18.

(5) In sub-paragraph (4) “qualifying offence” has—

(a) in relation to a conviction in respect of a recordable offence
committed in England and Wales, the meaning given by section 65A
10of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in respect of a recordable offence
committed in Northern Ireland, the meaning given by Article 53A of
the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.
1989/1341 (N.I. 12)).

(6) 15For the purposes of sub-paragraph (4)

(a) a person is to be treated as having previously been convicted in
England and Wales of a recordable offence if—

(i) the person has previously been convicted of an offence under
the law of a country or territory outside the United Kingdom,
20and

(ii) the act constituting the offence would constitute a recordable
offence under the law of England and Wales if done there
(whether or not it constituted such an offence when the
person was convicted);

(b) 25a person is to be treated as having previously been convicted in
Northern Ireland of a recordable offence if—

(i) the person has previously been convicted of an offence under
the law of a country or territory outside the United Kingdom,
and

(ii) 30the act constituting the offence would constitute a recordable
offence under the law of Northern Ireland if done there
(whether or not it constituted such an offence when the
person was convicted);

(c) a person is to be treated as having previously been convicted in
35Scotland of an offence which is punishable by imprisonment if—

(i) the person has previously been convicted of an offence under
the law of a country or territory outside the United Kingdom,
and

(ii) the act constituting the offence would constitute an offence
40punishable by imprisonment under the law of Scotland if
done there (whether or not it constituted such an offence
when the person was convicted);

(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes
a reference to an offence under the law of a country or territory
45outside the United Kingdom where the act constituting the offence
would constitute a qualifying offence under the law of England and
Wales if done there or (as the case may be) under the law of Northern
Ireland if done there (whether or not it constituted such an offence
when the person was convicted).

(7) 50For the purposes of paragraph 37 and this paragraph—

Counter-Terrorism and Border Security BillPage 57

(a) offence, in relation to any country or territory outside the United
Kingdom, includes an act punishable under the law of that country
or territory, however it is described;

(b) a person has in particular been convicted of an offence under the law
5of a country or territory outside the United Kingdom if—

(i) a court exercising jurisdiction under the law of that country
or territory has made in respect of such an offence a finding
equivalent to a finding that the person is not guilty by reason
of insanity, or

(ii) 10such a court has made in respect of such an offence a finding
equivalent to a finding that the person is under a disability
and did the act charged against the person in respect of the
offence.

(8) If a person is convicted of more than one offence arising out of a single
15course of action, those convictions are to be treated as a single conviction for
the purposes of calculating under paragraph 37 whether the person has been
convicted of only one offence.

(9) Nothing in paragraph 37 prevents the start of a new retention period in
relation to paragraph 36 material if a person is detained again under Part 1
20of this Schedule when an existing retention period (whether or not
extended) is still in force in relation to that material.

39 (1) Paragraph 36 material may be retained for as long as a national security
determination made by a chief officer of police has effect in relation to it.

(2) A national security determination is made if a chief officer of police
25determines that it is necessary for any paragraph 36 material to be retained
for the purposes of national security.

(3) A national security determination—

(a) must be made in writing,

(b) has effect for a maximum of 5 years beginning with the date on
30which the determination is made, and

(c) may be renewed.

(4) In this paragraph “chief officer of police” means—

(a) a chief officer of police of a police force in England and Wales,

(b) the chief constable of the Police Service of Scotland, or

(c) 35the Chief Constable of the Police Service of Northern Ireland.

40 (1) This paragraph applies where paragraph 36 material is or includes a
person’s fingerprints (“the original fingerprints”).

(2) A constable may make a determination under this paragraph in respect of
any further fingerprints taken from, or provided by, the same person (“the
40further fingerprints”) if conditions 1 and 2 are met.

(3) Condition 1 is met if the further fingerprints—

(a) are paragraph 36 material,

(b) are taken or provided under or by virtue of—

(i) Part 5 of the Police and Criminal Evidence Act 1984,

(ii) 45Article 61 of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)),

Counter-Terrorism and Border Security BillPage 58

(iii) any provision, power or authority mentioned in section
18G(1) of the Criminal Procedure (Scotland) Act 1995,

(iv) paragraph 10 of Schedule 8 to the Terrorism Act 2000, or

(v) paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention
5and Investigation Measures Act 2011, or

(c) are material to which section 18 of the Counter-Terrorism Act 2008
applies.

(4) Condition 2 is met if—

(a) in a case where the further fingerprints are material to which section
1018 of the Counter-Terrorism Act 2008 applies, the original
fingerprints and the further fingerprints are held under the law of
the same part of the United Kingdom;

(b) in any other case, the original fingerprints and the further
fingerprints were taken from or provided by the person in the same
15part of the United Kingdom.

(5) Where a determination under this paragraph is made in respect of the
further fingerprints—

(a) the further fingerprints may be retained for as long as the original
fingerprints are retained under any power conferred by paragraph
2037 or 39, and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long as their retention is authorised
by paragraph (a).

(6) Sub-paragraph (5)(a) does not prevent the further fingerprints being
25retained after the original fingerprints fall to be destroyed if the continued
retention of the further fingerprints is authorised under any enactment.

(7) A written record must be made of a determination under this paragraph.

41 (1) If fingerprints or relevant physical data are required by paragraph 36 to be
destroyed, any copies of the fingerprints or relevant physical data held by a
30police force must also be destroyed.

(2) If a DNA profile is required by that paragraph to be destroyed, no copy may
be retained by a police force except in a form which does not include
information which identifies the person to whom the DNA profile relates.

42 (1) This paragraph applies to—

(a) 35samples taken under paragraph 27, or

(b) samples taken by virtue of paragraph 35.

(2) Samples to which this paragraph applies must be destroyed if it appears to
the responsible chief officer of police that the taking of the sample was
unlawful.

(3) 40Subject to this, the rule in sub-paragraph (4) or (as the case may be) (5)
applies.

(4) A DNA sample to which this paragraph 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
45date on which the sample was taken.

Counter-Terrorism and Border Security BillPage 59

(5) Any other sample to which this paragraph applies must be destroyed before
the end of the period of 6 months beginning with the date on which it was
taken.

(6) Nothing in this paragraph prevents a relevant search, in relation to samples
5to which this paragraph applies, from being carried out within such time as
may reasonably be required for the search if the responsible chief officer of
police considers the search to be desirable.

(7) In this paragraph “a relevant search” has the meaning given by paragraph
36(6).

43 (1) 10Any material to which paragraph 36 or 42 applies must not be used other
than—

(a) in the interests of national security,

(b) for the purposes of a terrorist investigation, as defined by section 32
of the Terrorism Act 2000,

(c) 15for purposes related to the prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution, or

(d) for purposes related to the identification of a deceased person or of
the person to whom the material relates.

(2) Subject to sub-paragraph (1), a relevant search (within the meaning given by
20paragraph 36(6)) may be carried out in relation to material to which
paragraph 36 or 42 applies if the responsible chief officer of police considers
the search to be desirable.

(3) Material which is required by paragraph 36 or 42 to be destroyed must not
at any time after it is required to be destroyed be used—

(a) 25in evidence against the person to whom the material relates, or

(b) for the purposes of the investigation of any offence.

(4) In this paragraph—

(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) 30the references to an investigation and to a prosecution include
references, respectively, to any investigation outside the United
Kingdom of any crime or suspected crime and to a prosecution
brought in respect of any crime in a country or territory outside the
United Kingdom.

(5) 35Sub-paragraphs (1), (2) and (4) do not form part of the law of Scotland.

44 In paragraphs 36 to 43

  • DNA profile” means any information derived from a DNA sample;

  • DNA sample” means any material that has come from a human body
    and consists of or includes human cells;

  • 40“fingerprints” has the meaning given by section 65(1) of the Police and
    Criminal Evidence Act 1984;

  • “paragraph 36 material” has the meaning given by paragraph 36(2);

  • “police force” means any of the following—

    (a)

    the metropolitan police force;

    (b)

    45a police force maintained under section 2 of the Police Act
    1996 (police forces in England and Wales outside London);

    (c)

    the City of London police force;

    Counter-Terrorism and Border Security BillPage 60

    (d)

    the Police Service of Scotland;

    (e)

    the Scottish Police Authority;

    (f)

    the Police Service of Northern Ireland;

    (g)

    the Police Service of Northern Ireland Reserve;

    (h)

    5the Ministry of Defence Police;

    (i)

    the Royal Navy Police;

    (j)

    the Royal Military Police;

    (k)

    the Royal Air Force Police;

    (l)

    the British Transport Police;

  • 10“recordable offence” has—

    (a)

    in relation to a conviction in England and Wales, the meaning
    given by section 118(1) of the Police and Criminal Evidence
    Act 1984, and

    (b)

    in relation to a conviction in Northern Ireland, the meaning
    15given by Article 2(2) of the Police and Criminal Evidence
    (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12));

  • “relevant physical data” has the meaning given by section 18(7A) of the
    Criminal Procedure (Scotland) Act 1995;

  • “responsible chief officer of police” means, in relation to fingerprints or
    20samples taken in England or Wales, or a DNA profile derived from a
    sample so taken, the chief officer of police for the police area—

    (a)

    in which the material concerned was taken, or

    (b)

    in the case of a DNA profile, in which the sample from which
    the DNA profile was derived was taken;

  • 25“responsible chief officer of police” means, in relation to relevant
    physical data or samples taken or provided in Scotland, or a DNA
    profile derived from a sample so taken or provided, the chief
    constable of the Police Service of Scotland;

  • “responsible chief officer of police” means, in relation to fingerprints or
    30samples taken in Northern Ireland, or a DNA profile derived from a
    sample so taken, the Chief Constable of the Police Service of
    Northern Ireland.

Part 3 Review of detention

35General requirements

45 (1) The detention of a person (“the detainee”) under Part 1 of this Schedule must
be periodically reviewed by a review officer.

(2) The first review must be carried out before the end of the period of one hour
beginning with the detainee’s detention under that Part.

(3) 40Subsequent reviews must be carried out at intervals of not more than two
hours.

(4) The review officer may authorise a detainee’s continued detention under
Part 1 of this Schedule only if satisfied that it is necessary for the purposes of
exercising a power under paragraph 1 or 2.

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(5) If on a review under this paragraph the review officer does not authorise a
detainee’s continued detention, the detainee must be released (unless
detained under another power).

(6) In this Part of this Schedule “review officer” means a senior officer who has
5not been directly involved in questioning the detainee under paragraph 1 or
2.

(7) “Senior officer” means—

(a) where the examining officer is a constable, a constable of a higher
rank than the examining officer,

(b) 10where the examining officer is an immigration officer, an
immigration officer of a higher grade than the examining officer, and

(c) where the examining officer is a customs officer, a customs officer of
a higher grade than the examining officer.

Representations

46 (1) 15Before determining whether to authorise a detainee’s continued detention,
a review officer must give either of the following persons an opportunity to
make representations about the detention—

(a) the detainee, or

(b) a solicitor representing the detainee who is available at the time of
20the review.

(2) Representations may be oral or written.

(3) A review officer may refuse to hear oral representations from the detainee if
the officer considers that the detainee is unfit to make representations
because of the detainee’s condition or behaviour.

25Rights

47 (1) Where a review officer authorises continued detention the officer must
inform the detainee—

(a) of any of the detainee’s rights under paragraph 22 or 23 (in the case
of a detainee in England, Wales or Northern Ireland), or paragraph
3030 (in the case of a detainee in Scotland), which have not yet been
exercised, and

(b) if the exercise of any of those rights is being delayed in accordance
with the provisions of paragraph 24 or 30, of the fact that it is being
delayed.

(2) 35Where a review of a detainee’s detention is being carried out at a time when
the detainee’s exercise of a right under paragraph 22 or 23 (in the case of a
detainee in England, Wales or Northern Ireland), or paragraph 30 (in the
case of a detainee in Scotland), is being delayed—

(a) the review officer must consider whether the reason or reasons for
40which the delay was authorised continue to subsist, and

(b) if in the review officer’s opinion the reason or reasons have ceased to
subsist, the review officer must inform the officer who authorised the
delay of that opinion (unless the review officer was that officer).

Counter-Terrorism and Border Security BillPage 62

Record

48 (1) A review officer carrying out a review must make a written record of the
outcome of the review and of any of the following which apply—

(a) the fact that the officer is satisfied that continued detention is
5necessary for the purposes of exercising a power under paragraph 1
or 2,

(b) the fact that the detainee has been informed as required under
paragraph 47(1),

(c) the officer’s conclusion on the matter considered under paragraph
1047(2)(a), and

(d) the fact that the officer has taken action under paragraph 47(2)(b).

(2) The review officer must inform the detainee whether the officer is
authorising continued detention, and if so that the officer is satisfied that
continued detention is necessary for the purposes of exercising a power
15under paragraph 1 or 2.

(3) Sub-paragraph (2) does not apply where the detainee is—

(a) incapable of understanding what is said,

(b) violent or likely to become violent, or

(c) in urgent need of medical attention.

20Part 4 Codes of practice

49 (1) The Secretary of State must issue codes of practice about—

(a) training to be undertaken by constables, immigration officers and
customs officers who are to act as examining officers or exercise
25other functions under this Schedule,

(b) the exercise by such persons of functions conferred on them by virtue
of this Schedule,

(c) the video recording (with sound) of interviews by constables of
persons detained under Part 1 of this Schedule at a police station, and

(d) 30reviews under Part 3 of this Schedule.

(2) An examining officer must perform the functions conferred by virtue of this
Schedule in accordance with any relevant code of practice in operation
under sub-paragraph (1)(b).

(3) A code of the kind mentioned in sub-paragraph (1)(c)—

(a) 35may make different provision in relation to a particular part of the
United Kingdom;

(b) may make different provision for different parts of the United
Kingdom.

(4) A code of the kind mentioned in sub-paragraph (1)(d) must include
40provision about training to be undertaken by persons who are to act as
review officers.

(5) The failure of an examining officer to observe a provision of a code does not
of itself make the officer liable to criminal or civil proceedings.

(6) A code—

Counter-Terrorism and Border Security BillPage 63

(a) is admissible in evidence in criminal and civil proceedings, and

(b) is to be taken into account by a court or tribunal in any case in which
it appears to the court or tribunal to be relevant.

(7) The Secretary of State may revise a code and issue the revised code.

50 (1) 5Before issuing a code under paragraph 49 the Secretary of State must—

(a) publish a draft code,

(b) consider any representations made about the draft, and

(c) if the Secretary of State thinks it appropriate, modify the draft in the
light of any such representations.

(2) 10The Secretary of State must lay a draft of the code before Parliament.

(3) After the code has been laid before Parliament the Secretary of State may
bring it into operation by regulations.

(4) Sub-paragraphs (1) to (3) apply to the issue of a revised code as they apply
to the first issue of the code.

(5) 15Regulations under sub-paragraph (3) must be made by statutory
instrument.

(6) A statutory instrument containing regulations under sub-paragraph (3) may
not be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.

20Part 5 Related powers

Entry

51 (1) An examining officer may enter a vehicle for the purpose of exercising a
function conferred on the officer by virtue of this Schedule.

(2) 25In this paragraph “vehicle” includes an aircraft, hovercraft, train or vessel.

Reasonable force

52 (1) An examining officer may if necessary use reasonable force for the purpose
of exercising a power conferred on the officer by virtue of this Schedule.

(2) Sub-paragraph (1) does not apply in relation to the powers conferred by
30paragraphs 1 or 2.

Information

53 (1) Information acquired by an examining officer may be supplied—

(a) to the Secretary of State for use in relation to immigration;

(b) to the Commissioners for Her Majesty’s Revenue and Customs or a
35customs officer;

(c) to a constable;

(d) to the National Crime Agency;

(e) to a person specified in regulations made by the Secretary of State for
use of a kind specified in the regulations.

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(2) Information acquired by a customs officer or an immigration officer may be
supplied to an examining officer.

(3) Regulations under this paragraph must be made by statutory instrument.

(4) A statutory instrument containing regulations under this paragraph may
5not be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.

Other police powers

54 A power conferred by virtue of this Schedule on a constable—

(a) is additional to powers exercisable at common law or by virtue of
10any other enactment, and

(b) is not to be taken to affect those powers.

Part 6 Review of powers

55 (1) The Investigatory Powers Commissioner (“the Commissioner”) must—

(a) 15keep under review the operation of the preceding provisions of this
Schedule, and

(b) as soon as reasonably practicable after the end of each calendar year,
make a report to the Secretary of State about the outcome of the
review for that calendar year.

(2) 20The Commissioner may, at any time, make any such report to the Secretary
of State, on any matter relating to the function of the Commissioner under
sub-paragraph (1)(a), as the Commissioner considers appropriate.

(3) On receiving a report under this paragraph the Secretary of State must—

(a) publish the report, and

(b) 25lay a copy of the published report before Parliament together with a
statement as to whether any part of the report has been excluded
from publication under sub-paragraph (4).

(4) The Secretary of State may, after consultation with the Commissioner,
exclude from publication any part of a report received under this paragraph
30if, in the opinion of the Secretary of State, the publication of that part would
be contrary to the public interest or prejudicial to—

(a) national security,

(b) the prevention or detection of crime,

(c) the economic well-being of the United Kingdom, or

(d) 35the continued discharge of the functions of any public authority
whose activities include activities that are subject to review by the
Commissioner.

(5) Section 229(6) and (7) of the Investigatory Powers Act 2016 (duty not to act
contrary to public interest etc) apply to the exercise of functions under this
40paragraph as they apply to the exercise of functions under that Act.

(6) In section 231 of the Investigatory Powers Act 2016 (error reporting), the
reference in subsection (9)(a) to any other enactment does not include this
Schedule.

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(7) The duty in section 234(1) of the Investigatory Powers Act 2016 (annual and
other reports) to make a report about the carrying out of functions does not
apply in relation to the functions of the Commissioner under this Schedule.

(8) In this paragraph “public authority” means a public authority within the
5meaning of section 6 of the Human Rights Act 1998, other than a court or
tribunal.

Part 7 Cross-Channel rail services

56 (1) At the end of Schedule 4 to the Channel Tunnel (International
10Arrangements) Order 1993 (S.I. 1993/1813S.I. 1993/1813) insert—

“Counter-Terrorism and Border Security Act 2018

7 (1) Schedule 3 to the Counter-Terrorism and Border Security Act 2018
(border security) is modified as follows.

(2) In paragraph 1

(a) 15in sub-paragraph (2) omit—

(i) “or in the border area”, in both places where it
occurs;

(ii) “or Northern Ireland”, where it occurs in
paragraph (b)(i);

(iii) 20paragraph (b)(ii);

(b) in sub-paragraph (3)—

(i) for “ship or aircraft” substitute “through train or
shuttle train”;

(ii) omit “or Northern Ireland”, in both places where it
25occurs;

(c) after sub-paragraph (3) insert—

(3A) An examination under sub-paragraph (1) may be
commenced in a train during the period when it is a control
area.”

(3) 30Omit paragraph 2.

(4) In paragraph 4