Counter-Terrorism and Border Security Bill (HL Bill 131)

Counter-Terrorism and Border Security BillPage 40

(3) Where a person is detained under this paragraph the provisions of Parts 2
and 3 of this Schedule (detention and review of detention) apply.

(4) The power conferred by sub-paragraph (1)(a) to stop a vehicle does not
include a power to stop an aircraft that is airborne.

5 (1) 5This paragraph applies where a person is questioned under paragraph 1 or
2.

(2) At the end of the 1 hour period, the person may not be questioned under
either of those paragraphs unless the person is detained under paragraph 4.

(3) If the person is detained under paragraph 4, the person must be released not
10later than the end of the 6 hour period (unless detained under another
power).

(4) In this paragraph—

  • “the 1 hour period” is the period of 1 hour beginning with the time the
    person is first questioned under paragraph 1 or 2;

  • 15“the 6 hour period” is the period of 6 hours beginning with that time.

(5) If a person detained under paragraph 4 is removed to hospital because the
person needs medical treatment—

(a) any time during which the person is being questioned under
paragraph 1 or 2 in hospital or on the way there or back is to be
20included in calculating the 6 hour period, but

(b) any other time when the person is in hospital or on the way there or
back is not to be included.

6 (1) An answer or information given orally by a person in response to a question
asked under paragraph 1 or 2 may not be used in evidence in criminal
25proceedings.

(2) Sub-paragraph (1) does not apply—

(a) in the case of proceedings under paragraph 16,

(b) on a prosecution for perjury, or

(c) on a prosecution for some other offence where, in giving evidence,
30the person makes a statement inconsistent with the answer or
information mentioned in sub-paragraph (1).

(3) A statement may not be used by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

35by or on behalf of the person in the proceedings arising out of the
prosecution.

(4) In sub-paragraph (2)(b) the reference to a prosecution for perjury is—

(a) in the case of England and Wales, a reference to a prosecution for an
offence under section 5 of the Perjury Act 1911;

(b) 40in the case of Northern Ireland, a reference to a prosecution for an
offence under Article 10 of the Perjury (Northern Ireland) Order 1979
(S.I. 1979/1714 (N.I. 19)).

Counter-Terrorism and Border Security BillPage 41

Searches

7 An examining officer may, for the purpose of determining whether there are
any persons the officer may wish to question under paragraph 1

(a) search a ship or aircraft;

(b) 5search anything on a ship or aircraft;

(c) search anything that the officer reasonably believes has been, or is
about to be, on a ship or aircraft.

8 (1) An examining officer who questions a person under paragraph 1 may—

(a) search the person;

(b) 10search anything on a ship or aircraft that the person has with them or
which belongs to them;

(c) search anything which the person has with them or which belongs to
them and which the officer reasonably believes has been, or is about
to be, on a ship or aircraft;

(d) 15search a ship or aircraft for anything falling within paragraph (b);

(e) search a vehicle which is on a ship or aircraft;

(f) search a vehicle which the officer reasonably believes has been, or is
about to be, on a ship or aircraft.

(2) Where an examining officer questions a person in the border area under
20paragraph 1 the officer may (in addition to the matters specified in sub-
paragraph (1))—

(a) search a vehicle;

(b) search anything in or on a vehicle;

(c) search anything which the officer reasonably believes has been, or is
25about to be, in or on a vehicle.

(3) The powers conferred by sub-paragraphs (1) and (2) are exercisable only for
the purposes of determining whether a person is or has been engaged in
hostile activity.

(4) A search of a person under this paragraph—

(a) 30must be carried out by somebody of the same sex;

(b) does not extend to the carrying out of an intimate search.

(5) A strip search of a person may not be carried out under this paragraph
unless—

(a) the person is detained under paragraph 4,

(b) 35the examining officer has reasonable grounds to suspect that the
person is concealing something which may be evidence that the
person is or has been engaged in hostile activity, and

(c) the search is authorised by a senior officer who has not been directly
involved in the questioning of the person.

(6) 40“Senior officer” means—

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

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

(c) 45where the examining officer is a customs officer, a customs officer of
a higher grade than the examining officer.

Counter-Terrorism and Border Security BillPage 42

(7) In this paragraph—

  • “intimate search” means a search which consists of a physical
    examination of a person’s body orifices other than the mouth;

  • “strip search” means a search which is not an intimate search but
    5involves the removal of an article of clothing which—

    (a)

    is being worn wholly or partly on the trunk, and

    (b)

    is being so worn either next to the skin or next to an article of
    underwear.

9 (1) An examining officer may examine goods to which this paragraph applies
10for the purpose of determining whether they have been used in connection
with a person’s engagement in hostile activity.

(2) This paragraph applies to—

(a) goods which have arrived in or are about to leave Great Britain or
Northern Ireland on a ship or vehicle, and

(b) 15goods which have arrived at or are about to leave any place in Great
Britain or Northern Ireland on an aircraft (whether the place they
have come from or are going to is within or outside Great Britain or
Northern Ireland).

(3) The reference in sub-paragraph (2)(a) to goods which are about to leave
20Great Britain or Northern Ireland on a ship includes goods which—

(a) are held at premises operated by a sea cargo agent, and

(b) are to be delivered to a place in Great Britain or Northern Ireland for
carriage on a ship.

(4) The reference in sub-paragraph (2)(b) to goods which are about to leave any
25place in Great Britain or Northern Ireland on an aircraft includes goods
which—

(a) are held at premises operated by an air cargo agent, and

(b) are to be delivered to a place in Great Britain or Northern Ireland for
carriage on an aircraft.

(5) 30An examination under this paragraph may be carried out only—

(a) at a port;

(b) at premises operated by a sea cargo agent or an air cargo agent;

(c) at a transit shed;

(d) at a designated examination location.

(6) 35For the purposes of determining whether to carry out an examination under
this paragraph an examining officer may—

(a) board a ship or aircraft;

(b) enter premises operated by a sea cargo agent or an air cargo agent;

(c) enter a transit shed;

(d) 40enter a designated examination location.

(7) In this paragraph—

  • “air cargo agent” has the meaning given by section 21F(1) of the
    Aviation Security Act 1982;

  • “designated examination location” means a location designated by the
    45Secretary of State under paragraph 9(2D) of Schedule 7 to the
    Terrorism Act 2000;

  • “goods” includes property of any description and containers;

  • Counter-Terrorism and Border Security BillPage 43

  • “sea cargo agent” has the meaning given by section 41(1) of the
    Aviation and Maritime Security Act 1990;

  • “transit shed” has the meaning given by section 25A of the Customs
    and Excise Management Act 1979.

10 (1) 5An examining officer may authorise a person to carry out on the officer’s
behalf a search or examination under any of paragraphs 7  to 9.

(2) A person authorised under this paragraph is to be treated as an examining
officer for the purposes of—

(a) paragraphs 9(6) and 11, and

(b) 10Part 4 of this Schedule.

Retention of property

11 (1) This paragraph applies to any article which—

(a) is given to an examining officer in accordance with paragraph 3(d),

(b) is searched or found on a search under paragraph 8, or

(c) 15is examined under paragraph 9.

(2) An examining officer may retain the article—

(a) for the purpose of examination, for a period not exceeding 7 days
beginning with the day on which the retention commences,

(b) while the officer believes that it may be needed for use as evidence in
20criminal proceedings,

(c) while the officer believes that it may be needed in connection with a
decision of the Secretary of State whether to make a deportation
order under the Immigration Act 1971,

(d) while the officer believes that it could be used in connection with the
25carrying out of a hostile act, or

(e) while the officer believes it necessary to do so for the purpose of
preventing death or significant injury.

12 (1) This paragraph applies in relation to an article retained by virtue of
paragraph 11(2)(d) or (e).

(2) 30The Investigatory Powers Commissioner (“the Commissioner”) must be
informed of the article’s retention as soon as is reasonably practicable.

(3) Sub-paragraph (4) applies where it appears to the Commissioner that there
are reasonable grounds to believe—

(a) that the article has been or could be used in connection with the
35carrying out of a hostile act, or

(b) that returning the article to the person from whom it was taken could
result in a risk of death or significant injury to any person.

(4) The Commissioner may—

(a) direct that the article is destroyed, or

(b) 40authorise the retention and use of the article (subject to sub-
paragraph (5)).

(5) The Commissioner may authorise the retention and use of an article under
sub-paragraph (4)(b) that consists of or includes confidential material only if
satisfied that—

Counter-Terrorism and Border Security BillPage 44

(a) arrangements are in place that are sufficient for ensuring that the
material is retained securely, and

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

(6) 5If the Commissioner does not proceed under sub-paragraph (4) in relation to
an article, the Commissioner must (subject to sub-paragraph (7)) direct that
the article is returned to the person from whom it was taken.

(7) Sub-paragraph (6) does not apply if the article is further retained under a
power conferred by paragraph 11(2)(b) or (c).

(8) 10In authorising the retention and use of an article under this paragraph the
Commissioner 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) 15in the interests of national security,

(b) in 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) In this paragraph “confidential material” means—

(a) 20confidential journalistic material, within the meaning of the
Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act),
and

(b) protected material as defined by sub-paragraph (11).

(11) “Protected material”—

(a) 25in relation to England and Wales, means—

(i) items subject to legal privilege, within the meaning of the
Police and Criminal Evidence Act 1984 (see section 10 of that
Act),

(ii) material falling within section 11(1)(a) or (b) of that Act
30(certain personal records, human tissue or tissue fluid held in
confidence), or

(iii) material to which section 14(2) of that Act applies (other
material acquired in course of a trade etc that is held in
confidence);

(b) 35in relation to Scotland, means—

(i) items in respect of which a claim to confidentiality of
communications could be maintained in legal proceedings,
or

(ii) other material of a kind mentioned in paragraph (a)(ii) or (iii)
40of this sub-paragraph;

(c) in relation to Northern Ireland, means—

(i) items subject to legal privilege, within the meaning of the
Police and Criminal Evidence (Northern Ireland) Order 1989
(S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),

(ii) 45material falling with Article 13(1)(a) or (b) of that Order
(certain personal records, human tissue or tissue fluid held in
confidence), or

Counter-Terrorism and Border Security BillPage 45

(iii) material to which Article 16(2) of that Order applies (other
material acquired in the course of a trade etc that is held in
confidence).

13 (1) Before proceeding under paragraph 12 in relation to an article, the
5Commissioner—

(a) must invite each affected party to make representations about how
the Commissioner should proceed under that paragraph, and

(b) must have regard to any representations made by an affected party.

(2) Where a Judicial Commissioner, other than the Investigatory Powers
10Commissioner, exercises a function under paragraph 12 in relation to an
article, an affected party may ask the Investigatory Powers Commissioner to
decide whether to approve the way in which the function was exercised.

(3) Each of the following is an “affected party” for the purposes of this
paragraph—

(a) 15where the examining officer is a constable of a police force in
England and Wales, the chief officer of police of that police force,

(b) where the examining officer is a constable of the Police Service of
Scotland, the chief constable of the Police Service of Scotland,

(c) where the examining officer is a constable of the Police Service of
20Northern Ireland, the Chief Constable of the Police Service of
Northern Ireland,

(d) the Secretary of State, and

(e) the person from whom the article was taken.

(4) Sub-paragraph (5) applies where —

(a) 25a direction for the destruction of an article is given under paragraph
12, or

(b) authorisation for the retention and use of an article is granted under
that paragraph.

(5) The Commissioner must inform the person from whom the article was taken
30that—

(a) a direction to destroy the article has been given, or

(b) (as the case may be) authorisation to retain and use the article has
been granted (and in this case the Commissioner must provide
details of any conditions subject to which that authorisation was
35given).

(6) Representations under sub-paragraph (1) must be made in writing.

Power to make and retain copies

14 (1) This paragraph applies where the examining officer is a constable.

(2) The officer may copy anything which—

(a) 40is given to the officer in accordance with paragraph 3,

(b) is searched or found on a search under paragraph 8, or

(c) is examined under paragraph 9.

(3) The copy may be retained—

(a) for so long as it is necessary for the purpose of determining whether
45a person is or has been engaged in hostile activity,

Counter-Terrorism and Border Security BillPage 46

(b) while the examining officer believes that it may be needed for use as
evidence in criminal proceedings,

(c) while the examining officer believes that it may be needed in
connection with a decision by the Secretary of State whether to make
5a deportation order under the Immigration Act 1971,

(d) while the examining officer believes it necessary to retain the copy—

(i) in the interests of national security,

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

(iii) 10for the purpose of preventing or detecting an act of serious
crime, or

(e) while the examining officer believes it necessary to retain the copy to
prevent death or significant injury.

15 (1) This paragraph applies in relation to a copy consisting of or including
15confidential material that is retained by virtue of paragraph 14(3)(d) or (e).

(2) The Investigatory Powers Commissioner (“the Commissioner”) must be
informed of the copy’s retention as soon as is reasonably practicable.

(3) The Commissioner may authorise the retention and use of the copy if both
of the following two conditions are met.

(4) 20The first condition is that it appears to the Commissioner that there are
reasonable grounds to believe that it is necessary to retain the copy—

(a) in the interests of national security,

(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) 25for the purpose of preventing death or significant injury.

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

(a) arrangements 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
30for a relevant purpose.

(6) If the Commissioner does not proceed under sub-paragraph (3) in relation to
a 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
35power conferred by paragraph 14(3)(b) or (c).

(8) In authorising the retention and use of a copy under sub-paragraph (3) the
Commissioner 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
40a relevant purpose if it is necessary—

(a) in the interests of national security,

(b) in 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) 45Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, exercises a function under this paragraph in relation to a

Counter-Terrorism and Border Security BillPage 47

copy, an affected party may ask the Investigatory Powers Commissioner to
decide whether to approve the way in which the function was exercised.

(11) In this paragraph—

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

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

Offences

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

(a) wilfully fails to comply with a duty imposed under or by virtue of
10this Part of this Schedule, or

(b) wilfully obstructs, or seeks to frustrate, a search or examination
under 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
15a term not exceeding 51 weeks, or to a fine not exceeding level 4 on
the standard scale, or to both;

(b) on 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) 20In 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
summary 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) 25in England and Wales, except with the consent of the Director of
Public Prosecutions;

(b) in 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
30Public Prosecutions for Northern Ireland that an offence under this
paragraph has been committed for a purpose wholly or partly connected
with 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
35General, and

(b) in the case of the Director of Public Prosecutions for Northern
Ireland, 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
40the rights conferred by section 1 of the Immigration Act 1971 (general
principles regulating entry into and staying in the United Kingdom).

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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.