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

Counter-Terrorism and Border Security BillPage 50

(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.

Counter-Terrorism and Border Security BillPage 51

(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.

Counter-Terrorism and Border Security BillPage 52

(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)), 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)

Counter-Terrorism and Border Security BillPage 53

have the meaning given by Article 53 of the Police and Criminal Evidence
(Northern Ireland) Order 1989 (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)).

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 54

(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)) (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 55

(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 56

(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,

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(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)) (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 58

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 59

(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—