Counter-Terrorism and Border Security Bill (HL Bill 153)

(7) Paragraphs 15 and 16 contain further provision about authorisations
granted under this paragraph.

(8) In this paragraph—

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

• “senior officer” means—

  (a)

  where the examining officer is a constable, another constable
  of at least the rank of superintendent,

  (b)

  where the examining officer is an immigration officer, an
  10immigration 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.

15 (1) If a senior officer grants an authorisation under paragraph 14, the examining
15officer who applied for the authorisation must inform the Investigatory
Powers Commissioner and each affected party of its grant.

(2) The information required under sub-paragraph (1) must be given as soon as
reasonably practicable and in any event within 24 hours after the grant of the
authorisation.

(3) 20An affected party may make representations to the Commissioner about
how the Commissioner should proceed under paragraph 16 in respect of an
authorisation granted under paragraph 14.

(4) Representations under sub-paragraph (3) must be made in writing no later
than the end of two working days beginning with the first working day after
25the day on which the authorisation is granted.

(5) The information provided under sub-paragraph (1) must include an
explanation of the right to make representations in writing and the time by
which they must be made.

(6) The Commissioner must have regard to any representations received before
30the end of the time mentioned in sub-paragraph (4) in determining how to
proceed under paragraph 16.

(7) The requirement under this paragraph to provide information to the person
from whom an article was taken applies only so far as it is reasonably
practicable to do so.

(8) 35In this paragraph and paragraph 16—

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

• “working day” means a day other than a Saturday, a Sunday,
  Christmas Day, Good Friday or a day which is a bank holiday under
  the Banking and Financial Dealings Act 1971 in the part of the United
  40Kingdom in which the authorisation is granted.

16 (1) This paragraph applies after the Investigatory Powers Commissioner has
considered any representations made about an authorisation in accordance
with paragraph 15.

(2) The Commissioner must—

(a) 45approve the grant of the authorisation, or

(b) cancel the authorisation.

(3) A decision under sub-paragraph (2) must be made—

(a) after the end of the time for making representations referred to in
paragraph 15(4), and

(b) before the end of three working days beginning with the first
5working day after the day on which the authorisation is granted.

(4) If the decision under sub-paragraph (2) is to approve the grant of the
authorisation, the retention and use of the article may continue in
accordance with the conditions on which the authorisation was granted
(subject to any further conditions or variation of the existing conditions that
10the Commissioner specifies).

(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any
further use of the article must stop as soon as possible.

(6) If the Commissioner cancels the authorisation the Commissioner may direct
that the article—

(a) 15is destroyed, or

(b) is returned to the person from whom it was taken,

and the Commissioner may further direct that all reasonable steps are taken
to secure that any information derived from the article is destroyed.

(7) Sub-paragraphs (5) and (6) do not apply if the article is further retained
20under a power conferred by paragraph 11(2)(b) or (c).

(8) The Commissioner must inform each affected party of the Commissioner’s
decision under sub-paragraph (2).

(9) The requirement under this paragraph to provide information to the person
from whom the article was taken applies only so far as it is reasonably
25practicable to do so.

(10) Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, exercises a function under this paragraph 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.

(11) 30Nothing in this paragraph affects the lawfulness of—

(a) anything done under an authorisation before it is cancelled;

(b) if anything is in the process of being done under an authorisation
when it is cancelled—

(i) anything done before that thing could be stopped, or

(ii) 35anything done which it is not reasonably practicable to stop.

Power to make and retain copies

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

(2) The officer may copy anything which—

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

(b) 40is 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
a person is or has been engaged in hostile activity,

(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 so far as those interests are also relevant to the
10interests of national security, or

(iii) for 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.

18 (1) 15This paragraph applies in relation to a copy consisting of or including
confidential material that is retained by virtue of paragraph 17(3)(d) or (e),
other than a copy in respect of which an authorisation is granted under
paragraph 20.

(2) The Investigatory Powers Commissioner (“the Commissioner”) must be
20informed 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) The 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) 25in the interests of national security,

(b) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security,

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

(d) 30for 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
35for 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
40power conferred by paragraph 17(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
45a 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 so
far as those interests are also relevant to the interests of national
security,

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

(d) 5for the purpose of preventing death or significant injury.

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

19 (1) Before proceeding under paragraph 18 in relation to a copy, the
Commissioner—

(a) 10must invite each affected party to make representations, before the
end of whatever period the Commissioner may specify, about how
the Commissioner should proceed under that paragraph, and

(b) must have regard to any representations made by an affected party
before the end of that period.

(2) 15Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, exercises a function under paragraph 18 in relation to a copy,
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
20paragraph—

(a) where the examining officer is a constable, the responsible chief
officer,

(b) the Secretary of State, and

(c) the person from whom the article was taken from which the copy
25was made.

(4) In sub-paragraph (3) “responsible chief officer” means—

(a) in a case where the copy was made in connection with an
investigation being conducted by a police force in England and
Wales, the chief officer of police of that police force;

(b) 30in a case where the copy was made in connection with an
investigation being conducted by the Police Service of Scotland, the
chief constable of the Police Service of Scotland;

(c) in a case where the copy was made in connection with an
investigation being conducted by the Police Service of Northern
35Ireland, the Chief Constable of the Police Service of Northern
Ireland;

(d) in any other case—

(i) where the examining officer is a constable of a police force in
England and Wales, the chief officer of police of that police
40force,

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

(iii) where the examining officer is a constable of the Police
45Service of Northern Ireland, the Chief Constable of the Police
Service of Northern Ireland.

(5) Sub-paragraph (6) applies where—

(a) a direction for the destruction of a copy is given under paragraph 18,
or

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

(6) The Commissioner must inform the person from whom the article was taken
from which the copy was made that—

(a) 5a direction to destroy the copy has been given, or

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

(7) A requirement under this paragraph to invite representations from, or to
10provide information to, the person from whom an article was taken from
which a copy was made applies only so far as it is reasonably practicable to
do so.

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

20 (1) This paragraph applies where—

(a) 15a copy consisting of or including confidential material is retained by
virtue of paragraph 17(3)(d) or (e), and

(b) the examining officer who retained the copy considers that the
urgency condition is met in relation to the copy.

(2) The urgency condition is met in relation to a copy if—

(a) 20there is an urgent need for the copy to be examined or otherwise
used for the purpose of preventing—

(i) the carrying out of a hostile act, or

(ii) death or significant injury,

or for the purpose of mitigating the risk of any such act, death or
25injury occurring, and

(b) the time it would take for the requirements of paragraphs 18 and 19
to be complied with in relation to the copy would not enable such use
to take place with sufficient urgency.

(3) The examining officer may apply to a senior officer for authorisation to
30continue to retain and use the copy.

(4) An application under sub-paragraph (3) in relation to a copy may be made
only to a senior officer who has not been directly involved in the exercise of
any power under this Part of this Schedule to make the copy or to question
a person from whom the article was taken from which the copy was made.

(5) 35A senior officer may grant an authorisation under this paragraph for the
retention and use of a copy if satisfied that—

(a) there are reasonable grounds for considering that the urgency
condition is met in relation to the copy,

(b) arrangements are in place that are sufficient for ensuring that
40confidential material contained in the copy is retained securely, and

(c) the material will be used only so far as necessary and proportionate
for a purpose mentioned in sub-paragraph (2)(a).

(6) An authorisation under this paragraph—

(a) must be recorded in writing;

(b) 45may be granted subject to whatever conditions the senior officer
thinks appropriate.

(7) Paragraphs 21 and 22 contain further provision about authorisations
granted under this paragraph.

(8) In this paragraph—

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

• “senior officer” means—

  (a)

  where the examining officer is a constable, another constable
  of at least the rank of superintendent,

  (b)

  where the examining officer is an immigration officer, an
  10immigration 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.

21 (1) If a senior officer grants an authorisation under paragraph 20, the examining
15officer who applied for the authorisation must inform the Investigatory
Powers Commissioner and each affected party of its grant.

(2) The information required under sub-paragraph (1) must be given as soon as
reasonably practicable and in any event within 24 hours after the grant of the
authorisation.

(3) 20An affected party may make representations to the Commissioner about
how the Commissioner should proceed under paragraph 22 in respect of an
authorisation granted under paragraph 20.

(4) Representations under sub-paragraph (3) must be made in writing no later
than the end of two working days beginning with the first working day after
25the day on which the authorisation is granted.

(5) The information provided under sub-paragraph (1) must include an
explanation of the right to make representations in writing and the time by
which they must be made.

(6) The Commissioner must have regard to any representations made before the
30end of the time mentioned in sub-paragraph (4) in determining how to
proceed under paragraph 22.

(7) The requirement under this paragraph to provide information to the person
from whom an article was taken from which the copy was made applies only
so far as it is reasonably practicable to do so.

(8) 35In this paragraph and paragraph 22—

• “affected party” has the meaning given by paragraph 19(3);

• “working day” means a day other than a Saturday, a Sunday,
  Christmas Day, Good Friday or a day which is a bank holiday under
  the Banking and Financial Dealings Act 1971 in the part of the United
  40Kingdom in which the authorisation is granted.

22 (1) This paragraph applies after the Investigatory Powers Commissioner has
considered any representations made about an authorisation in accordance
with paragraph 21.

(2) The Commissioner must—

(a) 45approve the grant of the authorisation, or

(b) cancel the authorisation.

(3) A decision under sub-paragraph (2) must be made—

(a) after the end of the period for making representations referred to in
paragraph 21(4), and

(b) before the end of three working days beginning with the first
5working day after the day on which the authorisation is granted.

(4) If the decision under sub-paragraph (2) is to approve the grant of the
authorisation, the retention and use of the copy may continue in accordance
with the conditions on which the authorisation was granted (subject to any
further conditions or variation of the existing conditions that the
10Commissioner specifies).

(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any
further use of the copy must stop as soon as possible.

(6) If the Commissioner cancels the authorisation the Commissioner may direct
that—

(a) 15the copy is destroyed, and

(b) all reasonable steps are taken to secure that any information derived
from the copy is also destroyed.

(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under
a power conferred by paragraph 17(3)(b) or (c).

(8) 20The Commissioner must inform each affected party of the Commissioner’s
decision under sub-paragraph (2).

(9) The requirement under this paragraph to provide information to the person
from whom the article was taken from which the copy was made applies
only so far as it is reasonably practicable to do so.

(10) 25Where a Judicial Commissioner, other than the Investigatory Powers
Commissioner, exercises a function under this paragraph in relation to a
copy, an affected party may ask the Investigatory Powers Commissioner to
decide whether to approve the way in which the function was exercised.

(11) Nothing in this paragraph affects the lawfulness of—

(a) 30anything done under an authorisation before it cancelled;

(b) if anything is in the process of being done under an authorisation
when it is cancelled—

(i) anything done before that thing could be stopped, or

(ii) anything done which it is not reasonably practicable to stop.

35Offences

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

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

(b) wilfully obstructs, or seeks to frustrate, a search or examination
40under or by virtue of this Part of this Schedule.

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

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

(b) 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) In relation to an offence committed before the coming into force of section
5281(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) in England and Wales, except with the consent of the Director of
10Public 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
Public Prosecutions for Northern Ireland that an offence under this
15paragraph 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
General, and

(b) 20in the case of the Director of Public Prosecutions for Northern
Ireland, of the Advocate General for Northern Ireland.

Exercise of powers

24 The powers conferred by this Part of this Schedule are exercisable in spite of
the rights conferred by section 1 of the Immigration Act 1971 (general
25principles regulating entry into and staying in the United Kingdom).

Part 2 Detention

Place of detention

25 (1) A detainee may be detained at a place designated under paragraph 1(1) of
30Schedule 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) 35the 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
40part 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) references 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

26 (1) 5An examining officer may take any steps which are reasonably necessary
for—

(a) photographing the detainee,

(b) measuring the detainee, or

(c) identifying the detainee.

(2) 10This paragraph does not confer the power to take—

(a) fingerprints, non-intimate samples or intimate samples (see instead
paragraph 34 below for power to take fingerprints and non-intimate
samples), or

(b) relevant physical data or samples as mentioned in section 18 of the
15Criminal Procedure (Scotland) Act 1995 as applied by paragraph 42
below (see instead that paragraph).

Video recording of interviews

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

(2) 20The video recording (with sound) of interviews to which this paragraph
applies must be carried out in accordance with any relevant code of practice
under Part 4 of this Schedule.

Status

28 A detainee is to be deemed to be in legal custody throughout the period of
25the detainee’s detention.

Rights: England, Wales and Northern Ireland

29 (1) Subject to paragraph 32, 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
30detainee is being detained there.

(2) The person named must be—

(a) a friend of the detainee,

(b) a relative, or

(c) a person who is known to the detainee or who is likely to take an
35interest in the detainee’s welfare.

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

(4) A detainee must be informed of the right under this paragraph on first being
40detained.

30 (1) Subject to paragraphs 32 and 33, 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) Where a request is made under sub-paragraph (1), the request and the time
5at which it was made must be recorded.

(3) A detainee must be informed of the right under this paragraph on first being
detained.

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

(2) 10The examining officer may not question the detainee under paragraph 1 or
2 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) 15The powers conferred 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) Sub-paragraph (5) does not apply if the examining officer reasonably
20believes 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) In this paragraph “the relevant matters” means the matters the examining
25officer seeks to determine under paragraph 1 or 2.

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

(a) in informing the person named by a detainee under paragraph 29;

(b) in permitting a detainee to consult a solicitor under paragraph 30.

(2) 30An 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
any of the consequences specified in sub-paragraph (3), or

(b) 35in the case of an authorisation under sub-paragraph (1)(b), that the
exercise of the right under paragraph 30 at the time when the
detainee desires to exercise it will have any of the consequences
specified in sub-paragraph (3).

(3) Those consequences are—

(a) 40interference 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) the hindering of the recovery of property obtained as a result of an
45indictable offence, or