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SCHEDULE 8
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DETENTION |
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PART I |
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TREATMENT OF PERSONS DETAINED UNDER SECTION 41 OR SCHEDULE 7 |
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Place of detention |
| | 1. - (1) The Secretary of State may direct the place where a person is to be detained.
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(2) In this Schedule a reference to a police station includes a reference to any place where the Secretary of State has directed under sub-paragraph (1) that a person is to be detained under section 41.
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(3) Where a person is detained under Schedule 7, he 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 his attendance is required for the purpose of-
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(a) his examination under that Schedule, |
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(b) establishing his nationality or citizenship, or |
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(c) making arrangements for his admission to a country or territory outside the United Kingdom. |
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(4) A constable who arrests a person under section 41 shall take him as soon as is reasonably practicable to the police station which the constable considers the most appropriate.
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(5) In this paragraph "examining officer" has the meaning given in Schedule 7.
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(6) Where a person is arrested in one Part of the United Kingdom and all or part of his detention takes place in another Part, the provisions of this Schedule which apply to detention in a particular Part of the United Kingdom apply in relation to him while he is detained in that Part.
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Identification |
| | 2. - (1) An authorised person may take any steps which are reasonably necessary for-
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(a) photographing the detained person, |
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(2) In sub-paragraph (1) "authorised person" means any of the following-
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(c) a person authorised by the Secretary of State, and |
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(d) in the case of a person detained under Schedule 7, an examining officer (within the meaning of that Schedule). |
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Audio and video recording of interviews |
| | 3. - (1) The Secretary of State shall-
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(a) issue a code of practice about the audio recording of interviews to which this paragraph applies, and |
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(b) make an order requiring the audio recording of interviews to which this paragraph applies in accordance with any relevant code of practice under paragraph (a). |
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(2) The Secretary of State may make an order requiring the video recording of-
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(a) interviews to which this paragraph applies; |
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(b) interviews to which this paragraph applies which take place in a particular Part of the United Kingdom. |
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(3) An order under sub-paragraph (2) shall specify whether the video recording which it requires is to be silent or with sound.
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(4) Where an order is made under sub-paragraph (2)-
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(a) the Secretary of State shall issue a code of practice about the video recording of interviews to which the order applies, and |
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(b) the order shall require the interviews to be video recorded in accordance with any relevant code of practice under paragraph (a). |
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(5) This paragraph applies to-
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(a) any interview by a constable of a person detained under section 41, and |
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(b) any interview by a constable of a person detained under Schedule 7, if the interview takes place in a police station. |
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(6) A code of practice under this paragraph-
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(a) may make provision in relation to a particular Part of the United Kingdom; |
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(b) may make different provision for different Parts of the United Kingdom. |
| | 4. - (1) This paragraph applies to a code of practice under paragraph 3.
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(2) Where the Secretary of State proposes to issue a code of practice he shall-
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(b) consider any representations made to him about the draft, and |
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(c) if he thinks it appropriate, modify the draft in the light of any representations made to him. |
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(3) The Secretary of State shall lay a draft of the code before Parliament.
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(4) When the Secretary of State has laid a draft code before Parliament he may bring it into operation by order.
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(5) The Secretary of State may revise a code and issue the revised code; and sub-paragraphs (2) to (4) shall apply to a revised code as they apply to an original code.
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(6) The failure by a constable to observe a provision of a code shall not of itself make him liable to criminal or civil proceedings.
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(7) A code-
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(a) shall be admissible in evidence in criminal and civil proceedings, and |
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(b) shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant. |
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Status |
| | 5. A detained person shall be deemed to be in legal custody throughout the period of his detention.
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Rights: England, Wales and Northern Ireland |
| | 6. - (1) Subject to paragraph 8, a person detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled, if he so requests, to have one named person informed as soon as is reasonably practicable that he is being detained there.
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(2) The person named must be-
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(a) a friend of the detained person, |
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(c) a person who is known to the detained person or who is likely to take an interest in his welfare. |
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(3) Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right under this paragraph in respect of the police station to which he is transferred.
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| | 7. - (1) Subject to paragraphs 8 and 9, a person detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.
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(2) Where a request is made under sub-paragraph (1), the request and the time at which it was made shall be recorded.
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| | 8. - (1) Subject to sub-paragraph (2), an officer of at least the rank of superintendent may authorise a delay-
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(a) in informing the person named by a detained person under paragraph 6; |
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(b) in permitting a detained person to consult a solicitor under paragraph 7. |
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(2) But where a person is detained under section 41 he must be permitted to exercise his rights under paragraphs 6 and 7 before the end of the period mentioned in subsection (3) of that section.
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(3) An officer may give an authorisation under sub-paragraph (1) only if he has reasonable grounds for believing-
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(a) in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained person's detention will have any of the consequences specified in sub-paragraph (4), or |
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(b) in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it will have any of the consequences specified in sub-paragraph (4). |
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(4) Those consequences are-
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(a) interference with or harm to evidence of a serious arrestable offence, |
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(b) interference with or physical injury to any person, |
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(c) the alerting of persons who are suspected of having committed a serious arrestable offence but who have not been arrested for it, |
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(d) the hindering of the recovery of property obtained as a result of a serious arrestable offence, |
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(e) interference with the gathering of information about the commission, preparation or instigation of acts of terrorism, |
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(f) the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and |
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(g) the alerting of a person and thereby making it more difficult to secure a person's apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism. |
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(5) If an authorisation under sub-paragraph (1) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.
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(6) Where an authorisation under sub-paragraph (1) is given-
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(a) the detained person shall be told the reason for the delay as soon as is reasonably practicable, and |
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(b) the reason shall be recorded as soon as is reasonably practicable. |
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(7) 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).
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(8) In this paragraph "serious arrestable offence" has the meaning given by section 116 of the Police and Criminal Evidence Act 1984 (in relation to England and Wales) and by Article 87 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (in relation to Northern Ireland); but it also includes-
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(a) an offence under any of the provisions mentioned in section 40(1)(a) of this Act, and |
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(b) an attempt or conspiracy to commit an offence under any of the provisions mentioned in section 40(1)(a). |
| | 9. - (1) A direction under this paragraph may provide that a detained person who wishes to exercise the right under paragraph 7 may consult a solicitor only in the sight and hearing of a qualified officer.
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(2) A direction under this paragraph may be given-
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(a) where the person is detained at a police station in England or Wales, by an officer of at least the rank of Commander or Assistant Chief Constable, or |
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(b) where the person is detained at a police station in Northern Ireland, by an officer of at least the rank of Assistant Chief Constable. |
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(3) A direction under this paragraph may be given only if the officer giving it has reasonable grounds for believing that, unless the direction is given, the exercise of the right by the detained person will have any of the consequences specified in paragraph 8(4).
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(4) In this paragraph "a qualified officer" means a police officer who-
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(a) is of at least the rank of inspector, |
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(b) is of the uniformed branch of the force of which the officer giving the direction is a member, and |
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(c) in the opinion of the officer giving the direction, has no connection with the detained person's case. |
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(5) A direction under this paragraph shall cease to have effect once the reason for giving it ceases to subsist.
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| | 10. - (1) Section 61(1) to (8) of the Police and Criminal Evidence Act 1984 (fingerprinting) shall apply to the taking of a person's fingerprints by a constable under paragraph 2 as if for subsection (4) there were substituted-
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"(4) An officer may give an authorisation under subsection (3)(a) above in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that the fingerprints will tend to confirm or disprove his involvement, or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act." |
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(2) In this paragraph "fingerprints" has the meaning given by section 65 of the Police and Criminal Evidence Act 1984.
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| | 11. Article 61(1) to (8) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (fingerprinting) shall apply to the taking of a person's fingerprints by a constable under paragraph 2 as if for paragraph (4) there were substituted-
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"(4) An officer may give an authorisation under paragraph (3)(a) in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that the fingerprints will tend to confirm or disprove his involvement; or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act." |
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| | 12. - (1) Section 62(1) to (11) of the Police and Criminal Evidence Act 1984 (intimate samples) shall apply to the taking of an intimate sample from a person under paragraph 2 as if-
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(a) for subsection (2) there were substituted- |
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"(2) An officer may give an authorisation under subsection (1) or (1A) above in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that an intimate sample will tend to confirm or disprove his involvement, or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act.", and |
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(b) in subsection (6), after "includes" there were inserted "where relevant". |
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(2) In this paragraph "intimate sample" has the same meaning given by section 65 of the Police and Criminal Evidence Act 1984.
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| | 13. - (1) Article 62(1) to (11) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (intimate samples) shall apply to the taking of an intimate sample from a person under paragraph 2 as if-
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(a) for paragraph (2) there were substituted- |
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"(2) An officer may give an authorisation under paragraph (1) or (1A) in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that an intimate sample will tend to confirm or disprove his involvement; or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act.", and |
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(b) in paragraph (6), after "includes" there were inserted "where relevant". |
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(2) In this paragraph "intimate sample" has the same meaning as in Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
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| | 14. - (1) Section 63(1) to (9) of the Police and Criminal Evidence Act 1984 (non-intimate samples) shall apply to the taking of a non-intimate sample from a person by a constable under paragraph 2 as if-
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(a) for subsection (4) there were substituted- |
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"(4) An officer may give an authorisation under subsection (3) above in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that a non-intimate sample will tend to confirm or disprove his involvement, or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act.", and |
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(b) in subsection (7), after "includes" there were inserted "where relevant". |
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(2) In this section "non-intimate sample" has the same meaning given by section 65 of the Police and Criminal Evidence Act 1984.
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| | 15. - (1) Article 63(1) to (9) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (non-intimate samples) shall apply to the taking of a non-intimate sample from a person by a constable under paragraph 2 as if-
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(a) for paragraph (4) there were substituted- |
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"(4) An officer may give an authorisation under paragraph (3) in respect of a detained person only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that a non-intimate sample will tend to confirm or disprove his involvement, or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act.", and |
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(b) in paragraph (7), after "includes" there were inserted "where relevant". |
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(2) In this paragraph "non-intimate sample" has the same meaning as in Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
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Rights: Scotland |
| | 16. Paragraphs 17 to 21 apply to a person detained in Scotland.
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| | 17. - (1) A person detained shall be entitled to have intimation of his detention and of the place where he is being detained sent without delay to a solicitor and to another person reasonably named by him.
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(2) A police officer not below the rank of superintendent may authorise a delay (not extending longer than the period of 48 hours from the start of the detention) in making intimation where, in his view, the delay is necessary on one of the grounds mentioned in paragraph 19(3).
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(3) Where a person detained requests that the intimation be made, there shall be recorded the time when the request is-
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(4) A person detained shall be entitled to consult a solicitor at any time, without delay.
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(5) A police officer not below the rank of superintendent may authorise a delay (not extending longer than the period of 48 hours from the start of the detention) in holding the consultation where, in his view, the delay is necessary on one of the grounds mentioned in paragraph 19(3).
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(6) Subject to paragraph 19, the consultation shall be private.
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| | 18. - (1) Subject to this paragraph, paragraph 17 applies to children as it applies to adults.
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(2) Without prejudice to-
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(a) sub-paragraph (3), or |
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(b) his entitlement, in terms of paragraph 17(1), to have intimation of his detention and of the place where he is being detained sent to a solicitor- |
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a person detained who appears to a constable to be a child shall not be entitled to have such intimation sent to any other person named by him.
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(3) Where it appears to a constable that a person detained is a child, he shall, subject to sub-paragraph (4) without delay-
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(a) send intimation of the detention and of the place where the child is being held to his parent (if known), and |
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(b) allow such parent access to the child. |
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(4) A police officer not below the rank of superintendent may authorise-
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(a) a delay in compliance with the duty mentioned in sub-paragraph (3)(a), |
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(b) non-compliance with the duty mentioned in sub-paragraph (3)(b), |
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where the delay or, as the case may be, non-compliance is, in his view, necessary on one of the grounds mentioned in paragraph 19(3).
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(5) Any delay in compliance with the duty mentioned in sub-paragraph (3)(a) shall not extend longer than the period of 48 hours from the start of the detention.
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(6) There shall be recorded the time at which the intimation mentioned in sub-paragraph (3)(a) is made.
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(7) Subject to paragraph 19 the access mentioned in sub-paragraph (3)(b) shall be private.
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(8) Where a child is, by virtue of any enactment, in the care either of a local authority or of a voluntary organisation, the intimation shall be either to the authority or organisation or to the parent, and the right of access shall be exercisable both by an officer of the authority or organisation and by the parent; and sub-paragraphs (4) and (6) and paragraph 19 shall apply in relation to intimation and access under this sub-paragraph as they apply to intimation and access under sub-paragraph (3).
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| | 19. - (1) An officer not below the rank of Assistant Chief Constable may direct that the consultation or access mentioned in paragraphs 17(4) and 18(3) respectively be in the presence of a uniformed officer not below the rank of inspector if it appears to the officer giving the direction to be necessary on one of the grounds mentioned in sub-paragraph (3).
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(2) A uniformed officer directed to be present during a consultation or, as the case may be, access shall be an officer who, in the opinion of the officer giving the direction, has no connection with the case.
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(3) The grounds mentioned in paragraphs 17(2) and (5) and 18(4) and in sub-paragraph (1) are that it is in the interests of the investigation or prevention of crime, or of the apprehension, prosecution or conviction of offenders.
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(4) Where delay or non-compliance is authorised in the exercising of any of the rights or, as the case may be, the carrying out of any of the duties, mentioned in paragraphs 17(1) and (4) and 18(3), there shall be recorded the reason for such delay or non-compliance.
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| | 20. - (1) In paragraphs 17 to 19 and this paragraph-
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"child" means a person who has not attained the age of 16, and |
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"parent" includes guardian and any person who has the care of a child. |
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(2) Paragraphs 17 to 19 and this paragraph shall have effect, in relation to a person detained under section 41 or Schedule 7, 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.
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| | 21. The Secretary of State shall, by order, make provision to require that-
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(a) except in such circumstances, and |
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(b) subject to such conditions, |
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as may be specified in the order, where a person detained has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview carried out in connection with a terrorist investigation or for the purposes of Schedule 7.
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| | 22. - (1) Subject to the modifications specified in sub-paragraphs (2) and (3), section 18 of the Criminal Procedure (Scotland) Act 1995 (procedure for taking certain prints and samples) shall apply to a person detained under section 41 or Schedule 7 as it applies to a person arrested or a person detained under section 14 of that Act.
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(2) For subsection (2) of section 18 there shall be substituted-
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"(2) A constable may take from a detained person or require a detained person to provide relevant physical data only if-
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(a) in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that the relevant physical data will tend to confirm or disprove his involvement, or |
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(b) in any case, he is satisfied that it is necessary in order to assist in determining whether the person falls within section 40(1)(b) of that Act." |
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(3) Subsections (3) to (5) shall not apply, but any relevant physical data or sample taken in pursuance of section 18 as applied by this paragraph shall be retained only for the purposes of terrorist investigations.
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