Crime and Courts Act 2013

Immigration officers

29

In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate officers etc), in subsection (3AA) (inserted by this Schedule), after paragraph (c) insert—

(d) an immigration officer who is not below such grade as is designated by the Secretary of State as equivalent to that rank.

National Crime Agency

30

In section 378 of the Proceeds of Crime Act 2002 (investigations: appropriate officers etc), in subsection (6A)(b) (inserted by this Schedule), for “senior member of SOCA's staff” substitute “ senior National Crime Agency officer ”.

SCHEDULE 20

Part 1 — Forum

Extradition to category 1 territories

1

Part 1 of the Extradition Act 2003 (extradition to category 1 territories) is amended as follows.

2

In section 11 (bars to extradition)—

• (a) at the end of subsection (1) insert—

(j) forum.

;

• (b) after subsection (1) insert—

(1A) But the judge is to decide whether the person's extradition is barred by reason of forum only in a case where the Part 1 warrant contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory).

;

• (c) in subsection (2), for the words from “12” to “apply” substitute “ 12 to 19F apply ”.

3

After section 19A insert—

(19B) (1) The extradition of a person (“D”) to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice. (2) For the purposes of this section, the extradition would not be in the interests of justice if the judge— (a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place. (3) These are the specified matters relating to the interests of justice— (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victims of the extradition offence; (c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence; (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom; (e) any delay that might result from proceeding in one jurisdiction rather than another; (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to— (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom; (g) D's connections with the United Kingdom. (4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned. (5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum. (6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D. (19C) (1) The judge hearing proceedings under section 19B (the “forum proceedings”) must decide that the extradition is not barred by reason of forum if (at a time when the judge has not yet decided the proceedings) the judge receives a prosecutor's certificate relating to the extradition. (2) That duty to decide the forum proceedings in that way is subject to the determination of any question relating to the prosecutor's certificate raised in accordance with section 19E. (3) A designated prosecutor may apply for the forum proceedings to be adjourned for the purpose of assisting that or any other designated prosecutor— (a) in considering whether to give a prosecutor's certificate relating to the extradition, (b) in giving such a certificate, or (c) in sending such a certificate to the judge. (4) If such an application is made, the judge must— (a) adjourn the forum proceedings until the application is decided; and (b) continue the adjournment, for such period as appears to the judge to be reasonable, if the application is granted. (5) But the judge must end the adjournment if the application is not granted. (19D) (1) A “prosecutor's certificate” is a certificate given by a designated prosecutor which— (a) certifies both matter A and matter B, and (b) certifies either matter C or matter D. (2) Matter A is that a responsible prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence. (3) Matter B is that the responsible prosecutor has decided that there are one or more such offences that correspond to the extradition offence (the “corresponding offences”). (4) Matter C is that— (a) the responsible prosecutor has made a formal decision as to the prosecution of D for the corresponding offences, (b) that decision is that D should not be prosecuted for the corresponding offences, and (c) the reason for that decision is a belief that— (i) there would be insufficient admissible evidence for the prosecution; or (ii) the prosecution would not be in the public interest. (5) Matter D is that the responsible prosecutor believes that D should not be prosecuted for the corresponding offences because there are concerns about the disclosure of sensitive material in— (a) the prosecution of D for the corresponding offences, or (b) any other proceedings. (6) In relation to the extradition of any person to a category 1 territory, neither this section nor any other rule of law (whether or not contained in an enactment) may require a designated prosecutor— (a) to consider any matter relevant to giving a prosecutor's certificate; or (b) to consider whether to give a prosecutor's certificate. (7) In this section “sensitive material” means material which appears to the responsible prosecutor to be sensitive, including material appearing to be sensitive on grounds relating to— (a) national security, (b) international relations, or (c) the prevention or detection of crime (including grounds relating to the identification or activities of witnesses, informants or any other persons supplying information to the police or any other law enforcement agency who may be in danger if their identities are revealed). (19E) (1) No decision of a designated prosecutor relating to a prosecutor's certificate in respect of D's extradition (a “relevant certification decision”) may be questioned except on an appeal under section 26 against an order for that extradition. (2) In England and Wales, and Northern Ireland, for the purpose of— (a) determining whether to give permission for a relevant certification decision to be questioned, and (b) determining any such question (if that permission is given), the High Court must apply the procedures and principles which would be applied by it on an application for judicial review. (3) In Scotland, for the purpose of determining any questioning of a relevant certification decision, the High Court must apply the procedures and principles that would be applied by it on an application for judicial review. (4) In a case where the High Court quashes a prosecutor's certificate, the High Court is to decide the question of whether or not the extradition is barred by reason of forum. (5) Where the High Court is required to decide that question by virtue of subsection (4)— (a) sections 19B to 19D and this section apply in relation to that decision (with the appropriate modifications) as they apply to a decision by a judge; and (b) in particular— (i) a reference in this section to an appeal under section 26 has effect as a reference to an appeal under section 32 to the Supreme Court; (ii) a reference in this section to the High Court has effect as a reference to the Supreme Court. (19F) (1) This section applies for the purposes of sections 19B to 19E (and this section). (2) These expressions have the meanings given— - “D” has the meaning given in section 19B(1); - “designated prosecutor” means— 1. a member of the Crown Prosecution Service, or 2. any other person who— 1. is a prosecutor designated for the purposes of this section by order made by the Secretary of State, or 2. is within a description of prosecutors so designated; - “extradition offence” means the offence specified in the Part 1 warrant (including the conduct that constitutes the extradition offence); - “forum proceedings” has the meaning given in section 19C(1); - “part of the United Kingdom” means— 1. England and Wales; 2. Scotland; 3. Northern Ireland; - “prosecutor” means a person who has responsibility for prosecuting offences in any part of the United Kingdom (whether or not the person also has other responsibilities); - “prosecutor's certificate” has the meaning given in section 19D(1); - “responsible prosecutor”, in relation to a prosecutor's certificate, means— 1. the designated prosecutor giving the certificate, or 2. another designated prosecutor. (3) In determining for any purpose whether an offence corresponds to the extradition offence, regard must be had, in particular, to the nature and seriousness of the two offences. (4) A reference to a formal decision as to the prosecution of D for an offence is a reference to a decision (made after complying with, in particular, any applicable requirement concerning a code of practice) that D should, or should not, be prosecuted for the offence.

Extradition to category 2 territories

4

Part 2 of the Extradition Act 2003 (extradition to category 2 territories) is amended as follows.

5

In section 79 (bars to extradition)—

• (a) at the end of subsection (1) insert—

(e) forum.

;

• (b) after subsection (1) insert—

(1A) But the judge is to decide whether the person's extradition is barred by reason of forum only in a case where the request for extradition contains the statement referred to in section 70(4) (warrant issued for purposes of prosecution for offence in category 2 territory).

;

• (c) in subsection (2), for “Sections 80 to 83” substitute “ Sections 80 to 83E ”.

6

After section 83 insert—

(83A) (1) The extradition of a person (“D”) to a category 2 territory is barred by reason of forum if the extradition would not be in the interests of justice. (2) For the purposes of this section, the extradition would not be in the interests of justice if the judge— (a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place. (3) These are the specified matters relating to the interests of justice— (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victims of the extradition offence; (c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence; (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom; (e) any delay that might result from proceeding in one jurisdiction rather than another; (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to— (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom; (g) D's connections with the United Kingdom. (4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 2 territory concerned. (5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum. (6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and is alleged to have been performed by D. (83B) (1) The judge hearing proceedings under section 83A (the “forum proceedings”) must decide that the extradition is not barred by reason of forum if (at a time when the judge has not yet decided the proceedings) the judge receives a prosecutor's certificate relating to the extradition. (2) That duty to decide the forum proceedings in that way is subject to the determination of any question relating to the prosecutor's certificate raised in accordance with section 83D. (3) A designated prosecutor may apply for the forum proceedings to be adjourned for the purpose of assisting that or any other designated prosecutor— (a) in considering whether to give a prosecutor's certificate relating to the extradition, (b) in giving such a certificate, or (c) in sending such a certificate to the judge. (4) If such an application is made, the judge must— (a) adjourn the forum proceedings until the application is decided; and (b) continue the adjournment, for such period as appears to the judge to be reasonable, if the application is granted. (5) But the judge must end the adjournment if the application is not granted. (83C) (1) A “prosecutor's certificate” is a certificate given by a designated prosecutor which— (a) certifies both matter A and matter B, and (b) certifies either matter C or matter D. (2) Matter A is that a responsible prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence. (3) Matter B is that the responsible prosecutor has decided that there are one or more such offences that correspond to the extradition offence (the “corresponding offences”). (4) Matter C is that— (a) the responsible prosecutor has made a formal decision as to the prosecution of D for the corresponding offences, (b) that decision is that D should not be prosecuted for the corresponding offences, and (c) the reason for that decision is a belief that— (i) there would be insufficient admissible evidence for the prosecution; or (ii) the prosecution would not be in the public interest. (5) Matter D is that the responsible prosecutor believes that D should not be prosecuted for the corresponding offences because there are concerns about the disclosure of sensitive material in— (a) the prosecution of D for the corresponding offences, or (b) any other proceedings. (6) In relation to the extradition of any person to a category 2 territory, neither this section nor any other rule of law (whether or not contained in an enactment) may require a designated prosecutor— (a) to consider any matter relevant to giving a prosecutor's certificate; or (b) to consider whether to give a prosecutor's certificate. (7) In this section “sensitive material” means material which appears to the responsible prosecutor to be sensitive, including material appearing to be sensitive on grounds relating to— (a) national security, (b) international relations, or (c) the prevention or detection of crime (including grounds relating to the identification or activities of witnesses, informants or any other persons supplying information to the police or any other law enforcement agency who may be in danger if their identities are revealed). (83D) (1) No decision of a designated prosecutor relating to a prosecutor's certificate in respect of D's extradition (a “relevant certification decision”) may be questioned except on an appeal under section 103 or 108 against an order for that extradition. (2) In England and Wales, and Northern Ireland, for the purpose of— (a) determining whether to give permission for a relevant certification decision to be questioned, and (b) determining any such question (if that permission is given), the High Court must apply the procedures and principles which would be applied by it on an application for judicial review. (3) In Scotland, for the purpose of determining any questioning of a relevant certification decision, the High Court must apply the procedures and principles that would be applied by it on an application for judicial review. (4) In a case where the High Court quashes a prosecutor's certificate, the High Court is to decide the question of whether or not the extradition is barred by reason of forum. (5) Where the High Court is required to decide that question by virtue of subsection (4)— (a) sections 83A to 83C and this section apply in relation to that decision (with the appropriate modifications) as they apply to a decision by a judge; and (b) in particular— (i) a reference in this section to an appeal under section 103 or 108 has effect as a reference to an appeal under section 114 to the Supreme Court; (ii) a reference in this section to the High Court has effect as a reference to the Supreme Court. (83E) (1) This section applies for the purposes of sections 83A to 83D (and this section). (2) These expressions have the meanings given— - “D” has the meaning given in section 83A(1); - “designated prosecutor” means— 1. a member of the Crown Prosecution Service, or 2. any other person who— 1. is a prosecutor designated for the purposes of this section by order made by the Secretary of State, or 2. is within a description of prosecutors so designated; - “extradition offence” means the offence specified in the request for extradition (including the conduct that constitutes the extradition offence); - “forum proceedings” has the meaning given in section 83B(1); - “part of the United Kingdom” means— 1. England and Wales; 2. Scotland; 3. Northern Ireland; - “prosecutor” means a person who has responsibility for prosecuting offences in any part of the United Kingdom (whether or not the person also has other responsibilities); - “prosecutor's certificate” has the meaning given in section 83C(1); - “responsible prosecutor”, in relation to a prosecutor's certificate, means— 1. the designated prosecutor giving the certificate, or 2. another designated prosecutor. (3) In determining for any purpose whether an offence corresponds to the extradition offence, regard must be had, in particular, to the nature and seriousness of the two offences. (4) A reference to a formal decision as to the prosecution of D for an offence is a reference to a decision (made after complying with, in particular, any applicable requirement concerning a code of practice) that D should, or should not, be prosecuted for the offence.

Transitional provision, saving and repeals

7

• (1) In a case where the Part 1 warrant, or the request for the person's extradition, has been issued before the time when the amendments made by this Part of this Schedule come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the existing extradition bar questions.

• (2) For that purpose—

• “existing extradition bar questions” means—the questions in section 11(1) of the Extradition Act 2003 (in the case of a Part 1 warrant), orthe questions in section 79(1) of that Act (in the case of a request for the person's extradition),as those questions stand before their amendment by this Part of this Schedule;

• “Part 1 warrant” and “request for a person's extradition” have the same meanings as in the Extradition Act 2003.

8

The powers conferred by section 177, 178 and 222 of the Extradition Act 2003 are exercisable in relation to any amendment of that Act made by this Part of this Schedule.

9

In the Police and Justice Act 2006, in Schedule 13 (extradition), in Part 1 (amendments to the Extradition Act 2003), omit paragraphs 4 to 6 (and the italic heading preceding paragraph 4).

Part 2 — Human rights issues

Extradition to category 2 territories

10

Part 2 of the Extradition Act 2003 (extradition to category 2 territories) is amended as follows.

11

In section 70 (extradition request and certificate), after subsection (9) insert—

(10) Subsection (11) applies at all times after the Secretary of State issues a certificate under this section. (11) The Secretary of State is not to consider whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

.

12

In section 108 (appeal against extradition order) after subsection (4) insert—

(5) But notice of an appeal under this section may be given after the end of the permitted period if it is an appeal on human rights grounds. (6) Notice of any such appeal must be given in accordance with rules of court at a time before the person is extradited to the category 2 territory in accordance with section 117. (7) Where notice of an appeal is given in accordance with subsections (5) and (6), the High Court is to consider the appeal only if it appears to the High Court that— (a) the appeal is necessary to avoid real injustice, and (b) the circumstances are exceptional and make it appropriate to consider the appeal. (8) In this section “appeal on human rights grounds” means an appeal against the order for the person's extradition on the grounds (and only on the grounds) that the extradition would not be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

13

In section 117 (extradition where no appeal), after subsection (4) insert—

(5) If a person brings an appeal under section 108 by virtue of subsection (5) of that section, this section ceases to apply (but section 118 applies instead).

Transitional provision and saving

14

• (1) In a case where a request for a person's extradition has been issued before the time when the amendments made by this Part of this Schedule come into force, those amendments apply to the extradition concerned only if—

• (a) the person concerned has not made any human rights representations to the Secretary of State during the relevant period, or

• (b) the person concerned has made such representations during that period and the Secretary of State has finished considering them by the end of that period.

• (2) For that purpose—

• “human rights representations” means representations that the extradition would not be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

• “relevant period” means the period that—begins when the Secretary of State issues a certificate under section 70 of the Extradition Act 2003 in relation to the extradition, andends when the amendments made by this Part of this Schedule come into force;

• “request for a person's extradition” has the same meaning as in the Extradition Act 2003.

15

The powers conferred by section 177, 178 and 222 of the Extradition Act 2003 are exercisable in relation to any amendment of that Act made by this Part of this Schedule.

Part 3 — Devolution issues in Scotland

Extradition to category 1 territories

16

Part 1 of the Extradition Act 2003 (extradition to category 1 territories) is amended as follows.

17

• (1) In section 30 (detention pending conclusion of appeal under section 28), for subsection (5) substitute—

(5) The preceding provisions of this section do not apply to Scotland.

.

• (2) After section 30 insert—

(30A) (1) This section applies if immediately after the judge orders the person's discharge the judge is informed by the authority which issued the Part 1 warrant (“the issuing authority”) that it intends to appeal under section 28 (“the High Court appeal”). (2) The judge must remand the person in custody or on bail while the High Court appeal is pending. (3) The High Court appeal ceases to be pending at the earliest of these times— (a) when the proceedings on the appeal are abandoned; (b) when the High Court— (i) allows the appeal, or (ii) dismisses the appeal. (4) If— (a) the High Court appeal is dismissed, and (b) immediately after dismissing it, the High Court is informed by the issuing authority that it intends to bring an appeal to the Supreme Court against a determination of a relevant devolution issue (“the Supreme Court appeal”), the High Court must remand the person in custody or on bail while the Supreme Court appeal is pending. (5) The Supreme Court appeal ceases to be pending at the earliest of these times— (a) the end of the period of 28 days starting with the day when the High Court appeal is dismissed (unless, within that period, an application is made to the High Court for permission to make the Supreme Court appeal); (b) the end of the period of 28 days starting with the day when the High Court refuses permission to make the Supreme Court appeal (unless, within that period, an application is made to the Supreme Court for permission to make the Supreme Court appeal); (c) the end of the period of 28 days starting with the day on which permission is given to bring the Supreme Court appeal (unless the appeal is brought within that period); (d) the time when the proceedings on the Supreme Court appeal are abandoned; (e) the time when there is no further step that can be taken in relation to the Supreme Court appeal by the issuing authority (ignoring any power of a court to grant leave to take a step out of time). (6) If the person is remanded in custody by the judge or the High Court, the High Court may later grant bail. (7) In this section “relevant devolution issue” means a devolution issue relating to the person's extradition. (8) This section applies only to Scotland.

18

After section 33 insert—

(33ZA) (1) This section applies where, on an appeal to the Supreme Court against a determination of a devolution issue relating to a person's extradition under this Part, the Supreme Court— (a) remits the case to the High Court, or (b) orders the person's extradition. (2) The Supreme Court must remand the person in custody or on bail pending the person's extradition. (3) If the Supreme Court remands the person in custody it may later grant bail.

19

After section 33A insert—

(33B) (1) This section applies if immediately after the High Court orders the person's discharge the court is informed by the authority which issued the Part 1 warrant (“the issuing authority”) that it intends to bring an appeal to the Supreme Court against a determination of a relevant devolution issue (“the Supreme Court appeal”). (2) The High Court must remand the person in custody or on bail while the Supreme Court appeal is pending. (3) If the court remands the person in custody it may later grant bail. (4) The Supreme Court appeal ceases to be pending at the earliest of these times— (a) the end of the period of 28 days starting with the day when the High Court orders the person's discharge (unless, within that period, an application is made to the High Court for permission to make the Supreme Court appeal); (b) the end of the period of 28 days starting with the day when the High Court refuses permission to make the Supreme Court appeal (unless, within that period, an application is made to the Supreme Court for permission to make the Supreme Court appeal); (c) the end of the period of 28 days starting with the day on which permission is given to bring the Supreme Court appeal (unless the appeal is brought within that period); (d) the time when the proceedings on the Supreme Court appeal are abandoned; (e) the time when there is no further step that can be taken in relation to the Supreme Court appeal by the issuing authority (ignoring any power of a court to grant permission to take a step out of time). (5) In this section “relevant devolution issue” means a devolution issue relating to the person's extradition. (6) This section applies only to Scotland.

20

In section 34 (appeals: general), at the beginning insert “ (1) ” and at the end insert—

(2) Subsection (1) does not prevent an appeal against a determination of a devolution issue. (3) In this Part “devolution issue” has the same meaning as in Schedule 6 to the Scotland Act 1998.

21

• (1) In section 36 (extradition following appeal), for subsection (9) substitute—

(9) The preceding provisions of this section do not apply to Scotland.

• (2) After that section insert—

(36A) (1) This section applies if— (a) there is an appeal to the High Court under section 26 against an order for a person's extradition to a category 1 territory, and (b) the effect of the decision in the relevant proceedings is that the person must be extradited to the category 1 territory. (2) The “relevant proceedings” are— (a) the proceedings on the appeal under section 26 if— (i) no Supreme Court devolution appeal is made, or (ii) a Supreme Court devolution appeal is made and the Supreme Court remits the case to the High Court, or (b) the proceedings on a Supreme Court devolution appeal if such an appeal is made and the Supreme Court does not remit the case to the High Court. (3) The person must be extradited to the category 1 territory before the end of the required period, which is 28 days starting with— (a) the day on which the decision in the relevant proceedings becomes final, or (b) the day on which the relevant proceedings are abandoned. (4) In a case where the relevant proceedings are proceedings on the appeal under section 26 (except where the case has been remitted to the High Court on a Supreme Court devolution appeal), the decision in those proceedings becomes final— (a) at the end of the period of 28 days starting with the day of the decision (unless, within that period, an application is made to the High Court for permission to make a Supreme Court devolution appeal); (b) at the end of the period of 28 days starting with the day when the High Court refuses permission to make a Supreme Court devolution appeal (unless, within that period, an application is made to the Supreme Court for permission to make that appeal); (c) when the Supreme Court refuses permission to make a Supreme Court devolution appeal; (d) at the end of the permitted period, which is 28 days starting with the day on which permission to make a Supreme Court devolution appeal is granted, if no such appeal is brought before the end of that period. (5) These must be ignored for the purposes of subsection (4)— (a) any power of a court to extend the period permitted for applying for permission to appeal; (b) any power of a court to grant permission to take a step out of time. (6) In a case where— (a) the relevant proceedings are proceedings on the appeal under section 26, and (b) the case has been remitted to the High Court on a Supreme Court devolution appeal, the decision in those proceedings becomes final when it is made. (7) In a case where— (a) the relevant proceedings are proceedings on a Supreme Court devolution appeal, and (b) the decision is not to remit the case to the High Court, the decision in those proceedings becomes final when it is made. (8) If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged, the judge must order the person's discharge, unless reasonable cause is shown for the delay. (9) In this section “Supreme Court devolution appeal” means an appeal to the Supreme Court against a determination of a devolution issue relating to a person's extradition. (10) This section applies only to Scotland.

Extradition to category 2 territories

22

Part 2 of the Extradition Act 2003 (extradition to category 2 territories) is amended as follows.

23

• (1) In section 107 (detention pending conclusion of appeal under section 105), for subsection (5) substitute—

(5) The preceding provisions of this section do not apply to Scotland.

• (2) After section 107 insert—

(107A) (1) This section applies if immediately after the judge orders the person's discharge the judge is informed on behalf of the category 2 territory of an intention to appeal under section 105 (“the High Court appeal”). (2) The judge must remand the person in custody or on bail while the High Court appeal is pending. (3) The High Court appeal ceases to be pending at the earliest of these times— (a) when the proceedings on the appeal are abandoned; (b) when the High Court— (i) allows the appeal, (ii) makes a direction under section 106(1)(b), or (iii) dismisses the appeal. (4) If— (a) the High Court appeal is dismissed, and (b) immediately after dismissing it, the High Court is informed of an intention to bring an appeal to the Supreme Court against a determination of a relevant devolution issue (“the Supreme Court appeal”), the High Court must remand the person in custody or on bail while the Supreme Court appeal is pending. (5) The Supreme Court appeal ceases to be pending at the earliest of these times— (a) the end of the period of 28 days starting with the day when the High Court appeal is dismissed (unless, within that period, an application is made to the High Court for permission to make the Supreme Court appeal); (b) the end of the period of 28 days starting with the day when the High Court refuses permission to make the Supreme Court appeal (unless, within that period, an application is made to the Supreme Court for permission to make the Supreme Court appeal); (c) the end of the period of 28 days starting with the day on which permission is given to bring the Supreme Court appeal (unless the appeal is brought within that period); (d) the time when the proceedings on the Supreme Court appeal are abandoned; (e) the time when there is no further step that can be taken in relation to the Supreme Court appeal by the category 2 territory (ignoring any power of a court to grant leave to take a step out of time). (6) If the person is remanded in custody by the judge or the High Court, the appropriate judge may later grant bail. (7) In this section “relevant devolution issue” means a devolution issue relating to the person's extradition. (8) This section applies only to Scotland.

24

• (1) In section 112 (detention pending conclusion of appeal under section 110), for subsection (5) substitute—

(5) The preceding provisions of this section do not apply to Scotland.

• (2) After section 112 insert—

(112A) (1) This section applies in a case where the Scottish Ministers order the person's discharge under this Part. (2) Subject to subsection (6)— (a) the order made by the appropriate judge under section 92(4) (“the remand order”) remains in force until the end of the period of three days beginning with the day on which the person's discharge is ordered; (b) if within that period the Scottish Ministers are informed in writing on behalf of the category 2 territory of an intention to appeal under section 110 (“the High Court appeal”), the remand order remains in force while the appeal is pending. (3) The High Court appeal ceases to be pending at the earliest of these times— (a) when the proceedings on the appeal are abandoned; (b) when the High Court— (i) allows the appeal, or (ii) dismisses the appeal. (4) If— (a) the High Court appeal is dismissed, (b) immediately after dismissing it, the High Court is informed of an intention to bring an appeal to the Supreme Court against a determination of a relevant devolution issue (“the Supreme Court appeal”), and (c) the remand order has remained in force until that time, then, subject to subsection (6), the remand order continues to remain in force while the Supreme Court appeal is pending. (5) The Supreme Court appeal ceases to be pending at the earliest of these times— (a) the end of the period of 28 days starting with the day when the High Court appeal is dismissed (unless, within that period, an application is made to the High Court for permission to make the Supreme Court appeal); (b) the end of the period of 28 days starting with the day when the High Court refuses permission to make the Supreme Court appeal (unless, within that period, an application is made to the Supreme Court for permission to make the Supreme Court appeal); (c) the end of the period of 28 days starting with the day on which permission is given to bring the Supreme Court appeal (unless the appeal is brought within that period); (d) the time when the proceedings on the Supreme Court appeal are abandoned; (e) the time when there is no further step that can be taken in relation to the Supreme Court appeal by the category 2 territory (ignoring any power of a court to grant leave to take a step out of time). (6) If the person is remanded in custody under section 92(4), the appropriate judge may later grant bail. (7) In this section “relevant devolution issue” means a devolution issue relating to the person's extradition. (8) This section applies only to Scotland.

25

After section 115A insert—

(115B) (1) This section applies if— (a) on an appeal under section 103 or 108 the High Court orders the person's discharge; (b) immediately after ordering the person's discharge, the High Court is informed of an intention to bring an appeal to the Supreme Court against a determination of a relevant devolution issue (“the Supreme Court appeal”). (2) The High Court must remand the person in custody or on bail while the Supreme Court appeal is pending. (3) If the court remands the person in custody it may later grant bail. (4) The Supreme Court appeal ceases to be pending at the earliest of these times— (a) the end of the period of 28 days starting with the day when the High Court orders the person's discharge (unless, within that period, an application is made to the High Court for permission to make the Supreme Court appeal); (b) the end of the period of 28 days starting with the day when the High Court refuses permission to make the Supreme Court appeal (unless, within that period, an application is made to the Supreme Court for permission to make the Supreme Court appeal); (c) the end of the period of 28 days starting with the day on which permission is given to bring the Supreme Court appeal (unless the appeal is brought within that period); (d) the time when the proceedings on the Supreme Court appeal are abandoned; (e) the time when there is no further step that can be taken in relation to the Supreme Court appeal (ignoring any power of a court to grant leave to take a step out of time). (5) In this section “relevant devolution issue” means a devolution issue relating to the person's extradition. (6) This section applies only to Scotland.

26

In section 116 (appeals: general), at the beginning insert “ (1) ” and at the end insert—

(2) Subsection (1) does not prevent an appeal against a determination of a devolution issue. (3) In this Part “devolution issue” has the same meaning as in Schedule 6 to the Scotland Act 1998.

27

• (1) In section 118 (extradition following appeal), for subsection (8) substitute—

(8) The preceding provisions of this section do not apply to Scotland.

• (2) After that section insert—

(118A) (1) This section applies if— (a) there is an appeal to the High Court under section 103, 108 or 110 against a decision or order relating to a person's extradition to a category 2 territory, and (b) the effect of the decision in the relevant proceedings is that the person must be extradited to the category 2 territory. (2) The “relevant proceedings” are— (a) the proceedings on the appeal under section 103, 108 or 110 if— (i) no Supreme Court devolution appeal is made, or (ii) a Supreme Court devolution appeal is made and the Supreme Court remits the case to the High Court, or (b) the proceedings on a Supreme Court devolution appeal if such an appeal is made and the Supreme Court does not remit the case to the High Court. (3) The person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with— (a) the day on which the decision in the relevant proceedings becomes final, or (b) the day on which the relevant proceedings are abandoned. (4) In a case where the relevant proceedings are proceedings on the appeal under section 103, 108 or 110 (except the case has been remitted to the High Court on a Supreme Court devolution appeal), the decision in those proceedings becomes final— (a) at the end of the period of 28 days starting with the day of the High Court's decision on the appeal (unless, within that period, an application is made to the High Court for permission to make a Supreme Court devolution appeal); (b) at the end of the period of 28 days starting with the day when the High Court refuses permission to make a Supreme Court devolution appeal (unless, within that period, an application is made to the Supreme Court for permission to make the appeal); (c) when the Supreme Court refuses permission to make a Supreme Court devolution appeal; (d) at the end of the permitted period, which is 28 days starting with the day on which permission to make a Supreme Court devolution appeal is granted, if no such appeal is brought before the end of that period. (5) These must be ignored for the purposes of subsection (4)— (a) any power of a court to extend the period permitted for applying for permission to appeal; (b) any power of a court to grant permission to take a step out of time. (6) In a case where— (a) the relevant proceedings are proceedings on the appeal under section 103, 108 or 110, and (b) the case has been remitted to the High Court on a Supreme Court devolution appeal, the decision in those proceedings becomes final when it is made. (7) In a case where— (a) the relevant proceedings are proceedings on a Supreme Court devolution appeal, and (b) the decision is not to remit the case to the High Court, the decision in those proceedings becomes final when it is made. (8) If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged, the judge must order the person's discharge, unless reasonable cause is shown for the delay. (9) In this section “Supreme Court devolution appeal” means an appeal to the Supreme Court against a determination of a devolution issue relating to a person's extradition. (10) This section applies only to Scotland.

28

After section 118A (inserted by paragraph 27) insert—

(118B) (1) This section applies where, on an appeal to the Supreme Court against a determination of a devolution issue relating to a person's extradition under this Part, the Supreme Court— (a) remits the case to the High Court, or (b) orders the person's extradition. (2) The Supreme Court must remand the person in custody or on bail pending the person's extradition. (3) If the Supreme Court remands the person in custody, the High Court may later grant bail.

Saving

29

The powers conferred by section 177, 178 and 222 of the Extradition Act 2003 are exercisable in relation to any amendment of that Act made by this Part of this Schedule.

SCHEDULE 21

Part 1 — General

Police Act 1997

1

The Police Act 1997 is amended as follows.

2

• (1) Section 93 (authorisations to interfere with property etc) is amended in accordance with this paragraph.

• (2) In subsection (1B), after “Customs” insert “ , an immigration officer ”.

• (3) In subsection (3)—

• (a) in paragraph (d), omit the final “or”;

• (b) after paragraph (d) insert—

(da) if the authorising officer is within subsection (5)(ha), by an immigration officer;

.

• (4) In subsection (4)—

• (a) in the words after paragraph (b), for “it” substitute “ the conduct ”;

• (b) after “1979” insert “ or, where the authorising officer is within subsection (5)(ha), any of the offences is an immigration or nationality offence ”.

• (5) In subsection (5)(h), omit “or”.

• (6) After subsection (6B), insert—

(6C) For the purposes of this section, an offence is an immigration or nationality offence if conduct constituting the offence— (a) relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or (b) is undertaken for the purposes of, or otherwise in relation to, any of these enactments— (i) the British Nationality Act 1981; (ii) the Hong Kong Act 1985; (iii) the Hong Kong (War Wives and Widows) Act 1996; (iv) the British Nationality (Hong Kong) Act 1997; (v) the British Overseas Territories Act 2002; (vi) an instrument made under any of those Acts.

.

3

In section 94 (authorisations given in absence of authorising officer), in subsection (2), after paragraph (f) insert—

(fa) where the authorising officer is within paragraph (ha) of that subsection, by a senior official (within the meaning of the Regulation of Investigatory Powers Act 2000) in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated by the Secretary of State for the purposes of this section;

.

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation of Investigatory Powers Act 2000

5

The Regulation of Investigatory Powers Act 2000 is amended as follows.

6

In section 32(6) (authorisation of intrusive surveillance: senior authorising officers), in paragraph (m), omit the final “and”.

7

• (1) Section 33 (rules for grant of authorisations) is amended in accordance with this paragraph.

• (2) After subsection (4) insert—

(4ZA) A senior official who is a senior authorising officer by virtue of a designation by the Secretary of State under section 32(6)(ma) shall not grant an authorisation for the carrying out of intrusive surveillance except on an application made by an immigration officer.

.

• (3) In subsection (5)(a), after “Customs” insert “ , an immigration officer ”.

8

• (1) Section 34 (grant of authorisations in the senior officer's absence) is amended in accordance with this paragraph.

• (2) In subsection (1)(a), after “Customs” insert “ or an immigration officer ”.

• (3) In subsection (2)(a), after “Customs” insert “ or the Secretary of State ”.

• (4) In subsection (4), after paragraph (l) insert—

(la) a person is entitled to act for a person who is a senior authorising officer by virtue of a designation under section 32(6)(ma), if the person is a senior official in the department of the Secretary of State by whom functions relating to immigration are exercisable who is designated for the purposes of this paragraph by the Secretary of State as a person entitled so to act in an urgent case;

.

9

• (1) Section 35 (notification of authorisations for intrusive surveillance) is amended in accordance with this paragraph.

• (2) In subsection (1), after “Customs” insert “ , immigration ”.

• (3) In subsection (10)—

• (a) in the words before paragraphs (a) to (c), after “Customs” insert “ , immigration ”;

• (b) in paragraph (b), for “by the Commissioners for Her Majesty's Revenue and Customs” substitute “ under section 32(6)(m) or (ma) ”.

10

• (1) Section 36 (approval required for authorisations to take effect) is amended in accordance with this paragraph.

• (2) In subsection (1)—

• (a) in paragraph (d) omit “or”;

• (b) after paragraph (d) insert—

(da) an immigration officer; or

.

• (3) In subsection (6)—

• (a) in paragraph (g) omit the final “and”;

• (b) after paragraph (g) insert—

(ga) where the authorisation was granted by a senior official designated under section 32(6)(ma) or entitled to act for such an official under section 34(4)(la), the senior official designated under section 32(6)(ma); and

.

11

In section 37 (quashing of authorisations), in subsection (1)—

• (a) in paragraph (d) omit “or”;

• (b) after paragraph (d) insert—

(da) an immigration officer; or

.

12

In section 40 (information to be provided to Surveillance Commissioners), in subsection (1)—

• (a) in paragraph (d) omit the final “and”;

• (b) after paragraph (d) insert—

(da) every immigration officer and every other official in the department of the Secretary of State by whom functions relating to immigration are exercisable, and

.

13

In section 46 (restrictions on authorisations extending to Scotland), in subsection (3)—

• (a) in paragraph (e) omit the final “and”;

• (b) after paragraph (e) insert—

(ea) the department of the Secretary of State by whom functions relating to immigration are exercisable; and

.

Proceeds of Crime Act 2002

14

The Proceeds of Crime Act 2002 is amended as follows.

15

In section 41A (restraint orders: power to retain seized property etc), in subsection (3), after paragraph (c) insert—

(ca) an immigration officer;

.

16

• (1) Section 47C (power to seize property) is amended in accordance with this paragraph.

• (2) Subsection (6) is amended as follows—

• (a) after paragraph (a) insert—

(aa) where applicable, in accordance with subsection (6A) or (6B).

;

• (b) for “(b) is exercisable” substitute—

(6A) The power conferred by this section is exercisable

.

• (3) After subsection (6A) insert—

(6B) The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence— (a) relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or (b) is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.

.

• (4) After subsection (7) insert—

(8) Relevant nationality enactment” means any enactment in— (a) the British Nationality Act 1981, (b) the Hong Kong Act 1985, (c) the Hong Kong (War Wives and Widows) Act 1996, (d) the British Nationality (Hong Kong) Act 1997, (e) the British Overseas Territories Act 2002, or (f) an instrument made under any of those Acts.

.

17

In section 47G (“appropriate approval”), in subsection (3), after paragraph (a) insert—

(aa) in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,

.

18

In section 47M (further detention in other cases), in subsection (3), after paragraph (a) insert—

(aa) an immigration officer;

.

19

In section 72 (serious default), in subsection (9), after paragraph (e) insert—

(ea) if the person in default was an immigration officer, the compensation is payable by the Secretary of State;

.

20

In section 120A (restraint orders: power to retain seized property etc), in subsection (3), after paragraph (b) insert—

(ba) an immigration officer;

.

21

• (1) Section 127C (power to seize property) is amended in accordance with this paragraph.

• (2) Subsection (6) is amended as follows—

• (a) after paragraph (a) insert—

(aa) where applicable, in accordance with subsection (6A) or (6B).

;

• (b) for “(b) is exercisable” substitute—

(6A) The power conferred by this section is exercisable

.

• (3) After subsection (6A) insert—

(6B) The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence— (a) relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or (b) is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.

.

• (4) After subsection (7) insert—

(8) Relevant nationality enactment” means any enactment in— (a) the British Nationality Act 1981, (b) the Hong Kong Act 1985, (c) the Hong Kong (War Wives and Widows) Act 1996, (d) the British Nationality (Hong Kong) Act 1997, (e) the British Overseas Territories Act 2002, or (f) an instrument made under any of those Acts.

.

22

In section 127G (“appropriate approval”), in subsection (3), after paragraph (a) insert—

(aa) in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,

.

23

In section 127M (further detention in other cases: Scotland), in subsection (3), after paragraph (a) insert—

(aa) an immigration officer;

.

24

In section 190A (restraint orders: power to retain seized property), in subsection (3), after paragraph (c) insert—

(ca) an immigration officer;

.

25

• (1) Section 195C (power to seize property) is amended in accordance with this paragraph.

• (2) Subsection (6) is amended as follows—

• (a) after paragraph (a) insert—

(aa) where applicable, in accordance with subsection (6A) or (6B).

;

• (b) for “(b) is exercisable” substitute—

(6A) The power conferred by this section is exercisable

.

• (3) After subsection (6A) insert—

(6B) The power conferred by this section is exercisable by an immigration officer only if the officer has reasonable grounds for suspecting that conduct constituting the relevant offence— (a) relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement), or (b) is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.

.

• (4) After subsection (7) insert—

(8) Relevant nationality enactment” means any enactment in— (a) the British Nationality Act 1981, (b) the Hong Kong Act 1985, (c) the Hong Kong (War Wives and Widows) Act 1996, (d) the British Nationality (Hong Kong) Act 1997, (e) the British Overseas Territories Act 2002, or (f) an instrument made under any of those Acts.

.

26

In section 195G (“appropriate approval”), in subsection (3), after paragraph (a) insert—

(aa) in relation to the exercise of a power by an immigration officer, an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,

.

27

In section 195M (further detention in other cases: Northern Ireland), in subsection (3), after paragraph (a) insert—

(aa) an immigration officer;

.

28

In section 297A (forfeiture notice), in subsection (6), after paragraph (a) insert—

(aa) an immigration officer of a rank designated by the Secretary of State as equivalent to that of a senior police officer,

.

29

In section 297F (release of cash subject to forfeiture notice), in subsection (4), after “Customs,” insert “ immigration officer, ”.

30

In section 351 (supplementary provision about production orders), in subsection (5)—

• (a) after “customs officer” (in the first place) insert “ or an immigration officer ”;

• (b) after “customs officer” (in the second place) insert “ or immigration officer ”.

31

In section 352 (search and seizure warrants), in subsection (5)—

• (a) in paragraph (a), after “a customs officer” insert “ or an immigration officer ”;

• (b) in paragraph (c), after “Customs” insert “ or an immigration officer ”.

32

In section 353 (requirements where production order not available), in subsection (10)—

• (a) in paragraph (a)—

• (i) for “investigator or” substitute “ investigator, ”;

• (ii) after “customs officer” insert “ or an immigration officer ”;

• (b) in paragraph (c)—

• (i) for “investigator or” substitute “ investigator, ”;

• (ii) after “Customs” insert “ or an immigration officer ”.

33

In section 356 (further provisions: civil recovery and detained cash), in subsection (11)(b), after “Customs” insert “ or an immigration officer ”.

34

In section 357 (disclosure orders), in subsection (8)—

• (a) in paragraph (c), omit the final “and”;

• (b) at the end of paragraph (d), insert

; and— (e) in relation to a confiscation investigation carried out by an immigration officer, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person.

.

35

• (1) Section 369 (supplementary provision about customer information orders) is amended in accordance with this paragraph.

• (2) In subsection (5)—

• (a) after “customs officer” (in the first place) insert “ or an immigration officer ”;

• (b) after “customs officer” (in the second place) insert “ or immigration officer ”.

• (3) In subsection (7), after “customs officer” insert “ or an immigration officer ”.

36

In section 375 (supplementary provision about account monitoring orders), in subsection (4)—

• (a) after “customs officer” (in the first place) insert “ or an immigration officer ”;

• (b) after “customs officer” (in the second place) insert “ or immigration officer ”.

37

• (1) Section 377 (code of practice of Secretary of State etc) is amended in accordance with this paragraph.

• (2) In subsection (1), after paragraph (e) insert—

(f) immigration officers.

.

• (3) In subsection (5), for “(e)” substitute “ (f) ”.

38

In section 412 (interpretation of Chapter 3 of Part 8 — Scotland), in the provision which relates to references to a “constable”, after “customs and excise officer” insert “ and to an immigration officer ”.

UK Borders Act 2007

39

In section 24 of the UK Borders Act 2007 (seizure of cash by immigration officers under Proceeds of Crime Act 2002), in subsection (2)(c), for “of the rank of at least Assistant Director” substitute “ at or above the grade which is designated by the Secretary of State as being equivalent to the rank of police inspector ”.

Saving of provisions of Borders, Citizenship and Immigration Act 2009

40

The amendments made to any other Act by section 55 or this Schedule do not prevent sections 1(4), 3(5), 7(5) and 11(4) of the Borders, Citizenship and Immigration Act 2009 from applying to the amended Act (including those provisions of that Act as amended by section 55 or this Schedule).

Part 2 — Modification of applied enactments

Criminal Justice and Public Order Act 1994

41

Paragraphs 42 to 43 have effect for the purposes of the application of sections 136 to 139 of the Criminal Justice and Public Order Act 1994 to immigration officers by virtue of section 55(7).

42

A reference to a constable (including a reference to a constable of a police force in England and Wales, a constable of a police force in Scotland or a constable of a police force in Northern Ireland) is to be treated as a reference to an immigration officer.

43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 3 — Scotland

Criminal Law (Consolidation) (Scotland) Act 1995

44

The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.

45

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

48

In section 26B (interpretation of Part 3 etc)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) in subsection (2), for the words from “this Act” to “had authority” substitute

this Act— (a) a certificate of the Commissioners for Her Majesty's Revenue and Customs that an officer of Revenue of Customs, or (b) a certificate of the Secretary of State that an immigration officer, had authority

.

49

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential amendments relating to legal aid in Scotland

50

• (1) In section 8A of the Legal Aid (Scotland) Act 1986 (power to provide for criminal advice and assistance to be available for certain clients without reference to the financial limits), in subsection (2)(b), after “offences” insert “ or immigration or nationality offences ”.

• (2) In regulation 8 of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 (criminal advice and assistance: automatic availability in certain circumstances), in paragraph (b), after “offences” insert “ or immigration or nationality offences ”.

• (3) The amendment of regulation 8 by sub-paragraph (2) above does not prevent the provision made by that amendment from being amended or revoked by exercise of the power conferred by section 8A of the Legal Aid (Scotland) Act 1986 or any other power.

• (4) Regulation 3(1)(b) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (duty solicitors: advice for suspects) applies in relation to a person to whom section 25A of the 1995 Act applies by virtue of its amendment by paragraph 46 of this Schedule; and, accordingly, in regulation 3(1)(b), after “customs” insert “ , immigration and nationality ”.

• (5) But regulation 3(1)(b) does not have effect in relation to such a person in a case where—

• (a) the person is detained under section 24 of the 1995 Act, and the period of detention began before the time at which paragraph 46 of this Schedule comes into force;

• (b) the person attends as mentioned in section 25A(1)(d) of the 1995 Act, and the period of attendance began before that time; or

• (c) the person is arrested and detained as mentioned in section 25A(1)(e) of that Act, and the arrest occurred before that time.

• (6) Sub-paragraph (4) does not affect the application of regulation 3(1)(b) in relation to a person to whom section 25A of the 1995 Act applies otherwise than by virtue of its amendment by paragraph 47 of this Schedule.

• (7) Sub-paragraphs (4) to (6) do not prevent regulation 3(1)(b) from being amended or revoked by exercise of any power conferred by the Legal Aid (Scotland) Act 1986 or any other power.

• (8) In this paragraph “1995 Act” means the Criminal Law (Consolidation) (Scotland) Act 1995.

SCHEDULE 22

Road Traffic Act 1988 (c. 52)

1

The Road Traffic Act 1988 is amended as follows.

2

• (1) Section 3A (causing death by careless driving when under influence of drink or drugs) is amended as follows.

• (2) In subsection (1), after paragraph (b) insert—

(ba) he has in his body a specified controlled drug and the proportion of it in his blood or urine at that time exceeds the specified limit for that drug, or

.

• (3) In subsection (3), after “(1)(b)” insert “ , (ba) ”.

3

• (1) Section 6C (preliminary drug test) is amended as follows.

• (2) In subsection (1)(b), for “in his body.” substitute

in his body and if so— (i) whether it is a specified controlled drug; (ii) if it is, whether the proportion of it in the person's blood or urine is likely to exceed the specified limit for that drug.

• (3) After subsection (2) insert—

(3) Up to three preliminary drug tests may be administered.

4

In section 6D (arrest), in subsection (1), for the words after “preliminary breath test” substitute

or preliminary drug test the constable reasonably suspects that— (a) the proportion of alcohol in the person's breath or blood exceeds the prescribed limit, or (b) the person has a specified controlled drug in his body and the proportion of it in the person's blood or urine exceeds the specified limit for that drug.

5

• (1) Section 7 (provision of specimens for analysis) is amended as follows.

• (2) After subsection (1) insert—

(1A) In the course of an investigation into whether a person has committed an offence under section 5A of this Act a constable may, subject to subsections (3) to (7) of this section and section 9 of this Act, require the person to provide a specimen of blood or urine for a laboratory test.

• (3) In subsection (3)(c), for “or 4” substitute “ , 4 or 5A ”.

6

• (1) Section 10 (detention of persons affected by alcohol or a drug) is amended as follows.

• (2) In subsection (1), for “or 5” substitute “ , 5 or 5A ”.

• (3) In subsection (2), for the words from “whilst his ability” to the end substitute

whilst— (a) the person's ability to drive properly is impaired, (b) the proportion of alcohol in the person's breath, blood or urine exceeds the prescribed limit, or (c) the proportion of a specified controlled drug in the person's blood or urine exceeds the specified limit for that drug.

7

In section 192 (general interpretation of Act), in the definition of “prescribed” in subsection (1), before “means” insert “ (except in section 5A) ”.

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Road Traffic Offenders Act 1988 (c. 53)

9

The Road Traffic Offenders Act 1988 is amended as follows.

10

• (1) Section 15 (use of specimens in proceedings for an offence under section 3A, 4 or 5 of the Road Traffic Act) is amended as follows.

• (2) In the sidenote, for “section 4 or 5” substitute “ any of sections 3A to 5A ”.

• (3) In subsection (1), for “section 3A, 4 or 5” substitute “ any of sections 3A to 5A ”.

• (4) In subsection (2), for the words from “and, subject to” to the end substitute

and— (a) it is to be assumed, subject to subsection (3) below, that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen; (b) it is to be assumed, subject to subsection (3A) below, that the proportion of a drug in the accused's blood or urine at the time of the alleged offence was not less than in the specimen.

• (5) In subsection (3), for “That assumption” substitute “ The assumption in subsection (2)(a) above ”.

• (6) After subsection (3) insert—

(3A) The assumption in subsection (2)(b) above is not to be made if the accused proves— (a) that he took the drug before he provided the specimen or had the specimen taken from him and— (i) in relation to an offence under section 3A, after the time of the alleged offence, and (ii) otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and (b) that had he not done so the proportion of the drug in his blood or urine— (i) in the case of a specified controlled drug, would not have exceeded the specified limit for that drug, and (ii) if it is alleged that he was unfit to drive through drugs, would not have been such as to impair his ability to drive properly.

11

• (1) Section 24 (alternative verdicts: general) is amended as follows.

• (2) In the table in subsection (1), after the entry relating to section 5(1)(a) of the Road Traffic Act 1988 insert—

Section 5A(1)(a) and (2) (driving or attempting to drive with concentration of specified controlled drug above specified limit)	Section 5A(1)(b) and (2) (being in charge of a vehicle with concentration of specified controlled drug above specified limit)

.

• (3) In subsection (3), for “or 5(1)(a)” substitute “ , 5(1)(a) or 5A(1)(a) and (2) ”.

12

In section 34 (disqualification for certain offences), in subsection (3), after paragraph (b) insert—