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Counter-Terrorism and Border Security Act 2019

Type Public General Act

Publication 2019-02-12

Last updated 2023-12-20

State In force

Department Statute Law Database

Source legislation.gov.uk

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Reform history JSON API

(18GA) (1) This section applies where— (a) relevant physical data to which section 18G applies has been taken from or provided by a person, and (b) the data is or includes the person's fingerprints (“the original fingerprints”). (2) A constable may make a determination under this section in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if— (a) the further fingerprints were taken under or by virtue of— (i) any provision, power or authority mentioned in section 18G(1), or (ii) paragraph 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, and (b) the further fingerprints or the original fingerprints were taken— (i) in connection with a terrorist investigation, as defined by section 32 of the Terrorism Act 2000, or (ii) under a power conferred by virtue of paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019. (3) Where a determination under this section is made in respect of the further fingerprints— (a) the further fingerprints may be retained for as long as the original fingerprints are retained in accordance with this Part, and (b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a). (4) Subsection (3)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment. (5) A written record must be made of a determination under this section.

Terrorism Act 2000

9

Part 1 of Schedule 8 to the Terrorism Act 2000 (treatment of persons detained under section 41 of, or Schedule 7 to, that Act) is amended as follows.

10

(1) Paragraph 20E is amended as follows.

(2) In sub-paragraph (1), for “the responsible” substitute “ a ”.

(3) In sub-paragraph (2), for “the responsible” substitute “ a ”.

(4) In sub-paragraph (3)(b), for “2 years” substitute “ 5 years ”.

(5) After sub-paragraph (3) insert—

(4) In this paragraph “chief officer of police” means— (a) a chief officer of police of a police force in England and Wales, (b) the chief constable of the Police Service of Scotland, or (c) the Chief Constable of the Police Service of Northern Ireland.

11

After paragraph 20E insert—

(20EA) (1) This paragraph applies where paragraph 20A material is or includes a person's fingerprints (“the original fingerprints”). (2) A constable may make a determination under this paragraph in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if conditions 1 and 2 are met. (3) Condition 1 is met if the further fingerprints— (a) are paragraph 20A material, (b) are taken or provided under or by virtue of— (i) Part 5 of the Police and Criminal Evidence Act 1984, (ii) Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), (iii) any provision, power or authority mentioned in section 18G(1) of the Criminal Procedure (Scotland) Act 1995, (iv) paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or (v) paragraph 34 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019, or (c) are material to which section 18 of the Counter-Terrorism Act 2008 applies. (4) Condition 2 is met if— (a) in a case where the further fingerprints are material to which section 18 of the Counter-Terrorism Act 2008 applies, the original fingerprints and the further fingerprints are held under the law of the same part of the United Kingdom; (b) in any other case, the original fingerprints and the further fingerprints were taken from or provided by the person in the same part of the United Kingdom. (5) Where a determination under this paragraph is made in respect of the further fingerprints— (a) the further fingerprints may be retained for as long as the original fingerprints are retained under any power conferred by paragraphs 20B to 20E, and (b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a). (6) Sub-paragraph (5)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment. (7) A written record must be made of a determination under this paragraph. (8) In this paragraph— (a) “enactment” includes— (i) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and (ii) an enactment comprised in, or in an instrument made under, Northern Ireland legislation; (b) references to a part of the United Kingdom are references to— (i) England and Wales, (ii) Scotland, or (iii) Northern Ireland.

Counter-Terrorism Act 2008

12

The Counter-Terrorism Act 2008 is amended as follows.

13

(1) Section 18B (retention for purposes of national security) is amended as follows.

(2) In subsection (1) after “responsible officer” insert “ , or by a chief officer of police, ”.

(3) In subsection (2) after “responsible officer” insert “ , or a chief officer of police, ”.

(4) In subsection (3)(b) for “2 years” substitute “ 5 years ”.

(5) After subsection (3) insert—

(4) In this section “chief officer of police” means a person other than the responsible officer who is— (a) the chief officer of police of a police force in England and Wales, or (b) the Chief Constable of the Police Service of Northern Ireland.

14

After section 18B insert—

(18BA) (1) This section applies where section 18 material is or includes a person's fingerprints (“the original fingerprints”). (2) An appropriate officer may make a determination under this section in respect of any further fingerprints taken from the same person (“the further fingerprints”) if conditions 1 and 2 are met. (3) Condition 1 is met if the further fingerprints— (a) are section 18 material, or (b) are taken under— (i) Part 5 of the Police and Criminal Evidence Act 1984, (ii) Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), (iii) paragraph 10 of Schedule 8 to the Terrorism Act 2000, (iv) paragraph 1 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or (v) paragraph 34 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019. (4) Condition 2 is met if both the original fingerprints and the further fingerprints— (a) are held by a law enforcement authority under the law of England and Wales, or (b) are held by a law enforcement authority under the law of Northern Ireland. (5) Where a determination under this section is made in respect of the further fingerprints— (a) the further fingerprints may be retained for as long as the original fingerprints are retained under a power conferred by section 18A or 18B, and (b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a). (6) Subsection (5)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment. (7) A written record must be made of a determination under this section. (8) In this section— - “appropriate officer” means— 1. a constable, or 2. an officer of Revenue and Customs who is not below such grade as is designated for the purposes of this section by the Commissioners for Her Majesty's Revenue and Customers; - “enactment” includes an enactment comprised in, or in an instrument made under, Northern Ireland legislation.

Terrorism Prevention and Investigation Measures Act 2011

15

Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (fingerprints and samples) is amended as follows.

16

(1) Paragraph 11 is amended as follows.

(2) In sub-paragraph (1), for “the responsible” substitute “ a ”.

(3) In sub-paragraph (2), for “the responsible” substitute “ a ”.

(4) in sub-paragraph (3)(b), for “2 years” substitute “ 5 years ”.

(5) After sub-paragraph (3) insert—

(4) In this paragraph “chief officer of police” means— (a) a chief officer of police of a police force in England and Wales, (b) the chief constable of the Police Service of Scotland, or (c) the Chief Constable of the Police Service of Northern Ireland.

17

After paragraph 11 insert—

(11A) (1) This paragraph applies where paragraph 6 material is or includes a person's fingerprints (“the original fingerprints”). (2) A constable may make a determination under this paragraph in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if conditions 1 and 2 are met. (3) Condition 1 is met if the further fingerprints— (a) are paragraph 6 material, (b) are taken or provided under or by virtue of— (i) Part 5 of the Police and Criminal Evidence Act 1984, (ii) Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), (iii) any provision, power or authority mentioned in section 18G(1) of the Criminal Procedure (Scotland) Act 1995, (iv) paragraph 10 of Schedule 8 to the Terrorism Act 2000, or (v) paragraph 34 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019, or (c) are material to which section 18 of the Counter-Terrorism Act 2008 applies. (4) Condition 2 is met if— (a) in a case where the further fingerprints are material to which section 18 of the Counter-Terrorism Act 2008 applies, the original fingerprints and the further fingerprints are held under the law of the same part of the United Kingdom; (b) in any other case, the original fingerprints and the further fingerprints were taken from or provided by the person in the same part of the United Kingdom. (5) Where a determination under this paragraph is made in respect of the further fingerprints— (a) the further fingerprints may be retained for as long as the original fingerprints are retained under any power conferred by paragraph 8, 9 or 11, and (b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a). (6) Sub-paragraph (5)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment. (7) A written record must be made of a determination under this paragraph. (8) In this paragraph— (a) “enactment” includes— (i) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and (ii) an enactment comprised in, or in an instrument made under, Northern Ireland legislation; (b) references to a part of the United Kingdom are references to— (i) England and Wales, (ii) Scotland, or (iii) Northern Ireland.

Protection of Freedoms Act 2012

18

Part 6 of Schedule 1 to the Protection of Freedoms Act 2012 (material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989) is amended as follows.

19

In paragraph 7, in sub-paragraph (3)(b) for “2 years” substitute “ 5 years ”.

20

After paragraph 7 insert—

(7A) (1) This paragraph applies where— (a) fingerprints to which paragraph 7 applies have been taken from a person (“the original fingerprints”), and (b) a national security determination under that paragraph is made in relation to the original fingerprints. (2) A constable may make a determination under this paragraph in respect of any further fingerprints taken from the same person (“the further fingerprints”) if condition 1 or condition 2 is met. (3) Condition 1 is met if— (a) the further fingerprints are fingerprints to which paragraph 7 applies, and (b) the further fingerprints or the original fingerprints were taken in connection with a terrorist investigation, as defined by section 32 of the Terrorism Act 2000. (4) Condition 2 is met if the further fingerprints were taken from the person in Northern Ireland under— (a) paragraph 10 of Schedule 8 to the Terrorism Act 2000, (b) paragraph 1 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or (c) paragraph 34 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019. (5) Where a determination under this paragraph is made in respect of the further fingerprints— (a) the national security determination made in relation to the original fingerprints also applies in relation to the further fingerprints, and (b) a requirement under any enactment to destroy the further fingerprints does not apply for as long as the national security determination has effect. (6) A written record must be made of a determination under this paragraph. (7) In this paragraph “enactment” includes an enactment comprised in, or in an instrument made under, Northern Ireland legislation.

SCHEDULE 3

PART 1 — Powers

Power to stop, question and detain

1

(1) An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity if condition 1 or condition 2 is met.

(2) Condition 1 is met if—

(a) the person is at a port or in the border area, and

(b) the examining officer believes that the person's presence at the port or in the border area is connected with the person's—

(i) entry into, or departure from, Great Britain or Northern Ireland, or

(ii) travel by air within Great Britain or Northern Ireland.

(3) Condition 2 is met if the person is on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland).

(4) An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.

(5) A person is or has been engaged in hostile activity for the purposes of this Schedule if the person is or has been concerned in the commission, preparation or instigation of a hostile act that is or may be—

(a) carried out for, or on behalf of, a State other than the United Kingdom, or

(b) otherwise in the interests of a State other than the United Kingdom.

(6) An act is a “hostile act” if it—

(a) threatens national security,

(b) threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or

(7) For the purposes of this paragraph—

(a) it is immaterial—

(i) whether a person is aware that activity in which they are or have been engaged is hostile activity, or

(ii) whether a State for or on behalf of which, or in the interests of which, a hostile act is carried out has instigated, sanctioned, or is otherwise aware of, the carrying out of the act;

(b) “State” includes the government of a State and any organ of its government;

(d) the reference to serious crime is to crime where—

(i) the offence, or one of the offences, which is or would be constituted by the conduct concerned is an offence for which a person who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more, or

(ii) the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.

2

An examining officer may question a person who is in the border area for the purpose of determining whether the person's presence in the area is connected with the person's entry into, or departure from, Northern Ireland.

3

A person (“P”) questioned under paragraph 1 or 2 must—

(a) give the examining officer any information in P's possession that the officer requests;

(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes P's identity;

(d) give the examining officer on request any such document.

4

(1) For the purposes of exercising a power under paragraph 1 or 2 an examining officer may—

(a) stop a person or vehicle;

(b) detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining officer may authorise the person's removal from a ship, aircraft or vehicle.

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

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

5

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

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

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

(4) In this paragraph—

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

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

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

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

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

6

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

(2) Sub-paragraph (1) does not apply—

(a) in the case of proceedings under paragraph 23,

(b) on a prosecution for perjury, or

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

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

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

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

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

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

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

Searches

7

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

(a) search a ship or aircraft;

(b) search anything on a ship or aircraft;

8

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

(a) search the person;

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

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

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

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

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

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

(a) search a vehicle;

(b) search anything in or on a vehicle;

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

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

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

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

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

(a) the person is detained under paragraph 4,

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

(6) “Senior officer” means—

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

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

(7) In this paragraph—

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

“strip search” means a search which is not an intimate search but involves the removal of an article of clothing which—is being worn wholly or partly on the trunk, andis being so worn either next to the skin or next to an article of underwear.

9

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

(2) This paragraph applies to—

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

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

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

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

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

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

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

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

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

(a) at a port;

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

(d) at a designated examination location.

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

(a) board a ship or aircraft;

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

(d) enter a designated examination location.

(7) In this paragraph—

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

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

“goods” includes property of any description and containers;

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

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

10

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

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

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

(b) Part 4 of this Schedule.

Retention of property

11

(1) This paragraph applies to any article which—

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

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

(2) An examining officer may retain the article—

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

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

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

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

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

12

(1) This paragraph applies in relation to an article retained by virtue of paragraph 11(2)(d) or (e), other than an article in respect of which an authorisation is granted under paragraph 14.

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

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

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

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

(4) The Commissioner may—

(a) direct that the article is destroyed, or

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

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

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

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

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

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

(8) In authorising the retention and use of an article under this paragraph the Commissioner may impose whatever conditions the Commissioner thinks appropriate in relation to its retention and use.

(9) For the purposes of sub-paragraph (5)(b), the use of material is necessary for a relevant purpose if it is necessary—

(a) in the interests of national security,

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

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

(10) In this paragraph “confidential material” means—

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

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

(11) “Protected material”—

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

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

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

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in relation to Scotland, means—

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

(ii) other material of a kind mentioned in paragraph (a)(ii) ... of this sub-paragraph;

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

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

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

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

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

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

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

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

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

(b) the Secretary of State, and

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

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

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

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

(d) in any other case—

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

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

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

(5) Sub-paragraph (6) applies where —

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

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

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

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

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

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

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

14

(1) This paragraph applies where—

(a) an article is retained by virtue of paragraph 11(2)(d) or (e), and

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

(2) The urgency condition is met in relation to an article if—

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

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

(ii) death or significant injury,

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

(b) the time it would take for the requirements of paragraphs 12 and 13 to be complied with in relation to the article would not enable such use to take place with sufficient urgency.

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

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

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

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

(b) in the case of an article that consists of or includes confidential material, that—

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

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

(6) An authorisation under this paragraph—

(a) must be recorded in writing;

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

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

(8) In this paragraph—

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

“senior officer” means—where the examining officer is a constable, another constable of at least the rank of superintendent,where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, andwhere the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.

15

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

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

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

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

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

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

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

(8) In this paragraph and paragraph 16—

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

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

16

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

(2) The Commissioner must—

(a) approve the grant of the authorisation, or

(b) cancel the authorisation.

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

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

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

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

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

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

(a) is destroyed, or

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

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

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

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

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

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

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

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

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

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

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

Power to make and retain copies

17

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

(2) The officer may copy anything which—

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

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

(3) The copy may be retained—

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

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

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

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

(i) in the interests of national security,

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

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

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

18

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

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

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

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

(a) in the interests of national security,

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

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

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

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

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

(6) If the Commissioner does not proceed under sub-paragraph (3) in relation to a copy, the Commissioner must (subject to sub-paragraph (7)) direct that the copy is destroyed.

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

(8) In authorising the retention and use of a copy under sub-paragraph (3) the Commissioner may impose whatever conditions the Commissioner thinks appropriate in relation to its retention and use.

(9) For the purposes of sub-paragraph (5)(b), the use of material is necessary for a relevant purpose if it is necessary—

(a) in the interests of national security,

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

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

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

19

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

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

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

(2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 18 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.

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

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

(b) the Secretary of State, and

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

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

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

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

(d) in any other case—

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

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

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

(5) Sub-paragraph (6) applies where—

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

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

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

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

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

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

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

20

(1) This paragraph applies where—

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

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

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

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

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

(ii) death or significant injury,

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

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

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

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

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

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

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

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

(6) An authorisation under this paragraph—

(a) must be recorded in writing;

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

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

(8) In this paragraph—

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

“senior officer” means—where the examining officer is a constable, another constable of at least the rank of superintendent,where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, andwhere the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.

21

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

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

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

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

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

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

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

(8) In this paragraph and paragraph 22—

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

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

22

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

(2) The Commissioner must—

(a) approve the grant of the authorisation, or

(b) cancel the authorisation.

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

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

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

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

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

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

(a) the copy is destroyed, and

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

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

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

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

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

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

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

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

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

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

Offences

23

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

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

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

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

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

(b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding level 4 on the standard scale, or to both.

(3) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in sub-paragraph (2)(a) to 51 weeks is to be read as a reference to 3 months.

(4) Proceedings for an offence under this paragraph are not to be started—

(a) in England and Wales, except with the consent of the Director of Public Prosecutions;

(b) in Northern Ireland, except with the consent of the Director of Public Prosecutions for Northern Ireland.

(5) But if it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland that an offence under this paragraph has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, consent may be given for the purposes of this paragraph only with the permission—

(a) in the case of the Director of Public Prosecutions, of the Attorney General, and

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

Exercise of powers

24

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

PART 2 — Detention

Place of detention

25

(1) A detainee may be detained at a place designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000 as a place where persons may be detained under Schedule 7 to that Act.

(2) A detainee may be taken in the custody of an examining officer or of a person acting under an examining officer's authority to and from any place where the detainee's attendance is required for the purpose of—

(a) the detainee's examination under Part 1 of this Schedule,

(b) establishing the detainee's nationality or citizenship, or

(3) Where a detainee is arrested in one part of the United Kingdom and all or part of the detainee's detention takes place in another part, the provisions of this Part of this Schedule which apply to detention in a particular part of the United Kingdom apply in relation to the detainee while detained in that part.

(4) In this Part of this Schedule—

(a) references to a police station include references to any place that is designated as mentioned in sub-paragraph (1);

(b) “detainee” means a person detained under Part 1 of this Schedule.

Identification

26

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

(a) photographing the detainee,

(b) measuring the detainee, or

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

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

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

Video recording of interviews

27

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

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

Status

28

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

Rights: England, Wales and Northern Ireland

29

(1) Subject to paragraph 32, a detainee who is detained at a place in England, Wales or Northern Ireland is entitled, if the detainee so requests, to have one named person informed as soon as is reasonably practicable that the detainee is being detained there.

(2) The person named must be—

(a) a friend of the detainee,

(b) a relative, or

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

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

30

(1) Subject to paragraphs 32 and 33, a detainee who is detained in England, Wales or Northern Ireland is entitled, if the detainee so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.

(2) Where a request is made under sub-paragraph (1), the request and the time at which it was made must be recorded.

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

31

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

(2) The examining officer may not question the detainee under paragraph 1 or 2 until the detainee has consulted a solicitor (or no longer wishes to do so).

(3) Sub-paragraph (2) does not apply if the examining officer reasonably believes that postponing the questioning until then would be likely to prejudice determination of the relevant matters.

(4) The powers conferred by paragraph 8 (search powers where a person is questioned under paragraph 1) may be used when questioning is postponed because of sub-paragraph (2).

(5) The detainee is entitled to consult a solicitor in person.

(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice determination of the relevant matters.

(7) In that case the examining officer may require any consultation to take place in another way.

(8) In this paragraph “the relevant matters” means the matters the examining officer seeks to determine under paragraph 1 or 2.

32

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

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

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

(2) An officer may give an authorisation under sub-paragraph (1) only if the officer has reasonable grounds for believing—

(a) in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detainee's detention will have any of the consequences specified in sub-paragraph (3), or

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

(3) Those consequences are—

(a) interference with or harm to evidence of an indictable offence,

(b) interference with or physical injury to any person,

(c) the alerting of persons who are suspected of having committed an indictable offence but who have not been arrested for it,

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

(e) interference with the gathering of information about the commission, preparation or instigation of acts carried out in connection with a person's engagement in hostile activity.

(4) If an authorisation under sub-paragraph (1) is given orally, the person giving it must confirm it in writing as soon as is reasonably practicable.

(5) Where an authorisation under sub-paragraph (1) is given—

(a) the detainee is to be told the reason for the delay as soon as is reasonably practicable, and

(b) the reason is to be recorded as soon as is reasonably practicable.

(6) Where the reason for authorising delay ceases to subsist there may be no further delay in permitting the exercise of the right in the absence of a further authorisation under sub-paragraph (1).

33

(1) This paragraph applies where a detainee exercises the right under paragraph 30 to consult a solicitor.

(2) A police officer of at least the rank of superintendent may direct that the right—

(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but

(b) may instead be exercised by consulting a different solicitor of the detainee's choosing.

(3) A direction under this paragraph may be given before or after a detainee's consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).

(4) A direction under this paragraph may be given only if the officer giving it has reasonable grounds for believing—

(a) that, unless the direction is given, the exercise of the right by the detainee will have any of the consequences specified in paragraph 32(3), or

(b) that the detainee has benefited from the detainee's criminal conduct and that, unless the direction is given, the exercise of the right by the detainee will hinder the recovery of the value of the property constituting the benefit.

(5) For the purposes of sub-paragraph (4) the question whether a person has benefited from the person's criminal conduct is to be decided in accordance with Part 2 of the Proceeds of Crime Act 2002.

Fingerprints and samples: England, Wales and Northern Ireland

34

(1) This paragraph applies where a detainee is detained in England, Wales or Northern Ireland.

(2) Fingerprints may be taken from the detainee only if they are taken by a constable—

(a) with the appropriate consent given in writing, or

(b) without that consent under sub-paragraph (4).

(3) A non-intimate sample may be taken from the detainee only if it is taken by a constable—

(a) with the appropriate consent given in writing, or

(b) without that consent under sub-paragraph (4).

(4) Fingerprints or a non-intimate sample may be taken from the detainee without the appropriate consent only if—

(a) the detainee is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or

(b) the detainee has been convicted of a recordable offence and, where a non-intimate sample is to be taken, was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).

(5) An officer may give an authorisation under sub-paragraph (4)(a) only if—

(a) in the case of the taking of fingerprints or samples, condition 1 is met, or

(b) in the case of the taking of fingerprints, condition 2 is met.

(6) Condition 1 is met if the officer is satisfied that it is necessary for the fingerprints or sample to be taken in order to assist in determining whether the detainee is or has been engaged in hostile activity.

(7) Condition 2 is met if—

(a) the officer is satisfied that the fingerprints of the detainee will facilitate the ascertainment of the detainee's identity, and

(b) the detainee has refused to identify himself or herself or the officer has reasonable grounds for suspecting that the detainee is not who the detainee claims to be.

(8) In this paragraph references to ascertaining a person's identity include references to showing that the person is not a particular person.

(9) If an authorisation under sub-paragraph (4)(a) is given orally, the person giving it must confirm it in writing as soon as is reasonably practicable.

35

(1) Before fingerprints or a sample are taken from a person under paragraph 34, the person must be informed—

(a) that the fingerprints or sample may be used for the purposes of—

(i) a relevant search, as defined by paragraph 43(6),

(ii) section 63A(1) of the Police and Criminal Evidence Act 1984, or

(iii) Article 63A(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), and

(b) where the fingerprints or sample are to be taken under paragraph 34(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.

(2) Before fingerprints or a sample are taken from a detainee upon an authorisation given under paragraph 34(4)(a), the detainee must be informed—

(a) that the authorisation has been given,

(b) of the grounds upon which it has been given, and

(3) After fingerprints or a sample are taken under paragraph 34, any of the following which apply must be recorded as soon as reasonably practicable—

(a) the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),

(b) the reason referred to in sub-paragraph (1)(b),

(d) the grounds upon which that authorisation has been given, and

(e) the fact that the appropriate consent has been given.

(4) Where a sample of hair is to be taken under paragraph 34, the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

36

(1) In the application of paragraphs 26, 34 and 35 in relation to a person detained in England or Wales, the following expressions have the meaning given by section 65 of the Police and Criminal Evidence Act 1984—

(a) “appropriate consent”,

(b) “fingerprints”,

(d) “non-intimate sample”, and

(e) “sufficient”.

(2) In the application of section 65(2A) of the Police and Criminal Evidence Act 1984 for the purposes of sub-paragraph (1) of this paragraph, the reference to the destruction of a sample under section 63R of that Act is a reference to the destruction of a sample under paragraph 43 of this Schedule.

(3) In the application of paragraphs 26, 34 and 35 in relation to a person detained in Northern Ireland, the expressions listed in sub-paragraph (1) have the meaning given by Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(4) In paragraph 34 “recordable offence” has—

(a) in relation to a detainee in England or Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a detainee in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

Rights: Scotland

37

(1) A detainee who is detained at a place in Scotland is entitled to have intimation of the detention and of the place sent without delay to a solicitor and to another person named by the detainee.

(2) The person named must be—

(a) a friend of the detainee,

(b) a relative, or

(3) A detainee who is transferred from one place to another is entitled to exercise the right under sub-paragraph (1) in respect of the place to which the detainee is transferred.

(4) A police officer not below the rank of superintendent may authorise a delay in making intimation where, in the officer's view, the delay is necessary on one of the grounds mentioned in paragraph 39(4) or where paragraph 39(5) applies.

(5) Where a detainee requests that the intimation be made, the time when the request—

(a) is made, and

(b) is complied with,

must be recorded.

(6) A person detained as mentioned in sub-paragraph (1) is entitled to consult a solicitor at any time, without delay.

(7) A police officer not below the rank of superintendent may authorise a delay in holding the consultation where, in the officer's view, the delay is necessary on one of the grounds mentioned in paragraph 39(4) or where paragraph 39(5) applies.

(8) The consultation must be held in private.

(9) A detainee must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.

38

(1) This paragraph applies where a detainee in Scotland requests to consult a solicitor.

(2) The examining officer may not question the detainee under paragraph 1 or 2 until the person has consulted a solicitor (or no longer wishes to do so).

(3) Sub-paragraph (2) does not apply if the examining officer reasonably believes that postponing the questioning until then would be likely to prejudice determination of the relevant matters.

(4) The powers given by paragraph 8 (search powers where a person is questioned under paragraph 1) may be used when questioning is postponed because of sub-paragraph (2).

(5) The detainee is entitled to consult a solicitor in person.

(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice determination of the relevant matters.

(7) In that case the examining officer may require any consultation to take place in another way.

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