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SCHEDULES

SCHEDULE 8E+W+S+N.I. Detention

Annotations:

Modifications etc. (not altering text)

C1Schs. 7, 8, 14 extended (with modifications) (coming into force in accordance with art. 1(2) of the extending S.I.) by The Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 (S.I. 2003/2818), art. 11(1)(b), Sch. 2

C2Sch. 8 applied (with modifications) (25.7.2006) by Terrorism Act 2006 (c. 11), s. 25(1)(3)(4); S.I. 2006/1936, art. 2

Part IE+W+S+N.I. Treatment of persons detained under section 41 or Schedule 7

Rights: England, Wales and Northern IrelandE+W+S+N.I.

6(1)Subject to paragraph 8, a person detained under Schedule 7 or section 41 at a [F1place] in England, Wales or Northern Ireland shall be entitled, if he so requests, to have one named person informed as soon as is reasonably practicable that he is being detained there.E+W+S+N.I.

(2)The person named must be—

(a)a friend of the detained person,

(b)a relative, or

(c)a person who is known to the detained person or who is likely to take an interest in his welfare.

(3)Where a detained person is transferred from one [F1place] to another, he shall be entitled to exercise the right under this paragraph in respect of the [F1place] to which he is transferred.

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C3Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

7(1)Subject to paragraphs 8 and 9, a person detained under Schedule 7 or section 41 F2... in England, Wales or Northern Ireland shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.E+W+S+N.I.

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

Annotations:

Amendments (Textual)

F2Words in Sch. 8 para. 7(1) omitted (31.7.2014) by virtue of Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 9 para. 5(5) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/1916, art. 3(b)

Modifications etc. (not altering text)

C4Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

[F37A(1)This paragraph applies where a person detained under Schedule 7 requests to consult a solicitor.E+W+S+N.I.

(2)The examining officer may not question the detained person under paragraph 2 or 3 of Schedule 7 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 of Schedule 7 (search powers where a person is questioned under paragraph 2 of Schedule 7) may be used when questioning is postponed because of sub-paragraph (2).

(5)The detained person 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 2 or 3 of Schedule 7.]

Annotations:

Amendments (Textual)

8(1)Subject to sub-paragraph (2), [F4a police officer] of at least the rank of superintendent may authorise a delay—E+W+S+N.I.

(a)in informing the person named by a detained person under paragraph 6;

(b)in permitting a detained person to consult a solicitor under paragraph 7.

(2)But where a person is detained under section 41 he must be permitted to exercise his rights under paragraphs 6 and 7 before the end of the period mentioned in subsection (3) of that section.

(3)Subject to sub-paragraph (5), an officer may give an authorisation under sub-paragraph (1) only if he has reasonable grounds for believing—

(a)in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained person’s detention will have any of the consequences specified in sub-paragraph (4), or

(b)in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it will have any of the consequences specified in sub-paragraph (4).

(4)Those consequences are—

(a)interference with or harm to evidence of a [F5serious offence] ,

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

(c)the alerting of persons who are suspected of having committed a [F5serious offence] but who have not been arrested for it,

(d)the hindering of the recovery of property obtained as a result of a [F5serious offence] or in respect of which a forfeiture order could be made under section 23 [F6or 23A],

(e)interference with the gathering of information about the commission, preparation or instigation of acts of terrorism,

(f)the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and

(g)the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.

[F7(5)An officer may also give an authorisation under sub-paragraph (1) if he has reasonable grounds for believing that—

(a)the detained person has benefited from his criminal conduct, and

(b)the recovery of the value of the property constituting the benefit will be hindered by—

(i)informing the named person of the detained person’s detention (in the case of an authorisation under sub-paragraph (1)(a)), or

(ii)the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)).

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

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

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

(a)the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

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

(8)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).

(9)[F8In this paragraph, references to a “serious offence” are F9... to an indictable offence, F9... ; but also include—]

(a)an offence under any of the provisions mentioned in section 40(1)(a) of this Act, and

(b)an attempt or conspiracy to commit an offence under any of the provisions mentioned in section 40(1)(a).

Annotations:

Amendments (Textual)

F5Words in Sch. 8 para. 8(4) substituted (1.1.2006 subject to art. 2(2) of the commencing S.I.) by Serious Organised Crime and Police Act 2005 (c. 15), s. 111, Sch. 7 para. 48(1)(a); S.I. 2005/3495, art. 2(1)(m)

F6Words in Sch. 8 para. 8(4)(d) inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 39, 100(5), Sch. 3 para. 6 (with s. 101(2)); S.I. 2009/1256, art. 2(c)

F7Sch. 8 para. 8(5)(5A) substituted for Sch. 8 para. 8(5) (24.3.2003 subject to certain provisions in the commencing instruments) by 2002 c. 29, s. 456, Sch. 11 para. 39(2); S.I. 2003/333, art. 2, Sch. (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2, Sch.

F8Words in Sch. 8 para. 8(9) substituted (1.1.2006 subject to art. 2(2) of the commencing S.I.) by Serious Organised Crime and Police Act 2005 (c. 15), s. 111, Sch. 7 para. 48(1)(b); S.I. 2005/3495, art. 2(1)(m)

Modifications etc. (not altering text)

C5Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

9(1)A direction under this paragraph may provide that a detained person who wishes to exercise the right under paragraph 7 may consult a solicitor only in the sight and hearing of a qualified officer.E+W+S+N.I.

(2)A direction under this paragraph may be given—

(a)where the person is detained F10... in England or Wales, by [F11a police officer] of at least the rank of Commander or Assistant Chief Constable, or

(b)where the person is detained F10... in Northern Ireland, by [F11a police officer ] of at least the rank of Assistant Chief Constable.

[F12(3)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 detained person will have any of the consequences specified in paragraph 8(4), or

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

(4)In this paragraph “a qualified officer” means a police officer who—

(a)is of at least the rank of inspector,

(b)is of the uniformed branch of the force of which the officer giving the direction is a member, and

(c)in the opinion of the officer giving the direction, has no connection with the detained person’s case.

(5)A direction under this paragraph shall cease to have effect once the reason for giving it ceases to subsist.

Annotations:

Amendments (Textual)

F10Words in Sch. 8 para. 9(2)(a) (b) omitted (31.7.2014) by virtue of Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 9 para. 5(8)(a) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/1916, art. 3(b)

F11Words in Sch. 8 para. 9(2)(a) (b) substituted (31.7.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 9 para. 5(8)(b) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/1916, art. 3(b)

F12Sch. 8 para. 9(3) substituted (16.2.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 82(1), 100(5) (with s. 101(2)); S.I. 2009/58, art. 2(g)

Modifications etc. (not altering text)

C6Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

10(1) This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.E+W+S+N.I.

(2)Fingerprints may be taken from the detained person 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 detained person 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 detained person without the appropriate consent only if—

(a)he 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)he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he 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 intimate sample may be taken from [F13a person detained under section 41, but only ] if—

(a)he is detained at a police station,

(b)the appropriate consent is given in writing,

(c)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(d)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(6)[F14Subject to sub-paragraph (6A)] an officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if—

(a)in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or

(b)in any case [F15in which an authorisation under that sub-paragraph may be given] , the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).

[F16(6A)An officer may also give an authorisation under sub-paragraph (4)(a) for the taking of fingerprints if—

(a)he is satisfied that the fingerprints of the detained person will facilitate the ascertainment of that person’s identity; and

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

(6B)In this paragraph references to ascertaining a person’s identity include references to showing that he is not a particular person.]

(7)If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

Annotations:

Amendments (Textual)

F14Words in Sch. 8 para. 10(6) inserted (14.12.2001) by 2001 c. 24, s. 89(2)

F16Sch. 8 para. 10(6A)(6B) inserted (14.12.2001) by 2001 c. 14, s. 89(2)

Modifications etc. (not altering text)

C7Sch. 8 para. 10(2) extended (N.I.) (8.4.2003) by Police (Northern Ireland) Act 2003 (c. 6), ss. 30, 31, Sch. 2 Pt. 2 para. 15

C8Sch. 8 para. 10(3) extended (N.I.) (8.4.2003) by Police (Northern Ireland) Act 2003 (c. 6), ss. 30, 31, Sch. 2 Pt. 2 para. 18

11(1)Before fingerprints or a sample are taken from a person under paragraph 10, he shall be informed—E+W+S+N.I.

(a)that the fingerprints or sample may be used for the purposes of [F17a relevant search (within the meaning given by paragraph 20A(6)) or for the purposes of] section 63A(1) of the M1Police and Criminal Evidence Act 1984 and Article 63A(1) of the M2Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(b)where the fingerprints or sample are to be taken under paragraph 10(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 person upon an authorisation given under paragraph 10(4)(a) or (5)(c), he shall be informed—

(a)that the authorisation has been given,

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

(c)where relevant, of the nature of the offence in which it is suspected that he has been involved.

(3)After fingerprints or a sample are taken under paragraph 10, there shall be recorded as soon as is reasonably practicable any of the following which apply—

(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),

(c)the authorisation given under paragraph 10(4)(a) or (5)(c),

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

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

Annotations:

Amendments (Textual)

F17Words in Sch. 8 para. 11(1)(a) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(5) (with s. 97); S.I. 2013/1814, art. 2(j)

Marginal Citations

12(1)This paragraph applies where—E+W+S+N.I.

(a)two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 10,

(b)those samples have proved insufficient, and

(c)the person has been released from detention.

(2)An intimate sample may be taken from the person if—

(a)the appropriate consent is given in writing,

(b)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(c)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(3)Paragraphs 10(6) and (7) and 11 shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.

13(1)Where appropriate written consent to the taking of an intimate sample from a person under paragraph 10 or 12 is refused without good cause, in any proceedings against that person for an offence—E+W+S+N.I.

(a)the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and

(b)the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

(2)An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 10 or 12 only by a registered medical practitioner acting on the authority of a constable.

(3)An intimate sample which is a dental impression may be taken under paragraph 10 or 12 only by a registered dentist acting on the authority of a constable.

(4)Where a sample of hair other than pubic hair is to be taken under paragraph 10 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.

F1814. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

Annotations:

Amendments (Textual)

15(1)In the application of [F19paragraphs 10 to 13] in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the M3Police and Criminal Evidence Act 1984 (Part V definitions)—E+W+S+N.I.

(a)appropriate consent”,

(b)fingerprints”,

(c)insufficient”,

(d)intimate sample”,

(e)non-intimate sample”,

(f)registered dentist”, and

(g)sufficient”.

[F20(1A)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 20G of this Schedule.]

(2)In the application of [F21paragraphs 10 to 13] in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the M4Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

(3)In paragraph 10 “recordable offence” shall have—

(a)in relation to a person detained in England or Wales, the meaning given by section 118(1) of the M5Police and Criminal Evidence Act 1984 (general interpretation), and

(b)in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the M6Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

Annotations:

Amendments (Textual)

F19Words in Sch. 8 para. 15(1) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(6) (with s. 97); S.I. 2013/1814, art. 2(j)

F21Words in Sch. 8 para. 15(2) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(8) (with s. 97); S.I. 2013/1814, art. 2(j)

Marginal Citations