Counter-Terrorism and Border Security Act 2019

Rights: Scotland U.K.

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. U.K.

(2) The person named must be—

(a) a friend of the detainee,

(b) a relative, or

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

(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.

Commencement Information

I1 Sch. 3 para. 37 in force at Royal Assent for specified purposes, see. s. 27(1)(g)(2)(c)

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

(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.

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

Commencement Information

I2 Sch. 3 para. 38 in force at Royal Assent for specified purposes, see. s. 27(1)(g)(2)(c)

39 (1) Sub-paragraph (2) applies where a detainee exercises the right under paragraph 37(6) to consult a solicitor. U.K.

(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (4), 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) The grounds mentioned in paragraph 37(4) and (7) and in sub-paragraph (2) are—

(a) that it is in the interests of the investigation or prevention of crime;

(b) that it is in the interests of the apprehension, prosecution or conviction of offenders;

(c) that it will further the recovery of property obtained as a result of the commission of an offence;

(d) that it will further the operation of Part 2 or 3 of the Proceeds of Crime Act 2002 or the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)) (confiscation of the proceeds of an offence);

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

(5) This sub-paragraph applies where an officer mentioned in paragraph 37(4) or (7) has reasonable grounds for believing that—

(a) the detainee has benefited from the detainee's 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 detainee's detention (in the case of an authorisation under paragraph 37(4)), or

(ii) the exercise of the entitlement under paragraph 37(6) (in the case of an authorisation under paragraph 37(7)).

(6) For the purposes of sub-paragraph (5) the question whether a person has benefited from the person's criminal conduct is to be decided in accordance with Part 3 of the Proceeds of Crime Act 2002.

(7) Where delay is authorised in the exercising of any of the rights mentioned in paragraph 37(1) and (6)—

(a) if the authorisation is given orally, the person giving it must confirm it in writing as soon as is reasonably practicable,

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

(c) the reason must be recorded as soon as is reasonably practicable.

Commencement Information

I3 Sch. 3 para. 39 in force at Royal Assent for specified purposes, see. s. 27(1)(g)(2)(c)

40 (1) Paragraphs 37 to 39 have effect in relation to a detainee in place of any enactment or rule of law under or by virtue of which a person arrested or detained may be entitled to communicate or consult with any other person. U.K.

(2) But where the detainee appears to a constable to be a child—

(a) the other person named by the detainee in pursuance of paragraph 37(1) must be the detainee's parent,

(b) intimation is to be made under paragraph 37(1) whether the detainee requests that it be made or not, and

(c) section 40 of the Criminal Justice (Scotland) Act 2016 (right of under 18s to have access to other person) applies as if the detainee were a person in police custody for the purposes of that section.

(3) In relation to a detainee who is detained at a place other than a police station, sub-paragraph (2) applies as if references to a constable included an examining officer.

(4) For the purposes of sub-paragraph (2)—

• “child” means a person under 16 years of age;

• “parent” includes guardian and any person who has the care of the child.

Commencement Information

I4 Sch. 3 para. 40 in force at Royal Assent for specified purposes, see. s. 27(1)(g)(2)(c)

41 (1) Subject to sub-paragraph (2), where a detainee is permitted to consult a solicitor, the solicitor is to be allowed to be present at any interview carried out in connection with an investigation carried out for the purposes of Part 1 of this Schedule. U.K.

(2) A police officer not below the rank of Assistant Chief Constable may direct that the solicitor is not to be allowed to be present at an interview (or part of an interview) if the officer is satisfied that the solicitor's behaviour during the interview would interfere with, or obstruct, the conduct of the interview.

Commencement Information

I5 Sch. 3 para. 41 in force at Royal Assent for specified purposes, see. s. 27(1)(g)(2)(c)