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The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018

Status:

This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

Article 5

SCHEDULE 1Cross-border enforcement by constables of territorial police forces

Modification of Part 10 of the Criminal Justice and Public Order Act 1994

1.  The Criminal Justice and Public Order Act 1994 is amended as follows.

2.  In section 136 (execution of warrants)—

(a)before subsection (5) insert—

(4B) Where, under subsection (2)(a) or (3)(b), a constable executes a warrant issued in Scotland, any enactment or rule of law which concerns—

(a)the powers and duties of a constable who executes such a warrant;

(b)the rights of a person arrested under such a warrant;

(c)the procedures to be followed after an arrest under such a warrant,

applies in relation to the arrest (subject to the modifications set out in section 137ZA) as though the warrant had been executed in Scotland and, if the constable who executed it is not a constable of a police force in Scotland, as though the constable were(1).;

(b)in subsection (5), paragraph (b) is repealed.

3.  In section 137 (cross-border powers of arrest etc.)—

(a)in subsection (2), the words “or detention” are repealed;

(b)in subsection (7)—

(i)the words “or, as the case may be detained,” are repealed;

(ii)for paragraph (b) substitute—

(ba)if he arrested him in England or Wales under subsection (2) above and has charged him with an offence, to take the person arrested to the nearest convenient police station in Scotland or to a police station within a sheriffdom in which the offence is being investigated;

(bb)if he arrested him in England or Wales under subsection (2) above and has not charged him with an offence, to take the person arrested either to a police station in Scotland mentioned in paragraph (ba) above, or to the nearest convenient designated police station in England or Wales;

(bc)if he arrested him in England or Wales under subsection (3) above, to take the person arrested to the nearest convenient designated police station in Northern Ireland or to a designated police station in Northern Ireland in which the offence is being investigated;;

(iii)paragraph (c) is repealed;

(iv)in paragraph (d)—

(aa)after the word “Ireland” insert “under subsection (1) above”;

(bb)the words from “or to the nearest” to the end of the paragraph are repealed;

(v)after paragraph (d) insert—

(da)if he arrested him in Northern Ireland under subsection (2) above and has charged him with an offence, to take the person arrested to such police station in Scotland as is mentioned in paragraph (ba) above;

(db)if he arrested him in Northern Ireland under subsection (2) above and has not charged him with an offence, to take the person arrested either to such police station in Scotland as is mentioned in paragraph (ba) above, or to the nearest convenient designated police station in Northern Ireland;;

(vi)paragraph (e) is repealed;

(c)before subsection (8) insert—

(7B) Where a constable arrests a person under a power exercised by virtue of subsection (2) above, any enactment or rule of law which concerns—

(a)the powers and duties of a constable who effects an arrest under the power;

(b)the rights of a person arrested under the power;

(c)the procedures to be followed after an arrest under the power,

applies in relation to the arrest (subject to the modifications set out in section 137ZA) as though the arrest had been effected in Scotland and, if the constable who executed it is not a constable of a police force in Scotland, as though the constable were(2).;

(d)in subsection (8), paragraphs (b) and (c) are repealed.

4.  After section 137 insert—

137ZA.    Arrest under section 136 or 137 in connection with offence in Scotland

(1) This section makes provision about the application of Part 1 of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) in relation to a person who is arrested by a constable—

(a)in execution of a warrant under section 136(2)(a) or (3)(b); or

(b)under section 137(2).

(2) If, following the arrest, the arrested person is to be taken directly to a place in Scotland to be held in custody, at the same time as being informed in accordance with section 3 of the 2016 Act of the matters mentioned in that section, the person must also be informed of the person’s right to have intimation sent under section 38 of the 2016 Act.

(3) Section 4 of the 2016 Act applies subject to the following modifications—

(a)subsection (1) does not apply;

(b)in subsection (2), as it applies in relation to a person arrested under section 137(2) of this Act, the reference to subsection (1) and the words “this section” in paragraph (b) are to be read as references to section 137(7) of this Act;

(c)in subsection (3), the reference to subsection (1) and the words “this section” are to be read as references to section 136(4) or (as the case may be) section 137(7) of this Act.

(4) In each of sections 5(1)(b), 7(2)(b), 15(3) and 37(4)(b) of the 2016 Act, the reference to section 4 of that Act is to be read as a reference to section 136(4) or (as the case may be) section 137(7) of this Act.

(5) References in Part 1 of the 2016 Act to a police station are to be read as including police stations in England, Wales and Northern Ireland.

(6) If the arrested person is in a police station in England, Wales or Northern Ireland, sections 33(6)(b)(ii) and 42(5)(b)(ii) of the 2016 Act are to be read as though they referred to any person who performs at that police station a function which is equivalent to a function performed at police stations in Scotland by members of police staff appointed under section 26(1) of the Police and Fire Reform (Scotland) Act 2012..

5.  In section 138 (powers of arrest: supplementary provisions)—

(a)subsections (1A) to (2A)(3) are repealed; and

(b)subsections (6) to (9)(4) are repealed.

6.  In section 140(4), for the words from “the arrested” to the end, substitute—

any enactment or rule of law which concerns—

(a)the powers and duties of a constable who effects an arrest under a power which a constable of the Police Service of Scotland could have exercised to effect the arrest;

(b)the rights of a person arrested under that power of arrest;

(c)the procedures to be followed after an arrest under that power,

applies in relation to the arrest as though the constable who effected the arrest were a constable of a police force in Scotland.

Article 6

SCHEDULE 2Exercise of functions by constables and members of non-territorial police organisations

Application of 2016 Act to Ministry of Defence Police

1.  After section 2C of the Ministry of Defence Police Act 1987(5) insert—

2D    Exercise of powers and privileges in Scotland

(1) Where a member of the Ministry of Defence Police exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a)in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a member of the Ministry of Defence Police,

(b)section 69 of the 2016 Act (publication of information by police) does not apply..

Application of 2016 Act to British Transport Police Force

2.  After section 31 of the Railways and Transport Safety Act 2003(6) insert—

31A    Exercise of powers and privileges in Scotland

(1) Where a constable of the Police Force exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a)in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a constable of the Police Force,

(b)section 69 of the 2016 Act (publication of information by police) does not apply..

Application of 2016 Act to Civil Nuclear Constabulary

3.  After section 56 of the Energy Act 2004(7) insert—

56A    Exercise of powers and privileges in Scotland

(1) Where a member of the Constabulary exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a)in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a member of the Constabulary,

(b)section 69 of the 2016 Act (publication of information by police) does not apply.

Article 7

SCHEDULE 3Exercise of functions by officials other than police constables

PART 1General

Interpretation

1.—(1) In this Schedule—

“constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012(8);

“designated customs official” means a person who is designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009(9) or as a customs revenue official under section 11(1) of that Act;

“Home Office custody suite” means premises wholly or partly used for the detention of persons by designated customs officials;

“immigration offence” means—

(a)

an offence involving conduct which relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement); or

(b)

(insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;

“immigration officer” means a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971(10);

“nationality offence” means an offence involving conduct which is undertaken for the purposes of, or otherwise in relation to, an enactment in—

(a)

the British Nationality Act 1981(11);

(b)

the Hong Kong Act 1985(12);

(c)

the Hong Kong (War Wives and Widows) Act 1996(13);

(d)

the British Nationality (Hong Kong) Act 1997(14);

(e)

the British Overseas Territories Act 2002(15);

(f)

an instrument made under any of those Acts;

“office of Revenue and Customs” means premises wholly or partly occupied by Her Majesty’s Revenue and Customs.

(2) In sub-paragraph (1), “the Immigration Acts” has the meaning given by section 61 of the UK Borders Act 2007(16).

PART 2Application of 2016 Act to immigration officers

Introductory

Application of 2016 Act in relation to immigration officers

2.—(1) Chapters 1 to 6 of Part 1 of the 2016 Act(17) and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by immigration officers for an immigration offence or nationality offence and searches by them in connection with such an offence, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by an immigration officer for an immigration offence or nationality offence.

General adaptations

General adaptations

3.  In the provisions of the 2016 Act mentioned in paragraph 2(1), references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

1. Reference in 2016 Act2. How reference is to be read
a constablean immigration officer
the rank of sergeantthe grade of immigration officer
the rank of inspectorthe grade of chief immigration officer
police custodyimmigration custody as defined by paragraph 6
a police stationa police station or Home Office custody suite

Specific adaptations

Section 11 (authorisation for keeping in custody beyond 12 hour limit)

4.  In section 11(2), for paragraph (a) read—

(a)is of or above the grade of chief immigration officer, and.

Section 66 (cases involving removal of person)

5.  In section 66, for subsection (3) read—

(3) Anything seized by an immigration officer in the course of a search carried out under this section may be retained by the immigration officer or by a constable..

Supplementary

Immigration custody

6.—(1) For the purposes of provisions of the 2016 Act as applied by this Part of this Schedule, a person is in immigration custody from the time the person is arrested by an immigration officer, or is transferred into the custody of an immigration officer, until any one of the events mentioned in sub-paragraph (2) occurs.

(2) The events are—

(a)the person is released from custody;

(b)the person is brought before a court in accordance with section 21(2) of the 2016 Act;

(c)the person is brought before a court in accordance with section 28(2) or (3) of the Criminal Procedure (Scotland) Act 1995(18);

(d)the person is brought before a court in accordance with—

(i)any other enactment or rule of law which requires that a person in custody be brought before a court; or

(ii)a term of the warrant under which the person was arrested;

(e)the person is transferred in accordance with the law into the custody of a person who is not an immigration officer;

(f)the Principal Reporter directs under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011(19) that the person continue to be kept in a place of safety.

Powers of search etc. under other enactments

7.  Where a person is arrested by an immigration officer under section 1 of the 2016 Act, an immigration officer may exercise—

(a)any power that would be exercisable by an immigration officer if the person had been arrested under another enactment that confers power on an immigration officer to arrest in relation to the same offence; and

(b)any power within section 47(3)(c) of the 2016 Act that would be exercisable by a constable if the person had been arrested by a constable.

PART 3Application of 2016 Act to designated customs officials

Introductory

Application of 2016 Act in relation to designated customs officials

8.—(1) Chapters 1 to 6 of Part 1 of the 2016 Act and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by designated customs officials and searches by them, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by a designated customs official.

General adaptations

General adaptations

9.  In the provisions of the 2016 Act mentioned in paragraph 9, references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

1. Reference in 2016 Act2. How reference is to be read
a constablea designated customs official
the rank of sergeantthe grade of officer
the rank of inspectorthe grade of higher officer
police custodycustoms custody as defined by paragraph 13
a police stationa police station or Home Office custody suite

Specific adaptations

Section 1 (power of a designated customs official)

10.—(1) Section 1 applies only in relation to a Revenue and Customs offence relating to a general customs matter or customs revenue matter.

(2) In sub-paragraph (1)—

(a)“Revenue and Customs offence” has the meaning given by subsection (2) of section 23A of the Criminal Law (Consolidation) (Scotland) Act 1995(20);

(b)“general customs matter” and “customs revenue matter” have the meaning given by Part 1 of the Borders, Citizenship and Immigration Act 2009.

Section 11 (authorisation for keeping in custody beyond 12 hour limit)

11.  In section 11(2), for paragraph (a) read—

(a)is of or above the grade of higher officer, and.

Section 66 (cases involving removal of person)

12.  Section 66 applies with the substitution for subsection (3) of—

(3) Anything seized by a designated customs official in the course of a search carried out under this section may be retained by the designated customs official or by a constable..

Supplementary

Customs custody

13.—(1) For the purposes of provisions of the 2016 Act as applied by this Part of this Schedule, a person is in customs custody from the time the person is arrested by a designated customs official, or is transferred in accordance with the law into the custody of a designated customs official, until any one of the events mentioned in sub-paragraph (2) occurs.

(2) The events are—

(a)the person is released from custody;

(b)the person is brought before a court in accordance with section 21(2) of the 2016 Act;

(c)the person is brought before a court in accordance with section 28(2) or (3) of the Criminal Procedure (Scotland) Act 1995;

(d)the person is brought before a court in accordance with—

(i)any other enactment or rule of law which requires that a person in custody be brought before a court; or

(ii)a term of the warrant under which the person was arrested;

(e)the person is transferred in accordance with the law into the custody of a person who is not a designated customs official;

(f)the Principal Reporter directs under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011 that the person continue to be kept in a place of safety.

Powers of search etc. under other enactments

14.  Where a person is arrested by a designated customs official under section 1 of the 2016 Act(21), a designated customs official may exercise any power that would be exercisable by a designated customs official if the person had been arrested under another enactment that confers power on a designated customs official to arrest in relation to the same offence.

PART 4Application of 2016 Act to officers of Revenue and Customs

Introductory

Application of 2016 Act in relation to officers of Revenue and Customs

15.—(1) Chapters 1 to 6 of Part 1 of the 2016 Act and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by officers of Revenue and Customs and searches by them, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by an officer of Revenue and Customs.

General adaptations

General adaptations

16.  In the provisions of the 2016 Act mentioned in paragraph 16, references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

1. Reference in 2016 Act2. How reference is to be read
a constablean officer of Revenue and Customs
the rank of sergeantthe grade of officer
the rank of inspectorthe grade of higher officer
police custodyRevenue and Customs custody as defined by paragraph 21
a police stationa police station, office of Revenue and Customs or Home Office custody suite

Specific adaptations

Section 1 (power of an officer of Revenue and Customs)

17.—(1) Section 1 applies only in relation to a Revenue and Customs offence.

(2) In sub-paragraph (1) “Revenue and Customs offence” has the meaning given by subsection (2) of section 23A of the Criminal Law (Consolidation) (Scotland) Act 1995(22).

Section 11 (authorisation for keeping in custody beyond 12 hour limit)

18.  In section 11(2), for paragraph (a) read—

(a)is of or above the grade of higher officer, and.

Section 65 (limitation on what enables search of person not in custody)

19.—(1) Section 65 does not limit any power of an officer of Revenue and Customs to carry out a protective search—

(a)of a person whom the officer finds in or on premises entered by the officer under the authority of a warrant under section 23E of the Criminal Law (Consolidation) (Scotland) Act 1995(23); or

(b)of a person in relation to whom the officer is exercising any power under section 23M of that Act.

(2) In this paragraph “protective search” means a search in the circumstances described in section 66(1)(b) of the 2016 Act for the purpose described in section 66(2).

Section 66 (cases involving removal of person)

20.  In section 66, for subsection (3) read—

(3) Anything seized by an officer of Revenue and Customs in the course of a search carried out under this section may be retained by the officer or by a constable..

Supplementary

Revenue and Customs custody

21.—(1) For the purposes of provisions of the 2016 Act as applied by this Part of this Schedule, a person is in Revenue and Customs custody from the time the person is arrested by an officer of Revenue and Customs, or is transferred into the custody of an officer of Revenue and Customs, until any one of the events mentioned in sub-paragraph (2) occurs.

(2) The events are—

(a)the person is released from custody;

(b)the person is brought before a court in accordance with section 21(2) of the 2016 Act;

(c)the person is brought before a court under section 28(2) or (3) of the Criminal Procedure (Scotland) Act 1995(24);

(d)the person is brought before a court in accordance with—

(i)any other enactment or rule of law which requires that a person in custody be brought before a court; or

(ii)a term of the warrant under which the person was arrested;

(e)the person is transferred in accordance with the law into the custody of a person who is not an officer of Revenue and Customs;

(f)the Principal Reporter directs under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011 that the person continue to be kept in a place of safety.

Powers of search etc. under other enactments

22.  Where a person is arrested by an officer of Revenue and Customs under section 1 of the 2016 Act, an officer of Revenue and Customs may exercise any power that would be exercisable by such an officer if the person had been arrested under another enactment that confers power on an officer of Revenue and Customs to arrest in relation to the same offence.

PART 5Application of 2016 Act to designated NCA officers

Application to designated NCA officers: adaptations

23.—(1) In the application in relation to a designated NCA officer of a provision of the 2016 Act that is applied by this Schedule in relation to an immigration officer, a general customs official or an officer of Revenue and Customs, the following entries are substituted for the corresponding entries in the table in paragraph 3, 9 or 16—

1. Reference in 2016 Act2. How reference is to be read
the rank of sergeantgrade 4
the rank of inspectorgrade 3

(2) In section 11(2) of the 2016 Act, in its application in relation to a designated NCA officer, for paragraph (a) read—

(a)is of or above grade 3, and.

(3) In this paragraph—

“designated NCA officer” means a National Crime Agency officer designated under section 10 of the Crime and Courts Act 2013(25) as having the powers of an immigration officer, a general customs official or an officer of Revenue and Customs;

“general customs official” means a person who is designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009(26).

PART 6Transfers and co-operation

Transfer

24.—(1) A person who is in immigration custody, customs custody, Revenue and Customs custody or police custody as a result of being arrested under section 1 of the 2016 Act or of being transferred under this paragraph, may be transferred as follows.

(2) A person in immigration custody may be transferred to customs custody or police custody.

(3) A person in customs custody may be transferred to Revenue and Customs custody or police custody.

(4) A person in Revenue and Customs custody may be transferred to customs custody or police custody.

(5) A person in police custody may be transferred to immigration custody, customs custody or Revenue and Customs custody.

(6) This paragraph does not affect any other power of transfer.

Co-operation

25.—(1) Where in relation to anything done by a relevant officer (“R”) a provision of the 2016 Act, as applied by this Schedule, confers a power or imposes a duty on a relevant officer who may or must be a person other than R, the power may be exercised or the duty performed by a constable (and where it is, the power or duty is to be read without the modifications made by this Schedule).

(2) Where in relation to anything done by a constable (“C”)—

(a)a provision of the 2016 Act confers a power or imposes a duty on a constable who may or must be a person other than C; and

(b)the provision is applied by this Schedule to a relevant officer,

the power may be exercised or the duty performed by a relevant officer (and where it is, the power or duty is to be read with the modifications made by this Schedule).

(3) In this paragraph “relevant officer” means an immigration officer, a designated customs official or an officer of Revenue and Customs.

Article 8

SCHEDULE 4Application of Part 1 of 2016 Act in relation to service offences etc.

General

1.—(1) Section 58 of the 2016 Act (disapplication of Part 1 in relation to service offences) is subject to this Schedule.

(2) In this Schedule, “constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012, subject to sub-paragraph (3).

(3) In this Schedule and any provision of Part 1 of the 2016 Act as applied by this Schedule, references to a constable include references to a member of the Ministry of Defence Police.

(4) Subject to sub-paragraph (6), a provision of that Part that is not applied by a paragraph of this Schedule, and that would otherwise apply in the case to which the paragraph relates, does not apply in that case.

(5) For the purposes of provisions of that Part applied by this Schedule, section 64 of the 2016 Act (meaning of police custody) applies—

(a)as if in subsection (1) the reference to the person’s arrest by a constable included a reference to the person’s surrender to a constable as being a person subject to service law who has deserted or is absent without leave;

(b)with the substitution for subsection (2)(b), (c), (ca) and (cb) of—

(b)the person is transferred to service custody,

(c)the person is brought before a court in accordance with section 314(4) or 315(4)(b) of the Armed Forces Act 2006,

(ca)the person is taken to a place in accordance with section 318(1)(b) of that Act (place in which person sentenced to service detention is required in accordance with law to be detained),.

(6) Section 58(2) of the 2016 Act does not limit the effect of an amendment or repeal made by schedule 2 to that Act.

Arrest under warrant of judge advocate

2.—(1) The following provisions of Part 1 of the 2016 Act apply where a person is arrested by a constable under a warrant under section 313 of the Armed Forces Act 2006 (warrant of judge advocate for arrest for service offence).

(2) Section 3 (information to be given on arrest) applies with the following modifications—

(a)in paragraph (d) omit “other than to give the information specified in section 34(4),”;

(b)after paragraph (d) add—

(da)of the person’s right to have intimation sent under section 38;;

(c)omit paragraph (e)(ii).

(3) Section 5 (information to be given at police station) applies with the following modifications—

(a)in subsection (1)(b) omit “in accordance with section 4”;

(b)in subsection (2)(a) omit “other than to give the information specified in section 34(4),”;

(c)in subsection (2)(b) omit “and to have access” and sub-paragraphs (ii) and (iv).

(4) In section 6 (information to be recorded by police)—

(a)subsection (1) applies;

(b)subsection (2) applies, but omitting paragraphs (a) and (c).

(5) Section 38 (right to have intimation sent to other person) applies.

(6) Section 39 (right to have intimation sent: under 18s) applies with the following modifications—

(a)omit subsections (2), (3) and (4)(b);

(b)in subsection (6), in paragraph (a) omit from “and agrees to attend” to the end, and at the end of paragraph (b) add—

, or

(c)the person is transferred to service custody..

(7) Section 41 (social work involvement in relation to under 18s) applies with the following modifications—

(a)in subsection (4) omit “and 40”;

(b)in subsection (7) for “to 40” substitute “and 39”.

(8) Section 42 (support for vulnerable persons) applies.

(9) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(c) and (d).

(10) Section 45 (use of reasonable force) applies.

(11) Section 46 (common law power of entry) applies.

(12) Section 50 (duty not to detain unnecessarily) applies.

(13) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(14) Section 52 (duties in relation to children in custody) applies.

Arrest of deserters and absentees without leave

3.—(1) The following provisions of Part 1 of the 2016 Act apply where—

(a)a person is arrested by a constable under section 314 of the Armed Forces Act 2006 (arrest by constable of deserters and absentees without leave); or

(b)a person is arrested by a constable under a warrant under subsection (2) of that section.

(2) Section 3 (information to be given on arrest) applies with the omission in paragraph (d) of “other than to give the information specified in section 34(4),”.

(3) Section 4 (arrested person to be taken to police station) applies, omitting subsection (3).

(4) Section 5 (information to be given at police station) applies with the omission in subsection (2)(a) of “other than to give the information specified in section 34(4),”.

(5) In section 6 (information to be recorded by police)—

(a)subsection (1) applies;

(b)subsection (2) applies, but omitting paragraph (c).

(6) Section 22 (under 18s to be kept in place of safety prior to court) applies with the following modifications—

(a)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 314(4) of the Armed Forces Act 2006;

(b)in subsection (1)(b) omit sub-paragraph (i);

(c)in subsection (2) omit the reference to release under section 25.

(7) Section 23 (notice to parent that under 18 to be brought before court) applies with the following modifications—

(a)in subsection (1) omit “or under 16 years of age”;

(b)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 314(4) of the Armed Forces Act 2006;

(c)omit subsection (1)(b);

(d)omit subsection (2)(d).

(8) Section 24 (notice to local authority that under 18 to be brought before court) applies with the following modifications—

(a)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 314(4) of the Armed Forces Act 2006;

(b)omit subsection (1)(b);

(c)omit subsection (2)(a);

(d)omit subsection (3)(c);

(e)in subsection (4)(a) omit “or (as the case may be) (b)”;

(f)omit subsection (4)(c).

(9) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(10) Section 39 (right to have intimation sent: under 18s) applies, omitting subsection (7)(a) except for the purposes of section 41(7).

(11) Section 40 (right of under 18s to have access to other person) applies, omitting subsection (1) except for the purposes of section 41(7).

(12) Section 41 (social work involvement in relation to under 18s) applies.

(13) Section 42 (support for vulnerable persons) applies.

(14) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(d).

(15) Section 44 (right to consultation with solicitor) applies.

(16) Section 45 (use of reasonable force) applies.

(17) Section 46 (common law power of entry) applies.

(18) Section 50 (duty not to detain unnecessarily) applies.

(19) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(20) Section 52 (duties in relation to children in custody) applies.

Deserters and absentees without leave surrendering to constable

4.  Where a person surrenders to a constable as being a person subject to service law who has deserted or is absent without leave, section 3 of the 2016 Act (information to be given on arrest) applies with the following modifications—

(a)for “When a constable arrests a person” substitute “When a person surrenders to a constable as being a person subject to service law who has deserted or is absent without leave”;

(b)for paragraphs (a) to (c) substitute—

(a)that the person has surrendered as being a person subject to service law who has deserted or (as the case may be) who is absent without leave, and;

(c)in paragraph (d) omit “other than to give the information specified in section 34(4),”;

(d)omit paragraph (e).

Surrender of deserters and absentees: transfer to service custody

5.—(1) The following provisions of Part 1 of the 2016 Act apply where—

(a)a person’s case is considered under subsection (3) of section 315 of the Armed Forces Act 2006 (deserters and absentees without leave surrendering to civilian police); and

(b)the person considering the case acts under subsection (4)(a) of that section (power to arrange for person to be transferred to service custody).

(2) Section 5 (information to be given at police station) applies with the following modifications—

(a)in subsection (1)(a) for “been arrested” substitute “surrendered”;

(b)in subsection (1)(b) for the reference to section 4 of the 2016 Act substitute a reference to section 315(1) of the Armed Forces Act 2006;

(c)in subsection (2)(a) omit “other than to give the information specified in section 34(4),”;

(d)omit subsection (2)(b)(ii) and (iv).

(3) In section 6 (information to be recorded by police)—

(a)subsection (1) applies, substituting references to surrender, or surrender to a constable, for references to arrest, or arrest by a constable;

(b)subsection (2) applies, but—

(i)omitting paragraphs (a) and (c); and

(ii)substituting a reference to surrender to a constable for the reference to arrest by a constable;

(4) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(5) Section 39 (right to have intimation sent: under 18s) applies with the following modifications—

(a)omit subsections (2), (3) and (4)(b);

(b)in subsection (6), in paragraph (a) omit from “and agrees to attend” to the end, and at the end of paragraph (b) add—

, or

(c)the person is transferred to service custody.;

(c)in subsection (7) omit paragraph (a) except for the purposes of section 41(7).

(6) Section 41 (social work involvement in relation to under 18s) applies with the following modifications—

(a)in subsection (4) omit “and 40”;

(b)in subsection (7) for “to 40” substitute “and 39”.

(7) Section 42 (support for vulnerable persons) applies.

(8) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(c) and (d).

(9) Section 45 (use of reasonable force) applies.

(10) Section 50 (duty not to detain unnecessarily) applies.

(11) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(12) Section 52 (duties in relation to children in custody) applies.

Surrender of deserters and absentees: bringing before court of summary jurisdiction

6.—(1) The following provisions of Part 1 of the 2016 Act apply where—

(a)a person’s case is considered under subsection (3) of section 315 of the Armed Forces Act 2006 (deserters and absentees without leave surrendering to civilian police); and

(b)the person considering the case acts under subsection (4)(b) of that section (power to arrange for person to be brought before court of summary jurisdiction).

(2) Section 5 (information to be given at police station) applies with the following modifications—

(a)in subsection (1)(a) for “been arrested” substitute “surrendered”;

(b)in subsection (1)(b) for the reference to section 4 of the 2016 Act substitute a reference to section 315(1) of the Armed Forces Act 2006;

(c)in subsection (2)(a) omit “other than to give the information specified in section 34(4),”.

(3) In section 6 (information to be recorded by police)—

(a)subsection (1) applies, substituting references to surrender, or surrender to a constable, for references to arrest, or arrest by a constable;

(b)subsection (2) applies, but—

(i)omitting paragraphs (a) and (c); and

(ii)substituting a reference to surrender to a constable for the reference to arrest by a constable;

(4) Section 22 (under 18s to be kept in place of safety prior to court) applies with the following modifications—

(a)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 315(4)(b) of the Armed Forces Act 2006;

(b)in subsection (1)(b) omit sub-paragraph (i);

(c)in subsection (2) omit the reference to release under section 25.

(5) Section 23 (notice to parent that under 18 to be brought before court) applies with the following modifications—

(a)in subsection (1) omit “or under 16 years of age”;

(b)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 315(4)(b) of the Armed Forces Act 2006;

(c)omit subsection (1)(b);

(d)omit subsection (2)(d).

(6) Section 24 (notice to local authority that under 18 to be brought before court) applies with the following modifications—

(a)in subsection (1)(a) for the reference to section 21(2) of the 2016 Act substitute a reference to section 315(4)(b) of the Armed Forces Act 2006;

(b)omit subsection (1)(b);

(c)omit subsection (2)(a);

(d)omit subsection (3)(c);

(e)in subsection (4)(a) omit “or (as the case may be) (b)”;

(f)omit subsection (4)(c).

(7) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(8) Section 39 (right to have intimation sent: under 18s) applies, omitting subsection (7)(a) except for the purposes of section 41(7).

(9) Section 40 (right of under 18s to have access to other person) applies, omitting subsection (5)(b).

(10) Section 41 (social work involvement in relation to under 18s) applies.

(11) Section 42 (support for vulnerable persons) applies.

(12) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(d).

(13) Section 44 (right to consultation with solicitor) applies.

(14) Section 45 (use of reasonable force) applies.

(15) Section 50 (duty not to detain unnecessarily) applies.

(16) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(17) Section 52 (duties in relation to children in custody) applies.

Surrender of deserters and absentees: transfer to service custody

7.—(1) The following provisions of Part 1 of the 2016 Act apply where—

(a)a person’s case is considered under subsection (3) of section 315 of the Armed Forces Act 2006 (deserters and absentees without leave surrendering to civilian police); and

(b)the person considering the case acts under subsection (4)(c) of that section (power to release person subject to condition to enable the person to be taken into service custody).

(2) Section 5 (information to be given at police station) applies with the following modifications—

(a)in subsection (1)(a) for “been arrested” substitute “surrendered”;

(b)in subsection (1)(b) for the reference to section 4 of the 2016 Act substitute a reference to section 315(1) of the Armed Forces Act 2006;

(c)in subsection (2)(a) omit “other than to give the information specified in section 34(4),”;

(d)omit subsection (2)(b)(ii) and (iv).

(3) In section 6 (information to be recorded by police)—

(a)subsection (1) applies, substituting references to surrender, or surrender to a constable, for references to arrest, or arrest by a constable;

(b)subsection (2) applies, but—

(i)omitting paragraphs (a) and (c); and

(ii)substituting a reference to surrender to a constable for the reference to arrest by a constable;

(c)subsection (7) applies, substituting a reference to section 315(4)(c) of the Armed Forces Act 2006 for the reference to section 16 of the 2016 Act.

(4) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(5) Section 39 (right to have intimation sent: under 18s) applies with the following modifications—

(a)omit subsections (2), (3) and (4)(b);

(b)in subsection (6), in paragraph (a) omit from “and agrees to attend” to the end;

(c)in subsection (7) omit paragraph (a) except for the purposes of section 41(7).

(6) Section 41 (social work involvement in relation to under 18s) applies with the following modifications—

(a)in subsection (4) omit “and 40”;

(b)in subsection (7) for “to 40” substitute “and 39”.

(7) Section 42 (support for vulnerable persons) applies.

(8) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(c) and (d).

(9) Section 45 (use of reasonable force) applies.

(10) Section 50 (duty not to detain unnecessarily) applies.

(11) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(12) Section 52 (duties in relation to children in custody) applies.

Arrest under warrant under section 317 of Armed Forces Act 2006

8.—(1) The following provisions of Part 1 of the 2016 Act apply where a person is arrested by a constable under a warrant under section 317 of the Armed Forces Act 2006 (failure to comply with condition to enable person to be taken into service custody).

(2) Section 3 (information to be given on arrest) applies with the following modifications—

(a)omit paragraph (b);

(b)in paragraph (d) omit “other than to give the information specified in section 34(4),”;

(c)after paragraph (d) add—

(da)of the person’s right to have intimation sent under section 38;;

(d)omit paragraph (e)(ii).

(3) Section 5 (information to be given at police station) applies with the following modifications—

(a)in subsection (1)(b) omit “in accordance with section 4”;

(b)in subsection (2)(a) omit “other than to give the information specified in section 34(4),”;

(c)omit subsection (2)(b)(ii) and (iv).

(4) In section 6 (information to be recorded by police)—

(a)subsection (1) applies, omitting paragraph (b);

(b)subsection (2) applies, omitting paragraphs (a) and (c).

(5) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(6) Section 39 (right to have intimation sent: under 18s) applies with the following modifications—

(a)omit subsections (2), (3) and (4)(b);

(b)in subsection (6), in paragraph (a) omit from “and agrees to attend” to the end, and at the end of paragraph (b) add—

, or

(c)the person is transferred to service custody.;

(c)in subsection (7) omit paragraph (a) except for the purposes of section 41(7).

(7) Section 41 (social work involvement in relation to under 18s) applies with the following modifications—

(a)in subsection (4) omit “and 40”;

(b)in subsection (7) for “to 40” substitute “and 39”.

(8) Section 42 (support for vulnerable persons) applies.

(9) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(c) and (d).

(10) Section 45 (use of reasonable force) applies.

(11) Section 46 (common law power of entry) applies.

(12) Section 50 (duty not to detain unnecessarily) applies.

(13) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(14) Section 52 (duties in relation to children in custody) applies.

Arrest of persons unlawfully at large

9.—(1) The following provisions of Part 1 of the 2016 Act apply where a person is arrested by a constable under section 318(1) of the Armed Forces Act 2006 (person sentenced to service detention and unlawfully at large).

(2) Section 3 (information to be given on arrest) applies with the following modifications—

(a)omit paragraph (b);

(b)in paragraph (d) omit “other than to give the information specified in section 34(4),”;

(c)after paragraph (d) add—

(da)of the person’s right to have intimation sent under section 38;;

(d)omit paragraph (e)(ii).

(3) Section 5(2) (information to be given as soon as reasonably practicable) applies when the person is in police custody, with the following modifications—

(a)in paragraph (a) omit “other than to give the information specified in section 34(4),”;

(b)omit paragraph (b)(i) and (iv).

(4) In section 6 (information to be recorded by police)—

(a)subsection (1) applies;

(b)subsection (2) applies, omitting paragraphs (a), (b)(ii) and (c).

(5) Section 38 (right to have intimation sent to other person) applies, omitting subsections (2)(a) and (3)(a) except for the purposes of section 41(7).

(6) Section 39 (right to have intimation sent: under 18s) applies with the following modifications—

(a)omit subsections (2), (3) and (4)(b);

(b)in subsection (6), in paragraph (a) omit from “and agrees to attend” to the end, and at the end of paragraph (b) add—

, or

(c)the person is transferred to the place in which the person is required in accordance with law to be detained.;

(c)in subsection (7) omit paragraph (a) except for the purposes of section 41(7).

(7) Section 41 (social work involvement in relation to under 18s) applies with the following modifications—

(a)in subsection (4) omit “and 40”;

(b)in subsection (7) for “to 40” substitute “and 39”.

(8) Section 42 (support for vulnerable persons) applies.

(9) Section 43 (right to have intimation sent to a solicitor) applies, omitting subsection (1)(c) and (d).

(10) Section 45 (use of reasonable force) applies.

(11) Section 46 (common law power of entry) applies.

(12) Section 50 (duty not to detain unnecessarily) applies.

(13) Section 51 (duty to consider child’s wellbeing) applies, omitting subsection (1)(a), (c) and (d).

(14) Section 52 (duties in relation to children in custody) applies.

Article 9

SCHEDULE 5Persons arrested in connection with extradition proceedings

Modification of the Criminal Procedure (Scotland) Act 1995

1.—(1) Section 18 of the Criminal Procedure (Scotland) Act 1995 is modified as follows.

(2) In subsection (2), after “suspected offence” insert “or the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003(27))”.

(3) In subsection (3), for “subsection (4)” substitute “subsections (3A) and (4)”.

(4) After subsection (3), insert—

(3A) Subsection (3) does not apply to—

(a)relevant physical data taken under subsection (2) from, or provided under that subsection by, a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), and

(b)any sample, or any information derived from a sample, taken under subsection (6) or (6A) from a person arrested under such a power (but see section 18H)..

(5) After section 18G(28), insert—

18H     Retention of samples etc.: extradition

(1) This section applies to—

(a)relevant physical data taken under section 18(2) from, or provided under that subsection by, a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), and

(b)any sample, or any information derived from a sample, taken under section 18(6) or (6A) from a person arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003).

(2) All record of any relevant physical data, all samples and all information derived from such samples must be destroyed as soon as possible following the final determination of the extradition proceedings.

(3) The duty under subsection (2) to destroy samples taken under section 18(6) or (6A) and information derived from such samples does not apply where the circumstances in paragraph (a) or (b) of section 18(4) apply to the sample or information (and where such circumstances apply, the restrictions in section 18(5) apply to the sample or information retained).

(4) For the purposes of this section, extradition proceedings are finally determined—

(a)if the person is extradited, on the day of the extradition,

(b)if the person is discharged and there is no right of appeal under the Extradition Act 2003 against the decision which resulted in the order for the person’s discharge, when the person is discharged, on the day of the discharge,

(c)where the person is discharged at an extradition hearing or by the Scottish Ministers under section 93 of the Extradition Act 2003—

(i)if no application is made to the High Court for leave to appeal against the decision within the period during which such an application may be made, at the end of that period,

(ii)if such an application is made and is refused, on the day of the refusal,

(d)where the High Court orders the person’s discharge or dismisses an appeal against a decision to discharge the person—

(i)if no application is made to the High Court for permission to appeal to the Supreme Court within the 28 day period starting with the day of the High Court’s decision, at the end of that period,

(ii)if such an application is made to the High Court and is refused, and no application is made to the Supreme Court for permission to appeal to the Supreme Court within the period of 28 days starting with the day of the refusal, at the end of that period,

(iii)if such an application is made to the Supreme Court and is refused, on the day of the refusal,

(iv)if permission to appeal to the Supreme Court is granted, but no appeal is made within the period of 28 days starting with the day on which permission is granted, at the end of that period,

(v)if there is an appeal to the Supreme Court against the High Court’s decision, on the day on which the appeal is refused, is abandoned or is upheld with the effect that the person is discharged,

(e)if an appeal to the Supreme Court is upheld with the effect that the person is discharged, on the day of the decision to uphold the appeal.

(5) In subsection (4)—

“extradition hearing” has the meaning given by section 68 or as the case may be section 140 of the Extradition Act 2003,

“extradition proceedings” means proceedings under the Extradition Act 2003..

Modification of the 2016 Act

2.  After section 57C of the 2016 Act(29), insert—

57D    Arrest under an extradition arrest power

(1) In a case where a person is arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003), this Part applies subject to the following further modifications.

(2) The following do not apply—

(a)sections 3 and 4,

(b)sections 25 to 30,

(c)section 50.

(3) In section 5—

(a)subsection (1)(b) is to be read as if the words “in accordance with section 4” were omitted,

(b)subsection (2)(a) is to be read as if the words “other than to give the information specified in section 34(4)” were omitted, and

(c)subsection (3) is to be read as if the words “of Articles 3 and 4” were omitted.

(4) Section 6 is to be read as if—

(a)in subsection (1)(c) the words “in accordance with section 4” were omitted,

(b)subsection (1)(d) were omitted,

(c)subsection (2)(a) were omitted,

(d)subsection (2)(c) were omitted, and

(e)subsections (3) to (8) were omitted.

(6) Section 23 is to be read as if—

(a)subsection (1)(b) were omitted,

(b)subsection (2)(d) were omitted.

(7) Section 24 is to be read as if subsection (1)(b) were omitted.

(8) Section 48 is to be read as if—

(a)for subsection (2) there were substituted—

(2) This subsection applies to a person who is in police custody having been arrested under an extradition arrest power (within the meaning of section 174(2) of the Extradition Act 2003)., and

(b)for subsection (3) there were substituted—

(3) In subsection (1), “the relevant offence” means the offence that would have been committed were the act constituting the relevant offence (within the meaning of section 164(3) of the Extradition Act 2003) done in Scotland..

(1)

A new subsection (4A) is to be inserted into section 136 (on a date to be appointed) by the Policing and Crime Act 2017 (c.3), Schedule 17, paragraph 7.

(2)

A new subsection (7A) is to be inserted into section 137 (on a date to be appointed) by the Policing and Crime Act 2017, Schedule 17, paragraph 8.

(3)

Section 138(1A) and (1B) were inserted and sections 138(2) and (2A) were substituted for section 138(2) by S.I. 2011/1739.

(4)

Section 138(6) to (9) were substituted for section 138(6) by S.I. 2011/1739.

(5)

1987 c.4. Section 2C is inserted by the Serious Organised Crime and Police Act 2005 (c.15), Schedule 4, paragraphs 48 and 50; it is amended by the Crime and Courts Act 2013 (c.22), Schedule 8, paragraph 31.

(10)

1971 c.77. The amendments to Schedule 2 are not relevant to this Order.

(11)

1981 c.61.

(12)

1985 c.15.

(13)

1996 c.41.

(14)

1997 c.20.

(15)

2002 c.8.

(16)

2007 c.30.

(18)

1995 c.46.

(20)

Section 23A was inserted by the Finance Act 2007 (c.11); subsection (2) was amended by the Employment Act 2008 (c.24), section 12(2) and the Criminal Finances Act 2017 (c.22), section 18(2).

(22)

1995 c.39. Section 23A was inserted by the Finance Act 2007 (c.11); subsection (2) was amended by the Employment Act 2008 (c.24), section 12(2) and the Criminal Finances Act 2017 (c.22), section 18(2).

(23)

Section 23E was inserted by the Finance Act 2007 (c.11).

(24)

1995 c.46.

(25)

2013 c.22; section 10 was amended by the Policing and Crime Act 2017 (c.3), section 158(3).

(26)

2009 c.11.

(27)

2003 c.41.

(28)

Section 18G was inserted by the Protection of Freedoms Act 2012 (c.9), Schedule 1, paragraph 6(3).

(29)

Section 57A to C are inserted into the Criminal Justice (Scotland) Act 2016 by the Criminal Justice (Scotland) Act 2016 (Modification of Part 1 and Ancillary Provision) Regulations 2017 ( S.S.I. 2017453 ).

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