Commentary on Sections
Schedule 1: Seizure of passports etc from persons suspected of involvement in terrorism
20.Paragraph 1 sets out the interpretation of key terms in the Schedule.
21.Paragraph 2(1) provides that the search and seizure powers may be used where a constable has reasonable grounds to suspect that a person at a port in Great Britain intends to leave Great Britain to become involved in terrorism-related activity outside the UK. The same powers apply where a constable has reasonable grounds to suspect that a person at a port or in the border area in Northern Ireland intends to leave the UK for that purpose (paragraph 2(2)). This means that the power may be exercised where a person travels within the UK from Great Britain to Northern Ireland for the purpose of involvement in terrorism outside the UK but not where the person is travelling from Northern Ireland to Great Britain. This is so that the power is exercisable against persons who intend to leave the UK by crossing the open land border with the Republic of Ireland. The constable may exercise the search and seizure powers himself or herself, or direct that a qualified immigration officer or customs official does (paragraph 2(3)). A qualified officer or official is one who is designated by the Secretary of State for the purposes of this Schedule (paragraph 1(4)), and will have received training in the exercise of these powers. A person who is required to hand over travel documents or who is searched under these powers must be informed of the constable’s suspicion (paragraph 2(8)). If an immigration officer or customs official already holds the travel document (for example as a result of a routine passport check), then that officer or official may ask a constable for a direction that the travel document should be handed to the constable, and can retain it while waiting for an answer. If the constable gives such a direction, the documents must be handed over to a constable as soon as possible (paragraph 2(9) and paragraph 3). Travel document includes a passport and a ticket for travel from a place in Great Britain to a place outside Great Britain or from Northern Ireland to a place outside the UK (paragraph 1(6)).
22.Paragraph 4 provides that where a constable (or on the constable’s direction, an immigration officer or customs official) is holding travel documents under these powers, the constable must seek authorisation for the documents’ retention from a senior police officer as soon as possible. The senior officer must be of a least the rank of superintendent (paragraph 1(5)). The senior officer may grant the authorisation if satisfied that there are reasonable grounds for the suspicion that the person intends to leave GB or the UK in order to become involved in terrorism-related activity outside the UK. If authorisation is not granted, the documents must be returned as soon as possible, unless they can be retained under any other power (for example a power under immigration legislation) (paragraph 4(6) and (9)). A person whose travel document is retained under these powers must be informed of the constable’s suspicion, unless it is anticipated that the application for authorisation will be dealt with immediately so that the period during which the document is withheld may be very short (paragraph 4(3) and (4)).
23.Paragraph 5 makes provision for the retention or return of seized documents. Paragraph 5(1) specifies the circumstances in which a travel document may continue to be retained. These are while:
the Secretary of State considers whether to cancel the person’s passport;
consideration is given as to whether or not to charge the person with an offence;
consideration is given to making the person subject to an order or measure connected with protecting the public from a risk of terrorism; or
steps are being taken to carry out any of the above.
24.A travel document may not be retained beyond 14 days beginning with the day after the day the document was seized, unless that period is extended by a judicial authority (paragraph 5(2)). Documents must be returned to a person as soon as possible where none of the above reasons for retaining them continue to apply or where the 14 day period has expired, unless they can be lawfully retained under another power or provision not in Schedule 1 or detained for criminal or deportation proceedings under paragraph 7 (paragraph 5(3)). Paragraph 5(4) provides that the constable in possession of a person’s travel document must explain to him or her the grounds on which the document can be retained. There will be a statutory Code of Practice which will provide further detail about the information that must be provided to those stopped or whose documents are retained.
25.Paragraph 6 provides that when authorisation has been given to retain travel documents and the documents are still being retained at the end of 72 hours (beginning from the time when the travel documents were first taken from the person) a police officer of at least the rank of chief superintendent, and at least as high a rank as the senior police officer who authorised the retention of the travel documents, must carry out a review of whether the decision to authorise retention of the travel documents was flawed (paragraph 6 (1) to(2)). The review must begin within the 72 hour period and be completed as soon as possible. The findings of the review must be communicated to the relevant chief constable (paragraph 6(3)). The chief constable must consider those findings and take any action considered appropriate (paragraph 6(4)). If the power to search for or seize documents under paragraph 2 was exercised by an accredited officer (as described at paragraph 17(1)) the findings of the review must also be communicated to the Secretary of State (paragraph 6(5)).
26.Paragraph 7 provides for the detention of travel documents for certain proceedings. A constable or qualified officer may detain the document while the constable or officer believes that it may be needed for evidence in criminal proceedings or in connection with a decision whether to make a deportation order (paragraph 7(2)).
27.Paragraph 8 provides that the police may apply to a judicial authority to extend the retention period of travel documents beyond 14 days. A senior police officer of at least the rank of superintendent may, prior to the end of the 14 day retention period, apply for an extension (paragraph 8(1) and (2)). An application may only be heard if reasonable efforts have been made to notify the person of the time and place the application will be heard (paragraph 8(3)). The judicial authority must grant the application if it is satisfied that those involved in considering whether the further action should be taken in relation to the person have been acting diligently and expeditiously. Otherwise, the application must be refused. An extension must be for a period ending no later than 30 days from the day after the passport was seized (paragraph 8(6) and (7)).
28.Paragraph 9 provides that the person to whom the application relates must be given an opportunity to make oral or written representations about the application and is entitled to legal representation at the hearing (paragraph 9(1) and (2)). Where a person is entitled to be legally represented, is not represented and wishes to be represented, the judicial authority must adjourn the hearing to enable the person to obtain legal representation (paragraph 9(2)). The judicial authority may exclude the person to whom the application relates and anyone representing that person from any part of the hearing (paragraph 9(3)). The judicial authority may find this necessary if, for example, specified information upon which the police intend to rely is to be withheld from the person whose travel documents are being retained and their representative.
29.The police officer applying for an extension of the 14 day retention period may also apply to the judicial authority for an order that specified information upon which he or she intends to rely be withheld from the person whose travel documents are being retained and their representative (paragraph 10(1)). Paragraph 10(2) sets out the grounds on which the authority may agree that information can be withheld. The judicial authority must exclude from the hearing the person whose travel documents have been retained and their legal representatives (paragraph 10(3).
30.Paragraph 11(1) provides that the judicial authority may adjourn the hearing of an application under paragraph 8 only if the hearing is adjourned to a date before the expiry of the 14 day period unless the adjournment is to enable the person to obtain legal representation, in which case the adjournment must be to a date before the expiry of the 30 day period (paragraph 11(2)). If the application is adjourned to a date beyond the 14 day period the judicial authority must extend the retention period until that date (paragraph 11(3)).
31.Where a judicial authority makes an order which permits the travel document to be retained for a period which extends beyond the initial 14 day period but which expires before the end of 30 days from the day after the documents were first taken, a police officer may make one further application for an extension to retain the travel documents (paragraph 12(1)).
32.Paragraph 13 restricts repeated use of the power against the same individual. Where a power to retain a document is exercised against a person under this Schedule and any of the powers available under this Schedule have already been exercised in relation to the same person on two or more occasions in the preceding six months, then the travel documents may be retained only for a period of 5 days (paragraph 13(1) and (2)). The senior police officer may apply for an extension of this 5 day period up to a maximum of 30 days, but in these circumstances the application will only be granted if the judicial authority thinks that there are exceptional circumstances which justify the further use of these powers in relation to the same person as well as being satisfied that the investigations about further action are being carried out diligently and expeditiously.
33.Paragraph 14 applies where a person’s travel documents are retained with the result that the person is unable to leave the United Kingdom during the period of the retention. The Secretary of State may make whatever arrangements are considered appropriate during the period of retention of a person’s travel documents and on that period of retention coming to an end (paragraph 14(2)). For example, the Secretary of State could use this power to provide accommodation and food. If the person requires leave to lawfully enter or remain in the UK but has none at any point during the period of retention, their presence in the United Kingdom will not be unlawful under the Immigration Act 1971 during the period of retention of documents (paragraph 14(3)).
34.Paragraphs 15(1) and (2) create two offences in relation to the operation of the new powers. These are respectively the offence of failing to hand over travel documents without reasonable excuse, and intentionally obstructing or seeking to frustrate a search. Both are summary offences with maximum penalties of six months’ imprisonment or a fine (which in Scotland and Northern Ireland may not exceed level 5 on the standard scale), or both (paragraph 15(3)).
35.Paragraph 17 provides that the Secretary of State may designate a qualified immigration officer or customs official as an “accredited” immigration officer or customs official. These will be officers or officials who have had further training in the exercise of the Schedule 1 powers. An accredited immigration officer or customs official will have the same powers as a constable to search for and seize travel documents. The accredited officer or official may retain any travel documents taken, while he or she seeks authorisation for their retention from a senior police officer. If authorisation is given, the documents must be handed over to a constable.
36.Paragraphs 18 to 20 place the Secretary of State under a duty to issue a code of practice with regard to the functions under this Schedule. The paragraphs provide that the Secretary of State may comply with the obligations to publish a draft of the code of practice, consider representations on the code, make any modifications and lay the draft code before Parliament before the Act receives Royal Assent. The code of practice will be first issued using the “made affirmative” procedure because, given the urgency of the need to disrupt travel, the temporary passport seizure power comes into force on the day after Royal Assent and the code of practice needs to be in operation simultaneously.
