The Channel Tunnel (Arrangements with the Kingdom of the Netherlands) (Amendment) Order 2021

“SCHEDULE 2POWERS OF OFFICERS

Article 5A

Power to assist Dutch authorities

1.

(1)

Where—

(a)

an officer belonging to the Kingdom of the Netherlands has in a control zone in the United Kingdom arrested or detained a person for a relevant offence as permitted by Article 5(1) of the international articles, and

(b)

such an officer so requests,

a constable may make arrangements for the person to be taken into temporary custody.

(2)

A person taken into temporary custody under sub-paragraph (1)—

(a)

shall be treated for all purposes as being in lawful custody, and

(b)

may be taken to a police station or such other place as may be appropriate in the circumstances, and shall in that case be treated as being a person in whose case sections 36(7) and (8), 54 to 56 and 58 of the Police and Criminal Evidence Act 19845 (in this Schedule referred to as “the 1984 Act”), and in the case of a child or young person section 34(2) to (9) of the Children and Young Persons Act 19336, apply, and

(c)

must be returned, before the end of the period for which the person could in the circumstances be detained in the United Kingdom under Article 5(1) of the international articles, to a place where detention under that Article could be resumed.

(3)

Where a person falls to be treated as mentioned in sub-paragraph (2)(b), section 56 of the 1984 Act shall be taken to apply as if the person were detained for an indictable offence.

(4)

For the purpose of this Schedule, a “relevant offence” is one of the criminal offences listed in Annex A to the Agreement for which officers of either Contracting Party may arrest.

Powers of arrest and detention outside United Kingdom

2.

(1)

A constable may in a control zone in the Netherlands—

(a)

exercise any power of arrest conferred by a frontier control enactment or conferred by section 24 of the 1984 Act7 in respect of a relevant offence under such an enactment,

(b)

make any arrest authorised by a warrant issued by a court in the United Kingdom in respect of a relevant offence, and

(c)

arrest any person whose name or description or both, together with particulars of a relevant offence of which there are reasonable grounds for suspecting that person to be guilty, have been made available by a chief officer of police to other such officers.

(2)

For the purposes of sub-paragraph (1)(a), the reference in sub-paragraph (1) to a constable shall be construed in relation to the powers of arrest conferred by section 28A(1) and (3) of, and paragraph 17(1) of Schedule 2 to, the Immigration Act 19718, as including a reference to an immigration officer appointed for the purposes of that Act under paragraph 1 of that Schedule.

(3)

An immigration officer may exercise the power of detention conferred by section 2(1) of the UK Borders Act 20079 in a control zone in the Netherlands in respect of—

(a)

an individual who the immigration officer thinks might be liable to arrest by a constable under section 24(1), (2) or (3) of the 1984 Act for an act or omission which would constitute an offence under a frontier control enactment if it had taken place in England, or

(b)

an individual subject to a warrant for arrest who is sought by the United Kingdom authorities.

(4)

For the purpose of enabling constables to make arrests for a relevant offence in the Netherlands, section 24 of the 1984 Act shall extend to the Netherlands.

(5)

Where an arrest has been made for a relevant offence, the person arrested shall be treated as continuing to be under arrest while in the Netherlands until the person is presented to the Dutch authorities as required by Article 5(2)(b) of the international articles.

(6)

Any power conferred by an enactment to search an arrested person may be exercised following an arrest authorised by this paragraph as if the person had been arrested in the United Kingdom.

Arrested persons held in the Netherlands

3.

(1)

Where—

(a)

an arrest of any kind authorised by paragraph 2 has been made in a control zone in the Netherlands, or

(b)

an arrest of any such kind has been made in the United Kingdom and the person arrested enters such a control zone while under arrest,

the person arrested shall be handed over immediately, along with any seized goods, to the Competent authorities of the Host State.

(2)

The person arrested shall be treated as if the place where the person is held were for the purposes of the provisions mentioned in paragraph 1(2)(b) and those of sections 61 to 64A of the 1984 Act10 a police station in England, not being a police station designated under section 35 of the 1984 Act11.

Arrests of Dutch officers

4.

(1)

This paragraph applies where an officer belonging to the Kingdom of the Netherlands (“the officer”) is arrested for an act performed in the United Kingdom in a control zone.

(2)

If the officer enters the Netherlands while under arrest—

(a)

the officer shall without delay be handed over for custody to the competent Dutch authorities and shall be treated as continuing to be under arrest until the officer has been handed over, and

(b)

if after consultation with those authorities it is then determined that the act was not performed by the officer whilst in the exercise of the officer’s functions and the officer accordingly does not by virtue of Article 14(2) to the Protocol to the Agreement come under Dutch jurisdiction, the officer shall be treated as having continued to be under arrest until sub-paragraph (3) has been complied with.

(3)

Where—

(a)

sub-paragraph (2)(b) applies, or

(b)

the officer does not enter the Netherlands while under arrest,

the officer shall be taken to a police station designated under section 35 of the 1984 Act.

(4)

Sub-paragraphs (5) to (9) apply in a case falling within sub-paragraph (3)(b).

(5)

The custody officer at the police station to which the officer is taken shall after consultation with the competent Dutch authorities determine whether the act was performed by the officer whilst in the exercise of the officer’s functions.

(6)

Subject to sub-paragraph (8), the officer shall be treated—

(a)

as not being detained at the police station for the purposes of section 37 of the 1984 Act12, and

(b)

as not being in police detention for the purposes of sections 40 to 43 of the 1984 Act13.

(7)

Where the custody officer determines that the act was performed by the officer whilst in the exercise of the officer’s functions and the officer accordingly comes under Dutch jurisdiction by virtue of Article 14(2) to the Protocol to the Agreement, the custody officer shall immediately inform the competent Dutch authorities and shall arrange for the officer to be transferred to the Netherlands immediately.

(8)

In any other case—

(a)

the custody officer shall immediately inform the officer of his determination,

(b)

the officer shall be treated as being in police detention for all purposes of Part 4 of the 1984 Act14, and

(c)

that Part shall have effect in relation to the officer as if the relevant time mentioned in section 41(2)15 were the time at which the officer is informed of the determination.

Arrests of United Kingdom officers

5.

(1)

This paragraph applies where an officer belonging to the United Kingdom (“the officer”) is arrested for an act performed in the Netherlands in a control zone.

(2)

If—

(a)

the officer does not enter the United Kingdom while under arrest, and

(b)

the competent Dutch authorities determine that the act was performed by the officer whilst in the exercise of the officer’s functions and the officer accordingly comes under United Kingdom jurisdiction by virtue of Article 14(2) to the Protocol to the Agreement,

the officer shall on being handed over immediately by those authorities to a constable be treated as having been arrested by the constable.

(3)

Where—

(a)

sub-paragraph (2)(b) applies, or

(b)

the officer enters the United Kingdom while under the original arrest,

the officer shall be taken to a police station designated under section 35 of the 1984 Act.

(4)

Sub-paragraphs (5) to (8) apply in a case falling within sub-paragraph (3)(b).

(5)

The custody officer at the police station to which the officer is taken shall—

(a)

immediately invite the competent Dutch authorities to determine whether the act was performed by the officer whilst in the exercise of the officer’s functions, and

(b)

afford those authorities any assistance they may require in determining that question.

(6)

Subject to sub-paragraph (8), the officer shall be treated—

(a)

as not being detained at the police station for the purposes of section 37 of the 1984 Act, and

(b)

as not being in police detention for the purposes of sections 40 to 43 of the 1984 Act.

(7)

Where the competent Dutch authorities determine that the act was not performed by the officer whilst in the exercise of the officer’s functions and the officer accordingly does not by virtue of Article 14(2) to the Protocol to the Agreement come under United Kingdom jurisdiction, the custody officer shall arrange for the officer to be transferred to the Netherlands immediately.

(8)

In any other case—

(a)

the custody officer shall immediately inform the officer of the determination,

(b)

the officer shall be treated as being in police detention for all purposes of Part 4 of the 1984 Act, and

(c)

that Part shall have effect in relation to the officer as if the relevant time mentioned in section 41(2) were the time at which he is informed of the determination.”