The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

This Order, which extends to England and Wales and Northern Ireland applies certain provisions of the Police and Criminal Evidence Act 1984 (“the Act”), subject to specified modifications, to investigations undertaken by immigration officers and designated customs officials and to persons detained by designated customs officials in England and Wales.

Part 2 of the Order (Articles 3 to 11) concerns the application of provisions of the Act to immigration officers undertaking investigations.

Article 3 applies the provisions of the Act contained in Schedule 1 to investigations conducted by immigration officers, subject to specified modifications. It also specifies the provisions of the Act in relation to which, when a person is detained by the police in connection with an investigation conducted by an immigration officer, references to police officer, constable or officer should include references to an immigration officer.

Article 4 provides that immigration officers do not have powers to charge a person, to release a person on bail or to detain them following charge.

Article 5 provides that powers and functions applied to immigration officers by the Order may only be exercised by immigration officers who are authorised to do so by the Secretary of State.

Article 6 sets out the circumstances in which an immigration officer may use reasonable force in the exercise of a power under the Act.

Article 7 provides that the application of the section 24(2) power of arrest under the Act does not affect the powers of immigration officers in other legislation to arrest or detain people.

Article 8 sets out the circumstances in which an immigration officer searching premises under the authority of a warrant under section 8 of, or paragraph 12 of Schedule 1 to, the Act, may search persons found on the premises.

Article 9 sets out the circumstances in which immigration officers may seize and retain things found during a lawful search carried out under a provision of the Act, as applied by the Order.

Article 10 modifies the Act to ensure that a record is made in a person’s custody record of the grounds for, and the nature of the evidence sought during, a search of a detained person’s premises under section 18(1) of the Act.

Article 11 modifies the Act to provide that the powers of retention, as applied by the Order, do not affect immigration officers’ power to dispose of property under section 26 of the UK Borders Act 2007.

Part 3 of the Order (Articles 12 to 31) concerns the application of provisions of the Act to investigations conducted by designated customs officials.

Article 12 of the Order applies the provisions of the Act contained in Schedule 2 to investigations conducted, and to persons detained, by designated customs officials, subject to specified modifications. It specifies the provisions of the Act in relation to which, when a person is detained by the police in connection with an investigation conducted by designated customs officials, references to police officer, constable or officer should include references to a designated customs official and also specifies those provisions where references to transferring someone in police detention to another police area should be treated as including references to a transfer to a customs office.

Article 13 provides that designated customs officials do not have powers to charge a person or to release a person on bail.

Article 14 provides for the transfer of detained persons between different types of detention (customs, police and Revenue and Customs) as well as provision as to how time spent in different types of detention should be aggregated. In addition, it provides that a designated customs official will only have the power to detain a person after charge in circumstances where the offence for which that person has been charged is a drugs offence and where that person is due to be brought before a magistrates’ court for a remand into customs detention under section 152(1) of the Criminal Justice Act 1988.

Article 15 sets out the circumstances in which a designated customs official may use reasonable force in the exercise of a power under the Act.

Article 16 provides that the application of the section 24(2) power of arrest under the Act does not affect the powers of designated customs officials in other legislation to arrest or detain persons.

Article 17 sets out the circumstances in which a designated customs official searching premises under the authority of a warrant under section 8 of, or paragraph 12 of Schedule 1 to, the Act, may search persons found on the premises.

Article 18 sets out the circumstances in which designated customs officials may accept, seize and retain things found during a lawful search under a provision of the Act, as applied by the Order, and provides for modifications to take account of immigration officers’ powers and functions under the customs and excise Acts.

Article 19 provides that section 4 of the Summary Jurisdiction (Process) Act 1881 applies to a warrant issued on the application of a designated customs official under section 8 of the Act.

Article 20 modifies the Act to ensure that a record is made in a person’s custody record of the grounds for, and the nature of the evidence sought during, a search of a detained person’s premises under section 18(1) of the Act.

Article 21 modifies section 30 of the Act to take into account the fact that designated customs officials do not have powers to release a person on bail.

Article 22 modifies section 35 of the Act to enable the Secretary of State to designate the customs offices which are to be used to detain arrested persons.

Article 23 modifies section 36 of the Act to specify who may appoint a custody officer for a designated customs office.

Article 24 modifies section 41 of the Act to specify the time from which the period of detention of a person is to be calculated where that person is arrested outside England and Wales in relation to an investigation conducted by designated customs officials or where that person is transferred to a customs office for the purpose of investigating the offence for which they were arrested, in circumstances where that person has not yet been questioned in order to obtain evidence in relation to it.

Article 25 modifies section 42 of the Act, providing that when a person is held in customs detention and it is proposed to transfer that person, the designated customs official determining whether or not to authorise keeping him in detention shall have regard to the distance and the time the journey would take.

Article 26 modifies section 43 of the Act, providing that when a person is held in customs detention and an application for a warrant of further detention includes the proposal to move someone, the Court should have regard to the distance and the time the journey would take.

Article 27 modifies section 46 of the Act, specifying who should inform the designated officer for the local justice area that there is a person in the area who needs to be brought before a magistrates’ court in accordance with subsection 46(2) of the Act.

Article 28 modifies section 50 of the Act, making provision for the keeping of records of detention and the publication of an annual report about customs detention. Transitional provision is made for the keeping and publication of such records in relation to persons kept in customs detention from the day on which this Order comes into force until 31 December 2013.

Article 29 modifies section 54 of the Act to provide designated customs officials with the power to carry out a protective search of persons in customs detention.

Article 30 modifies section 55 of the Act to require that information about section 55 searches is published annually by the Secretary of State. Transitional provision is made for the keeping and publication of such information in relation to persons searched by designated customs officials under section 55 from the day on which this Order comes into force until 31 December 2013.

Article 31 provides that section 64 of the Act, as applied by the Order, applies only in relation to intimate samples taken from a person under section 62.

Part 4 concerns the amendments to section 22 of the Borders, Citizenship and Immigration Act 2009 (“the BCIA”).

Article 32 amends section 22 of the BCIA insofar as it applies to England & Wales to ensure that the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 is no longer a PACE Order for the purposes of that section. It also disapplies the provisions, which relate to transfers of people between UK Border Agency detention and Revenue and Customs detention and between UK Border Agency and police detention in relation to England and Wales, so they have effect only in relation to Northern Ireland.