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SCHEDULES

SCHEDULE 8U.K. Detention

Modifications etc. (not altering text)

C2Sch. 8 applied (with modifications) (25.7.2006) by Terrorism Act 2006 (c. 11), s. 25(1)(3)(4); S.I. 2006/1936, art. 2

Part IU.K. Treatment of persons detained under section 41 or Schedule 7

Place of detentionU.K.

1(1)The Secretary of State shall designate places at which persons may be detained under Schedule 7 or section 41.U.K.

(2)In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 41.

(3)Where a person is detained under Schedule 7, he may be taken in the custody of an examining officer or of a person acting under an examining officer’s authority to and from any place where his attendance is required for the purpose of—

(a)his examination under that Schedule,

(b)establishing his nationality or citizenship, or

(c)making arrangements for his admission to a country or territory outside the United Kingdom.

(4)A constable who arrests a person under section 41 shall take him as soon as is reasonably practicable to the police station which the constable considers the most appropriate.

(5)In this [F1Schedule ] “examining officer” has the meaning given in Schedule 7.

(6)Where a person is arrested in one Part of the United Kingdom and all or part of his detention takes place in another Part, the provisions of this Schedule which apply to detention in a particular Part of the United Kingdom apply in relation to him while he is detained in that Part.

Textual Amendments

Modifications etc. (not altering text)

C4Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Commencement Information

I1Sch. 8 para. 1 wholly in force at 19.2.2001; Sch. 8 para. 1 not in force at Royal Assent see s. 128; Sch. 8 para. 1(1) in force at 31.10.2000 by S.I. 2000/2944, art. 2(l)(i); Sch. 8 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

IdentificationU.K.

2(1)An authorised person may take any steps which are reasonably necessary for—U.K.

(a)photographing the detained person,

(b)measuring him, or

(c)identifying him.

(2)In sub-paragraph (1) “authorised person” means any of the following—

(a)a constable,

(b)a prison officer,

(c)a person authorised by the Secretary of State, and

(d)in the case of a person detained under Schedule 7, an examining officer F2....

(3)This paragraph does not confer the power to take—

(a)fingerprints, non-intimate samples or intimate samples (within the meaning given by paragraph 15 below), or

(b)relevant physical data or samples as mentioned in section 18 of the M1Criminal Procedure (Scotland) Act 1995 as applied by paragraph 20 below.

Textual Amendments

F2Words in Sch. 8 para. 2(2)(d) omitted (31.7.2014) by virtue of Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 9 para. 5(3) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/1916, art. 3(b)

Modifications etc. (not altering text)

C5Sch. 8 para. 2 extended (N.I.) (8.4.2003) by Police (Northern Ireland) Act 2003 (c. 6), ss. 30, 31, Sch. 2 Pt. 2 para. 21

C6Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Marginal Citations

Audio and video recording of interviewsU.K.

3(1)The Secretary of State shall—U.K.

(a)issue a code of practice about the audio recording of interviews to which this paragraph applies, and

(b)make an order requiring the audio recording of interviews to which this paragraph applies in accordance with any relevant code of practice under paragraph (a).

(2)The Secretary of State may make an order requiring the video recording of—

(a)interviews to which this paragraph applies;

(b)interviews to which this paragraph applies which take place in a particular Part of the United Kingdom.

(3)An order under sub-paragraph (2) shall specify whether the video recording which it requires is to be silent or with sound.

(4)Where an order is made under sub-paragraph (2)—

(a)the Secretary of State shall issue a code of practice about the video recording of interviews to which the order applies, and

(b)the order shall require the interviews to be video recorded in accordance with any relevant code of practice under paragraph (a).

(5)Where the Secretary of State has made an order under sub-paragraph (2) requiring certain interviews to be video recorded with sound—

(a)he need not make an order under sub-paragraph (1)(b) in relation to those interviews, but

(b)he may do so.

(6)This paragraph applies to any interview by a constable of a person detained under Schedule 7 or section 41 if the interview takes place in a police station.

(7)A code of practice under this paragraph—

(a)may make provision in relation to a particular Part of the United Kingdom;

(b)may make different provision for different Parts of the United Kingdom.

4(1)This paragraph applies to a code of practice under paragraph 3.U.K.

(2)Where the Secretary of State proposes to issue a code of practice he shall—

(a)publish a draft,

(b)consider any representations made to him about the draft, and

(c)if he thinks it appropriate, modify the draft in the light of any representations made to him.

(3)The Secretary of State shall lay a draft of the code before Parliament.

(4)When the Secretary of State has laid a draft code before Parliament he may bring it into operation by order.

(5)The Secretary of State may revise a code and issue the revised code; and sub-paragraphs (2) to (4) shall apply to a revised code as they apply to an original code.

(6)The failure by a constable to observe a provision of a code shall not of itself make him liable to criminal or civil proceedings.

(7)A code—

(a)shall be admissible in evidence in criminal and civil proceedings, and

(b)shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Commencement Information

I2Sch. 8 Pt. I para. 4 partly in force; Sch. 8 Pt. I para. 4 not in force at Royal Assent see s. 128; Sch. 8 Pt. I para. 4(1)-(5) in force at 12.10.2000 by S.I. 2000/2800, art. 2(c)(ii); Sch. 8 in force at 19.2.2001 in so far as not already in force by S.I. 2001/421, art. 2

StatusU.K.

5U.K.A detained person shall be deemed to be in legal custody throughout the period of his detention.

Rights: England, Wales and Northern IrelandU.K.

6(1)Subject to paragraph 8, a person detained under Schedule 7 or section 41 at a [F3place] in England, Wales or Northern Ireland shall be entitled, if he so requests, to have one named person informed as soon as is reasonably practicable that he is being detained there.U.K.

(2)The person named must be—

(a)a friend of the detained person,

(b)a relative, or

(c)a person who is known to the detained person or who is likely to take an interest in his welfare.

(3)Where a detained person is transferred from one [F3place] to another, he shall be entitled to exercise the right under this paragraph in respect of the [F3place] to which he is transferred.

[F4(4)A detained person must be informed of the right under this paragraph on first being detained.]

Textual Amendments

Modifications etc. (not altering text)

C7Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

7(1)Subject to paragraphs 8 and 9, a person detained under Schedule 7 or section 41 F5... in England, Wales or Northern Ireland shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.U.K.

(2)Where a request is made under sub-paragraph (1), the request and the time at which it was made shall be recorded.

[F6(3)A detained person must be informed of the right under this paragraph on first being detained.]

Textual Amendments

F5Words in Sch. 8 para. 7(1) omitted (31.7.2014) by virtue of Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 9 para. 5(5) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/1916, art. 3(b)

Modifications etc. (not altering text)

C8Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

[F77A(1)This paragraph applies where a person detained under Schedule 7 requests to consult a solicitor.U.K.

(2)The examining officer may not question the detained person under paragraph 2 or 3 of Schedule 7 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 of Schedule 7 (search powers where a person is questioned under paragraph 2 of Schedule 7) may be used when questioning is postponed because of sub-paragraph (2).

(5)The detained person 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 2 or 3 of Schedule 7.]

Textual Amendments

8(1)Subject to sub-paragraph (2), [F8a police officer] of at least the rank of superintendent may authorise a delay—U.K.

(a)in informing the person named by a detained person under paragraph 6;

(b)in permitting a detained person to consult a solicitor under paragraph 7.

(2)But where a person is detained under section 41 he must be permitted to exercise his rights under paragraphs 6 and 7 before the end of the period mentioned in subsection (3) of that section.

(3)Subject to sub-paragraph (5), an officer may give an authorisation under sub-paragraph (1) only if he has reasonable grounds for believing—

(a)in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained person’s detention will have any of the consequences specified in sub-paragraph (4), or

(b)in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it will have any of the consequences specified in sub-paragraph (4).

(4)Those consequences are—

(a)interference with or harm to evidence of a [F9serious offence] ,

(b)interference with or physical injury to any person,

(c)the alerting of persons who are suspected of having committed a [F9serious offence] but who have not been arrested for it,

(d)the hindering of the recovery of property obtained as a result of a [F9serious offence] or in respect of which a forfeiture order could be made under section 23 [F10or 23A],

(e)interference with the gathering of information about the commission, preparation or instigation of acts of terrorism,

(f)the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and

(g)the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.

[F11(5)An officer may also give an authorisation under sub-paragraph (1) if he has reasonable grounds for believing that—

(a)the detained person has benefited from his 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 detained person’s detention (in the case of an authorisation under sub-paragraph (1)(a)), or

(ii)the exercise of the right under paragraph 7 (in the case of an authorisation under sub-paragraph (1)(b)).

(5A)For the purposes of sub-paragraph (5) the question whether a person has benefited from his criminal conduct is to be decided in accordance with Part 2 of the Proceeds of Crime Act 2002.]

(6)If an authorisation under sub-paragraph (1) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

(7)Where an authorisation under sub-paragraph (1) is given—

(a)the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

(b)the reason shall be recorded as soon as is reasonably practicable.

(8)Where the reason for authorising delay ceases to subsist there may be no further delay in permitting the exercise of the right in the absence of a further authorisation under sub-paragraph (1).

(9)[F12In this paragraph, references to a “serious offence” are F13... to an indictable offence, F13... ; but also include—]

(a)an offence under any of the provisions mentioned in section 40(1)(a) of this Act, and

(b)an attempt or conspiracy to commit an offence under any of the provisions mentioned in section 40(1)(a).

Textual Amendments

F9Words in Sch. 8 para. 8(4) substituted (1.1.2006 subject to art. 2(2) of the commencing S.I.) by Serious Organised Crime and Police Act 2005 (c. 15), s. 111, Sch. 7 para. 48(1)(a); S.I. 2005/3495, art. 2(1)(m)

F10Words in Sch. 8 para. 8(4)(d) inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 39, 100(5), Sch. 3 para. 6 (with s. 101(2)); S.I. 2009/1256, art. 2(c)

F11Sch. 8 para. 8(5)(5A) substituted for Sch. 8 para. 8(5) (24.3.2003 subject to certain provisions in the commencing instruments) by 2002 c. 29, s. 456, Sch. 11 para. 39(2); S.I. 2003/333, art. 2, Sch. (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2, Sch.

F12Words in Sch. 8 para. 8(9) substituted (1.1.2006 subject to art. 2(2) of the commencing S.I.) by Serious Organised Crime and Police Act 2005 (c. 15), s. 111, Sch. 7 para. 48(1)(b); S.I. 2005/3495, art. 2(1)(m)

Modifications etc. (not altering text)

C9Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

9[F14(1)This paragraph applies where a detained person exercises the right under paragraph 7 to consult a solicitor.U.K.

(2)A police officer of at least the rank of superintendent may 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 detained person's choosing.

(2A)A direction under this paragraph may be given before or after a detained person'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).]

[F15(3)A direction under this paragraph may be given only if the officer giving it has reasonable grounds for believing—

(a)that, unless the direction is given, the exercise of the right by the detained person will have any of the consequences specified in paragraph 8(4), or

(b)that the detained person has benefited from his criminal conduct and that, unless the direction is given, the exercise of the right by the detained person will hinder the recovery of the value of the property constituting the benefit.]

F16(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14Sch. 8 para. 9(1)-(2A) substituted for Sch. 8 para. 9(1)(2) (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), ss. 17(4)(a), 27(2)(a); S.I. 2020/792, reg. 2(b)

F15Sch. 8 para. 9(3) substituted (16.2.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 82(1), 100(5) (with s. 101(2)); S.I. 2009/58, art. 2(g)

Modifications etc. (not altering text)

C10Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

10(1) This paragraph applies where a person is detained in England, Wales or Northern Ireland under Schedule 7 or section 41.U.K.

(2)Fingerprints may be taken from the detained person only if they are taken by a constable—

(a)with the appropriate consent given in writing, or

(b)without that consent under sub-paragraph (4).

(3)A non-intimate sample may be taken from the detained person only if it is taken by a constable—

(a)with the appropriate consent given in writing, or

(b)without that consent under sub-paragraph (4).

(4)Fingerprints or a non-intimate sample may be taken from the detained person without the appropriate consent only if—

(a)he is detained at a police station and a police officer of at least the rank of superintendent authorises the fingerprints or sample to be taken, or

(b)he has been convicted of a recordable offence and, where a non-intimate sample is to be taken, he was convicted of the offence on or after 10th April 1995 (or 29th July 1996 where the non-intimate sample is to be taken in Northern Ireland).

(5)An intimate sample may be taken from [F17a person detained under section 41, but only ] if—

(a)he is detained at a police station,

(b)the appropriate consent is given in writing,

(c)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(d)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(6)[F18Subject to sub-paragraph (6A)] an officer may give an authorisation under sub-paragraph (4)(a) or (5)(c) only if—

(a)in the case of a person detained under section 41, the officer reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a), and the officer reasonably believes that the fingerprints or sample will tend to confirm or disprove his involvement, or

(b)in any case [F19in which an authorisation under that sub-paragraph may be given] , the officer is satisfied that the taking of the fingerprints or sample from the person is necessary in order to assist in determining whether he falls within section 40(1)(b).

[F20(6A)An officer may also give an authorisation under sub-paragraph (4)(a) for the taking of fingerprints if—

(a)he is satisfied that the fingerprints of the detained person will facilitate the ascertainment of that person’s identity; and

(b)that person has refused to identify himself or the officer has reasonable grounds for suspecting that that person is not who he claims to be.

(6B)In this paragraph references to ascertaining a person’s identity include references to showing that he is not a particular person.]

(7)If an authorisation under sub-paragraph (4)(a) or (5)(c) is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.

Textual Amendments

F18Words in Sch. 8 para. 10(6) inserted (14.12.2001) by 2001 c. 24, s. 89(2)

F20Sch. 8 para. 10(6A)(6B) inserted (14.12.2001) by 2001 c. 14, s. 89(2)

Modifications etc. (not altering text)

C11Sch. 8 para. 10(2) extended (N.I.) (8.4.2003) by Police (Northern Ireland) Act 2003 (c. 6), ss. 30, 31, Sch. 2 Pt. 2 para. 15

C12Sch. 8 para. 10(3) extended (N.I.) (8.4.2003) by Police (Northern Ireland) Act 2003 (c. 6), ss. 30, 31, Sch. 2 Pt. 2 para. 18

11(1)Before fingerprints or a sample are taken from a person under paragraph 10, he shall be informed—U.K.

(a)that the fingerprints or sample may be used for the purposes of [F21a relevant search (within the meaning given by paragraph 20A(6)) or for the purposes of] section 63A(1) of the M2Police and Criminal Evidence Act 1984 and Article 63A(1) of the M3Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples), and

(b)where the fingerprints or sample are to be taken under paragraph 10(2)(a), (3)(a) or (4)(b), of the reason for taking the fingerprints or sample.

(2)Before fingerprints or a sample are taken from a person upon an authorisation given under paragraph 10(4)(a) or (5)(c), he shall be informed—

(a)that the authorisation has been given,

(b)of the grounds upon which it has been given, and

(c)where relevant, of the nature of the offence in which it is suspected that he has been involved.

(3)After fingerprints or a sample are taken under paragraph 10, there shall be recorded as soon as is reasonably practicable any of the following which apply—

(a)the fact that the person has been informed in accordance with sub-paragraphs (1) and (2),

(b)the reason referred to in sub-paragraph (1)(b),

(c)the authorisation given under paragraph 10(4)(a) or (5)(c),

(d)the grounds upon which that authorisation has been given, and

(e)the fact that the appropriate consent has been given.

Textual Amendments

F21Words in Sch. 8 para. 11(1)(a) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(5) (with s. 97); S.I. 2013/1814, art. 2(j)

Marginal Citations

12(1)This paragraph applies where—U.K.

(a)two or more non-intimate samples suitable for the same means of analysis have been taken from a person under paragraph 10,

(b)those samples have proved insufficient, and

(c)the person has been released from detention.

(2)An intimate sample may be taken from the person if—

(a)the appropriate consent is given in writing,

(b)a police officer of at least the rank of superintendent authorises the sample to be taken, and

(c)subject to paragraph 13(2) and (3), the sample is taken by a constable.

(3)Paragraphs 10(6) and (7) and 11 shall apply in relation to the taking of an intimate sample under this paragraph; and a reference to a person detained under section 41 shall be taken as a reference to a person who was detained under section 41 when the non-intimate samples mentioned in sub-paragraph (1)(a) were taken.

13(1)Where appropriate written consent to the taking of an intimate sample from a person under paragraph 10 or 12 is refused without good cause, in any proceedings against that person for an offence—U.K.

(a)the court, in determining whether to commit him for trial or whether there is a case to answer, may draw such inferences from the refusal as appear proper, and

(b)the court or jury, in determining whether that person is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

(2)An intimate sample other than a sample of urine or a dental impression may be taken under paragraph 10 or 12 only by a registered medical practitioner acting on the authority of a constable.

(3)An intimate sample which is a dental impression may be taken under paragraph 10 or 12 only by a registered dentist acting on the authority of a constable.

(4)Where a sample of hair other than pubic hair is to be taken under paragraph 10 the sample may be taken either by cutting hairs or by plucking hairs with their roots so long as no more are plucked than the person taking the sample reasonably considers to be necessary for a sufficient sample.

F2214U.K.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

15(1)In the application of [F23paragraphs 10 to 13] in relation to a person detained in England or Wales the following expressions shall have the meaning given by section 65 of the M4Police and Criminal Evidence Act 1984 (Part V definitions)—U.K.

(a)“appropriate consent”,

(b)“fingerprints”,

(c)“insufficient”,

(d)“intimate sample”,

(e)“non-intimate sample”,

(f)“registered dentist”, and

(g)“sufficient”.

[F24(1A)In the application of section 65(2A) of the Police and Criminal Evidence Act 1984 for the purposes of sub-paragraph (1) of this paragraph, the reference to the destruction of a sample under section 63R of that Act is a reference to the destruction of a sample under paragraph 20G of this Schedule.]

(2)In the application of [F25paragraphs 10 to 13] in relation to a person detained in Northern Ireland the expressions listed in sub-paragraph (1) shall have the meaning given by Article 53 of the M5Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

(3)In paragraph 10 “recordable offence” shall have—

(a)in relation to a person detained in England or Wales, the meaning given by section 118(1) of the M6Police and Criminal Evidence Act 1984 (general interpretation), and

(b)in relation to a person detained in Northern Ireland, the meaning given by Article 2(2) of the M7Police and Criminal Evidence (Northern Ireland) Order 1989 (definitions).

Textual Amendments

F23Words in Sch. 8 para. 15(1) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(6) (with s. 97); S.I. 2013/1814, art. 2(j)

F25Words in Sch. 8 para. 15(2) substituted (31.10.2013) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(8) (with s. 97); S.I. 2013/1814, art. 2(j)

Marginal Citations

Rights: ScotlandU.K.

16(1)A person detained under Schedule 7 or section 41 at a [F26place] in Scotland shall be entitled to have intimation of his detention and of the place where he is being detained sent without delay to a solicitor and to another person named by him.U.K.

(2)The person named must be—

(a)a friend of the detained person,

(b)a relative, or

(c)a person who is known to the detained person or who is likely to take an interest in his welfare.

(3)Where a detained person is transferred from one [F27place] to another, he shall be entitled to exercise the right under sub-paragraph (1) in respect of the [F27place] to which he is transferred.

(4)A police officer not below the rank of superintendent may authorise a delay in making intimation where, in his view, the delay is necessary on one of the grounds mentioned in paragraph 17(3) or where paragraph 17(4) applies.

(5)Where a detained person requests that the intimation be made, there shall be recorded the time when the request is—

(a)made, and

(b)complied with.

(6)A person detained [F28as mentioned in sub-paragraph (1)] shall be 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 his view, the delay is necessary on one of the grounds mentioned in paragraph 17(3) or where paragraph 17(4) applies.

(8)F29... The consultation shall be private.

(9)Where a person is detained under section 41 he must be permitted to exercise his rights under this paragraph before the end of the period mentioned in subsection (3) of that section.

[F30(10)A detained person must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.]

Textual Amendments

F29Words in Sch. 8 para. 16(8) omitted (13.8.2020) by virtue of Counter-Terrorism and Border Security Act 2019 (c. 3), ss. 17(5)(a), 27(2)(a); S.I. 2020/792, reg. 2(b)

Modifications etc. (not altering text)

C13Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

[F3116A(1)This paragraph applies where a person detained under Schedule 7 requests to consult a solicitor.U.K.

(2)The examining officer may not question the detained person under paragraph 2 or 3 of Schedule 7 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 of Schedule 7 (search powers where a person is questioned under paragraph 2 of Schedule 7) may be used when questioning is postponed because of sub-paragraph (2).

(5)The detained person 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 2 or 3 of Schedule 7.]

Textual Amendments

17[F32(1)This paragraph applies where a detained person exercises the right under paragraph 16(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 (3), 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 detained person's choosing.

(2A)A direction under this paragraph may be given before or after a detained person'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).]

(3)The grounds mentioned in paragraph 16(4) and (7) and in sub-paragraph [F33(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 or in respect of which a forfeiture order could be made under section 23 [F34or 23A];

(d)that it will further the operation of [F35Part 2 or 3 of the Proceeds of Crime Act 2002] or the M8Proceeds of Crime (Northern Ireland) Order 1996 (confiscation of the proceeds of an offence).

[F36(4)This sub-paragraph applies where an officer mentioned in paragraph 16(4) or (7) has reasonable grounds for believing that—

(a)the detained person has benefited from his 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 detained person’s detention (in the case of an authorisation under paragraph 16(4)), or

(ii)the exercise of the entitlement under paragraph 16(6) (in the case of an authorisation under paragraph 16(7)).

(4A)For the purposes of sub-paragraph (4) the question whether a person has benefited from his criminal conduct is to be decided in accordance with Part 3 of the Proceeds of Crime Act 2002.]

(5)Where delay is authorised in the exercising of any of the rights mentioned in paragraph 16(1) and (6)—

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

(b)the detained person shall be told the reason for the delay as soon as is reasonably practicable, and

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

Textual Amendments

F32Sch. 8 para. 17(1)-(2A) substituted for Sch. 8 para. 17(1)(2) (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), ss. 17(6)(a), 27(2)(a); S.I. 2020/792, reg. 2(b)

F34Words in Sch. 8 para. 17(3)(c) inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), ss. 39, 100(5), Sch. 3 para. 6 (with s. 101(2)); S.I. 2009/1256, art. 2(c)

F35Words in Sch. 8 para. 17(3)(d) substituted (24.3.2003 subject to certain provisions in the commencing instruments) by 2002 c. 29, s. 456, Sch. 11 para. 39(3); S.I. 2003/333, art. 2, Sch. (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2, Sch.

F36Sch. 8 para. 17(4)(4A) substituted for Sch. 8 para. 17(4) (24.3.2003 subject to certain provisions in the commencing instruments) by 2002 c. 29, s. 456, Sch. 11 para. 39(4); S.I. 2003/333, art. 2, Sch. (as amended by S.I. 2003/531); S.S.I. 2003/210, art. 2, Sch.

Modifications etc. (not altering text)

C14Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

Marginal Citations

18(1)Paragraphs 16 [F37to] 17 shall have effect, in relation to a person detained under section 41 or Schedule 7, 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 a person detained under Schedule 7 or section 41 at a [F38place] in Scotland appears to a constable to be a child—

(a)the other person named by the person detained in pursuance of paragraph 16(1) shall be that person’s parent,

[F39(ab)intimation is to be made under paragraph 16(1) whether the person detained requests that it be made or not, and

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

[F40(3)In relation to a person detained under Schedule 7 at a place other than a police station—

(a)sub-paragraph (2), and

(b)[F41section 40 of the Criminal Justice (Scotland) Act 2016] as applied by that sub-paragraph,

apply as if references to a constable included an examining officer.]

[F42(4)For the purposes of sub-paragraph (2)—

Textual Amendments

F39Sch. 8 para. 18(2)(ab)(ac) substituted for words in Sch. 8 para. 18(2) (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 37(a)(i); S.S.I. 2017/345, art. 3, sch. (with art. 4) (which affecting provision is extended to E.W.N.I. by The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 (S.I. 2018/46), arts. 2(1)(d), 18)

Modifications etc. (not altering text)

C15Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

19U.K.The Secretary of State shall, by order, make provision to require that—

(a)except in such circumstances, and

(b)subject to such conditions,

as may be specified in the order, where a person detained has been permitted to consult a solicitor, the solicitor shall be allowed to be present at any interview carried out in connection with a terrorist investigation or for the purposes of Schedule 7.

Modifications etc. (not altering text)

C16Sch. 8 paras. 1(6), 2, 6-9, 16-19 applied (with modifications) (11.3.2005) by Prevention of Terrorism Act 2005 (c. 2), s. 5(8)

20(1)Subject to the modifications specified in sub-paragraphs (2) and (3), section 18 of the M9Criminal Procedure (Scotland) Act 1995 (procedure for taking certain prints and samples) shall apply to a person detained under Schedule 7 or section 41 at a police station in Scotland as it applies to a person arrested F43....U.K.

[F44(2)Subject to subsection (2A), a constable may take from a detained person or require a detained person to provide relevant physical data only if—

(a)in the case of a person detained under section 41 of the Terrorism Act 2000, he reasonably suspects that the person has been involved in an offence under any of the provisions mentioned in section 40(1)(a) of that Act and he reasonably believes that the relevant physical data will tend to confirm or disprove his involvement; or

(b)in any case, he is satisfied that it is necessary to do so in order to assist in determining whether the person falls within section 40(1)(b).

(2A)A constable may also take fingerprints from a detained person or require him to provide them if—

(a)he is satisfied that the fingerprints of that person will facilitate the ascertainment of that person’s identity; and

(b)that person has refused to identify himself or the constable has reasonable grounds for suspecting that that person is not who he claims to be.

(2B)In this section references to ascertaining a person’s identity include references to showing that he is not a particular person.’]

[F45(3)Subsections (3) to (5) shall not apply, F46...

F47(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F44Sch. 8 para. 20(2)-(2B) substituted for Sch. 8 para. 20(2) (14.12.2001) by 2001 c. 24, s. 89(3)

F45Sch. 8 para. 20(3)(4) substituted for Sch. 8 para. 20(3) (14.12.2001) by 2001 c. 24, s. 89(4)

F46Sch. 8 para. 20(3): words from “but” to the end of the sub-paragraph repealed (31.10.2013) by virtue of Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(3)(a), Sch. 10 Pt. 1 (with s. 97); S.I. 2013/1814, art. 2(h)

Marginal Citations

[F48Destruction and retention of fingerprints and samples etc: United KingdomU.K.

Textual Amendments

F48Sch. 8 paras. 20A-20J and cross-heading inserted (31.10.2013 for all paras. except para. 20F(1) (which is in force 31.1.2014), and except, for specified purposes, para. 20G) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 1 para. 1(4) (with s. 97); S.I. 2013/1814, arts. 2(i), 3(b)

20A(1)This paragraph applies to—U.K.

(a)fingerprints taken under paragraph 10,

(b)a DNA profile derived from a DNA sample taken under paragraph 10 or 12,

(c)relevant physical data taken or provided by virtue of paragraph 20, and

(d)a DNA profile derived from a DNA sample taken by virtue of paragraph 20.

(2)Fingerprints, relevant physical data and DNA profiles to which this paragraph applies (“paragraph 20A material”) must be destroyed if it appears to the responsible chief officer of police that—

(a)the taking or providing of the material or, in the case of a DNA profile, the taking of the sample from which the DNA profile was derived, was unlawful, or

(b)the material was taken or provided, or (in the case of a DNA profile) was derived from a sample taken, from a person in connection with that person's arrest under section 41 and the arrest was unlawful or based on mistaken identity.

(3)In any other case, paragraph 20A material must be destroyed unless it is retained under any power conferred by paragraphs 20B to 20E.

(4)Paragraph 20A material which ceases to be retained under a power mentioned in sub-paragraph (3) may continue to be retained under any other such power which applies to it.

(5)Nothing in this paragraph prevents a relevant search, in relation to paragraph 20A material, from being carried out within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable.

(6)For the purposes of sub-paragraph (5), “a relevant search” is a search carried out for the purpose of checking the material against—

(a)other fingerprints or samples taken under paragraph 10 or 12 or a DNA profile derived from such a sample,

(b)any of the relevant physical data, samples or information mentioned in section 19C(1) of the Criminal Procedure (Scotland) Act 1995,

(c)any of the relevant physical data, samples or information held by virtue of section 56 of the Criminal Justice (Scotland) Act 2003,

(d)material to which section 18 of the Counter-Terrorism Act 2008 applies,

(e)any of the fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or information derived from such samples,

[F49(ea)any of the fingerprints, data or samples obtained under or by virtue of paragraph 34 or 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019, or information derived from such samples,]

(f)any of the fingerprints, samples and information mentioned in section 63A(1)(a) and (b) of the Police and Criminal Evidence Act 1984 (checking of fingerprints and samples), and

(g)any of the fingerprints, samples and information mentioned in Article 63A(1)(a) and (b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (checking of fingerprints and samples).

Textual Amendments

20B(1)This paragraph applies to paragraph 20A material relating to a person who is detained under section 41.U.K.

(2)In the case of a person who has previously been convicted of a recordable offence (other than a single exempt conviction), or an offence in Scotland which is punishable by imprisonment, or is so convicted before the end of the period within which the material may be retained by virtue of this paragraph, the material may be retained indefinitely.

[F50(2A)In sub-paragraph (2) —

(a)the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i)a recordable offence under the law of England and Wales if done there, or

(ii)a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b)the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).]

(3)In the case of a person who has no previous convictions, or only one exempt conviction, the material may be retained until the end of the retention period specified in sub-paragraph (4).

(4)The retention period is—

(a)in the case of fingerprints or relevant physical data, the period of 3 years beginning with the date on which the fingerprints or relevant physical data were taken or provided, and

(b)in the case of a DNA profile, the period of 3 years beginning with the date on which the DNA sample from which the profile was derived was taken (or, if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken).

(5)The responsible chief officer of police or a specified chief officer of police may apply to a relevant court for an order extending the retention period.

(6)An application for an order under sub-paragraph (5) must be made within the period of 3 months ending on the last day of the retention period.

(7)An order under sub-paragraph (5) may extend the retention period by a period which—

(a)begins with the date on which the material would otherwise be required to be destroyed under this paragraph, and

(b)ends with the end of the period of 2 years beginning with that date.

(8)The following persons may appeal to the relevant appeal court against an order under sub-paragraph (5), or a refusal to make such an order—

(a)the responsible chief officer of police;

(b)a specified chief officer of police;

(c)the person from whom the material was taken.

(9)In Scotland—

(a)an application for an order under sub-paragraph (5) is to be made by summary application;

(b)an appeal against an order under sub-paragraph (5), or a refusal to make such an order, must be made within 21 days of the relevant court's decision, and the relevant appeal court's decision on any such appeal is final.

(10)In this paragraph—

Textual Amendments

F50Sch. 8 para. 20B(2A) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 71(2), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 20

Modifications etc. (not altering text)

20C(1)This paragraph applies to paragraph 20A material relating to a person who is detained under Schedule 7.U.K.

(2)In the case of a person who has previously been convicted of a recordable offence (other than a single exempt conviction), or an offence in Scotland which is punishable by imprisonment, or is so convicted before the end of the period within which the material may be retained by virtue of this paragraph, the material may be retained indefinitely.

[F52(2A)In sub-paragraph (2) —

(a)the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i)a recordable offence under the law of England and Wales if done there, or

(ii)a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b)the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).]

(3)In the case of a person who has no previous convictions, or only one exempt conviction, the material may be retained until the end of the retention period specified in sub-paragraph (4).

(4)The retention period is—

(a)in the case of fingerprints or relevant physical data, the period of 6 months beginning with the date on which the fingerprints or relevant physical data were taken or provided, and

(b)in the case of a DNA profile, the period of 6 months beginning with the date on which the DNA sample from which the profile was derived was taken (or, if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken).

Textual Amendments

F52Sch. 8 para. 20C(2A) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 71(3), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 20

Modifications etc. (not altering text)

20D(1)For the purposes of paragraphs 20B and 20C, a person is to be treated as having been convicted of an offence if—U.K.

(a)in relation to a recordable offence in England and Wales or Northern Ireland—

(i)the person has been given a caution in respect of the offence which, at the time of the caution, the person has admitted,

(ii)the person has been found not guilty of the offence by reason of insanity,

(iii)the person has been found to be under a disability and to have done the act charged in respect of the offence, or

(iv)the person has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence,

(b)the person, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—

(i)a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,

(ii)a compensation offer under section 302A of that Act,

(iii)a combined offer under section 302B of that Act, or

(iv)a work offer under section 303ZA of that Act,

(c)the person, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the person's insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,

(d)a finding in respect of the person has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,

(e)the person, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—

(i)the fixed penalty, or

(ii)(as the case may be) the sum which the person is liable to pay by virtue of section 131(5) of that Act, or

(f)the person, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.

(2)Paragraphs 20B and 20C and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974.

(3)But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 of the Protection of Freedoms Act 2012.

(4)For the purposes of paragraphs 20B and 20C—

(a)a person has no previous convictions if the person has not previously been convicted—

(i)in England and Wales or Northern Ireland of a recordable offence, or

(ii)in Scotland of an offence which is punishable by imprisonment, and

(b)if the person has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the person was aged under 18.

(5)In sub-paragraph (4), “qualifying offence” has—

(a)in relation to a conviction in respect of a recordable offence committed in England and Wales, the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and

(b)in relation to a conviction in respect of a recordable offence committed in Northern Ireland, the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

[F53(5A)For the purposes of sub-paragraph (4)—

(a)a person is to be treated as having previously been convicted in England and Wales of a recordable offence if —

(i)the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii)the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);

(b)a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—

(i)the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii)the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);

(c)a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—

(i)the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii)the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);

(d)the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).

(5B)For the purposes of paragraphs 20B and 20C and this paragraph—

(a)offence, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;

(b)a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—

(i)a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or

(ii)such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.]

(6)If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20B or 20C whether the person has been convicted of only one offence.

(7)Nothing in paragraph 20B or 20C prevents the start of a new retention period in relation to paragraph 20A material if a person is detained again under section 41 or (as the case may be) Schedule 7 when an existing retention period (whether or not extended) is still in force in relation to that material.

Textual Amendments

F53Sch. 8 para. 20D(5A)(5B) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 71(4), 183(1)(5)(e); S.I. 2017/399, reg. 2, Sch. para. 20

20E(1)Paragraph 20A material may be retained for as long as a national security determination made by [F54a] chief officer of police has effect in relation to it.U.K.

(2)A national security determination is made if [F55a] chief officer of police determines that it is necessary for any paragraph 20A material to be retained for the purposes of national security.

(3)A national security determination—

(a)must be made in writing,

(b)has effect for a maximum of [F565 years] beginning with the date on which the determination is made, and

(c)may be renewed.

[F57(4)In this paragraph “chief officer of police” means—

(a)a chief officer of police of a police force in England and Wales,

(b)the chief constable of the Police Service of Scotland, or

(c)the Chief Constable of the Police Service of Northern Ireland.]

Textual Amendments

[F5820EA(1)This paragraph applies where paragraph 20A material is or includes a person's fingerprints (“the original fingerprints”).U.K.

(2)A constable may make a determination under this paragraph in respect of any further fingerprints taken from, or provided by, the same person (“the further fingerprints”) if conditions 1 and 2 are met.

(3)Condition 1 is met if the further fingerprints—

(a)are paragraph 20A material,

(b)are taken or provided under or by virtue of—

(i)Part 5 of the Police and Criminal Evidence Act 1984,

(ii)Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)),

(iii)any provision, power or authority mentioned in section 18G(1) of the Criminal Procedure (Scotland) Act 1995,

(iv)paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or

(v)paragraph 34 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019, or

(c)are material to which section 18 of the Counter-Terrorism Act 2008 applies.

(4)Condition 2 is met if—

(a)in a case where the further fingerprints are material to which section 18 of the Counter-Terrorism Act 2008 applies, the original fingerprints and the further fingerprints are held under the law of the same part of the United Kingdom;

(b)in any other case, the original fingerprints and the further fingerprints were taken from or provided by the person in the same part of the United Kingdom.

(5)Where a determination under this paragraph is made in respect of the further fingerprints—

(a)the further fingerprints may be retained for as long as the original fingerprints are retained under any power conferred by paragraphs 20B to 20E, and

(b)a requirement under any enactment to destroy the further fingerprints does not apply for as long as their retention is authorised by paragraph (a).

(6)Sub-paragraph (5)(a) does not prevent the further fingerprints being retained after the original fingerprints fall to be destroyed if the continued retention of the further fingerprints is authorised under any enactment.

(7)A written record must be made of a determination under this paragraph.

(8)In this paragraph—

(a)“enactment” includes—

(i)an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and

(ii)an enactment comprised in, or in an instrument made under, Northern Ireland legislation;

(b)references to a part of the United Kingdom are references to—

(i)England and Wales,

(ii)Scotland, or

(iii)Northern Ireland.]

Textual Amendments

20F(1)If fingerprints or relevant physical data are required by paragraph 20A to be destroyed, any copies of the fingerprints or relevant physical data held by a police force must also be destroyed.U.K.

(2)If a DNA profile is required by that paragraph to be destroyed, no copy may be retained by a police force except in a form which does not include information which identifies the person to whom the DNA profile relates.

20G(1)This paragraph applies to—U.K.

(a)samples taken under paragraph 10 or 12, or

(b)samples taken by virtue of paragraph 20.

(2)Samples to which this paragraph applies must be destroyed if it appears to the responsible chief officer of police that—

(a)the taking of the sample was unlawful, or

(b)the sample was taken from a person in connection with that person's arrest under section 41 and the arrest was unlawful or based on mistaken identity.

(3)Subject to this, the rule in sub-paragraph (4) or (as the case may be) (5) applies.

(4)A DNA sample to which this paragraph applies must be destroyed—

(a)as soon as a DNA profile has been derived from the sample, or

(b)if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken.

(5)Any other sample to which this paragraph applies must be destroyed before the end of the period of 6 months beginning with the date on which it was taken.

(6)The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—

(a)the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and

(b)the responsible chief officer of police considers that the condition in sub-paragraph (7) is met.

(7)The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—

(a)disclosure to, or use by, a defendant, or

(b)responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.

(8)An application under sub-paragraph (6) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).

(9)If, on an application made by the responsible chief officer of police under sub-paragraph (6), the relevant court is satisfied that the condition in sub-paragraph (7) is met, it may make an order under this sub-paragraph which—

(a)allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and

(b)may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.

(10)An application for an order under sub-paragraph (9) (other than an application for renewal)—

(a)may be made without notice of the application having been given to the person from whom the sample was taken, and

(b)may be heard and determined in private in the absence of that person.

(11)In Scotland, an application for an order under sub-paragraph (9) (including an application for renewal) is to be made by summary application.

(12)A sample retained by virtue of an order under sub-paragraph (9) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(13)A sample that ceases to be retained by virtue of an order under sub-paragraph (9) must be destroyed.

(14)Nothing in this paragraph prevents a relevant search, in relation to samples to which this paragraph applies, from being carried out within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable.

(15)In this paragraph—

20H(1)Any material to which paragraph 20A or 20G applies must not be used other than—U.K.

(a)in the interests of national security,

(b)for the purposes of a terrorist investigation,

(c)for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or

(d)for purposes related to the identification of a deceased person or of the person to whom the material relates.

(2)Subject to sub-paragraph (1), a relevant search (within the meaning given by paragraph 20A(6)) may be carried out in relation to material to which paragraph 20A or 20G applies if the responsible chief officer of police considers the search to be desirable.

(3)Material which is required by paragraph 20A or 20G to be destroyed must not at any time after it is required to be destroyed be used—

(a)in evidence against the person to whom the material relates, or

(b)for the purposes of the investigation of any offence.

(4)In this paragraph—

(a)the reference to using material includes a reference to allowing any check to be made against it and to disclosing it to any person,

(b)the reference to crime includes a reference to any conduct which—

(i)constitutes one or more criminal offences (whether under the law of a part of the United Kingdom or of a country or territory outside the United Kingdom), or

(ii)is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom, would constitute one or more criminal offences, and

(c)the references to an investigation and to a prosecution include references, respectively, to any investigation outside the United Kingdom of any crime or suspected crime and to a prosecution brought in respect of any crime in a country or territory outside the United Kingdom.

(5)Sub-paragraphs (1), (2) and (4) do not form part of the law of Scotland.

20IF59(1)[F60Paragraphs 20A to 20H do not apply to material ] relating to a person detained under section 41 which is, or may become, disclosable under—U.K.

(a)the Criminal Procedure and Investigations Act 1996, or

(b)a code of practice prepared under section 23 of that Act and in operation by virtue of an order under section 25 of that Act.

[F61(2)A sample that—

(a)falls within sub-paragraph (1), and

(b)but for that sub-paragraph would be required to be destroyed under paragraph 20G,

must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.

(3)A sample that once fell within sub-paragraph (1) but no longer does, and so becomes a sample to which paragraph 20G applies, must be destroyed immediately if the time specified for its destruction under that paragraph has already passed.]

Textual Amendments

F59Sch. 8 para. 20I(1): Sch. 8 para. 20I renumbered as Sch. 8 para. 20I(1) (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), ss. 146(2)(b), 185(1) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 13

20JU.K.In paragraphs 20A to 20I—

Textual Amendments

F62 Sch. 8 para. 20J: in definition of "police force" paras. (d)(e) substituted (13.5.2014) by Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 11 para. 125(3)(a) (with ss. 21, 33, 42, 58, 75, 93); S.I. 2014/949, art. 3, Sch. para. 23(l)