National Security Act 2023

Part 3 Rights of persons detained under section 27: Scotland

15 (1) A person detained under section 27 at a place in Scotland is entitled to have intimation of the person’s detention and of the place where the person is being detained sent without delay to a solicitor and to another person named by the detained person.

(2) The person named must be—

(a) a friend of the detained person,

(b) a relative of the detained person, or

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

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

(4) A police officer of at least the rank of superintendent may authorise a delay in making intimation where, in the officer’s view, the delay is necessary on one of the grounds mentioned in paragraph 16(3) or where paragraph 16(4) applies.

(5) Where a detained person requests that the intimation be made, a record must be made of the time at which the request was made and complied with.

(6) A person who is detained as mentioned in sub-paragraph (1) is entitled to consult a solicitor at any time, without delay.

(7) A police officer of at least the rank of superintendent may authorise a delay in holding the consultation where, in the officer’s view, the delay is necessary on one of the grounds mentioned in paragraph 16(3) or where paragraph 16(4) applies.

(8) The consultation is to be private.

(9) A detained person must be permitted to exercise the rights under this paragraph before the end of the period mentioned in section 27(3).

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

16 (1) Where a person exercises the right under paragraph 15(6) to consult a solicitor, a police officer of at least 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—

(a) the person may not consult the solicitor who attends for the purpose of the consultation, or who would so attend but for the giving of the direction, but

(b) the person may consult a different solicitor of the person’s choosing.

(2) 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 15(4) and (7) and in sub-paragraph (1) 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 an indictable offence;

(d) that it will further the operation of Part 2, 3 or 4 of the Proceeds of Crime Act 2002 (confiscation of the proceeds of an offence).

(4) This sub-paragraph applies where an officer mentioned in paragraph 15(4) or (7) has reasonable grounds for believing that—

(a) the detained person has benefited from their 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 15(4)), or

(ii) the exercise of the entitlement under paragraph 15(6) (in the case of an authorisation under paragraph 15(7)).

(5) For the purposes of sub-paragraph (4), whether the detained person has benefited from their criminal conduct is to be decided in accordance with Part 3 of the Proceeds of Crime Act 2002.

(6) Where delay is authorised in the exercising of any of the rights mentioned in paragraph 15(1) and (6)—

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

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

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

17 (1) Paragraphs 15 and 16 have effect, in relation to a person detained under section 27, 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.

(2) But, where a person who is detained under section 27 at a place in Scotland appears to a constable to be a child—

(a) the other person named by the person detained in pursuance of paragraph 15(1) must be that person’s parent,

(b) intimation is to be made under paragraph 15(1) whether the detained person requests that it be made or not, and

(c) section 40 of the Criminal Justice (Scotland) Act 2016 (asp 1) (right of under 18s to have access to other person) applies as if the detained person were a person in police custody for the purposes of that section.

(3) For the purposes of sub-paragraph (2)—

• “child” means a person under 16 years of age;

• “parent” includes guardian and any person who has the care of the child mentioned in sub-paragraph (2).

18 (1) Subject to the modifications specified in sub-paragraphs (2) and (3), section 18 of the Criminal Procedure (Scotland) Act 1995 (procedure for taking certain prints and samples) applies to a person detained under section 27 at a police station in Scotland as it applies to a person arrested.

(2) For subsection (2) of section 18 substitute—

“(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) the constable reasonably suspects that the person has been involved in foreign power threat activity, and

(b) the constable reasonably believes that the relevant physical data will tend to confirm or disprove the person’s involvement.

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

(a) the constable is satisfied that the person’s fingerprints will help determine their identity, and

(b) the person has refused to identify themselves or the constable has reasonable grounds for suspecting that the person is not who they claim to be.

(2B) In this section references to determining a person’s identity include references to showing that a detained person is not a particular person.”

(3) Subsections (3) to (5) of section 18 do not apply.