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+ | www.tso.co.uk | ||
+ | The Code contained in this booklet has been issued by the Home Secretary under | ||
+ | the Police and Criminal Evidence Act 1984 and has been approved by Parliament. | ||
+ | Copies of the Codes issued under the Police and Criminal Evidence Act 1984 | ||
+ | must be readily available in all police stations for consultation by police officers, | ||
+ | detained people and members of the public. | ||
+ | CODE H | ||
+ | Revised | ||
+ | Code of Practice in connection | ||
+ | with: | ||
+ | The detention, treatment and | ||
+ | questioning by Police Officers of | ||
+ | persons in police detention under | ||
+ | Section 41 of, and Schedule 8 to, | ||
+ | the Terrorism Act 2000 | ||
+ | The treatment and questioning | ||
+ | by Police Officers of detained | ||
+ | persons in respect of whom an | ||
+ | authorisation to question after | ||
+ | charge has been given under | ||
+ | Section 22 of the Counter-Terrorism | ||
+ | Act 2008 | ||
+ | HCODE H | ||
+ | Code | ||
+ | H | ||
+ | 58459_PACE Code H A5 Cover.indd 1 09/02/2017 15:33 | ||
+ | Police and Criminal | ||
+ | Evidence Act 1984 (PACE) | ||
+ | CODE H | ||
+ | Revised | ||
+ | Code of Practice in connection with: | ||
+ | The detention, treatment and questioning by Police | ||
+ | Officers of persons in police detention under | ||
+ | Section 41 of, and Schedule 8 to, the Terrorism | ||
+ | Act 2000 | ||
+ | The treatment and questioning by Police Officers | ||
+ | of detained persons in respect of whom an | ||
+ | authorisation to question after charge has been | ||
+ | given under Section 22 of the Counter-Terrorism | ||
+ | Act 2008 | ||
+ | February 2017 | ||
+ | London: TSO | ||
+ | Published by TSO (The Stationery Office) and available from: | ||
+ | Online | ||
+ | www.tsoshop.co.uk | ||
+ | Mail, Telephone, Fax & E-mail | ||
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+ | ISBN 978 0 11 341404 8 | ||
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+ | Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s | ||
+ | Stationery Office | ||
+ | P002858631 C5 02/17 58459 | ||
+ | H | ||
+ | 1 | ||
+ | POLICE & CRIMINAL EVIDENCE ACT 1984 | ||
+ | CODE H | ||
+ | REVISED | ||
+ | CODE OF PRACTICE IN CONNECTION WITH: | ||
+ | THE DETENTION, TREATMENT AND QUESTIONING BY POLICE OFFICERS | ||
+ | OF PERSONS IN POLICE DETENTION UNDER SECTION 41 OF, | ||
+ | AND SCHEDULE 8 TO, THE TERRORISM ACT 2000 | ||
+ | THE TREATMENT AND QUESTIONING BY POLICE OFFICERS OF | ||
+ | DETAINED PERSONS IN RESPECT OF WHOM AN AUTHORISATION | ||
+ | TO QUESTION AFTER CHARGE HAS BEEN GIVEN UNDER | ||
+ | SECTION 22 OF THE COUNTER-TERRORISM ACT 2008 | ||
+ | Commencement - Transitional Arrangements | ||
+ | This Code applies to people in police detention after 00:00 on 23 February 2017. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 2 | ||
+ | Contents | ||
+ | 1 General ................................................................................................................................ 5 | ||
+ | Notes for Guidance............................................................................................................. 8 | ||
+ | 2 Custody records ...............................................................................................................10 | ||
+ | Note for Guidance.............................................................................................................11 | ||
+ | 3 Initial action.......................................................................................................................11 | ||
+ | (a) Detained persons - normal procedure ...........................................................................11 | ||
+ | (b) Detained persons - special groups ................................................................................14 | ||
+ | (c) Documentation ..............................................................................................................16 | ||
+ | (d) Requirements for suspects to be informed of certain rights ...........................................16 | ||
+ | Notes for Guidance...........................................................................................................16 | ||
+ | 4 Detainee’s property...........................................................................................................17 | ||
+ | (a) Action ............................................................................................................................17 | ||
+ | (b) Documentation ..............................................................................................................18 | ||
+ | Notes for Guidance...........................................................................................................18 | ||
+ | 5 Right not to be held incommunicado ..............................................................................18 | ||
+ | (a) Action ............................................................................................................................18 | ||
+ | (b) Documentation ..............................................................................................................19 | ||
+ | Notes for Guidance...........................................................................................................19 | ||
+ | 6 Right to legal advice .........................................................................................................20 | ||
+ | (a) Action ............................................................................................................................20 | ||
+ | (b) Documentation ..............................................................................................................24 | ||
+ | Notes for Guidance .......................................................................................................24 | ||
+ | 7 Citizens of independent Commonwealth countries or foreign nationals......................26 | ||
+ | Note for Guidance.............................................................................................................26 | ||
+ | 8 Conditions of detention....................................................................................................27 | ||
+ | (a) Action ............................................................................................................................27 | ||
+ | (b) Documentation ..............................................................................................................28 | ||
+ | Notes for Guidance...........................................................................................................28 | ||
+ | 9 Care and treatment of detained persons.........................................................................28 | ||
+ | (a) General .........................................................................................................................28 | ||
+ | (b) Clinical treatment and attention.....................................................................................29 | ||
+ | (c) Documentation ..............................................................................................................30 | ||
+ | Notes for Guidance...........................................................................................................31 | ||
+ | 10 Cautions ............................................................................................................................31 | ||
+ | (a) When a caution must be given ......................................................................................31 | ||
+ | (b) Terms of the cautions....................................................................................................32 | ||
+ | (c) Special warnings under the Criminal Justice and Public Order Act 1994, sections 36 | ||
+ | and 37 ...........................................................................................................................32 | ||
+ | (e) Documentation ..............................................................................................................33 | ||
+ | Notes for Guidance...........................................................................................................33 | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 3 | ||
+ | 11 Interviews - general...........................................................................................................34 | ||
+ | (a) Action ............................................................................................................................34 | ||
+ | (b) Interview records...........................................................................................................35 | ||
+ | (c) Juveniles and mentally disordered or otherwise mentally vulnerable people .................35 | ||
+ | (d) Vulnerable suspects - urgent interviews at police stations.............................................36 | ||
+ | Notes for Guidance...........................................................................................................36 | ||
+ | 12 Interviews in police stations ............................................................................................37 | ||
+ | (a) Action ............................................................................................................................37 | ||
+ | (b) Documentation ..............................................................................................................39 | ||
+ | Notes for Guidance...........................................................................................................39 | ||
+ | 13 Interpreters ........................................................................................................................40 | ||
+ | (a) General .........................................................................................................................40 | ||
+ | (b) Interviewing suspects - foreign languages.....................................................................41 | ||
+ | (c) Interviewing suspects who have a hearing or speech impediment ................................41 | ||
+ | (d) Additional rules for detained persons ............................................................................41 | ||
+ | (e) Translations of essential documents .............................................................................42 | ||
+ | (f) Decisions not to provide interpretation and translation. .................................................42 | ||
+ | (g) Documentation ..............................................................................................................42 | ||
+ | (h) Live-link interpretation ...................................................................................................42 | ||
+ | (a) Audio and visual communication .............................................................................43 | ||
+ | (b) Audio and visual or audio without visual communication. ........................................43 | ||
+ | Notes for Guidance...........................................................................................................43 | ||
+ | 14 Reviews and Extensions of Detention under the Terrorism Act 2000...........................44 | ||
+ | (a) General .........................................................................................................................44 | ||
+ | (b) Transfer of persons detained for more than 14 days to prison.......................................45 | ||
+ | (c) Documentation ..............................................................................................................45 | ||
+ | Notes for Guidance...........................................................................................................45 | ||
+ | 15 Charging and post-charge questioning in terrorism cases ...........................................47 | ||
+ | (a) Charging .......................................................................................................................47 | ||
+ | (b) Post-charge questioning................................................................................................47 | ||
+ | Right to legal advice......................................................................................................48 | ||
+ | Cautions........................................................................................................................48 | ||
+ | Interviews......................................................................................................................48 | ||
+ | Recording post-charge questioning...............................................................................48 | ||
+ | Notes for Guidance...........................................................................................................48 | ||
+ | 16 Testing persons for the presence of specified Class A drugs.......................................49 | ||
+ | ANNEX A INTIMATE AND STRIP SEARCHES......................................................................50 | ||
+ | A Intimate search .............................................................................................................50 | ||
+ | (a) Action .....................................................................................................................50 | ||
+ | (b) Documentation .......................................................................................................50 | ||
+ | B Strip search ...................................................................................................................51 | ||
+ | (b) Documentation .......................................................................................................52 | ||
+ | Notes for Guidance...........................................................................................................52 | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 4 | ||
+ | ANNEX B DELAY IN NOTIFYING ARREST OR ALLOWING ACCESS TO LEGAL ADVICE | ||
+ | FOR PERSONS DETAINED UNDER THE TERRORISM ACT 2000......................53 | ||
+ | A DELAYS under TACT Schedule 8 .................................................................................53 | ||
+ | B Documentation ..............................................................................................................54 | ||
+ | C Cautions and special warnings ......................................................................................54 | ||
+ | Notes for Guidance...........................................................................................................54 | ||
+ | ANNEX C RESTRICTION ON DRAWING ADVERSE INFERENCES FROM SILENCE AND | ||
+ | TERMS OF THE CAUTION WHEN THE RESTRICTION APPLIES .......................55 | ||
+ | (a) The restriction on drawing adverse inferences from silence ..........................................55 | ||
+ | (b) Terms of the caution when the restriction applies..........................................................55 | ||
+ | Notes for Guidance...........................................................................................................56 | ||
+ | ANNEX D WRITTEN STATEMENTS UNDER CAUTION........................................................57 | ||
+ | (a) Written by a person under caution.................................................................................57 | ||
+ | (b) Written by a police officer or other police staff...............................................................57 | ||
+ | ANNEX E SUMMARY OF PROVISIONS RELATING TO MENTALLY DISORDERED AND | ||
+ | OTHERWISE MENTALLY VULNERABLE PEOPLE .............................................59 | ||
+ | Notes for Guidance...........................................................................................................60 | ||
+ | ANNEX F Not used .................................................................................................................61 | ||
+ | ANNEX G FITNESS TO BE INTERVIEWED ...........................................................................61 | ||
+ | ANNEX H DETAINED PERSON: OBSERVATION LIST.........................................................62 | ||
+ | ANNEX I ESTABLISHING GENDER OF PERSONS FOR THE PURPOSE OF | ||
+ | SEARCHING ..........................................................................................................63 | ||
+ | (a) Consideration ................................................................................................................63 | ||
+ | (b) Documentation ..............................................................................................................64 | ||
+ | (c) Disclosure of information ...............................................................................................64 | ||
+ | Note for Guidance.............................................................................................................64 | ||
+ | ANNEX J TRANSFER OF PERSONS DETAINED FOR MORE THAN 14 DAYS TO | ||
+ | PRISON..................................................................................................................65 | ||
+ | Notes for Guidance...........................................................................................................66 | ||
+ | ANNEX K DOCUMENTS AND RECORDS TO BE TRANSLATED.........................................67 | ||
+ | Note for Guidance.............................................................................................................68 | ||
+ | ANNEX L LIVE-LINK INTERPRETATION (PARA. 13.12) ......................................................69 | ||
+ | Part 1: When the physical presence of the interpreter is not required.................................. 69 | ||
+ | Part 2: Modifications for live-link interpretation ....................................................................71 | ||
+ | (a) Code H paragraph 13.4: .........................................................................................71 | ||
+ | (b) Code of Practice for video recording interviews with sound ....................................71 | ||
+ | (c) Code for video recording interviews with sound - paragraph 4.22 (signing master | ||
+ | recording label).......................................................................................................71 | ||
+ | Notes for Guidance...........................................................................................................71 | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 5 | ||
+ | 1 General | ||
+ | 1.0 The powers and procedures in this Code must be used fairly, responsibly, with respect for | ||
+ | the people to whom they apply and without unlawful discrimination. Under the Equality Act | ||
+ | 2010, section 149 (Public sector Equality Duty), police forces must, in carrying out their | ||
+ | functions, have due regard to the need to eliminate unlawful discrimination, harassment, | ||
+ | victimisation and any other conduct which is prohibited by that Act, to advance equality of | ||
+ | opportunity between people who share a relevant protected characteristic and people who | ||
+ | do not share it, and to foster good relations between those persons. The Equality Act also | ||
+ | makes it unlawful for police officers to discriminate against, harass or victimise any person | ||
+ | on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, | ||
+ | race, religion or belief, sex and sexual orientation, marriage and civil partnership, | ||
+ | pregnancy and maternity, when using their powers. See Notes 1A and 1AA. | ||
+ | 1.1 This Code of Practice applies to, and only to: | ||
+ | (a) persons in police detention after being arrested under section 41 of the Terrorism Act | ||
+ | 2000 (TACT) and detained under section 41 of, or Schedule 8 to that Act and not | ||
+ | charged, and | ||
+ | (b) detained persons in respect of whom an authorisation has been given under section | ||
+ | 22 of the Counter-Terrorism Act 2008 (post-charge questioning of terrorist suspects) | ||
+ | to interview them in which case, section 15 of this Code will apply. | ||
+ | 1.2 The provisions in PACE Code C apply when a person: | ||
+ | (a) is in custody otherwise than as a result of being arrested under section 41 of TACT or | ||
+ | detained for examination under Schedule 7 to TACT (see paragraph 1.4); | ||
+ | (b) is charged with an offence, or | ||
+ | (c) is being questioned about any offence after being charged with that offence without an | ||
+ | authorisation being given under section 22 of the Counter-Terrorism Act 2008. | ||
+ | See Note 1N. | ||
+ | 1.3 In this Code references to an offence and to a person’s involvement or suspected | ||
+ | involvement in an offence where the person has not been charged with an offence, include | ||
+ | being concerned, or suspected of being concerned, in the commission, preparation or | ||
+ | instigation of acts of terrorism. | ||
+ | 1.4 The Code of Practice issued under paragraph 6 of Schedule 14 to TACT applies to persons | ||
+ | detained for examination under Schedule 7 to TACT. See Note 1N. | ||
+ | 1.5 All persons in custody must be dealt with expeditiously, and released as soon as the need | ||
+ | for detention no longer applies. | ||
+ | 1.6 There is no provision for bail under TACT before or after charge. See Note 1N. | ||
+ | 1.7 An officer must perform the assigned duties in this Code as soon as practicable. An officer | ||
+ | will not be in breach of this Code if delay is justifiable and reasonable steps are taken to | ||
+ | prevent unnecessary delay. The custody record shall show when a delay has occurred and | ||
+ | the reason. See Note 1H. | ||
+ | 1.8 This Code of Practice must be readily available at all police stations for consultation by: | ||
+ | police officers; | ||
+ | police staff; | ||
+ | detained persons; | ||
+ | members of the public. | ||
+ | 1.9 The provisions of this Code: | ||
+ | include the Annexes; | ||
+ | do not include the Notes for Guidance. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 6 | ||
+ | 1.10 If an officer has any suspicion, or is told in good faith, that a person of any age may be | ||
+ | mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to | ||
+ | dispel that suspicion, the person shall be treated as such for the purposes of this Code. | ||
+ | See Note 1G. | ||
+ | 1.11 Anyone who appears to be under 18 shall, in the absence of clear evidence that they are | ||
+ | older, be treated as a juvenile for the purposes of this Code. | ||
+ | 1.11A Paragraph 1.11 does not change the statutory provisions in section 65(1) of PACE | ||
+ | (appropriate consent) which require the consent of a juvenile’s parent or guardian. By | ||
+ | virtue of paragraph 15 of Schedule 8 to the Terrorism Act 2000, this is applied to the | ||
+ | powers in paragraphs 10 to 14 of that Schedule to take fingerprints, intimate and nonintimate | ||
+ | samples. | ||
+ | 1.12 If a person appears to be blind, seriously visually impaired, deaf, unable to read or speak or | ||
+ | has difficulty orally because of a speech impediment, they shall be treated as such for the | ||
+ | purposes of this Code in the absence of clear evidence to the contrary. | ||
+ | 1.13 'The appropriate adult' means, in the case of a: | ||
+ | (a) juvenile: | ||
+ | (i) the parent, guardian or, if the juvenile is in the care of a local authority or | ||
+ | voluntary organisation, a person representing that authority or organisation (see | ||
+ | Note 1B); | ||
+ | (ii) a social worker of a local authority (see Note 1C); | ||
+ | (iii) failing these, some other responsible adult aged 18 or over who is not: | ||
+ | ~ a police officer; | ||
+ | ~ employed by the police; | ||
+ | ~ under the direction or control of the chief officer of a police force; | ||
+ | ~ a person who provides services under contractual arrangements (but without | ||
+ | being employed by the chief officer of a police force), to assist that force in | ||
+ | relation to the discharge of its chief officer’s functions, | ||
+ | whether or not they are on duty at the time. | ||
+ | See Note 1F. | ||
+ | (b) person who is mentally disordered or mentally vulnerable: See Note 1D. | ||
+ | (i) a relative, guardian or other person responsible for their care or custody; | ||
+ | (ii) someone experienced in dealing with mentally disordered or mentally vulnerable | ||
+ | people but who is not: | ||
+ | ~ a police officer; | ||
+ | ~ employed by the police; | ||
+ | ~ under the direction or control of the chief officer of a police force; | ||
+ | ~ a person who provides services under contractual arrangements (but without | ||
+ | being employed by the chief officer of a police force), to assist that force in | ||
+ | relation to the discharge of its chief officer’s functions, | ||
+ | whether or not they are on duty at the time. | ||
+ | (iii) failing these, some other responsible adult aged 18 or over other than a person | ||
+ | described in the bullet points in sub-paragraph (b)(ii) above. | ||
+ | See Note 1F. | ||
+ | 1.14 If this Code requires a person be given certain information, they do not have to be given it if | ||
+ | at the time they are incapable of understanding what is said, are violent or may become | ||
+ | violent or in urgent need of medical attention, but they must be given it as soon as | ||
+ | practicable. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 7 | ||
+ | 1.15 References to a custody officer include any police officer who for the time being, is | ||
+ | performing the functions of a custody officer. | ||
+ | 1.16 When this Code requires the prior authority or agreement of an officer of at least inspector | ||
+ | or superintendent rank, that authority may be given by a sergeant or chief inspector | ||
+ | authorised by section 107 of PACE to perform the functions of the higher rank under TACT. | ||
+ | 1.17 In this Code: | ||
+ | (a) ‘designated person’ means a person other than a police officer, who has specified | ||
+ | powers and duties conferred or imposed on them by designation under section 38 or | ||
+ | 39 of the Police Reform Act 2002; | ||
+ | (b) reference to a police officer includes a designated person acting in the exercise or | ||
+ | performance of the powers and duties conferred or imposed on them by their | ||
+ | designation. | ||
+ | (c) where a search or other procedure to which this Code applies may only be carried out | ||
+ | or observed by a person of the same sex as the detainee, the gender of the detainee | ||
+ | and other parties present should be established and recorded in line with Annex I of | ||
+ | this Code. | ||
+ | 1.18 Designated persons are entitled to use reasonable force as follows: | ||
+ | (a) when exercising a power conferred on them which allows a police officer exercising | ||
+ | that power to use reasonable force, a designated person has the same entitlement to | ||
+ | use force; and | ||
+ | (b) at other times when carrying out duties conferred or imposed on them that also entitle | ||
+ | them to use reasonable force, for example: | ||
+ | when at a police station carrying out the duty to keep detainees for whom they are | ||
+ | responsible under control and to assist any other police officer or designated | ||
+ | person to keep any detainee under control and to prevent their escape. | ||
+ | when securing, or assisting any other police officer or designated person in | ||
+ | securing, the detention of a person at a police station. | ||
+ | when escorting, or assisting any other police officer or designated person in | ||
+ | escorting, a detainee within a police station. | ||
+ | for the purpose of saving life or limb; or | ||
+ | preventing serious damage to property. | ||
+ | 1.19 Nothing in this Code prevents the custody officer, or other police officer or designated | ||
+ | person (see paragraph 1.17) given custody of the detainee by the custody officer, from | ||
+ | allowing another person (see (a) and (b) below) to carry out individual procedures or tasks | ||
+ | at the police station if the law allows. However, the officer or designated person given | ||
+ | custody remains responsible for making sure the procedures and tasks are carried out | ||
+ | correctly in accordance with the Codes of Practice (see paragraph 3.5 and Note 3F). The | ||
+ | other person who is allowed to carry out the procedures or tasks must be someone who at | ||
+ | that time, is: | ||
+ | (a) under the direction and control of the chief officer of the force responsible for the | ||
+ | police station in question; or | ||
+ | (b) providing services under contractual arrangements (but without being employed by | ||
+ | the chief officer the police force), to assist a police force in relation to the discharge of | ||
+ | its chief officer’s functions. | ||
+ | 1.20 Designated persons and others mentioned in sub-paragraphs (a) and (b) of paragraph 1.19 | ||
+ | must have regard to any relevant provisions of this Code. | ||
+ | 1.21 In any provision of this or any other Code of Practice which allows or requires police | ||
+ | officers or police staff to make a record in their report book, the references to report book | ||
+ | shall include any official report book or electronic recording device issued to them that | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 8 | ||
+ | enables the record in question to be made and dealt with in accordance with that provision. | ||
+ | References in this and any other Code to written records, forms and signatures include | ||
+ | electronic records and forms and electronic confirmation that identifies the person making | ||
+ | the record or completing the form. | ||
+ | Chief officers must be satisfied as to the integrity and security of the devices, records and | ||
+ | forms to which this paragraph applies and that use of those devices, records and forms | ||
+ | satisfies relevant data protection legislation. | ||
+ | Notes for Guidance | ||
+ | 1A Although certain sections of this Code apply specifically to people in custody at police | ||
+ | stations, those there voluntarily to assist with an investigation should be treated with no less | ||
+ | consideration, e.g. offered refreshments at appropriate times, and enjoy an absolute right to | ||
+ | obtain legal advice or communicate with anyone outside the police station. | ||
+ | 1AA In paragraph 1.0, under the Equality Act 2010, section 149, the ‘relevant protected | ||
+ | characteristics’ are age, disability, gender reassignment, pregnancy and maternity, race, | ||
+ | religion/belief and sex and sexual orientation. For further detailed guidance and advice on | ||
+ | the Equality Act, see: https://www.gov.uk/guidance/equality-act-2010-guidance. | ||
+ | 1B A person, including a parent or guardian, should not be an appropriate adult if they: | ||
+ | are: | ||
+ | suspected of involvement in the offence or involvement in the commission, | ||
+ | preparation or instigation of acts of terrorism; | ||
+ | the victim; | ||
+ | a witness; | ||
+ | involved in the investigation. | ||
+ | received admissions prior to attending to act as the appropriate adult. | ||
+ | Note: If a juvenile’s parent is estranged from the juvenile, they should not be asked to act | ||
+ | as the appropriate adult if the juvenile expressly and specifically objects to their presence. | ||
+ | 1C If a juvenile admits an offence to, or in the presence of, a social worker or member of a | ||
+ | youth offending team other than during the time that person is acting as the juvenile’s | ||
+ | appropriate adult, another appropriate adult should be appointed in the interest of fairness.. | ||
+ | 1D In the case of people who are mentally disordered or otherwise mentally vulnerable, it may | ||
+ | be more satisfactory if the appropriate adult is someone experienced or trained in their care | ||
+ | rather than a relative lacking such qualifications. But if the detainee prefers a relative to a | ||
+ | better qualified stranger or objects to a particular person their wishes should, if practicable, | ||
+ | be respected. | ||
+ | 1E A detainee should always be given an opportunity, when an appropriate adult is called to | ||
+ | the police station, to consult privately with a solicitor in the appropriate adult’s absence if | ||
+ | they want. An appropriate adult is not subject to legal privilege. | ||
+ | 1F A solicitor or independent custody visitor who is present at the police station and acting in | ||
+ | that capacity may not be the appropriate adult. | ||
+ | 1G ‘Mentally vulnerable’ applies to any detainee who, because of their mental state or capacity, | ||
+ | may not understand the significance of what is said, of questions or of their replies. ‘Mental | ||
+ | disorder’ is defined in the Mental Health Act 1983, section 1(2) as ‘any disorder or disability | ||
+ | of mind’. When the custody officer has any doubt about the mental state or capacity of a | ||
+ | detainee, that detainee should be treated as mentally vulnerable and an appropriate adult | ||
+ | called. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 9 | ||
+ | 1H Paragraph 1.7 is intended to cover delays which may occur in processing detainees e.g. if: | ||
+ | a large number of suspects are brought into the station simultaneously to be placed in | ||
+ | custody; | ||
+ | interview rooms are all being used; | ||
+ | there are difficulties contacting an appropriate adult, solicitor or interpreter. | ||
+ | 1I The custody officer must remind the appropriate adult and detainee about the right to legal | ||
+ | advice and record any reasons for waiving it in accordance with section 6. | ||
+ | 1J Not used | ||
+ | 1K This Code does not affect the principle that all citizens have a duty to help police officers to | ||
+ | prevent crime and discover offenders. This is a civic rather than a legal duty; but when | ||
+ | police officers are trying to discover whether, or by whom, offences have been committed, | ||
+ | they are entitled to question any person from whom they think useful information can be | ||
+ | obtained, subject to the restrictions imposed by this Code. A person’s declaration that they | ||
+ | are unwilling to reply does not alter this entitlement. | ||
+ | 1L If a person is moved from a police station to receive medical treatment, or for any other | ||
+ | reason, the period of detention is still calculated from the time of arrest under section 41 of | ||
+ | TACT (or, if a person was being detained under TACT Schedule 7 when arrested, from the | ||
+ | time at which the examination under Schedule 7 began). | ||
+ | 1M Under Paragraph 1 of Schedule 8 to TACT, all police stations are designated for detention | ||
+ | of persons arrested under section 41 of TACT. Paragraph 4 of Schedule 8 requires that the | ||
+ | constable who arrests a person under section 41 takes them as soon as practicable to the | ||
+ | police station which the officer considers is “most appropriate”. | ||
+ | 1N The powers under Part IV of PACE to detain and release on bail (before or after charge) a | ||
+ | person arrested under section 24 of PACE for any offence (see PACE Code G (Arrest)) do | ||
+ | not apply to persons whilst they are detained under the terrorism powers following their | ||
+ | arrest/detention under section 41 of, or Schedule 7 to, TACT. If when the grounds for | ||
+ | detention under these powers cease the person is arrested under section 24 of PACE for a | ||
+ | specific offence, the detention and bail provisions of PACE will apply and must be | ||
+ | considered from the time of that arrest. | ||
+ | 1O Not used. | ||
+ | 1P Not used. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 10 | ||
+ | 2 Custody records | ||
+ | 2.1 When a person is: | ||
+ | brought to a police station following arrest under TACT section 41, | ||
+ | arrested under TACT section 41 at a police station having attended there voluntarily, | ||
+ | brought to a police station and there detained to be questioned in accordance with an | ||
+ | authorisation under section 22 of the Counter-Terrorism Act 2008 (post-charge | ||
+ | questioning) (see Notes 15A and 15B), or | ||
+ | at a police station and there detained when authority for post-charge questioning is | ||
+ | given under section 22 of the Counter-Terrorism Act 2008 (see Notes 15A and 15B), | ||
+ | they should be brought before the custody officer as soon as practicable after their arrival at | ||
+ | the station or, if appropriate, following the authorisation of post-charge questioning or | ||
+ | following arrest after attending the police station voluntarily see Note 3H. A person is | ||
+ | deemed to be "at a police station" for these purposes if they are within the boundary of any | ||
+ | building or enclosed yard which forms part of that police station. | ||
+ | 2.2 A separate custody record must be opened as soon as practicable for each person | ||
+ | described in paragraph 2.1. All information recorded under this Code must be recorded as | ||
+ | soon as practicable in the custody record unless otherwise specified. Any audio or video | ||
+ | recording made in the custody area is not part of the custody record. | ||
+ | 2.3 If any action requires the authority of an officer of a specified rank, this must be noted in the | ||
+ | custody record, subject to paragraph 2.8. | ||
+ | 2.3A If a person is arrested under TACT, section 41 and taken to a police station as a result of a | ||
+ | search in the exercise of any stop and search power to which PACE Code A (Stop and | ||
+ | search) or the ‘search powers code’ issued under TACT applies, the officer carrying out the | ||
+ | search is responsible for ensuring that the record of that stop and search is made as part of | ||
+ | the person’s custody record. The custody officer must then ensure that the person is asked | ||
+ | if they want a copy of the search record and if they do, that they are given a copy as soon | ||
+ | as practicable. The person’s entitlement to a copy of the search record which is made as | ||
+ | part of their custody record is in addition to, and does not affect, their entitlement to a copy | ||
+ | of their custody record or any other provisions of section 2 (Custody records) of this Code. | ||
+ | See Code A paragraph 4.2B and the TACT search powers code paragraph 5.3.5). | ||
+ | 2.4 The custody officer is responsible for the custody record’s accuracy and completeness and | ||
+ | for making sure the record or copy of the record accompanies a detainee if they are | ||
+ | transferred to another police station. The record shall show the: | ||
+ | time and reason for transfer; | ||
+ | time a person is released from detention. | ||
+ | 2.5 The detainee’s solicitor and appropriate adult must be permitted to inspect the detainee’s | ||
+ | custody record as soon as practicable after their arrival at the station and at any other time | ||
+ | whilst the person is detained. | ||
+ | On request, the detainee, their solicitor and appropriate adult must be allowed to inspect | ||
+ | the following records, as promptly as is practicable at any time whilst the person is | ||
+ | detained: | ||
+ | (a) The information about the circumstances and reasons for the detainee’s arrest as | ||
+ | recorded in the custody record in accordance with paragraph 3.4. This applies to any | ||
+ | further reasons which come to light and are recorded whilst the detainee is detained; | ||
+ | (b) The record of the grounds for each authorisation to keep the person in custody. The | ||
+ | authorisations to which this applies are the same as those described in paragraph 2 of | ||
+ | Annex M of this Code. | ||
+ | Access to the custody record for the purposes of this paragraph must be arranged and | ||
+ | agreed with the custody officer and may not unreasonably interfere with the custody | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 11 | ||
+ | officer’s duties or the justifiable needs of the investigation. A record shall be made when | ||
+ | access is allowed. This access is in addition to the requirements in paragraphs 3.4(b), 11.1 | ||
+ | and 14.0 to provide information about the reasons for arrest and detention and in 14.4A to | ||
+ | give the detainee written information about the grounds for continued detention when an | ||
+ | application for a warrant of further detention (or for an extension of such a warrant) is made. | ||
+ | 2.6 When a detainee leaves police detention or is taken before a court they, their legal | ||
+ | representative or appropriate adult shall be given, on request, a copy of the custody record | ||
+ | as soon as practicable. This entitlement lasts for 12 months after release. | ||
+ | 2.7 The detainee, appropriate adult or legal representative shall be permitted to inspect the | ||
+ | original custody record once the detained person is no longer being held under the | ||
+ | provisions of TACT section 41 and Schedule 8 or being questioned after charge as | ||
+ | authorised under section 22 of the Counter-Terrorism Act 2008 (see section 15), provided | ||
+ | they give reasonable notice of their request. Any such inspection shall be noted in the | ||
+ | custody record. | ||
+ | 2.8 All entries in custody records must be timed and identified by the maker. Nothing in this | ||
+ | Code requires the identity of officers or other police staff to be recorded or disclosed in the | ||
+ | case of enquiries linked to the investigation of terrorism. In these cases, they shall use their | ||
+ | warrant or other identification numbers and the name of their police station, see Note 2A. | ||
+ | Records entered on computer shall be timed and contain the operator’s identification. | ||
+ | 2.9 The fact and time of any detainee’s refusal to sign a custody record, when asked in | ||
+ | accordance with this Code, must be recorded. | ||
+ | Note for Guidance | ||
+ | 2A The purpose of paragraph 2.8 is to protect those involved in terrorist investigations or | ||
+ | arrests of terrorist suspects from the possibility that those arrested, their associates or other | ||
+ | individuals or groups may threaten or cause harm to those involved. | ||
+ | 3 Initial action | ||
+ | (a) Detained persons - normal procedure | ||
+ | 3.1 When a person to whom paragraph 2.1 applies is at a police station, the custody officer | ||
+ | must make sure the person is told clearly about: | ||
+ | (a) the following continuing rights which may be exercised at any stage during the period | ||
+ | in custody: | ||
+ | (i) their right to consult privately with a solicitor and that free independent legal | ||
+ | advice is available as in section 6; | ||
+ | (ii) their right to have someone informed of their arrest as in section 5; | ||
+ | (iii) their right to consult this Code of Practice (see Note 3D); | ||
+ | (iv) their right to medical help as in section 9; | ||
+ | (v) their right to remain silent as set out in the caution (see section 10); and | ||
+ | (vi) if applicable, their right to interpretation and translation (see paragraph 3.14) and | ||
+ | the right to communication with their High Commission, Embassy or Consulate | ||
+ | (see paragraph 3.14A). | ||
+ | (b) their right to be informed about why they have been arrested and detained on | ||
+ | suspicion of being involved in the commission, preparation or instigation of acts of | ||
+ | terrorism in accordance with paragraphs 2.5, 3.4 and 11.1A of this Code. | ||
+ | 3.2 The detainee must also be given a written notice, which contains information: | ||
+ | (a) to allow them to exercise their rights by setting out: | ||
+ | (i) their rights under paragraph 3.1 (subject to paragraphs 3.14 and 3.14A); | ||
+ | (ii) the arrangements for obtaining legal advice, see section 6; | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 12 | ||
+ | (iii) their right to a copy of the custody record as in paragraph 2.6; | ||
+ | (iv) the caution in the terms prescribed in section 10; | ||
+ | (v) their rights to: | ||
+ | information about the reasons and grounds for their arrest and detention and | ||
+ | (as the case may be) any further grounds and reasons that come to light | ||
+ | whilst they are in custody; | ||
+ | to have access to records and documents which are essential to effectively | ||
+ | challenging the lawfulness of their arrest and detention; | ||
+ | as required in accordance with paragraphs 2.4, 2.4A, 2.5, 3.4, 11.1, 14.0 and | ||
+ | 15.7A(c) of this Code and paragraph 3.3 of Code G; | ||
+ | (vi) the maximum period for which they may be kept in police detention without | ||
+ | being charged, when detention must be reviewed and when release is required. | ||
+ | (vii) their right to communicate with their High Commission Embassy or Consulate in | ||
+ | accordance with section 7 of this Code, see paragraph 3.14A; | ||
+ | (xiii) their right to medical assistance in accordance with section 9 of this Code | ||
+ | (xi) their right, if they are prosecuted, to have access to the evidence in the case in | ||
+ | accordance with the Criminal Procedure and Investigations Act 1996, the | ||
+ | Attorney General’s Guidelines on Disclosure and the common law and the | ||
+ | Criminal Procedure Rules; and | ||
+ | (b) briefly setting out their entitlements while in custody, by: | ||
+ | (i) mentioning: | ||
+ | ~ the provisions relating to the conduct of interviews; | ||
+ | ~ the circumstances in which an appropriate adult should be available to assist | ||
+ | the detainee and their statutory rights to make representations whenever the | ||
+ | need for their detention is reviewed. | ||
+ | (ii) listing the entitlements in this Code, concerning | ||
+ | ~ reasonable standards of physical comfort; | ||
+ | ~ adequate food and drink; | ||
+ | ~ access to toilets and washing facilities, clothing, medical attention, and | ||
+ | exercise when practicable. | ||
+ | See Note 3A | ||
+ | 3.2A The detainee must be given an opportunity to read the notice and shall be asked to sign the | ||
+ | custody record to acknowledge receipt of the notices. Any refusal must be recorded on the | ||
+ | custody record. | ||
+ | 3.3 Not used. | ||
+ | 3.3A An audio version of the notice and an ‘easy read’ illustrated version should also be provided | ||
+ | if they are available (see Note 3A). | ||
+ | 3.4 (a) The custody officer shall: | ||
+ | record that the person was arrested under section 41 of TACT and the reason(s) | ||
+ | for the arrest on the custody record. See paragraph 10.2 and Note 3G | ||
+ | note on the custody record any comment the detainee makes in relation to the | ||
+ | arresting officer’s account but shall not invite comment. If the arresting officer is | ||
+ | not physically present when the detainee is brought to a police station, the | ||
+ | arresting officer’s account must be made available to the custody officer | ||
+ | remotely or by a third party on the arresting officer’s behalf; | ||
+ | note any comment the detainee makes in respect of the decision to detain them | ||
+ | but shall not invite comment; | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 13 | ||
+ | not put specific questions to the detainee regarding their involvement in any | ||
+ | offence (see paragraph 1.3), nor in respect of any comments they may make in | ||
+ | response to the arresting officer’s account or the decision to place them in | ||
+ | detention. See paragraphs 14.1 and 14.2 and Notes 3H, 14A and 14B. Such | ||
+ | an exchange is likely to constitute an interview as in paragraph 11.1 and require | ||
+ | the associated safeguards in section 11. | ||
+ | Note: This sub-paragraph also applies to any further reasons and grounds for | ||
+ | detention which come to light whilst the person is detained. | ||
+ | See paragraph 11.8A in respect of unsolicited comments. | ||
+ | If the first review of detention is carried out at this time, see paragraphs 14.1 and | ||
+ | 14.2, and Part II of Schedule 8 to the Terrorism Act 2000 in respect of action by the | ||
+ | review officer. | ||
+ | (b) Documents and materials which are essential to effectively challenging the | ||
+ | lawfulness the detainee’s arrest and detention must be made available to the | ||
+ | detainee or their solicitor. Documents and material will be “essential” for this | ||
+ | purpose if they are capable of undermining the reasons and grounds which make | ||
+ | the detainee’s arrest and detention necessary. The decision about what needs to | ||
+ | be disclosed for the purpose of this requirement rests with the custody officer in | ||
+ | consultation with the investigating officer who has the knowledge of the documents | ||
+ | and materials in a particular case necessary to inform that decision (see Note 3G). | ||
+ | A note should be made in the detainee’s custody record of the fact that action has | ||
+ | been taken under this sub-paragraph and when. The investigating officer should | ||
+ | make a separate note of what has been made available in a particular case. This | ||
+ | also applies for the purposes of section 14, see paragraph 14.0. | ||
+ | 3.5 The custody officer or other custody staff as directed by the custody officer shall: | ||
+ | (a) ask the detainee, whether at this time, they: | ||
+ | (i) would like legal advice, see paragraph 6.4; | ||
+ | (ii) want someone informed of their detention, see section 5; | ||
+ | (b) ask the detainee to sign the custody record to confirm their decisions in respect of (a); | ||
+ | (c) determine whether the detainee: | ||
+ | (i) is, or might be, in need of medical treatment or attention, see section 9; | ||
+ | (ii) requires: | ||
+ | an appropriate adult (see paragraphs 1.10, 1.11A, and 3.15); | ||
+ | help to check documentation (see paragraph 3.21); | ||
+ | an interpreter (see paragraph 3.14 and Note 13B). | ||
+ | (d) record the decision in respect of (c). | ||
+ | Where any duties under this paragraph have been carried out by custody staff at the | ||
+ | direction of the custody officer, the outcomes shall, as soon as practicable, be reported to | ||
+ | the custody officer who retains overall responsibility for the detainee’s care and safe | ||
+ | custody and ensuring it complies with this Code. See Note 3I. | ||
+ | 3.6 When the needs mentioned in paragraph 3.5(c) are being determined, the custody officer is | ||
+ | responsible for initiating an assessment to consider whether the detainee is likely to present | ||
+ | specific risks to custody staff, any individual who may have contact with detainee (e.g. legal | ||
+ | advisers, medical staff), or themselves. This risk assessment must include the taking of | ||
+ | reasonable steps to establish the detainee’s identity and to obtain information about the | ||
+ | detainee that is relevant to their safe custody, security and welfare and risks to others. | ||
+ | Such assessments should therefore always include a check on the Police National | ||
+ | Computer (PNC), to be carried out as soon as practicable, to identify any risks that have | ||
+ | been highlighted in relation to the detainee. Although such assessments are primarily the | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 14 | ||
+ | custody officer’s responsibility, it will be necessary to obtain information from other sources, | ||
+ | especially the investigation team see Note 3E, the arresting officer or an appropriate | ||
+ | healthcare professional, see paragraph 9.15. Other records held by or on behalf of the | ||
+ | police and other UK law enforcement authorities that might provide information relevant to | ||
+ | the detainee’s safe custody, security and welfare and risk to others and to confirming their | ||
+ | identity should also be checked. Reasons for delaying the initiation or completion of the | ||
+ | assessment must be recorded. | ||
+ | 3.7 Chief officers should ensure that arrangements for proper and effective risk assessments | ||
+ | required by paragraph 3.6 are implemented in respect of all detainees at police stations in | ||
+ | their area. | ||
+ | 3.8 Risk assessments must follow a structured process which clearly defines the categories of | ||
+ | risk to be considered and the results must be incorporated in the detainee’s custody record. | ||
+ | The custody officer is responsible for making sure those responsible for the detainee’s | ||
+ | custody are appropriately briefed about the risks. The content of any risk assessment and | ||
+ | any analysis of the level of risk relating to the person’s detention is not required to be | ||
+ | shown or provided to the detainee or any person acting on behalf of the detainee. If no | ||
+ | specific risks are identified by the assessment, that should be noted in the custody record. | ||
+ | See Note 3F and paragraph 9.15. | ||
+ | 3.8A The content of any risk assessment and any analysis of the level of risk relating to the | ||
+ | person's detention is not required to be shown or provided to the detainee or any person | ||
+ | acting on behalf of the detainee. But information should not be withheld from any person | ||
+ | acting on the detainee’s behalf, for example, an appropriate adult, solicitor or interpreter, if | ||
+ | to do so might put that person at risk. | ||
+ | 3.9 Custody officers are responsible for implementing the response to any specific risk | ||
+ | assessment, which should include for example: | ||
+ | reducing opportunities for self harm; | ||
+ | calling an appropriate healthcare professional; | ||
+ | increasing levels of monitoring or observation; | ||
+ | reducing the risk to those who come into contact with the detainee. | ||
+ | See Note 3F | ||
+ | 3.10 Risk assessment is an ongoing process and assessments must always be subject to review | ||
+ | if circumstances change. | ||
+ | 3.11 If video cameras are installed in the custody area, notices shall be prominently displayed | ||
+ | showing cameras are in use. Any request to have video cameras switched off shall be | ||
+ | refused. | ||
+ | 3.12 A constable, prison officer or other person authorised by the Secretary of State may take | ||
+ | any steps which are reasonably necessary for: | ||
+ | (a) photographing the detained person; | ||
+ | (b) measuring the person, or | ||
+ | (c) identifying the person. | ||
+ | 3.13 Paragraph 3.12 concerns the power in TACT Schedule 8 Paragraph 2. The power in TACT | ||
+ | Schedule 8 Paragraph 2 does not cover the taking of fingerprints, intimate samples or nonintimate | ||
+ | samples, which is covered in TACT Schedule 8 paragraphs 10 to 15. | ||
+ | (b) Detained persons - special groups | ||
+ | 3.14 If the detainee appears to be someone who does not speak or understand English or who | ||
+ | has a hearing or speech impediment the custody officer must ensure: | ||
+ | (a) that without delay, arrangements (see paragraph 13.1ZA) are made for the detainee | ||
+ | to have the assistance of an interpreter in the action under paragraphs 3.1 to 3.5. If | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 15 | ||
+ | the person appears to have a hearing or speech impediment, the reference to | ||
+ | ‘interpreter’ includes appropriate assistance necessary to comply with paragraphs 3.1 | ||
+ | to 3.5. See paragraph 13.1C if the detainee is in Wales. See section 13 and Note | ||
+ | 13B; | ||
+ | (b) that in addition to the rights set out in paragraph 3.1(i) to (iii), the detainee is told | ||
+ | clearly about their right to interpretation and translation; | ||
+ | (c) that the written notice given to the detainee in accordance with paragraph 3.2 is in a | ||
+ | language the detainee understands and includes the right to interpretation and | ||
+ | translation together with information about the provisions in section 13 and Annex K, | ||
+ | which explain how the right applies (see Note 3A); and | ||
+ | (d) that if the translation of the notice is not available, the information in the notice is given | ||
+ | through an interpreter and a written translation provided without undue delay | ||
+ | 3.14A If the detainee is a citizen of an independent Commonwealth country or a national of a | ||
+ | foreign country, including the Republic of Ireland, the custody officer must ensure that in | ||
+ | addition to the rights set out in paragraph 3.1(i) to (v), they are informed as soon as | ||
+ | practicable about their rights of communication with their High Commission, Embassy or | ||
+ | Consulate set out in section 7. This right must be included in the written notice given to the | ||
+ | detainee in accordance with paragraph 3.2. | ||
+ | 3.15 If the detainee is a juvenile, the custody officer must, if it is practicable, ascertain the | ||
+ | identity of a person responsible for their welfare. That person: | ||
+ | may be: | ||
+ | the parent or guardian; | ||
+ | if the juvenile is in local authority or voluntary organisation care, or is otherwise | ||
+ | being looked after under the Children Act 1989, a person appointed by that authority | ||
+ | or organisation to have responsibility for the juvenile’s welfare; | ||
+ | any other person who has, for the time being, assumed responsibility for the | ||
+ | juvenile’s welfare. | ||
+ | must be informed as soon as practicable that the juvenile has been arrested, why they | ||
+ | have been arrested and where they are detained. This right is in addition to the | ||
+ | juvenile’s right in section 5 not to be held incommunicado. See Note 3C. | ||
+ | 3.16 If a juvenile is known to be subject to a court order under which a person or organisation is | ||
+ | given any degree of statutory responsibility to supervise or otherwise monitor them, | ||
+ | reasonable steps must also be taken to notify that person or organisation (the ‘responsible | ||
+ | officer’). The responsible officer will normally be a member of a Youth Offending Team, | ||
+ | except for a curfew order which involves electronic monitoring when the contractor | ||
+ | providing the monitoring will normally be the responsible officer. | ||
+ | 3.17 If the detainee is a juvenile, mentally disordered or otherwise mentally vulnerable, the | ||
+ | custody officer must, as soon as practicable: | ||
+ | inform the appropriate adult, who in the case of a juvenile may or may not be a person | ||
+ | responsible for their welfare, as in paragraph 3.15, of: | ||
+ | the grounds for their detention; | ||
+ | their whereabouts. | ||
+ | ask the adult to come to the police station to see the detainee. | ||
+ | 3.18 If the appropriate adult is: | ||
+ | already at the police station, the provisions of paragraphs 3.1 to 3.5 must be complied | ||
+ | with in the appropriate adult’s presence; | ||
+ | not at the station when these provisions are complied with, they must be complied with | ||
+ | again in the presence of the appropriate adult when they arrive, | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 16 | ||
+ | and a copy of the notice given to the detainee in accordance with paragraph 3.2, shall also | ||
+ | be given to the appropriate adult if they wish to have a copy. | ||
+ | 3.19 The detainee shall be advised that: | ||
+ | the duties of the appropriate adult include giving advice and assistance; | ||
+ | they can consult privately with the appropriate adult at any time. | ||
+ | 3.20 If the detainee, or appropriate adult on the detainee’s behalf, asks for a solicitor to be called | ||
+ | to give legal advice, the provisions of section 6 apply. | ||
+ | 3.21 If the detainee is blind, seriously visually impaired or unable to read, the custody officer | ||
+ | shall make sure their solicitor, relative, appropriate adult or some other person likely to take | ||
+ | an interest in them and not involved in the investigation is available to help check any | ||
+ | documentation. When this Code requires written consent or signing the person assisting | ||
+ | may be asked to sign instead, if the detainee prefers. This paragraph does not require an | ||
+ | appropriate adult to be called solely to assist in checking and signing documentation for a | ||
+ | person who is not a juvenile, or mentally disordered or otherwise mentally vulnerable (see | ||
+ | paragraph 3.17 and Note 13C). | ||
+ | 3.21A The Children and Young Persons Act 1933, section 31, requires that arrangements must be | ||
+ | made for ensuring that a girl under the age of 18, while detained in a police station, is under | ||
+ | the care of a woman. See Note 3J. It also requires that arrangements must be made to | ||
+ | prevent any person under 18 while being detained in a police station, from associating with | ||
+ | an adult charged with any offence, unless that adult is a relative or the adult is jointly | ||
+ | charged with the same offence as the person under 18. | ||
+ | (c) Documentation | ||
+ | 3.22 The grounds for a person’s detention shall be recorded, in the person’s presence if | ||
+ | practicable. | ||
+ | 3.23 Action taken under paragraphs 3.14 to 3.22 shall be recorded. | ||
+ | (d) Requirements for suspects to be informed of certain rights | ||
+ | 3.24 The provisions of this section identify the information which must be given to suspects who | ||
+ | have been arrested under section 41of the Terrorism Act and cautioned in accordance with | ||
+ | section 10 of this Code. It includes information required by EU Directive 2012/13 on the | ||
+ | right to information in criminal proceedings. If a complaint is made by or on behalf of such a | ||
+ | suspect that the information and (as the case may be) access to records and documents | ||
+ | has not been provided as required, the matter shall be reported to an inspector to deal with | ||
+ | as a complaint for the purposes of paragraph 9.3, or paragraph 12.10 if the challenge is | ||
+ | made during an interview. This would include, for example: | ||
+ | not informing them of their rights (see paragraph 3.1); | ||
+ | not giving them a copy of the Notice (see paragraph 3.2(a)) | ||
+ | not providing an opportunity to read the notice (see paragraph 3.2A) | ||
+ | not providing the required information (see paragraphs 3.2(a), 3.14(b) and, 3.14A; | ||
+ | not allowing access to the custody record (see paragraph 2.5); | ||
+ | not providing a translation of the Notice (see paragraph 3.14(c) and (d)); | ||
+ | Notes for Guidance | ||
+ | 3A For access to currently available notices, including ‘easy-read’ versions, see | ||
+ | https://www.gov.uk/notice-of-rights-and-entitlements-a-persons-rights-in-police-detention. | ||
+ | 3B Not used. | ||
+ | 3C If the juvenile is in local authority or voluntary organisation care but living with their parents | ||
+ | or other adults responsible for their welfare, although there is no legal obligation to inform | ||
+ | them, they should normally be contacted, as well as the authority or organisation unless | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 17 | ||
+ | they are suspected of involvement in the offence concerned. Even if the juvenile is not | ||
+ | living with their parents, consideration should be given to informing them. | ||
+ | 3D The right to consult this or other relevant Codes of Practice does not entitle the person | ||
+ | concerned to delay unreasonably any necessary investigative or administrative action whilst | ||
+ | they do so. Examples of action which need not be delayed unreasonably include: | ||
+ | searching detainees at the police station; | ||
+ | taking fingerprints or non-intimate samples without consent for evidential purposes. | ||
+ | 3E The investigation team will include any officer involved in questioning a suspect, gathering | ||
+ | or analysing evidence in relation to the offences of which the detainee is suspected of | ||
+ | having committed. Should a custody officer require information from the investigation team, | ||
+ | the first point of contact should be the officer in charge of the investigation. | ||
+ | 3F The Detention and Custody Authorised Professional Practice (APP) produced by the | ||
+ | College of Policing (see http://www.app.college.police.uk)provides more detailed guidance | ||
+ | on risk assessments and identifies key risk areas which should always be considered. | ||
+ | 3G Arrests under TACT section 41 can only be made where an officer has reasonable grounds | ||
+ | to suspect that the individual concerned is a “terrorist”. This differs from the constable’s | ||
+ | power of arrest for all offences under PACE, section 24, in that it need not be linked to a | ||
+ | specific offence. There may also be circumstances where an arrest under TACT is made | ||
+ | on the grounds of sensitive information which can not be disclosed. In such circumstances, | ||
+ | the grounds for arrest may be given in terms of the interpretation of a “terrorist” set out in | ||
+ | TACT section 40(1)(a) or (b). | ||
+ | 3H For the purpose of arrests under TACT section 41, the review officer is responsible for | ||
+ | authorising detention (see paragraphs 14.1 and 14.2, and Notes 14A and 14B). The review | ||
+ | officer’s role is explained in TACT Schedule 8 Part II. A person may be detained after | ||
+ | arrest pending the first review, which must take place as soon as practicable after the | ||
+ | person’s arrest. | ||
+ | 3I A custody officer or other officer who, in accordance with this Code, allows or directs the | ||
+ | carrying out of any task or action relating to a detainee’s care, treatment, rights and | ||
+ | entitlements by another officer or any other person must be satisfied that the officer or | ||
+ | person concerned is suitable, trained and competent to carry out the task or action in | ||
+ | question. | ||
+ | 3J Guidance for police officers and police staff on the operational application of section 31 of | ||
+ | the Children and Young Persons Act 1933 has been published by the College of Policing | ||
+ | and is available at: | ||
+ | https://www.app.college.police.uk/app-content/detention-and-custody-2/detainee-care/children-andyoung-persons/#girls. | ||
+ | 4 Detainee’s property | ||
+ | (a) Action | ||
+ | 4.1 The custody officer is responsible for: | ||
+ | (a) ascertaining what property a detainee: | ||
+ | (i) has with them when they come to the police station, either on first arrival at the | ||
+ | police station or any subsequent arrivals at a police station in connection with | ||
+ | that detention; | ||
+ | (ii) might have acquired for an unlawful or harmful purpose while in custody. | ||
+ | (b) the safekeeping of any property taken from a detainee which remains at the police | ||
+ | station. | ||
+ | The custody officer may search the detainee or authorise their being searched to the extent | ||
+ | they consider necessary, provided a search of intimate parts of the body or involving the | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 18 | ||
+ | removal of more than outer clothing is only made as in Annex A. A search may only be | ||
+ | carried out by an officer of the same sex as the detainee. See Note 4A and Annex I. | ||
+ | 4.2 Detainees may retain clothing and personal effects at their own risk unless the custody | ||
+ | officer considers they may use them to cause harm to themselves or others, interfere with | ||
+ | evidence, damage property, effect an escape or they are needed as evidence. In this | ||
+ | event, the custody officer may withhold such articles as they consider necessary and must | ||
+ | tell the detainee why. | ||
+ | 4.3 Personal effects are those items a detainee may lawfully need, use or refer to while in | ||
+ | detention but do not include cash and other items of value. | ||
+ | (b) Documentation | ||
+ | 4.4 It is a matter for the custody officer to determine whether a record should be made of the | ||
+ | property a detained person has with him or had taken from him on arrest (see Note 4D). | ||
+ | Any record made is not required to be kept as part of the custody record but the custody | ||
+ | record should be noted as to where such a record exists and that record shall be treated as | ||
+ | being part of the custody record for the purpose of this Code of Practice (see paragraphs | ||
+ | 2.4, 2.5 and 2.7). Whenever a record is made the detainee shall be allowed to check and | ||
+ | sign the record of property as correct. Any refusal to sign shall be recorded. | ||
+ | 4.5 If a detainee is not allowed to keep any article of clothing or personal effects, the reason | ||
+ | must be recorded. | ||
+ | Notes for Guidance | ||
+ | 4A PACE, Section 54(1) and paragraph 4.1 require a detainee to be searched when it is clear | ||
+ | the custody officer will have continuing duties in relation to that detainee or when that | ||
+ | detainee’s behaviour or offence makes an inventory appropriate. They do not require every | ||
+ | detainee to be searched, e.g. if it is clear a person will only be detained for a short period | ||
+ | and is not to be placed in a cell, the custody officer may decide not to search them. In such | ||
+ | a case the custody record will be endorsed ‘not searched’, paragraph 4.4 will not apply, and | ||
+ | the detainee will be invited to sign the entry. If the detainee refuses, the custody officer will | ||
+ | be obliged to ascertain what property they have in accordance with paragraph 4.1. | ||
+ | 4B Paragraph 4.4 does not require the custody officer to record on the custody record property | ||
+ | in the detainee’s possession on arrest if, by virtue of its nature, quantity or size, it is not | ||
+ | practicable to remove it to the police station. | ||
+ | 4C Paragraph 4.4 does not require items of clothing worn by the person to be recorded unless | ||
+ | withheld by the custody officer as in paragraph 4.2. | ||
+ | 4D Section 43(2) of TACT allows a constable to search a person who has been arrested under | ||
+ | section 41 to discover whether they have anything in their possession that may constitute | ||
+ | evidence that they are a terrorist. | ||
+ | 5 Right not to be held incommunicado | ||
+ | (a) Action | ||
+ | 5.1 Any person to whom this Code applies who is held in custody at a police station or other | ||
+ | premises may, on request, have one named person who is a friend, relative or a person | ||
+ | known to them who is likely to take an interest in their welfare informed at public expense of | ||
+ | their whereabouts as soon as practicable. If the person cannot be contacted the detainee | ||
+ | may choose up to two alternatives. If they cannot be contacted, the person in charge of | ||
+ | detention or the investigation has discretion to allow further attempts until the information | ||
+ | has been conveyed. See Notes 5D and 5E. | ||
+ | 5.2 The exercise of the above right in respect of each person nominated may be delayed only | ||
+ | in accordance with Annex B. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 19 | ||
+ | 5.3 The above right may be exercised each time a detainee is taken to another police station or | ||
+ | returned to a police station having been previously transferred to prison. This Code does | ||
+ | not afford such a right to a person on transfer to a prison, where a detainee’s rights will be | ||
+ | governed by Prison Rules, see Annex J paragraph 4. | ||
+ | 5.4 If the detainee agrees, they may at the custody officer’s discretion, receive visits from | ||
+ | friends, family or others likely to take an interest in their welfare, or in whose welfare the | ||
+ | detainee has an interest. Custody Officers should liaise closely with the investigation team | ||
+ | (see Note 3E) to allow risk assessments to be made where particular visitors have been | ||
+ | requested by the detainee or identified themselves to police. In circumstances where the | ||
+ | nature of the investigation means that such requests can not be met, consideration should | ||
+ | be given, in conjunction with a representative of the relevant scheme, to increasing the | ||
+ | frequency of visits from independent visitor schemes. See Notes 5B and 5C. | ||
+ | 5.5 If a friend, relative or person with an interest in the detainee’s welfare enquires about their | ||
+ | whereabouts, this information shall be given if the suspect agrees and Annex B does not | ||
+ | apply. See Note 5E. | ||
+ | 5.6 The detainee shall be given writing materials, on request, and allowed to telephone one | ||
+ | person for a reasonable time, see Notes 5A and 5F. Either or both these privileges may be | ||
+ | denied or delayed if an officer of inspector rank or above considers sending a letter or | ||
+ | making a telephone call may result in any of the consequences in Annex B paragraphs 1 | ||
+ | and 2, particularly in relation to the making of a telephone call in a language which an | ||
+ | officer listening to the call (see paragraph 5.7) does not understand. See Note 5G. | ||
+ | Nothing in this paragraph permits the restriction or denial of the rights in paragraphs 5.1 | ||
+ | and 6.1. | ||
+ | 5.7 Before any letter or message is sent, or telephone call made, the detainee shall be | ||
+ | informed that what they say in any letter, call or message (other than in a communication to | ||
+ | a solicitor) may be read or listened to and may be given in evidence. A telephone call may | ||
+ | be terminated if it is being abused see Note 5G. The costs can be at public expense at the | ||
+ | custody officer’s discretion. | ||
+ | 5.8 Any delay or denial of the rights in this section should be proportionate and should last no | ||
+ | longer than necessary. | ||
+ | (b) Documentation | ||
+ | 5.9 A record must be kept of any: | ||
+ | (a) request made under this section and the action taken; | ||
+ | (b) letters, messages or telephone calls made or received or visit received; | ||
+ | (c) refusal by the detainee to have information about them given to an outside enquirer, | ||
+ | or any refusal to see a visitor. The detainee must be asked to countersign the record | ||
+ | accordingly and any refusal recorded. | ||
+ | Notes for Guidance | ||
+ | 5A A person may request an interpreter to interpret a telephone call or translate a letter. | ||
+ | 5B At the custody officer’s discretion and subject to the detainee’s consent, visits should be | ||
+ | allowed when possible, subject to sufficient personnel being available to supervise a visit | ||
+ | and any possible hindrance to the investigation. Custody Officers should bear in mind the | ||
+ | exceptional nature of prolonged TACT detention and consider the potential benefits that | ||
+ | visits may bring to the health and welfare of detainees who are held for extended periods. | ||
+ | 5C Official visitors should be given access following consultation with the officer who has | ||
+ | overall responsibility for the investigation provided the detainee consents, and they do not | ||
+ | compromise safety or security or unduly delay or interfere with the progress of an | ||
+ | investigation. Official visitors should still be required to provide appropriate identification | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 20 | ||
+ | and subject to any screening process in place at the place of detention. Official visitors may | ||
+ | include: | ||
+ | An accredited faith representative; | ||
+ | Members of either House of Parliament; | ||
+ | Public officials needing to interview the prisoner in the course of their duties; | ||
+ | Other persons visiting with the approval of the officer who has overall responsibility for | ||
+ | the investigation; | ||
+ | Consular officials visiting a detainee who is a national of the country they represent | ||
+ | subject to section 7 of this Code. | ||
+ | Visits from appropriate members of the Independent Custody Visitors Scheme should be | ||
+ | dealt with in accordance with the separate Code of Practice on Independent Custody | ||
+ | Visiting. | ||
+ | 5D If the detainee does not know anyone to contact for advice or support or cannot contact a | ||
+ | friend or relative, the custody officer should bear in mind any local voluntary bodies or other | ||
+ | organisations that might be able to help. Paragraph 6.1 applies if legal advice is required. | ||
+ | 5E In some circumstances it may not be appropriate to use the telephone to disclose | ||
+ | information under paragraphs 5.1 and 5.5. | ||
+ | 5F The telephone call at paragraph 5.6 is in addition to any communication under paragraphs | ||
+ | 5.1 and 6.1. Further calls may be made at the custody officer’s discretion. | ||
+ | 5G The nature of terrorism investigations means that officers should have particular regard to | ||
+ | the possibility of suspects attempting to pass information which may be detrimental to | ||
+ | public safety, or to an investigation. | ||
+ | 6 Right to legal advice | ||
+ | (a) Action | ||
+ | 6.1 Unless Annex B applies, all detainees must be informed that they may at any time consult | ||
+ | and communicate privately with a solicitor, whether in person, in writing or by telephone, | ||
+ | and that free independent legal advice is available from the duty solicitor. Where an | ||
+ | appropriate adult is in attendance, they must also be informed of this right. See paragraph | ||
+ | 3.1, Note 1I, Notes 6B and 6J | ||
+ | 6.2 A poster advertising the right to legal advice must be prominently displayed in the charging | ||
+ | area of every police station. See Note 6G. | ||
+ | 6.3 No police officer should, at any time, do or say anything with the intention of dissuading any | ||
+ | person who is entitled to legal advice in accordance with this Code, from obtaining legal | ||
+ | advice. See Note 6ZA. | ||
+ | 6.4 The exercise of the right of access to legal advice may be delayed exceptionally only as in | ||
+ | Annex B. Whenever legal advice is requested, and unless Annex B applies, the custody | ||
+ | officer must act without delay to secure the provision of such advice. If, on being informed | ||
+ | or reminded of this right, the detainee declines to speak to a solicitor in person, the officer | ||
+ | should point out that the right includes the right to speak with a solicitor on the telephone | ||
+ | (see paragraph 5.6). If the detainee continues to waive this right the officer should ask | ||
+ | them why and any reasons should be recorded on the custody record or the interview | ||
+ | record as appropriate. Reminders of the right to legal advice must be given as in | ||
+ | paragraphs 3.5, 11.3 and 5 of Annex K of this Code and PACE Code D on the Identification | ||
+ | of Persons by Police Officers, paragraphs 3.17(ii) and 6.3. Once it is clear a detainee does | ||
+ | not want to speak to a solicitor in person or by telephone they should cease to be asked | ||
+ | their reasons. See Note 6J. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 21 | ||
+ | 6.5 An officer of the rank of Commander or Assistant Chief Constable or above may give a | ||
+ | direction under TACT Schedule 8 paragraph 9 that a detainee may only consult a solicitor | ||
+ | within the sight and hearing of a qualified officer. Such a direction may only be given if the | ||
+ | officer has reasonable grounds to believe that if it were not, it may result in one of the | ||
+ | consequences set out in TACT Schedule 8 paragraph 8(4) or (5)(c). See Annex B | ||
+ | paragraph 3 and Note 6I. A “qualified officer” means a police officer who: | ||
+ | (a) is at least the rank of inspector; | ||
+ | (b) is of the uniformed branch of the force of which the officer giving the direction is a | ||
+ | member, and | ||
+ | (c) in the opinion of the officer giving the direction, has no connection with the detained | ||
+ | person’s case. | ||
+ | Officers considering the use of this power should first refer to Home Office Circular | ||
+ | 40/2003. | ||
+ | 6.6 In the case of a person who is a juvenile or is mentally disordered or otherwise mentally | ||
+ | vulnerable, an appropriate adult should consider whether legal advice from a solicitor is | ||
+ | required. If such a detained person wants to exercise the right to legal advice, the | ||
+ | appropriate action should be taken and should not be delayed until the appropriate adult | ||
+ | arrives. If the person indicates that they do not want legal advice, the appropriate adult has | ||
+ | the right to ask for a solicitor to attend if this would be in the best interests of the person. | ||
+ | However, the person cannot be forced to see the solicitor if they are adamant that they do | ||
+ | not wish to do so. | ||
+ | 6.7 A detainee who wants legal advice may not be interviewed or continue to be interviewed | ||
+ | until they have received such advice unless: | ||
+ | (a) Annex B applies, when the restriction on drawing adverse inferences from silence in | ||
+ | Annex C will apply because the detainee is not allowed an opportunity to consult a | ||
+ | solicitor; or | ||
+ | (b) an officer of superintendent rank or above has reasonable grounds for believing that: | ||
+ | (i) the consequent delay might: | ||
+ | lead to interference with, or harm to, evidence connected with an offence; | ||
+ | lead to interference with, or physical harm to, other people; | ||
+ | lead to serious loss of, or damage to, property; | ||
+ | lead to alerting other people suspected of having committed an offence but | ||
+ | not yet arrested for it; | ||
+ | hinder the recovery of property obtained in consequence of the commission | ||
+ | of an offence. | ||
+ | See Note 6A | ||
+ | (ii) when a solicitor, including a duty solicitor, has been contacted and has agreed | ||
+ | to attend, awaiting their arrival would cause unreasonable delay to the process | ||
+ | of investigation. | ||
+ | Note: In these cases the restriction on drawing adverse inferences from silence in | ||
+ | Annex C will apply because the detainee is not allowed an opportunity to consult a | ||
+ | solicitor. | ||
+ | (c) the solicitor the detainee has nominated or selected from a list: | ||
+ | (i) cannot be contacted; | ||
+ | (ii) has previously indicated they do not wish to be contacted; or | ||
+ | (iii) having been contacted, has declined to attend; and | ||
+ | the detainee has been advised of the Duty Solicitor Scheme but has declined | ||
+ | to ask for the duty solicitor; | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 22 | ||
+ | in these circumstances the interview may be started or continued without | ||
+ | further delay provided an officer of inspector rank or above has agreed to | ||
+ | the interview proceeding. | ||
+ | Note: The restriction on drawing adverse inferences from silence in Annex C will not | ||
+ | apply because the detainee is allowed an opportunity to consult the duty solicitor; | ||
+ | (d) the detainee changes their mind, about wanting legal advice or (as the case may be) | ||
+ | about wanting a solicitor present at the interview, and states that they no longer wish to | ||
+ | speak to a solicitor. In these circumstances the interview may be started or continued | ||
+ | without delay provided that: | ||
+ | (i) an officer of inspector rank or above: | ||
+ | speaks to the detainee to enquire about the reasons for their change of | ||
+ | mind (see Note 6J), and | ||
+ | makes, or directs the making of, reasonable efforts to ascertain the | ||
+ | solicitor’s expected time of arrival and to inform the solicitor that the suspect | ||
+ | has stated that they wish to change their mind and the reason (if given); | ||
+ | (ii) the detainee’s reason for their change of mind (if given) and the outcome of the | ||
+ | action in (i) are recorded in the custody record; | ||
+ | (iii) the detainee, after being informed of the outcome of the action in (i) above, | ||
+ | confirms in writing that they want the interview to proceed without speaking or | ||
+ | further speaking to a solicitor or (as the case may be) without a solicitor being | ||
+ | present and do not wish to wait for a solicitor by signing an entry to this effect in | ||
+ | the custody record; | ||
+ | (iv) an officer of inspector rank or above is satisfied that it is proper for the interview | ||
+ | to proceed in these circumstances and: | ||
+ | gives authority in writing for the interview to proceed and if the authority is | ||
+ | not recorded in the custody record, the officer must ensure that the custody | ||
+ | record shows the date and time of the authority and where it is recorded; | ||
+ | and | ||
+ | takes or directs the taking of, reasonable steps to inform the solicitor that | ||
+ | the authority has been given and the time when the interview is expected to | ||
+ | commence and records or causes to be recorded, the outcome of this action | ||
+ | in the custody record. | ||
+ | (v) When the interview starts and the interviewer reminds the suspect of their right | ||
+ | to legal advice (see paragraph 11.3) and the Code of Practice issued under | ||
+ | paragraph 3 of Schedule 8 to the Terrorism Act 2000 for the video recording | ||
+ | with sound of interviews, the interviewer shall then ensure that the following is | ||
+ | recorded in the interview record made in accordance with that Code: | ||
+ | confirmation that the detainee has changed their mind about wanting legal | ||
+ | advice or (as the case may be) about wanting a solicitor present and the | ||
+ | reasons for it if given; | ||
+ | the fact that authority for the interview to proceed has been given and, | ||
+ | subject to paragraph 2.8, the name of the authorising officer; | ||
+ | that if the solicitor arrives at the station before the interview is completed, | ||
+ | the detainee will be so informed without delay and a break will be taken to | ||
+ | allow them to speak to the solicitor if they wish, unless paragraph 6.7(a) | ||
+ | applies, and | ||
+ | that at any time during the interview, the detainee may again ask for legal | ||
+ | advice and that if they do, a break will be taken to allow them to speak to the | ||
+ | solicitor, unless paragraph 6.7(a), (b), or (c) applies. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 23 | ||
+ | Note: In these circumstances the restriction on drawing adverse inferences from | ||
+ | silence in Annex C will not apply because the detainee is allowed an opportunity to | ||
+ | consult a solicitor if they wish. | ||
+ | 6.8 If paragraph 6.7(a) applies, where the reason for authorising the delay ceases to apply, | ||
+ | there may be no further delay in permitting the exercise of the right in the absence of a | ||
+ | further authorisation unless paragraph 6.7(b), (c) or (d) applies. If paragraph 6.7(b)(i) | ||
+ | applies, once sufficient information has been obtained to avert the risk, questioning must | ||
+ | cease until the detainee has received legal advice unless paragraph 6.7(a), (b)(ii), (c) or (d) | ||
+ | applies. | ||
+ | 6.9 A detainee who has been permitted to consult a solicitor shall be entitled on request to have | ||
+ | the solicitor present when they are interviewed unless one of the exceptions in paragraph | ||
+ | 6.7 applies. | ||
+ | 6.10 The solicitor may only be required to leave the interview if their conduct is such that the | ||
+ | interviewer is unable properly to put questions to the suspect. See Notes 6C and 6D. | ||
+ | 6.11 If the interviewer considers a solicitor is acting in such a way, they will stop the interview | ||
+ | and consult an officer not below superintendent rank, if one is readily available, and | ||
+ | otherwise an officer not below inspector rank not connected with the investigation. After | ||
+ | speaking to the solicitor, the officer consulted will decide if the interview should continue in | ||
+ | the presence of that solicitor. If they decide it should not, the suspect will be given the | ||
+ | opportunity to consult another solicitor before the interview continues and that solicitor | ||
+ | given an opportunity to be present at the interview. See Note 6D. | ||
+ | 6.12 The removal of a solicitor from an interview is a serious step and, if it occurs, the officer of | ||
+ | superintendent rank or above who took the decision will consider if the incident should be | ||
+ | reported to the Solicitors Regulatory Authority. If the decision to remove the solicitor has | ||
+ | been taken by an officer below superintendent rank, the facts must be reported to an officer | ||
+ | of superintendent rank or above, who will similarly consider whether a report to the | ||
+ | Solicitors Regulatory Authority would be appropriate. When the solicitor concerned is a | ||
+ | duty solicitor, the report should be both to the Solicitors Regulatory Authority and to the | ||
+ | Legal Aid Agency. | ||
+ | 6.13 ‘Solicitor’ in this Code means: | ||
+ | a solicitor who holds a current practising certificate; | ||
+ | an accredited or probationary representative included on the register of representatives | ||
+ | maintained by the Legal Aid Agency. | ||
+ | 6.14 An accredited or probationary representative sent to provide advice by, and on behalf of, a | ||
+ | solicitor shall be admitted to the police station for this purpose unless an officer of inspector | ||
+ | rank or above considers such a visit will hinder the investigation and directs otherwise. | ||
+ | Hindering the investigation does not include giving proper legal advice to a detainee as in | ||
+ | Note 6C. Once admitted to the police station, paragraphs 6.7 to 6.11 apply. | ||
+ | 6.15 In exercising their discretion under paragraph 6.14, the officer should take into account in | ||
+ | particular: | ||
+ | whether: | ||
+ | the identity and status of an accredited or probationary representative have been | ||
+ | satisfactorily established; | ||
+ | they are of suitable character to provide legal advice, | ||
+ | any other matters in any written letter of authorisation provided by the solicitor on whose | ||
+ | behalf the person is attending the police station. See Note 6E. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 24 | ||
+ | 6.16 If the inspector refuses access to an accredited or probationary representative or a decision | ||
+ | is taken that such a person should not be permitted to remain at an interview, the inspector | ||
+ | must notify the solicitor on whose behalf the representative was acting and give them an | ||
+ | opportunity to make alternative arrangements. The detainee must be informed and the | ||
+ | custody record noted. | ||
+ | 6.17 If a solicitor arrives at the station to see a particular person, that person must, unless Annex | ||
+ | B applies, be so informed whether or not they are being interviewed and asked if they | ||
+ | would like to see the solicitor. This applies even if the detainee has declined legal advice | ||
+ | or, having requested it, subsequently agreed to be interviewed without receiving advice. | ||
+ | The solicitor’s attendance and the detainee’s decision must be noted in the custody record. | ||
+ | (b) Documentation | ||
+ | 6.18 Any request for legal advice and the action taken shall be recorded. | ||
+ | 6.19 A record shall be made in the interview record if a detainee asks for legal advice and an | ||
+ | interview is begun either in the absence of a solicitor or their representative, or they have | ||
+ | been required to leave an interview. | ||
+ | Notes for Guidance | ||
+ | 6ZA No police officer or police staff shall indicate to any suspect, except to answer a direct | ||
+ | question, that the period for which they are liable to be detained, or the time taken to | ||
+ | complete the interview, might be reduced: | ||
+ | if they do not ask for legal advice or do not want a solicitor present when they are | ||
+ | interviewed; or | ||
+ | if after asking for legal advice, they change their mind about wanting it or (as the case | ||
+ | may be) wanting a solicitor present when they are interviewed and agree to be | ||
+ | interviewed without waiting for a solicitor. | ||
+ | 6A In considering if paragraph 6.7(b) applies, the officer should, if practicable, ask the solicitor | ||
+ | for an estimate of how long it will take to come to the station and relate this to the time | ||
+ | detention is permitted, the time of day (i.e. whether the rest period under paragraph 12.2 is | ||
+ | imminent) and the requirements of other investigations. If the solicitor is on their way or is | ||
+ | to set off immediately, it will not normally be appropriate to begin an interview before they | ||
+ | arrive. If it appears necessary to begin an interview before the solicitor’s arrival, they | ||
+ | should be given an indication of how long the police would be able to wait so there is an | ||
+ | opportunity to make arrangements for someone else to provide legal advice. Nothing within | ||
+ | this section is intended to prevent police from ascertaining immediately after the arrest of an | ||
+ | individual whether a threat to public safety exists (see paragraph 11.2). | ||
+ | 6B A detainee has a right to free legal advice and to be represented by a solicitor. This Note | ||
+ | for Guidance explains the arrangements which enable detainees to whom this Code applies | ||
+ | to obtain legal advice. An outline of these arrangements is also included in the Notice of | ||
+ | Rights and Entitlements given to detainees in accordance with paragraph 3.2. | ||
+ | The detainee can ask for free advice from a solicitor they know or if they do not know a | ||
+ | solicitor or the solicitor they know cannot be contacted, from the duty solicitor. | ||
+ | To arrange free legal advice, the police should telephone the Defence Solicitor Call Centre | ||
+ | (DSCC). The call centre will contact either the duty solicitor or the solicitor requested by the | ||
+ | detainee as appropriate. | ||
+ | When a detainee wants to pay for legal advice themselves: | ||
+ | the DSCC will contact a solicitor of their choice on their behalf; | ||
+ | they should be given an opportunity to consult a specific solicitor or another | ||
+ | solicitor from that solicitor’s firm. If this solicitor is not available, they may choose | ||
+ | up to two alternatives. If these alternatives are not available, the custody officer | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 25 | ||
+ | has discretion to allow further attempts until a solicitor has been contacted and | ||
+ | agreed to provide advice; | ||
+ | they are entitled to a private consultation with their chosen solicitor on the | ||
+ | telephone or the solicitor may decide to come to the police station; | ||
+ | if their chosen solicitor cannot be contacted, the DSCC may still be called to | ||
+ | arrange free legal advice. | ||
+ | Apart from carrying out duties necessary to implement these arrangements, an officer must | ||
+ | not advise the suspect about any particular firm of solicitors. | ||
+ | 6C The solicitor’s only role in the police station is to protect and advance the legal rights of their | ||
+ | client. On occasions this may require the solicitor to give advice which has the effect of the | ||
+ | client avoiding giving evidence which strengthens a prosecution case. The solicitor may | ||
+ | intervene in order to seek clarification, challenge an improper question to their client or the | ||
+ | manner in which it is put, advise their client not to reply to particular questions, or if they | ||
+ | wish to give their client further legal advice. Paragraph 6.9 only applies if the solicitor’s | ||
+ | approach or conduct prevents or unreasonably obstructs proper questions being put to the | ||
+ | suspect or the suspect’s response being recorded. Examples of unacceptable conduct | ||
+ | include answering questions on a suspect’s behalf or providing written replies for the | ||
+ | suspect to quote. | ||
+ | 6D An officer who takes the decision to exclude a solicitor must be in a position to satisfy the | ||
+ | court the decision was properly made. In order to do this they may need to witness what is | ||
+ | happening. | ||
+ | 6E If an officer of at least inspector rank considers a particular solicitor or firm of solicitors is | ||
+ | persistently sending probationary representatives who are unsuited to provide legal advice, | ||
+ | they should inform an officer of at least superintendent rank, who may wish to take the | ||
+ | matter up with the Solicitors Regulatory Authority. | ||
+ | 6F Subject to the constraints of Annex B, a solicitor may advise more than one client in an | ||
+ | investigation if they wish. Any question of a conflict of interest is for the solicitor under their | ||
+ | professional code of conduct. If, however, waiting for a solicitor to give advice to one client | ||
+ | may lead to unreasonable delay to the interview with another, the provisions of paragraph | ||
+ | 6.7(b) may apply. | ||
+ | 6G In addition to a poster in English, a poster or posters containing translations into Welsh, the | ||
+ | main minority ethnic languages and the principal European languages should be displayed | ||
+ | wherever they are likely to be helpful and it is practicable to do so. | ||
+ | 6H Not used | ||
+ | 6I Whenever a detainee exercises their right to legal advice by consulting or communicating | ||
+ | with a solicitor, they must be allowed to do so in private. This right to consult or | ||
+ | communicate in private is fundamental. Except as allowed by the Terrorism Act 2000, | ||
+ | Schedule 8, paragraph 9, if the requirement for privacy is compromised because what is | ||
+ | said or written by the detainee or solicitor for the purpose of giving and receiving legal | ||
+ | advice is overheard, listened to, or read by others without the informed consent of the | ||
+ | detainee, the right will effectively have been denied. When a detainee speaks to a solicitor | ||
+ | on the telephone, they should be allowed to do so in private unless a direction under | ||
+ | Schedule 8, paragraph 9 of the Terrorism Act 2000 has been given or this is impractical | ||
+ | because of the design and layout of the custody area, or the location of telephones. | ||
+ | However, the normal expectation should be that facilities will be available, unless they are | ||
+ | being used, at all police stations to enable detainees to speak in private to a solicitor either | ||
+ | face to face or over the telephone. | ||
+ | 6J A detainee is not obliged to give reasons for declining legal advice and should not be | ||
+ | pressed to do so. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 26 | ||
+ | 7 Citizens of independent Commonwealth countries or foreign nationals | ||
+ | (a) Action | ||
+ | 7.1 A detainee who is a citizen of an independent Commonwealth country or a national of a | ||
+ | foreign country, including the Republic of Ireland, has the right, upon request, to | ||
+ | communicate at any time with the appropriate High Commission, Embassy or Consulate. | ||
+ | That detainee must be informed as soon as practicable of this right and asked if they want | ||
+ | to have their High Commission, Embassy or Consulate told of their whereabouts and the | ||
+ | grounds for their detention. Such a request should be acted upon as soon as practicable. | ||
+ | See Note 7A. | ||
+ | 7.2 A detainee who is a citizen of a country with which a bilateral consular convention or | ||
+ | agreement is in force requiring notification of arrest, must also be informed that subject to | ||
+ | paragraph 7.4, notification of their arrest will be sent to the appropriate High Commission, | ||
+ | Embassy or Consulate as soon as practicable, whether or not they request it. A list of the | ||
+ | countries to which this requirement currently applies and contact details for the relevant | ||
+ | High Commissions, Embassies and Consulates can be obtained from the Consular | ||
+ | Directorate of the Foreign and Commonwealth Office (FCO) as follows: | ||
+ | from the FCO web pages: | ||
+ | https://gov.uk/government/publications/table-of-consular-conventions-and-mandatory-notificationobligations, | ||
+ | and | ||
+ | https://www.gov.uk/government/publications/foreign-embassies-in-the-uk | ||
+ | by telephone to 020 7008 3100, | ||
+ | by email to fcocorrespondence@fco.gov.uk. | ||
+ | by letter to the Foreign and Commonwealth Office, King Charles Street, London, SW1A | ||
+ | 2AH. | ||
+ | 7.3 Consular officers may, if the detainee agrees, visit one of their nationals in police detention | ||
+ | to talk to them and, if required, to arrange for legal advice. Such visits shall take place out | ||
+ | of the hearing of a police officer. | ||
+ | 7.4 Notwithstanding the provisions of consular conventions, if the detainee claims that they are | ||
+ | a refugee or have applied or intend to apply for asylum the custody officer must ensure that | ||
+ | UK Visas and Immigration (UKVI) (formerly the UK Border Agency) are informed as soon | ||
+ | as practicable of the claim. UKVI will then determine whether compliance with relevant | ||
+ | international obligations requires notification of arrest to be sent and will inform the custody | ||
+ | officer as to what action police need to take. | ||
+ | (b) Documentation | ||
+ | 7.5 A record shall be made: | ||
+ | when a detainee is informed of their rights under this section and of any requirement in | ||
+ | paragraph 7.2; | ||
+ | of any communications with a High Commission, Embassy or Consulate, and | ||
+ | of any communications with UKVI about a detainee’s claim to be a refugee or to be | ||
+ | seeking asylum and the resulting action taken by police. | ||
+ | Note for Guidance | ||
+ | 7A The exercise of the rights in this section may not be interfered with even though Annex B | ||
+ | applies. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 27 | ||
+ | 8 Conditions of detention | ||
+ | (a) Action | ||
+ | 8.1 So far as it is practicable, not more than one detainee should be detained in each cell. See | ||
+ | Note 8E. | ||
+ | 8.2 Cells in use must be adequately heated, cleaned and ventilated. They must be adequately | ||
+ | lit, subject to such dimming as is compatible with safety and security to allow people | ||
+ | detained overnight to sleep. No additional restraints shall be used within a locked cell | ||
+ | unless absolutely necessary and then only restraint equipment, approved for use in that | ||
+ | force by the chief officer, which is reasonable and necessary in the circumstances having | ||
+ | regard to the detainee’s demeanour and with a view to ensuring their safety and the safety | ||
+ | of others. If a detainee is deaf, mentally disordered or otherwise mentally vulnerable, | ||
+ | particular care must be taken when deciding whether to use any form of approved | ||
+ | restraints. | ||
+ | 8.3 Blankets, mattresses, pillows and other bedding supplied shall be of a reasonable standard | ||
+ | and in a clean and sanitary condition. | ||
+ | 8.4 Access to toilet and washing facilities must be provided. | ||
+ | 8.5 If it is necessary to remove a detainee’s clothes for the purposes of investigation, for | ||
+ | hygiene, health reasons or cleaning, replacement clothing of a reasonable standard of | ||
+ | comfort and cleanliness shall be provided. A detainee may not be interviewed unless | ||
+ | adequate clothing has been offered. | ||
+ | 8.6 At least two light meals and one main meal should be offered in any 24-hour period. See | ||
+ | Note 8B. Drinks should be provided at meal times and upon reasonable request between | ||
+ | meals. Whenever necessary, advice shall be sought from the appropriate healthcare | ||
+ | professional, see Note 9A, on medical and dietary matters. As far as practicable, meals | ||
+ | provided shall offer a varied diet and meet any specific dietary needs or religious beliefs the | ||
+ | detainee may have. Detainees should also be made aware that the meals offered meet | ||
+ | such needs. The detainee may, at the custody officer’s discretion, have meals supplied by | ||
+ | their family or friends at their expense. See Note 8A. | ||
+ | 8.7 Brief outdoor exercise shall be offered daily if practicable. Where facilities exist, indoor | ||
+ | exercise shall be offered as an alternative if outside conditions are such that a detainee can | ||
+ | not be reasonably expected to take outdoor exercise (e.g., in cold or wet weather) or if | ||
+ | requested by the detainee or for reasons of security. See Note 8C. | ||
+ | 8.8 Where practicable, provision should be made for detainees to practice religious | ||
+ | observance. Consideration should be given to providing a separate room which can be | ||
+ | used as a prayer room. The supply of appropriate food and clothing, and suitable provision | ||
+ | for prayer facilities, such as uncontaminated copies of religious books, should also be | ||
+ | considered. See Note 8D. | ||
+ | 8.9 A juvenile shall not be placed in a cell unless no other secure accommodation is available | ||
+ | and the custody officer considers it is not practicable to supervise them if they are not | ||
+ | placed in a cell or that a cell provides more comfortable accommodation than other secure | ||
+ | accommodation in the station. A juvenile may not be placed in a cell with a detained adult. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 28 | ||
+ | 8.10 Police stations should keep a reasonable supply of reading material available for detainees, | ||
+ | including but not limited to, the main religious texts. See Note 8D. Detainees should be | ||
+ | made aware that such material is available and reasonable requests for such material | ||
+ | should be met as soon as practicable unless to do so would: | ||
+ | (i) interfere with the investigation; or | ||
+ | (ii) prevent or delay an officer from discharging his statutory duties, or those in this | ||
+ | Code. | ||
+ | If such a request is refused on the grounds of (i) or (ii) above, this should be noted in the | ||
+ | custody record and met as soon as possible after those grounds cease to apply. | ||
+ | (b) Documentation | ||
+ | 8.11 A record must be kept of replacement clothing and meals offered. | ||
+ | 8.11A If a juvenile is placed in a cell, the reason must be recorded. | ||
+ | 8.12 The use of any restraints on a detainee whilst in a cell, the reasons for it and, if appropriate, | ||
+ | the arrangements for enhanced supervision of the detainee whilst so restrained, shall be | ||
+ | recorded. See paragraph 3.9 | ||
+ | Notes for Guidance | ||
+ | 8A In deciding whether to allow meals to be supplied by family or friends, the custody officer is | ||
+ | entitled to take account of the risk of items being concealed in any food or package and the | ||
+ | officer’s duties and responsibilities under food handling legislation. If an officer needs to | ||
+ | examine food or other items supplied by family and friends before deciding whether they | ||
+ | can be given to the detainee, he should inform the person who has brought the item to the | ||
+ | police station of this and the reasons for doing so. | ||
+ | 8B Meals should, so far as practicable, be offered at recognised meal times, or at other times | ||
+ | that take account of when the detainee last had a meal. | ||
+ | 8C In light of the potential for detaining individuals for extended periods of time, the overriding | ||
+ | principle should be to accommodate a period of exercise, except where to do so would | ||
+ | hinder the investigation, delay the detainee’s release or charge, or it is declined by the | ||
+ | detainee. | ||
+ | 8D Police forces should consult with representatives of the main religious communities to | ||
+ | ensure the provision for religious observance is adequate, and to seek advice on the | ||
+ | appropriate storage and handling of religious texts or other religious items. | ||
+ | 8E The Detention and Custody Authorised Professional Practice (APP) produced by the | ||
+ | College of Policing (see http://www.app.college.police.uk) provides more detailed guidance | ||
+ | on matters concerning detainee healthcare and treatment and associated forensic issues | ||
+ | which should be read in conjunction with sections 8 and 9 of this Code. | ||
+ | 9 Care and treatment of detained persons | ||
+ | (a) General | ||
+ | 9.1 Notwithstanding other requirements for medical attention as set out in this section, | ||
+ | detainees who are held for more than 96 hours must be visited by an appropriate | ||
+ | healthcare professional at least once every 24 hours. | ||
+ | 9.2 Nothing in this section prevents the police from calling an appropriate healthcare | ||
+ | professional, to examine a detainee for the purposes of obtaining evidence relating to any | ||
+ | offence in which the detainee is suspected of being involved. See Note 9A. | ||
+ | 9.3 If a complaint is made by, or on behalf of, a detainee about their treatment since their | ||
+ | arrest, or it comes to notice that a detainee may have been treated improperly, a report | ||
+ | must be made as soon as practicable to an officer of inspector rank or above not connected | ||
+ | with the investigation. If the matter concerns a possible assault or the possibility of the | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 29 | ||
+ | unnecessary or unreasonable use of force, an appropriate healthcare professional must | ||
+ | also be called as soon as practicable. | ||
+ | 9.4 Detainees should be visited at least every hour. If no reasonably foreseeable risk was | ||
+ | identified in a risk assessment, see paragraphs 3.6 to 3.10, there is no need to wake a | ||
+ | sleeping detainee. Those suspected of being under the influence of drink or drugs or both | ||
+ | or of having swallowed drugs, see Note 9C, or whose level of consciousness causes | ||
+ | concern must, subject to any clinical directions given by the appropriate healthcare | ||
+ | professional, see paragraph 9.15: | ||
+ | be visited and roused at least every half hour; | ||
+ | have their condition assessed as in Annex H; | ||
+ | and clinical treatment arranged if appropriate. | ||
+ | See Notes 9B, 9C and 9G | ||
+ | 9.5 When arrangements are made to secure clinical attention for a detainee, the custody officer | ||
+ | must make sure all relevant information which might assist in the treatment of the | ||
+ | detainee’s condition is made available to the responsible healthcare professional. This | ||
+ | applies whether or not the healthcare professional asks for such information. Any officer or | ||
+ | police staff with relevant information must inform the custody officer as soon as practicable. | ||
+ | (b) Clinical treatment and attention | ||
+ | 9.6 The custody officer must make sure a detainee receives appropriate clinical attention as | ||
+ | soon as reasonably practicable if the person: | ||
+ | (a) appears to be suffering from physical illness; or | ||
+ | (b) is injured; or | ||
+ | (c) appears to be suffering from a mental disorder; or | ||
+ | (d) appears to need clinical attention | ||
+ | 9.7 This applies even if the detainee makes no request for clinical attention and whether or not | ||
+ | they have already received clinical attention elsewhere. If the need for attention appears | ||
+ | urgent, e.g. when indicated as in Annex H, the nearest available healthcare professional or | ||
+ | an ambulance must be called immediately. | ||
+ | 9.8 The custody officer must also consider the need for clinical attention as set out in Note 9C | ||
+ | in relation to those suffering the effects of alcohol or drugs. | ||
+ | 9.9 If it appears to the custody officer, or they are told, that a person brought to a station under | ||
+ | arrest may be suffering from an infectious disease or condition, the custody officer must | ||
+ | take reasonable steps to safeguard the health of the detainee and others at the station. In | ||
+ | deciding what action to take, advice must be sought from an appropriate healthcare | ||
+ | professional. See Note 9D. The custody officer has discretion to isolate the person and | ||
+ | their property until clinical directions have been obtained. | ||
+ | 9.10 If a detainee requests a clinical examination, an appropriate healthcare professional must | ||
+ | be called as soon as practicable to assess the detainee's clinical needs. If a safe and | ||
+ | appropriate care plan cannot be provided, the appropriate healthcare professional’s advice | ||
+ | must be sought. The detainee may also be examined by a medical practitioner of their | ||
+ | choice at their expense. | ||
+ | 9.11 If a detainee is required to take or apply any medication in compliance with clinical | ||
+ | directions prescribed before their detention, the custody officer must consult the appropriate | ||
+ | healthcare professional before the use of the medication. Subject to the restrictions in | ||
+ | paragraph 9.12, the custody officer is responsible for the safekeeping of any medication | ||
+ | and for making sure the detainee is given the opportunity to take or apply prescribed or | ||
+ | approved medication. Any such consultation and its outcome shall be noted in the custody | ||
+ | record. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 30 | ||
+ | 9.12 No police officer may administer or supervise the self-administration of medically prescribed | ||
+ | controlled drugs of the types and forms listed in the Misuse of Drugs Regulations 2001, | ||
+ | Schedule 2 or 3. A detainee may only self-administer such drugs under the personal | ||
+ | supervision of the registered medical practitioner authorising their use or other appropriate | ||
+ | healthcare professional. The custody officer may supervise the self-administration of, or | ||
+ | authorise other custody staff to supervise the self-administration of, drugs listed in Schedule | ||
+ | 4 or 5 if the officer has consulted the appropriate healthcare professional authorising their | ||
+ | use and both are satisfied self-administration will not expose the detainee, police officers or | ||
+ | anyone else to the risk of harm or injury. | ||
+ | 9.13 When appropriate healthcare professionals administer drugs or authorise the use of other | ||
+ | medications, or consult with the custody officer about allowing self administration of drugs | ||
+ | listed in Schedule 4 or 5, it must be within current medicines legislation and the scope of | ||
+ | practice as determined by their relevant regulatory body. | ||
+ | 9.14 If a detainee has in their possession, or claims to need, medication relating to a heart | ||
+ | condition, diabetes, epilepsy or a condition of comparable potential seriousness then, even | ||
+ | though paragraph 9.6 may not apply, the advice of the appropriate healthcare professional | ||
+ | must be obtained. | ||
+ | 9.15 Whenever the appropriate healthcare professional is called in accordance with this section | ||
+ | to examine or treat a detainee, the custody officer shall ask for their opinion about: | ||
+ | any risks or problems which police need to take into account when making decisions | ||
+ | about the detainee’s continued detention; | ||
+ | when to carry out an interview if applicable; and | ||
+ | the need for safeguards. | ||
+ | 9.16 When clinical directions are given by the appropriate healthcare professional, whether orally | ||
+ | or in writing, and the custody officer has any doubts or is in any way uncertain about any | ||
+ | aspect of the directions, the custody officer shall ask for clarification. It is particularly | ||
+ | important that directions concerning the frequency of visits are clear, precise and capable of | ||
+ | being implemented. See Note 9E. | ||
+ | (c) Documentation | ||
+ | 9.17 A record must be made in the custody record of: | ||
+ | (a) the arrangements made for an examination by an appropriate healthcare professional | ||
+ | under paragraph 9.3 and of any complaint reported under that paragraph together | ||
+ | with any relevant remarks by the custody officer; | ||
+ | (b) any arrangements made in accordance with paragraph 9.6; | ||
+ | (c) any request for a clinical examination under paragraph 9.10 and any arrangements | ||
+ | made in response; | ||
+ | (d) the injury, ailment, condition or other reason which made it necessary to make the | ||
+ | arrangements in (a) to (c); See Note 9F | ||
+ | (e) any clinical directions and advice, including any further clarifications, given to police | ||
+ | by a healthcare professional concerning the care and treatment of the detainee in | ||
+ | connection with any of the arrangements made in (a) to (c); See Notes 9D and 9E | ||
+ | (f) if applicable, the responses received when attempting to rouse a person using the | ||
+ | procedure in Annex H. See Note 9G. | ||
+ | 9.18 If a healthcare professional does not record their clinical findings in the custody record, the | ||
+ | record must show where they are recorded. See Note 9F. However, information which is | ||
+ | necessary to custody staff to ensure the effective ongoing care and well being of the | ||
+ | detainee must be recorded openly in the custody record, see paragraph 3.8 and Annex G, | ||
+ | paragraph 7. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 31 | ||
+ | 9.19 Subject to the requirements of Section 4, the custody record shall include: | ||
+ | a record of all medication a detainee has in their possession on arrival at the police | ||
+ | station; | ||
+ | a note of any such medication they claim to need but do not have with them. | ||
+ | Notes for Guidance | ||
+ | 9A A ‘healthcare professional’ means a clinically qualified person working within the scope of | ||
+ | practice as determined by their relevant statutory regulatory body. Whether a healthcare | ||
+ | professional is ‘appropriate’ depends on the circumstances of the duties they carry out at | ||
+ | the time. | ||
+ | 9B Whenever possible juveniles and mentally vulnerable detainees should be visited more | ||
+ | frequently. | ||
+ | 9C A detainee who appears drunk or behaves abnormally may be suffering from illness, the | ||
+ | effects of drugs or may have sustained injury, particularly a head injury which is not | ||
+ | apparent. A detainee needing or dependent on certain drugs, including alcohol, may | ||
+ | experience harmful effects within a short time of being deprived of their supply. In these | ||
+ | circumstances, when there is any doubt, police should always act urgently to call an | ||
+ | appropriate healthcare professional or an ambulance. Paragraph 9.6 does not apply to | ||
+ | minor ailments or injuries which do not need attention. However, all such ailments or | ||
+ | injuries must be recorded in the custody record and any doubt must be resolved in favour of | ||
+ | calling the appropriate healthcare professional. | ||
+ | 9D It is important to respect a person’s right to privacy and information about their health must | ||
+ | be kept confidential and only disclosed with their consent or in accordance with clinical | ||
+ | advice when it is necessary to protect the detainee’s health or that of others who come into | ||
+ | contact with them. | ||
+ | 9E The custody officer should always seek to clarify directions that the detainee requires | ||
+ | constant observation or supervision and should ask the appropriate healthcare professional | ||
+ | to explain precisely what action needs to be taken to implement such directions. | ||
+ | 9F Paragraphs 9.17 and 9.18 do not require any information about the cause of any injury, | ||
+ | ailment or condition to be recorded on the custody record if it appears capable of providing | ||
+ | evidence of an offence. | ||
+ | 9G The purpose of recording a person's responses when attempting to rouse them using the | ||
+ | procedure in Annex H is to enable any change in the individual’s consciousness level to be | ||
+ | noted and clinical treatment arranged if appropriate. | ||
+ | 10 Cautions | ||
+ | (a) When a caution must be given | ||
+ | 10.1 A person whom there are grounds to suspect of an offence, see Note 10A, must be | ||
+ | cautioned before any questions about an offence, or further questions if the answers | ||
+ | provide the grounds for suspicion, are put to them if either the suspect’s answers or silence, | ||
+ | (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court | ||
+ | in a prosecution. | ||
+ | 10.2 A person who is arrested, or further arrested, must be informed at the time if practicable or, | ||
+ | if not, as soon as it becomes practicable thereafter, that they are under arrest and of the | ||
+ | grounds and reasons for their arrest, see paragraph 3.4, Note 3G and Note 10B. | ||
+ | 10.3 As required by section 3 of PACE Code G, a person who is arrested, or further arrested, | ||
+ | must also be cautioned unless: | ||
+ | (a) it is impracticable to do so by reason of their condition or behaviour at the time; or | ||
+ | (b) they have already been cautioned immediately prior to arrest as in paragraph 10.1. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 32 | ||
+ | (b) Terms of the cautions | ||
+ | 10.4 The caution which must be given: | ||
+ | (a) on arrest; | ||
+ | (b) on all other occasions before a person is charged or informed they may be | ||
+ | prosecuted; see PACE Code C, section 16, and | ||
+ | (c) before post-charge questioning under section 22 of the Counter-Terrorism Act 2008 | ||
+ | (see section 15.9), | ||
+ | should, unless the restriction on drawing adverse inferences from silence applies, see | ||
+ | Annex C, be in the following terms: | ||
+ | “You do not have to say anything. But it may harm your defence if you do not mention | ||
+ | when questioned something which you later rely on in Court. Anything you do say may be | ||
+ | given in evidence.” | ||
+ | Where the use of the Welsh Language is appropriate, a constable may provide the caution | ||
+ | directly in Welsh in the following terms: | ||
+ | “Does dim rhaid i chi ddweud dim byd. Ond gall niweidio eich amddiffyniad os na fyddwch | ||
+ | chi’n sôn, wrth gael eich holi, am rywbeth y byddwch chi’n dibynnu arno nes ymlaen yn y | ||
+ | Llys. Gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.” | ||
+ | See Note 10F | ||
+ | 10.5 Annex C, paragraph 2 sets out the alternative terms of the caution to be used when the | ||
+ | restriction on drawing adverse inferences from silence applies. | ||
+ | 10.6 Minor deviations from the words of any caution given in accordance with this Code do not | ||
+ | constitute a breach of this Code, provided the sense of the relevant caution is preserved. | ||
+ | See Note 10C. | ||
+ | 10.7 After any break in questioning under caution, the person being questioned must be made | ||
+ | aware they remain under caution. If there is any doubt the relevant caution should be given | ||
+ | again in full when the interview resumes. See Note 10D. | ||
+ | 10.8 When, despite being cautioned, a person fails to co-operate or to answer particular | ||
+ | questions which may affect their immediate treatment, the person should be informed of | ||
+ | any relevant consequences and that those consequences are not affected by the caution. | ||
+ | Examples are when a person's refusal to provide: | ||
+ | their name and address when charged may make them liable to detention; | ||
+ | particulars and information in accordance with a statutory requirement. | ||
+ | (c) Special warnings under the Criminal Justice and Public Order Act 1994, | ||
+ | sections 36 and 37 | ||
+ | 10.9 When a suspect interviewed at a police station or authorised place of detention after arrest | ||
+ | fails or refuses to answer certain questions, or to answer satisfactorily, after due warning, | ||
+ | see Note 10E, a court or jury may draw such inferences as appear proper under the | ||
+ | Criminal Justice and Public Order Act 1994, sections 36 and 37. Such inferences may only | ||
+ | be drawn when: | ||
+ | (a) the restriction on drawing adverse inferences from silence, see Annex C, does not | ||
+ | apply; and | ||
+ | (b) the suspect is arrested by a constable and fails or refuses to account for any objects, | ||
+ | marks or substances, or marks on such objects found: | ||
+ | on their person; | ||
+ | in or on their clothing or footwear; | ||
+ | otherwise in their possession; or | ||
+ | in the place they were arrested; | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 33 | ||
+ | (c) the arrested suspect was found by a constable at a place at or about the time the | ||
+ | offence for which that officer has arrested them is alleged to have been committed, and | ||
+ | the suspect fails or refuses to account for their presence there. | ||
+ | When the restriction on drawing adverse inferences from silence applies, the suspect may | ||
+ | still be asked to account for any of the matters in (b) or (c) but the special warning | ||
+ | described in paragraph 10.10 will not apply and must not be given. | ||
+ | 10.10 For an inference to be drawn when a suspect fails or refuses to answer a question about | ||
+ | one of these matters, or to answer it satisfactorily, the suspect must first be told in ordinary | ||
+ | language: | ||
+ | (a) what offence is being investigated; | ||
+ | (b) what fact they are being asked to account for; | ||
+ | (c) this fact may be due to them taking part in the commission of the offence; | ||
+ | (d) a court may draw a proper inference if they fail or refuse to account for this fact; and | ||
+ | (e) a record is being made of the interview and it may be given in evidence if they are | ||
+ | brought to trial. | ||
+ | (d) Juveniles and persons who are mentally disordered or otherwise mentally | ||
+ | vulnerable | ||
+ | 10.10AThe information required in paragraph 10.10 must not be given to a suspect who is a | ||
+ | juvenile or who is mentally disordered or otherwise mentally vulnerable unless the | ||
+ | appropriate adult is present. | ||
+ | 10.11 If a juvenile or a person who is mentally disordered or otherwise mentally vulnerable is | ||
+ | cautioned in the absence of the appropriate adult, the caution must be repeated in the | ||
+ | adult's presence. | ||
+ | 10.11ANot used. | ||
+ | (e) Documentation | ||
+ | 10.12 A record shall be made when a caution is given under this section, either in the | ||
+ | interviewer’s pocket book or in the interview record. | ||
+ | Notes for Guidance | ||
+ | 10A There must be some reasonable, objective grounds for the suspicion, based on known facts | ||
+ | or information which are relevant to the likelihood the offence has been committed and the | ||
+ | person to be questioned committed it. | ||
+ | 10B An arrested person must be given sufficient information to enable them to understand that | ||
+ | they have been deprived of their liberty and the reason they have been arrested, e.g. when | ||
+ | a person is arrested on suspicion of committing an offence they must be informed of the | ||
+ | suspected offence’s nature, when and where it was committed, see Note 3G. The suspect | ||
+ | must also be informed of the reason or reasons why the arrest is considered necessary. | ||
+ | Vague or technical language should be avoided. | ||
+ | 10C If it appears a person does not understand the caution, the person giving it should explain it | ||
+ | in their own words. | ||
+ | 10D It may be necessary to show to the court that nothing occurred during an interview break or | ||
+ | between interviews which influenced the suspect's recorded evidence. After a break in an | ||
+ | interview or at the beginning of a subsequent interview, the interviewer should summarise | ||
+ | the reason for the break and confirm this with the suspect. | ||
+ | 10E The Criminal Justice and Public Order Act 1994, sections 36 and 37 apply only to suspects | ||
+ | who have been arrested by a constable or an officer of Revenue and Customs and are | ||
+ | given the relevant warning by the police or Revenue and Customs officer who made the | ||
+ | arrest or who is investigating the offence. They do not apply to any interviews with | ||
+ | suspects who have not been arrested. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 34 | ||
+ | 10F Nothing in this Code requires a caution to be given or repeated when informing a person | ||
+ | not under arrest they may be prosecuted for an offence. However, a court will not be able | ||
+ | to draw any inferences under the Criminal Justice and Public Order Act 1994, section 34, if | ||
+ | the person was not cautioned. | ||
+ | 11 Interviews - general | ||
+ | (a) Action | ||
+ | 11.1 An interview in this Code is the questioning of a person arrested on suspicion of being a | ||
+ | terrorist which, under paragraph 10.1, must be carried out under caution. Whenever a | ||
+ | person is interviewed they and their solicitor must be informed of the grounds for arrest, and | ||
+ | given sufficient information to enable them to understand the nature of their suspected | ||
+ | involvement in the commission, preparation or instigation of acts of terrorism (see | ||
+ | paragraph 3.4(a)) in order to allow for the effective exercise of the rights of the defence. | ||
+ | However, whilst the information must always be sufficient information for the person to | ||
+ | understand the nature of their suspected involvement in the commission, preparation or | ||
+ | instigation of acts of terrorism, this does not require the disclosure of details at a time which | ||
+ | might prejudice the terrorism investigation (see Note 3G). The decision about what needs | ||
+ | to be disclosed for the purpose of this requirement therefore rests with the investigating | ||
+ | officer who has sufficient knowledge of the case to make that decision. The officer who | ||
+ | discloses the information shall make a record of the information disclosed and when it was | ||
+ | disclosed. This record may be made in the interview record, in the officer’s report book or | ||
+ | other form provided for this purpose. See Note 11ZA. | ||
+ | 11.2 Following the arrest of a person under section 41 TACT, that person must not be | ||
+ | interviewed about the relevant offence except at a place designated for detention under | ||
+ | Schedule 8 paragraph 1 of the Terrorism Act 2000, unless the consequent delay would be | ||
+ | likely to: | ||
+ | (a) lead to: | ||
+ | interference with, or harm to, evidence connected with an offence; | ||
+ | interference with, or physical harm to, other people; or | ||
+ | serious loss of, or damage to, property; | ||
+ | (b) lead to alerting other people suspected of committing an offence but not yet arrested | ||
+ | for it; or | ||
+ | (c) hinder the recovery of property obtained in consequence of the commission of an | ||
+ | offence. | ||
+ | Interviewing in any of these circumstances shall cease once the relevant risk has been | ||
+ | averted or the necessary questions have been put in order to attempt to avert that risk. | ||
+ | 11.3 Immediately prior to the commencement or re-commencement of any interview at a | ||
+ | designated place of detention, the interviewer should remind the suspect of their entitlement | ||
+ | to free legal advice and that the interview can be delayed for legal advice to be obtained, | ||
+ | unless one of the exceptions in paragraph 6.7 applies. It is the interviewer’s responsibility | ||
+ | to make sure all reminders are recorded in the interview record. | ||
+ | 11.4 At the beginning of an interview the interviewer, after cautioning the suspect, see section | ||
+ | 10, shall put to them any significant statement or silence which occurred in the presence | ||
+ | and hearing of a police officer or other police staff before the start of the interview and | ||
+ | which have not been put to the suspect in the course of a previous interview. See Note | ||
+ | 11A. The interviewer shall ask the suspect whether they confirm or deny that earlier | ||
+ | statement or silence and if they want to add anything. | ||
+ | 11.5 A significant statement is one which appears capable of being used in evidence against the | ||
+ | suspect, in particular a direct admission of guilt. A significant silence is a failure or refusal | ||
+ | to answer a question or answer satisfactorily when under caution, which might, allowing for | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 35 | ||
+ | the restriction on drawing adverse inferences from silence, see Annex C, give rise to an | ||
+ | inference under the Criminal Justice and Public Order Act 1994, Part III. | ||
+ | 11.6 No interviewer may try to obtain answers or elicit a statement by the use of oppression. | ||
+ | Except as in paragraph 10.8, no interviewer shall indicate, except to answer a direct | ||
+ | question, what action will be taken by the police if the person being questioned answers | ||
+ | questions, makes a statement or refuses to do either. If the person asks directly what | ||
+ | action will be taken if they answer questions, make a statement or refuse to do either, the | ||
+ | interviewer may inform them what action the police propose to take provided that action is | ||
+ | itself proper and warranted. | ||
+ | 11.7 The interview or further interview of a person about an offence with which that person has | ||
+ | not been charged or for which they have not been informed they may be prosecuted, must | ||
+ | cease when: | ||
+ | (a) the officer in charge of the investigation is satisfied all the questions they consider | ||
+ | relevant to obtaining accurate and reliable information about the offence have been | ||
+ | put to the suspect, this includes allowing the suspect an opportunity to give an | ||
+ | innocent explanation and asking questions to test if the explanation is accurate and | ||
+ | reliable, e.g. to clear up ambiguities or clarify what the suspect said; | ||
+ | (b) the officer in charge of the investigation has taken account of any other available | ||
+ | evidence; and | ||
+ | (c) the officer in charge of the investigation, or in the case of a detained suspect, the | ||
+ | custody officer, see PACE Code C paragraph 16.1, reasonably believes there is | ||
+ | sufficient evidence to provide a realistic prospect of conviction for that offence. See | ||
+ | Note 11B. | ||
+ | (b) Interview records | ||
+ | 11.8 Interviews of a person detained under section 41 of, or Schedule 8 to, TACT must be video | ||
+ | recorded with sound in accordance with the Code of Practice issued under paragraph 3 of | ||
+ | Schedule 8 to the Terrorism Act 2000, or in the case of post-charge questioning authorised | ||
+ | under section 22 of the Counter-Terrorism Act 2008, the Code of Practice issued under | ||
+ | section 25 of that Act. | ||
+ | 11.8A A written record shall be made of any comments made by a suspect, including unsolicited | ||
+ | comments, which are outside the context of an interview but which might be relevant to the | ||
+ | offence. Any such record must be timed and signed by the maker. When practicable the | ||
+ | suspect shall be given the opportunity to read that record and to sign it as correct or to | ||
+ | indicate how they consider it inaccurate. See Note 11E. | ||
+ | (c) Juveniles and mentally disordered or otherwise mentally vulnerable people | ||
+ | 11.9 A juvenile or person who is mentally disordered or otherwise mentally vulnerable must not | ||
+ | be interviewed regarding their involvement or suspected involvement in a criminal offence | ||
+ | or offences, or asked to provide or sign a written statement under caution or record of | ||
+ | interview, in the absence of the appropriate adult unless paragraphs 11.2 or 11.11 to 11.13 | ||
+ | apply. See Note 11C. | ||
+ | 11.10 If an appropriate adult is present at an interview, they shall be informed: | ||
+ | that they are not expected to act simply as an observer; and | ||
+ | that the purpose of their presence is to: | ||
+ | advise the person being interviewed; | ||
+ | observe whether the interview is being conducted properly and fairly; | ||
+ | facilitate communication with the person being interviewed. | ||
+ | 11.10A The appropriate adult may be required to leave the interview if their conduct is such that the | ||
+ | interviewer is unable properly to put questions to the suspect. This will include situations | ||
+ | where the appropriate adult's approach or conduct prevents or unreasonably obstructs | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 36 | ||
+ | proper questions being put to the suspect or the suspect's responses being recorded (see | ||
+ | Note 11F). If the interviewer considers an appropriate adult is acting in such a way, they | ||
+ | will stop the interview and consult an officer not below superintendent rank, if one is readily | ||
+ | available, and otherwise an officer not below inspector rank not connected with the | ||
+ | investigation. After speaking to the appropriate adult, the officer consulted must remind the | ||
+ | adult that their role under paragraph 11.10 does not allow them to obstruct proper | ||
+ | questioning and give the adult an opportunity to respond. The officer consulted will then | ||
+ | decide if the interview should continue without the attendance of that appropriate adult. If | ||
+ | they decide it should, another appropriate adult must be obtained before the interview | ||
+ | continues, unless the provisions of paragraph 11.11 below apply. | ||
+ | (d) Vulnerable suspects - urgent interviews at police stations | ||
+ | 11.11 The following interviews may take place only if an officer of superintendent rank or above | ||
+ | considers delaying the interview will lead to the consequences in paragraph 11.2(a) to (c), | ||
+ | and is satisfied the interview would not significantly harm the person’s physical or mental | ||
+ | state (see Annex G): | ||
+ | (a) an interview of a juvenile or person who is mentally disordered or otherwise mentally | ||
+ | vulnerable without the appropriate adult being present; | ||
+ | (b) an interview of anyone other than in (a) who appears unable to: | ||
+ | appreciate the significance of questions and their answers; or | ||
+ | understand what is happening because of the effects of drink, drugs or any | ||
+ | illness, ailment or condition; | ||
+ | (c) an interview without an interpreter having been arranged, of a detained person whom | ||
+ | the custody officer has determined requires an interpreter (see paragraphs 3.5(c)(ii) | ||
+ | and 3.14) which is carried out by an interviewer speaking the suspect’s own language | ||
+ | or (as the case may be) otherwise establishing effective communication which is | ||
+ | sufficient to enable the necessary questions to be asked and answered in order to | ||
+ | avert the consequences. See paragraphs 13.2 and 13.5. | ||
+ | 11.12 These interviews may not continue once sufficient information has been obtained to avert | ||
+ | the consequences in paragraph 11.2(a) to (c). | ||
+ | 11.13 A record shall be made of the grounds for any decision to interview a person under | ||
+ | paragraph 11.11. | ||
+ | Notes for Guidance | ||
+ | 11ZA The requirement in paragraph 11.1 for a suspect to be given sufficient information about the | ||
+ | nature of their suspected involvement in the commission, preparation or instigation of acts | ||
+ | of terrorism offence applies prior to the interview and whether or not they are legally | ||
+ | represented. What is sufficient will depend on the circumstances of the case, but it should | ||
+ | normally include, as a minimum, a description of the facts relating to the suspected | ||
+ | involvement that are known to the officer, including the time and place in question. This | ||
+ | aims to avoid suspects being confused or unclear about what they are supposed to have | ||
+ | done and to help an innocent suspect to clear the matter up more quickly. | ||
+ | 11A Paragraph 11.4 does not prevent the interviewer from putting significant statements and | ||
+ | silences to a suspect again at a later stage or a further interview. | ||
+ | 11B The Criminal Procedure and Investigations Act 1996 Code of Practice, paragraph 3.4 states | ||
+ | ‘In conducting an investigation, the investigator should pursue all reasonable lines of | ||
+ | enquiry, whether these point towards or away from the suspect. What is reasonable will | ||
+ | depend on the particular circumstances.’ Interviewers should keep this in mind when | ||
+ | deciding what questions to ask in an interview. | ||
+ | 11C Although juveniles or people who are mentally disordered or otherwise mentally vulnerable | ||
+ | are often capable of providing reliable evidence, they may, without knowing or wishing to do | ||
+ | so, be particularly prone in certain circumstances to provide information that may be | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 37 | ||
+ | unreliable, misleading or self-incriminating. Special care should always be taken when | ||
+ | questioning such a person, and the appropriate adult should be involved if there is any | ||
+ | doubt about a person's age, mental state or capacity. Because of the risk of unreliable | ||
+ | evidence it is also important to obtain corroboration of any facts admitted whenever | ||
+ | possible. | ||
+ | 11D Consideration should be given to the effect of extended detention on a detainee and any | ||
+ | subsequent information they provide, especially if it relates to information on matters that | ||
+ | they have failed to provide previously in response to similar questioning (see Annex G). | ||
+ | 11E Significant statements described in paragraph 11.4 will always be relevant to the offence | ||
+ | and must be recorded. When a suspect agrees to read records of interviews and other | ||
+ | comments and sign them as correct, they should be asked to endorse the record with, e.g. | ||
+ | ‘I agree that this is a correct record of what was said’ and add their signature. If the suspect | ||
+ | does not agree with the record, the interviewer should record the details of any | ||
+ | disagreement and ask the suspect to read these details and sign them to the effect that | ||
+ | they accurately reflect their disagreement. Any refusal to sign should be recorded. | ||
+ | 11F The appropriate adult may intervene if they consider it is necessary to help the suspect | ||
+ | understand any question asked and to help the suspect to answer any question. Paragraph | ||
+ | 11.10A only applies if the appropriate adult’s approach or conduct prevents or | ||
+ | unreasonably obstructs proper questions being put to the suspect or the suspect’s | ||
+ | response being recorded. Examples of unacceptable conduct include answering questions | ||
+ | on a suspect’s behalf or providing written replies for the suspect to quote. An officer who | ||
+ | takes the decision to exclude an appropriate adult must be in a position to satisfy the court | ||
+ | the decision was properly made. In order to do this they may need to witness what is | ||
+ | happening and give the suspect’s solicitor (if they have one) who witnessed what | ||
+ | happened, an opportunity to comment.. | ||
+ | 12 Interviews in police stations | ||
+ | (a) Action | ||
+ | 12.1 If a police officer wants to interview or conduct enquiries which require the presence of a | ||
+ | detainee, the custody officer is responsible for deciding whether to deliver the detainee into | ||
+ | the officer’s custody. An investigating officer who is given custody of a detainee takes over | ||
+ | responsibility for the detainee’s care and treatment for the purposes of this Code until they | ||
+ | return the detainee to the custody officer when they must report the manner in which they | ||
+ | complied with the Code whilst having custody of the detainee. | ||
+ | 12.2 Except as below, in any period of 24 hours a detainee must be allowed a continuous period | ||
+ | of at least 8 hours for rest, free from questioning, travel or any interruption in connection | ||
+ | with the investigation concerned. This period should normally be at night or other | ||
+ | appropriate time which takes account of when the detainee last slept or rested. If a detainee | ||
+ | is arrested at a police station after going there voluntarily, the period of 24 hours runs from | ||
+ | the time of their arrest (or, if a person was being detained under TACT Schedule 7 when | ||
+ | arrested, from the time at which the examination under Schedule 7 began) and not the time | ||
+ | of arrival at the police station. The period may not be interrupted or delayed, except: | ||
+ | (a) when there are reasonable grounds for believing not delaying or interrupting the | ||
+ | period would: | ||
+ | (i) involve a risk of harm to people or serious loss of, or damage to, property; | ||
+ | (ii) delay unnecessarily the person's release from custody; or | ||
+ | (iii) otherwise prejudice the outcome of the investigation; | ||
+ | (b) at the request of the detainee, their appropriate adult or legal representative; | ||
+ | (c) when a delay or interruption is necessary in order to: | ||
+ | (i) comply with the legal obligations and duties arising under section 14; or | ||
+ | (ii) to take action required under section 9 or in accordance with medical advice. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 38 | ||
+ | If the period is interrupted in accordance with (a), a fresh period must be allowed. | ||
+ | Interruptions under (b) and (c) do not require a fresh period to be allowed. | ||
+ | 12.3 Before a detainee is interviewed the custody officer, in consultation with the officer in | ||
+ | charge of the investigation and appropriate healthcare professionals as necessary, shall | ||
+ | assess whether the detainee is fit enough to be interviewed. This means determining and | ||
+ | considering the risks to the detainee’s physical and mental state if the interview took place | ||
+ | and determining what safeguards are needed to allow the interview to take place. The | ||
+ | custody officer shall not allow a detainee to be interviewed if the custody officer considers it | ||
+ | would cause significant harm to the detainee’s physical or mental state. Vulnerable | ||
+ | suspects listed at paragraph 11.11 shall be treated as always being at some risk during an | ||
+ | interview and these persons may not be interviewed except in accordance with paragraphs | ||
+ | 11.11 to 11.13. | ||
+ | 12.4 As far as practicable interviews shall take place in interview rooms which are adequately | ||
+ | heated, lit and ventilated. | ||
+ | 12.5 A suspect whose detention without charge has been authorised under TACT Schedule 8, | ||
+ | because the detention is necessary for an interview to obtain evidence of the offence for | ||
+ | which they have been arrested, may choose not to answer questions but police do not | ||
+ | require the suspect's consent or agreement to interview them for this purpose. If a suspect | ||
+ | takes steps to prevent themselves being questioned or further questioned, e.g. by refusing | ||
+ | to leave their cell to go to a suitable interview room or by trying to leave the interview room, | ||
+ | they shall be advised their consent or agreement to interview is not required. The suspect | ||
+ | shall be cautioned as in section 10, and informed if they fail or refuse to co-operate, the | ||
+ | interview may take place in the cell and that their failure or refusal to co-operate may be | ||
+ | given in evidence. The suspect shall then be invited to co-operate and go into the interview | ||
+ | room. | ||
+ | 12.6 People being questioned or making statements shall not be required to stand. | ||
+ | 12.7 Before the interview commences each interviewer shall, subject to the qualification at | ||
+ | paragraph 2.8, identify themselves and any other persons present to the interviewee. | ||
+ | 12.8 Breaks from interviewing should be made at recognised meal times or at other times that | ||
+ | take account of when an interviewee last had a meal. Short refreshment breaks shall be | ||
+ | provided at approximately two hour intervals, subject to the interviewer's discretion to delay | ||
+ | a break if there are reasonable grounds for believing it would: | ||
+ | (i) involve a: | ||
+ | risk of harm to people; | ||
+ | serious loss of, or damage to, property; | ||
+ | (ii) unnecessarily delay the detainee's release; | ||
+ | (iii) otherwise prejudice the outcome of the investigation. | ||
+ | See Note 12B | ||
+ | 12.9 During extended periods where no interviews take place, because of the need to gather | ||
+ | further evidence or analyse existing evidence, detainees and their legal representative shall | ||
+ | be informed that the investigation into the relevant offence remains ongoing. If practicable, | ||
+ | the detainee and legal representative should also be made aware in general terms of any | ||
+ | reasons for long gaps between interviews. Consideration should be given to allowing visits, | ||
+ | more frequent exercise, or for reading or writing materials to be offered see paragraph 5.4, | ||
+ | section 8 and Note 12C. | ||
+ | 12.10 If during the interview a complaint is made by or on behalf of the interviewee concerning the | ||
+ | provisions of any of the Codes, or it comes to the interviewer’s notice that the interviewee | ||
+ | may have been treated improperly, the interviewer should: | ||
+ | (i) record the matter in the interview record; and | ||
+ | (ii) inform the custody officer, who is then responsible for dealing with it as in section 9. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 39 | ||
+ | (b) Documentation | ||
+ | 12.11 A record must be made of the: | ||
+ | time a detainee is not in the custody of the custody officer, and why; | ||
+ | reason for any refusal to deliver the detainee out of that custody. | ||
+ | 12.12 A record shall be made of: | ||
+ | the reasons it was not practicable to use an interview room; and | ||
+ | any action taken as in paragraph 12.5. | ||
+ | The record shall be made on the custody record or in the interview record for action taken | ||
+ | whilst an interview record is being kept, with a brief reference to this effect in the custody | ||
+ | record. | ||
+ | 12.13 Any decision to delay a break in an interview must be recorded, with reasons, in the | ||
+ | interview record. | ||
+ | 12.14 All written statements made at police stations under caution shall be written on forms | ||
+ | provided for the purpose. | ||
+ | 12.15 All written statements made under caution shall be taken in accordance with Annex D. | ||
+ | Before a person makes a written statement under caution at a police station they shall be | ||
+ | reminded about the right to legal advice. See Note 12A. | ||
+ | Notes for Guidance | ||
+ | 12A It is not normally necessary to ask for a written statement if the interview was recorded in | ||
+ | accordance with the Code of Practice issued under TACT Schedule 8 Paragraph 3. | ||
+ | Statements under caution should normally be taken in these circumstances only at the | ||
+ | person's express wish. A person may however be asked if they want to make such a | ||
+ | statement. | ||
+ | 12B Meal breaks should normally last at least 45 minutes and shorter breaks after two hours | ||
+ | should last at least 15 minutes. If the interviewer delays a break in accordance with | ||
+ | paragraph 12.8 and prolongs the interview, a longer break should be provided. If there is a | ||
+ | short interview, and another short interview is contemplated, the length of the break may be | ||
+ | reduced if there are reasonable grounds to believe this is necessary to avoid any of the | ||
+ | consequences in paragraph 12.8(i) to (iii). | ||
+ | 12C Consideration should be given to the matters referred to in paragraph 12.9 after a period of | ||
+ | over 24 hours without questioning. This is to ensure that extended periods of detention | ||
+ | without an indication that the investigation remains ongoing do not contribute to a | ||
+ | deterioration of the detainee’s well-being. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 40 | ||
+ | 13 Interpreters | ||
+ | (a) General | ||
+ | 13.1 Chief officers are responsible for making arrangements (see paragraph 13.1ZA) to provide | ||
+ | appropriately qualified independent persons to act as interpreters and to provide | ||
+ | translations of essential documents for detained suspects who, in accordance with | ||
+ | paragraph 3.5(c)(ii), the custody officer has determined require an interpreter. | ||
+ | If the suspect has a hearing or speech impediment, references to ‘interpreter’ and | ||
+ | ‘interpretation’ in this Code include appropriate assistance necessary to establish effective | ||
+ | communication with that person. See paragraph 13.1C if the detainee is in Wales. | ||
+ | 13.1ZA References in paragraph 13.1 above and elsewhere in this Code (see paragraphs 3.12(a), | ||
+ | 13.2, 13.3, 13.5, 13.6, 13.9, 13.10A, 13.10D and 13.11 below and in any other Code, to | ||
+ | making arrangements for an interpreter to assist a suspect, mean making arrangements for | ||
+ | the interpreter to be physically present in the same location as the suspect unless the | ||
+ | provisions in paragraph 13.12 below, and Part 1 of Annex L, allow live-link interpretation to | ||
+ | be used. | ||
+ | 13.1A The arrangements must comply with the minimum requirements set out in Directive | ||
+ | 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right | ||
+ | to interpretation and translation in criminal proceedings (see Note 13A). The provisions of | ||
+ | this Code implement the requirements for those to whom this Code applies. These | ||
+ | requirements include the following: | ||
+ | That the arrangements made and the quality of interpretation and translation provided | ||
+ | shall be sufficient to ‘safeguard the fairness of the proceedings, in particular by ensuring | ||
+ | that suspected or accused persons have knowledge of the cases against them and are | ||
+ | able to exercise their right of defence’. This term which is used by the Directive means | ||
+ | that the suspect must be able to understand their position and be able to communicate | ||
+ | effectively with police officers, interviewers, solicitors and appropriate adults as provided | ||
+ | for by this and any other Code in the same way as a suspect who can speak and | ||
+ | understand English who does not have a hearing or speech impediment and who would | ||
+ | not require an interpreter. See paragraphs 13.12 to 13.14 and Annex L for application | ||
+ | to live-link interpretation | ||
+ | The provision of a written translation of all documents considered essential for the | ||
+ | person to exercise their right of defence and to ‘safeguard the fairness of the | ||
+ | proceedings’ as described above. For the purposes of this Code, this includes any | ||
+ | decision to authorise a person to be detained and details of any offence(s) with which | ||
+ | the person has been charged or for which they have been told they may be prosecuted, | ||
+ | see Annex K. | ||
+ | Procedures to help determine: | ||
+ | whether a suspect can speak and understand English and needs the assistance of | ||
+ | an interpreter (see paragraph 13.1 and Notes 13B and 13C); and | ||
+ | whether another interpreter should be called or another translation should be | ||
+ | provided when a suspect complains about the quality of either or both (see | ||
+ | paragraphs 13.10A and 13.10C). | ||
+ | 13.1B All reasonable attempts should be made to make the suspect understand that interpretation | ||
+ | and translation will be provided at public expense. | ||
+ | 13.1C With regard to persons in Wales, nothing in this or any other Code affects the application of | ||
+ | the Welsh Language Schemes produced by police and crime commissioners in Wales in | ||
+ | accordance with the Welsh Language Act 1993. See paragraphs 3.14 and 13.1. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 41 | ||
+ | (b) Interviewing suspects - foreign languages | ||
+ | 13.2 Unless paragraphs 11.2 or 11.11(c) apply, a suspect who for the purposes of this Code | ||
+ | requires an interpreter because they do not appear to speak or understand English (see | ||
+ | paragraphs 3.5(c)(ii) and 3.14) must not be interviewed unless arrangements are made for | ||
+ | a person capable of interpreting to assist the suspect to understand and communicate. | ||
+ | 13.3 If a person who is a juvenile or is mentally disordered or mentally vulnerable is interviewed | ||
+ | and the person acting as the appropriate adult, does not appear to speak or understand | ||
+ | English, arrangements must be made for an interpreter to assist communication between | ||
+ | the between the person, the appropriate adult and the interviewer, unless the interview is | ||
+ | urgent and paragraphs 11.2 or 11.11(c) apply. | ||
+ | 13.4 In the case of a person making a statement under caution to a police officer or other police | ||
+ | staff other than in English: | ||
+ | (a) the interpreter shall record the statement in the language it is made; | ||
+ | (b) the person shall be invited to sign it; | ||
+ | (c) an official English translation shall be made in due course. | ||
+ | See paragraphs 13.12 to 13.14 and Annex L for application to live-link interpretation. | ||
+ | (c) Interviewing suspects who have a hearing or speech impediment | ||
+ | 13.5 Unless paragraphs 11.1 or 11.18(c) (urgent interviews) apply, a suspect who for the | ||
+ | purposes of this Code requires an interpreter or other appropriate assistance to enable | ||
+ | effective communication with them because they appear to have a hearing or speech | ||
+ | impediment (see paragraphs 3.5(c)(ii) and 3.14) must not be interviewed without | ||
+ | arrangements having been made to provide an independent person capable of interpreting | ||
+ | or of providing other appropriate assistance. | ||
+ | 13.6 An interpreter should also be arranged if a person who is a juvenile or who is mentally | ||
+ | disordered or mentally vulnerable is interviewed and the person who is present as the | ||
+ | appropriate adult appears to have a hearing or speech impediment, unless the interview is | ||
+ | urgent and paragraphs 11.2 or 11.11(c) apply. | ||
+ | 13.7 Not used | ||
+ | (d) Additional rules for detained persons | ||
+ | 13.8 Not used. | ||
+ | 13.9 If paragraph 6.1 applies and the detainee cannot communicate with the solicitor because of | ||
+ | language, hearing or speech difficulties, arrangements must be made for an interpreter to | ||
+ | enable communication. A police officer or any other police staff may not be used for this | ||
+ | purpose. | ||
+ | 13.10 After the custody officer has determined that a detainee requires an interpreter (see | ||
+ | paragraph 3.5(c)(ii)) and following the initial action in paragraphs 3.1 to 3.5, arrangements | ||
+ | must also be made for an interpreter to explain: | ||
+ | the grounds and reasons for any authorisation of their detention under the provisions of | ||
+ | the Terrorism Act 2000 or the Counter Terrorism Act 2008 (post-charge questioning) to | ||
+ | which this Code applies; and | ||
+ | any information about the authorisation given to them by the authorising officer or (as | ||
+ | the case may be) the court and which is recorded in the custody record. | ||
+ | See sections 14 and 15 of this Code. | ||
+ | 13.10AIf a detainee complains that they are not satisfied with the quality of interpretation, the | ||
+ | custody officer or (as the case may be) the interviewer, is responsible for deciding whether | ||
+ | to make arrangements for a different interpreter in accordance with the procedures set out | ||
+ | in the arrangements made by the chief officer, see paragraph 13.1A. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 42 | ||
+ | (e) Translations of essential documents | ||
+ | 13.10BWritten translations, oral translations and oral summaries of essential documents in a | ||
+ | language the detainee understands shall be provided in accordance with Annex K | ||
+ | (Translations of documents and records). | ||
+ | 13.10CIf a detainee complains that they are not satisfied with the quality of the translation, the | ||
+ | custody officer or (as the case may be) the interviewer, is responsible for deciding whether | ||
+ | a further translation should be provided in accordance with the procedures set out in the | ||
+ | arrangements made by the chief officer, see paragraph 13.1A. | ||
+ | (f) Decisions not to provide interpretation and translation. | ||
+ | 13.10DIf a suspect challenges a decision: | ||
+ | made by the custody officer in accordance with this Code (see paragraph 3.5(c)(ii)) that | ||
+ | they do not require an interpreter, or | ||
+ | made in accordance with paragraphs 13.10A, 13.10B or 13.10C not to make | ||
+ | arrangements to provide a different interpreter or another translation or not to translate | ||
+ | a requested document, | ||
+ | the matter shall be reported to an inspector to deal with as a complaint for the purposes of | ||
+ | paragraph 9.3 or 12.10 if the challenge is made during an interview. | ||
+ | (g) Documentation | ||
+ | 13.11 The following must be recorded in the custody record or as applicable, interview record: | ||
+ | (a) Action taken to arrange for an interpreter, including the live-link requirements in Annex | ||
+ | L as applicable; | ||
+ | (b) Action taken when a detainee is not satisfied about the standard of interpretation or | ||
+ | translation provided, see paragraphs 13.10A and 13.10C; | ||
+ | (c) When an urgent interview is carried out in accordance with paragraph 13.2 or 13.5 in | ||
+ | the absence of an interpreter; | ||
+ | (d) When a detainee has been assisted by an interpreter for the purpose of providing or | ||
+ | being given information or being interviewed; | ||
+ | (e) Action taken in accordance with Annex K when: | ||
+ | a written translation of an essential document is provided; | ||
+ | an oral translation or oral summary of an essential document is provided instead of | ||
+ | a written translation and the authorising officer’s reason(s) why this would not | ||
+ | prejudice the fairness of the proceedings (see Annex K, paragraph 3); | ||
+ | a suspect waives their right to a translation of an essential document (see Annex | ||
+ | K, paragraph 4); | ||
+ | when representations that a document which is not included in the table is | ||
+ | essential and that a translation should be provided are refused and the reason for | ||
+ | the refusal (see Annex K, paragraph 8). | ||
+ | (h) Live-link interpretation | ||
+ | 13.12 In this section and in Annex L, ‘live-link interpretation’ means an arrangement to enable | ||
+ | communication between the suspect and an interpreter who is not physically present with | ||
+ | the suspect. The arrangement must ensure that anything said by any person in the | ||
+ | suspect’s presence and hearing can be interpreted in the same way as if the interpreter | ||
+ | was physically present at that time. The communication must be by audio and visual | ||
+ | means for the purpose of an interview, and for all other purposes it may be either; by audio | ||
+ | and visual means, or by audio means only, as follows: | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 43 | ||
+ | (a) Audio and visual communication | ||
+ | This is required for interviews conducted and recorded in accordance with the Code of | ||
+ | Practice for the video recording with sound, of interviews of persons detained under | ||
+ | section 41 of the Terrorism Act 2000 and of persons for whom an authorisation to | ||
+ | question after charge has been given under section 22 of the Counter-Terrorism act | ||
+ | 2008 (see Note 13D). In these each of these cases, the interview must be video | ||
+ | recorded with sound and during that interview, live link interpretation must enable: | ||
+ | (i) the suspect, the interviewer, solicitor, appropriate adult and any other person | ||
+ | physically present with the suspect at any time during the interview and an | ||
+ | interpreter who is not physically present, to see and hear each other; and | ||
+ | (ii) the interview to be conducted and recorded in accordance with the relevant | ||
+ | provisions of the Code, subject to the modifications in Part 2 of Annex L. | ||
+ | (b) Audio and visual or audio without visual communication. | ||
+ | This applies to communication for the purposes of any provision of this Code except | ||
+ | as described in (a), which requires or permits information to be given to, sought from, | ||
+ | or provided by a suspect, whether orally or in writing, which would include | ||
+ | communication between the suspect and their solicitor and/or appropriate adult, and | ||
+ | for these cases, live link interpretation must: | ||
+ | (i) enable the suspect, the person giving or seeking that information, any other | ||
+ | person physically present with the suspect at that time and an interpreter who is | ||
+ | not so present, to either see and hear each other, or to hear without seeing each | ||
+ | other (for example by using a telephone); and | ||
+ | (ii) enable that information to be given to, sought from, or provided by, the suspect | ||
+ | in accordance with the provisions of this Code that apply to that information, as | ||
+ | modified for the purposes of the live-link, by Part 2 of Annex L. | ||
+ | 13.12A The requirement in sub-paragraphs 13.12(a)(ii) and (b)(ii), that live-link interpretation must | ||
+ | enable compliance with the relevant provisions of the specified Codes, means that the | ||
+ | arrangements must provide for any written or electronic record of what the suspect says in | ||
+ | their own language which is made by the interpreter, to be securely transmitted without | ||
+ | delay so that the suspect can be invited to read, check and if appropriate, sign or otherwise | ||
+ | confirm that the record is correct or make corrections to the record. | ||
+ | 13.13 Chief officers must be satisfied that live-link interpretation used in their force area for the | ||
+ | purposes of paragraphs 3.12(a) and (b), provides for accurate and secure communication | ||
+ | with the suspect. This includes ensuring that at any time during which live link | ||
+ | interpretation is being used, a person cannot see, hear or otherwise obtain access to any | ||
+ | communications between the suspect and interpreter or communicate with the suspect or | ||
+ | interpreter unless so authorised or allowed by the custody officer or in the case of an | ||
+ | interview, the interviewer and that as applicable, the confidentiality of any private | ||
+ | consultation between a suspect and their solicitor and appropriate adult (see paragraphs | ||
+ | 13.2A, 13.6 and 13.9) is maintained. See Annex L paragraph 4. | ||
+ | Notes for Guidance | ||
+ | 13A Chief officers have discretion when determining the individuals or organisations they use to | ||
+ | provide interpretation and translation services for their forces provided that these services | ||
+ | are compatible with the requirements of the Directive. One example which chief officers | ||
+ | may wish to consider is the Ministry of Justice commercial agreements for interpretation | ||
+ | and translation services. | ||
+ | 13B A procedure for determining whether a person needs an interpreter might involve a | ||
+ | telephone interpreter service or using cue cards or similar visual aids which enable the | ||
+ | detainee to indicate their ability to speak and understand English and their preferred | ||
+ | language. This could be confirmed through an interpreter who could also assess the extent | ||
+ | to which the person can speak and understand English. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 44 | ||
+ | 13C There should also be a procedure for determining whether a suspect who requires an | ||
+ | interpreter requires assistance in accordance with paragraph 3.20 to help them check and if | ||
+ | applicable, sign any documentation. | ||
+ | 13D The Code of Practice referred to in paragraph 13.12, is available here: | ||
+ | https://www.gov.uk/government/publications/terrorism-act-2000-video-recording-code-of-practice. | ||
+ | 14 Reviews and Extensions of Detention under the Terrorism Act 2000 | ||
+ | (a) General | ||
+ | 14.0 The requirement in paragraph 3.4(b) that documents and materials essential to challenging | ||
+ | the lawfulness the detainee’s arrest and detention must be made available to the detainee | ||
+ | or their solicitor, applies for the purposes of this section. | ||
+ | 14.1 The powers and duties of the review officer are in the Terrorism Act 2000, Schedule 8, Part | ||
+ | II. See Notes 14A and 14B. A review officer should carry out their duties at the police | ||
+ | station where the detainee is held and be allowed such access to the detainee as is | ||
+ | necessary to exercise those duties. | ||
+ | 14.2 For the purposes of reviewing a person’s detention, no officer shall put specific questions to | ||
+ | the detainee: | ||
+ | regarding their involvement in any offence; or | ||
+ | in respect of any comments they may make: | ||
+ | when given the opportunity to make representations; or | ||
+ | ~ in response to a decision to keep them in detention or extend the maximum period | ||
+ | of detention. | ||
+ | Such an exchange could constitute an interview as in paragraph 11.1 and would be subject | ||
+ | to the associated safeguards in section 11. | ||
+ | 14.3 If detention is necessary for longer than 48 hours from the time of arrest or, if a person was | ||
+ | being detained under TACT Schedule 7, from the time at which the examination under | ||
+ | Schedule 7 began, a police officer of at least superintendent rank, or a Crown Prosecutor | ||
+ | may apply for a warrant of further detention or for an extension or further extension of such | ||
+ | a warrant under paragraph 29 or (as the case may be) 36 of Part III of Schedule 8 to the | ||
+ | Terrorism Act 2000. See Note 14C. | ||
+ | 14.4 When an application is made for a warrant as described in paragraph 14.3, the detained | ||
+ | person and their representative must be informed of their rights in respect of the | ||
+ | application. These include: | ||
+ | (i) the right to a written notice of the application (see paragraph 14.4); | ||
+ | (ii) the right to make oral or written representations to the judicial authority / High Court | ||
+ | judge about the application; | ||
+ | (iii) the right to be present and legally represented at the hearing of the application, unless | ||
+ | specifically excluded by the judicial authority / High Court judge; | ||
+ | (iv) their right to free legal advice (see section 6 of this Code). | ||
+ | 14.4A TACT Schedule 8 paragraph 31 requires the notice of the application for a warrant of | ||
+ | further detention to be provided before the judicial hearing of the application for that warrant | ||
+ | and that the notice must include: | ||
+ | (a) notification that the application for a warrant has been made; | ||
+ | (b) the time at which the application was made; | ||
+ | (c) the time at which the application is to be heard; | ||
+ | (d) the grounds on which further detention is sought. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 45 | ||
+ | A notice must also be provided each time an application is made to extend or further extend | ||
+ | an existing warrant. | ||
+ | (b) Transfer of persons detained for more than 14 days to prison | ||
+ | 14.5 If the Detention of Terrorists Suspects (Temporary Extension) Bill is enacted and in force, a | ||
+ | High Court judge may extend or further extend a warrant of further detention to authorise a | ||
+ | person to be detained beyond a period of 14 days from the time of their arrest (or if they | ||
+ | were being detained under TACT Schedule 7, from the time at which their examination | ||
+ | under Schedule 7 began). The provisions of Annex J will apply when a warrant of further | ||
+ | detention is so extended or further extended. | ||
+ | 14.6 Not used. | ||
+ | 14.7 Not used. | ||
+ | 14.8 Not used. | ||
+ | 14.9 Not used. | ||
+ | 14.10 Not used. | ||
+ | (c) Documentation | ||
+ | 14.11 It is the responsibility of the officer who gives any reminders as at paragraph 14.4, to | ||
+ | ensure that these are noted in the custody record, as well any comments made by the | ||
+ | detained person upon being told of those rights. | ||
+ | 14.12 The grounds for, and extent of, any delay in conducting a review shall be recorded. | ||
+ | 14.13 Any written representations shall be retained. | ||
+ | 14.14 A record shall be made as soon as practicable about the outcome of each review and, if | ||
+ | applicable, the grounds on which the review officer authorises continued detention. A | ||
+ | record shall also be made as soon as practicable about the outcome of an application for a | ||
+ | warrant of further detention or its extension. | ||
+ | 14.15 Not used. | ||
+ | Notes for Guidance | ||
+ | 14A TACT Schedule 8 Part II sets out the procedures for review of detention up to 48 hours | ||
+ | from the time of arrest under TACT section 41 (or if a person was being detained under | ||
+ | TACT Schedule 7, from the time at which the examination under Schedule 7 began). These | ||
+ | include provisions for the requirement to review detention, postponing a review, grounds for | ||
+ | continued detention, designating a review officer, representations, rights of the detained | ||
+ | person and keeping a record. The review officer’s role ends after a warrant has been | ||
+ | issued for extension of detention under Part III of Schedule 8. | ||
+ | 14B A review officer may authorise a person’s continued detention if satisfied that detention is | ||
+ | necessary: | ||
+ | (a) to obtain relevant evidence whether by questioning the person or otherwise; | ||
+ | (b) to preserve relevant evidence; | ||
+ | (c) while awaiting the result of an examination or analysis of relevant evidence; | ||
+ | (d) for the examination or analysis of anything with a view to obtaining relevant evidence; | ||
+ | (e) pending a decision to apply to the Secretary of State for a deportation notice to be | ||
+ | served on the detainee, the making of any such application, or the consideration of any | ||
+ | such application by the Secretary of State; | ||
+ | (f) pending a decision to charge the detainee with an offence. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 46 | ||
+ | 14C Applications for warrants to extend detention beyond 48 hours, may be made for periods of | ||
+ | 7 days at a time (initially under TACT Schedule 8 paragraph 29, and extensions thereafter | ||
+ | under TACT Schedule 8, paragraph 36), up to a maximum period of 14 days (or 28 days if | ||
+ | the Detention of Terrorists Suspects (Temporary Extension) Bill) is enacted and in force) | ||
+ | from the time of their arrest (or if they were being detained under TACT Schedule 7, from | ||
+ | the time at which their examination under Schedule 7 began). Applications may be made | ||
+ | for shorter periods than 7 days, which must be specified. The judicial authority or High | ||
+ | Court judge may also substitute a shorter period if they feel a period of 7 days is | ||
+ | inappropriate. | ||
+ | 14D Unless Note 14F applies, applications for warrants that would take the total period of | ||
+ | detention up to 14 days or less should be made to a judicial authority, meaning a District | ||
+ | Judge (Magistrates’ Court) designated by the Lord Chief Justice to hear such applications. | ||
+ | 14E If by virtue of the relevant provisions described in Note 14C being enacted the maximum | ||
+ | period of detention is extended to 28 days, any application for a warrant which would take | ||
+ | the period of detention beyond 14 days from the time of arrest (or if a person was being | ||
+ | detained under TACT Schedule 7, from the time at which the examination under Schedule | ||
+ | 7 began), must be made to a High Court Judge. | ||
+ | 14F If, when the Detention of Terrorists Suspects (Temporary Extension) Bill is enacted and in | ||
+ | force, an application is made to a High Court judge for a warrant which would take | ||
+ | detention beyond 14 days and the High Court judge instead issues a warrant for a period of | ||
+ | time which would not take detention beyond 14 days, further applications for extension of | ||
+ | detention must also be made to a High Court judge, regardless of the period of time to | ||
+ | which they refer. | ||
+ | 14G Not used. | ||
+ | 14H An officer applying for an order under TACT Schedule 8 paragraph 34 to withhold specified | ||
+ | information on which they intend to rely when applying for a warrant of further detention or | ||
+ | the extension or further extension of such a warrant, may make the application for the order | ||
+ | orally or in writing. The most appropriate method of application will depend on the | ||
+ | circumstances of the case and the need to ensure fairness to the detainee. | ||
+ | 14I After hearing any representations by or on behalf of the detainee and the applicant, the | ||
+ | judicial authority or High Court judge may direct that the hearing relating to the extension of | ||
+ | detention under Part III of Schedule 8 is to take place using video conferencing facilities. | ||
+ | However, if the judicial authority requires the detained person to be physically present at | ||
+ | any hearing, this should be complied with as soon as practicable. Paragraph 33(4) to (9) of | ||
+ | TACT Schedule 8 govern the hearing of applications via video-link or other means. | ||
+ | 14J Not used. | ||
+ | 14K Not used. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 47 | ||
+ | 15 Charging and post-charge questioning in terrorism cases | ||
+ | (a) Charging | ||
+ | 15.1 Charging of detained persons is covered by PACE and guidance issued under PACE by the | ||
+ | Director of Public Prosecutions. Decisions to charge persons to whom this Code (H) | ||
+ | applies, the charging process and related matters are subject to section 16 of PACE Code | ||
+ | C. | ||
+ | (b) Post-charge questioning | ||
+ | 15.2 Under section 22 of the Counter-Terrorism Act 2008, a judge of the Crown Court may | ||
+ | authorise the questioning of a person about an offence for which they have been charged, | ||
+ | informed that they may be prosecuted or sent for trial, if the offence: | ||
+ | is a terrorism offence as set out in section 27 of the Counter-Terrorism Act 2008; or | ||
+ | is an offence which appears to the judge to have a terrorist connection. See Note 15C. | ||
+ | The decision on whether to apply for such questioning will be based on the needs of the | ||
+ | investigation. There is no power to detain a person solely for the purposes of post-charge | ||
+ | questioning. A person can only be detained whilst being so questioned (whether at a police | ||
+ | station or in prison) if they are already there in lawful custody under some existing power. If | ||
+ | at a police station the contents of sections 8 and 9 of this Code must be considered the | ||
+ | minimum standards of treatment for such detainees. | ||
+ | 15.3 The Crown Court judge may authorise the questioning if they are satisfied that: | ||
+ | further questioning is necessary in the interests of justice; | ||
+ | the investigation for the purposes of which the further questioning is being proposed is | ||
+ | being conducted diligently and expeditiously; and | ||
+ | the questioning would not interfere unduly with the preparation of the person’s defence | ||
+ | to the charge or any other criminal charge that they may be facing. | ||
+ | See Note 15E | ||
+ | 15.4 The judge authorising questioning may specify the location of the questioning. | ||
+ | 15.5 The judge may only authorise a period up to a maximum of 48 hours before further | ||
+ | authorisation must be sought. The 48 hour period would run continuously from the | ||
+ | commencement of questioning. This period must include breaks in questioning in | ||
+ | accordance with paragraphs 8.6 and 12.2 of this Code (see Note 15B). | ||
+ | 15.6 Nothing in this Code shall be taken to prevent a suspect seeking a voluntary interview with | ||
+ | the police at any time. | ||
+ | 15.7 For the purposes of this section, any reference in sections 6, 10, 11, 12 and 13 of this Code | ||
+ | to: | ||
+ | ‘suspect’ means the person in respect of whom an authorisation has been given under | ||
+ | section 22 of the Counter-Terrorism Act 2008 (post-charge questioning of terrorist | ||
+ | suspects) to interview them; | ||
+ | ‘interview’ means post-charge questioning authorised under section 22 of the CounterTerrorism | ||
+ | Act 2008; | ||
+ | ‘offence’ means an offence for which the person has been charged, informed that they | ||
+ | may be prosecuted or sent for trial and about which the person is being questioned; and | ||
+ | ‘place of detention’ means the location of the questioning specified by the judge (see | ||
+ | paragraph 15.4), | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 48 | ||
+ | and the provisions of those sections apply (as appropriate), to such questioning | ||
+ | (whether at a police station or in prison) subject to the further modifications in the | ||
+ | following paragraphs: | ||
+ | Right to legal advice | ||
+ | 15.8 In section 6 of this Code, for the purposes of post-charge questioning: | ||
+ | access to a solicitor may not be delayed under Annex B; and | ||
+ | paragraph 6.5 (direction that a detainee may only consult a solicitor within the sight and | ||
+ | hearing of a qualified officer) does not apply. | ||
+ | Cautions | ||
+ | 15.9 In section 10 of this Code, unless the restriction on drawing adverse inferences from silence | ||
+ | applies (see paragraph 15.10), for the purposes of post-charge questioning, the caution | ||
+ | must be given in the following terms before any such questions are asked: | ||
+ | “You do not have to say anything. But it may harm your defence if you do not mention | ||
+ | when questioned something which you later rely on in Court. Anything you do say may be | ||
+ | given in evidence.” | ||
+ | Where the use of the Welsh Language is appropriate, a constable may provide the caution | ||
+ | directly in Welsh in the following terms: | ||
+ | “Does dim rhaid i chi ddweud dim byd. Ond gall niweidio eich amddiffyniad os na fyddwch | ||
+ | chi’n sôn, wrth gael eich holi, am rywbeth y byddwch chi’n dibynnu arno nes ymlaen yn y | ||
+ | Llys. Gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.” | ||
+ | 15.10 The only restriction on drawing adverse inferences from silence, see Annex C, applies in | ||
+ | those situations where a person has asked for legal advice and is questioned before | ||
+ | receiving such advice in accordance with paragraph 6.7(b). | ||
+ | Interviews | ||
+ | 15.11 In section 11, for the purposes of post-charge questioning, whenever a person is | ||
+ | questioned, they must be informed of the offence for which they have been charged or | ||
+ | informed that they may be prosecuted, or that they have been sent for trial and about which | ||
+ | they are being questioned. | ||
+ | 15.12 Paragraph 11.2 (place where questioning may take place) does not apply to post-charge | ||
+ | questioning. | ||
+ | Recording post-charge questioning | ||
+ | 15.13 All interviews must be video recorded with sound in accordance with the separate Code of | ||
+ | Practice issued under section 25 of the Counter-Terrorism Act 2008 for the video recording | ||
+ | with sound of post-charge questioning authorised under section 22 of the CounterTerrorism | ||
+ | Act 2008 (see paragraph 11.8). | ||
+ | Notes for Guidance | ||
+ | 15A If a person is detained at a police station for the purposes of post-charge questioning, a | ||
+ | custody record must be opened in accordance with section 2 of this Code. The custody | ||
+ | record must note the power under which the person is being detained, the time at which the | ||
+ | person was transferred into police custody, their time of arrival at the police station and their | ||
+ | time of being presented to the custody officer. | ||
+ | 15B The custody record must note the time at which the interview process commences. This | ||
+ | shall be regarded as the relevant time for any period of questioning in accordance with | ||
+ | paragraph 15.5 of this Code. | ||
+ | 15C Where reference is made to ‘terrorist connection’ in paragraph 15.2, this is determined in | ||
+ | accordance with section 30 of the Counter-Terrorism Act 2008. Under section 30 of that | ||
+ | Act a court must in certain circumstances determine whether an offence has a terrorist | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 49 | ||
+ | connection. These are offences under general criminal law which may be prosecuted in | ||
+ | terrorism cases (for example explosives-related offences and conspiracy to murder). An | ||
+ | offence has a terrorist connection if the offence is, or takes place in the course of, an act of | ||
+ | terrorism or is committed for the purposes of terrorism (section 98 of the Act). Normally the | ||
+ | court will make the determination during the sentencing process, however for the purposes | ||
+ | of post-charge questioning, a Crown Court Judge must determine whether the offence | ||
+ | could have a terrorist connection. | ||
+ | 15D The powers under section 22 of the Counter-Terrorism Act 2008 are separate from and | ||
+ | additional to the normal questioning procedures within this code. Their overall purpose is to | ||
+ | enable the further questioning of a terrorist suspect after charge. They should not therefore | ||
+ | be used to replace or circumvent the normal powers for dealing with routine questioning. | ||
+ | 15E Post-charge questioning has been created because it is acknowledged that terrorist | ||
+ | investigations can be large and complex and that a great deal of evidence can come to light | ||
+ | following the charge of a terrorism suspect. This can occur, for instance, from the | ||
+ | translation of material or as the result of additional investigation. When considering an | ||
+ | application for post-charge questioning, the police must ‘satisfy’ the judge on all three points | ||
+ | under paragraph 15.3. This means that the judge will either authorise or refuse an | ||
+ | application on the balance of whether the conditions in paragraph 15.3 are all met. It is | ||
+ | important therefore, that when making the application, to consider the following questions: | ||
+ | What further evidence is the questioning expected to provide? | ||
+ | Why was it not possible to obtain this evidence before charge? | ||
+ | How and why was the need to question after charge first recognised? | ||
+ | How is the questioning expected to contribute further to the case? | ||
+ | To what extent could the time and place for further questioning interfere with the | ||
+ | preparation of the person’s defence (for example if authorisation is sought close to | ||
+ | the time of a trial)? | ||
+ | What steps will be taken to minimise any risk that questioning might interfere with | ||
+ | the preparation of the person’s defence? | ||
+ | This list is not exhaustive but outlines the type of questions that could be relevant to any | ||
+ | asked by a judge in considering an application. | ||
+ | 16 Testing persons for the presence of specified Class A drugs | ||
+ | 16.1 The provisions for drug testing under section 63B of PACE (as amended by section 5 of the | ||
+ | Criminal Justice Act 2003 and section 7 of the Drugs Act 2005), do not apply to persons to | ||
+ | whom this Code applies. Guidance on these provisions can be found in section 17 of | ||
+ | PACE Code C. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 50 | ||
+ | ANNEX A INTIMATE AND STRIP SEARCHES | ||
+ | A Intimate search | ||
+ | 1. An intimate search consists of the physical examination of a person's body orifices other | ||
+ | than the mouth. The intrusive nature of such searches means the actual and potential risks | ||
+ | associated with intimate searches must never be underestimated. | ||
+ | (a) Action | ||
+ | 2. Body orifices other than the mouth may be searched if authorised by an officer of inspector | ||
+ | rank or above who has reasonable grounds for believing that the person may have | ||
+ | concealed on themselves anything which they could and might use to cause physical injury | ||
+ | to themselves or others at the station and the officer has reasonable grounds for believing | ||
+ | that an intimate search is the only means of removing those items. | ||
+ | 3. Before the search begins, a police officer or designated detention officer, must tell the | ||
+ | detainee: | ||
+ | (a) that the authority to carry out the search has been given; | ||
+ | (b) the grounds for giving the authorisation and for believing that the article cannot be | ||
+ | removed without an intimate search. | ||
+ | Note: Paragraph 1.11A of this Code requires someone to fulfil the role of the appropriate | ||
+ | adult to be present when a 17-year-old is told about the authority and grounds for an | ||
+ | intimate search. | ||
+ | 4. An intimate search may only be carried out by a registered medical practitioner or | ||
+ | registered nurse, unless an officer of at least inspector rank considers this is not | ||
+ | practicable, in which case a police officer may carry out the search. See Notes A1 to A5. | ||
+ | 5. Any proposal for a search under paragraph 2 to be carried out by someone other than a | ||
+ | registered medical practitioner or registered nurse must only be considered as a last resort | ||
+ | and when the authorising officer is satisfied the risks associated with allowing the item to | ||
+ | remain with the detainee outweigh the risks associated with removing it. See Notes A1 to | ||
+ | A5. | ||
+ | 6. An intimate search at a police station of a juvenile or mentally disordered or otherwise | ||
+ | mentally vulnerable person may take place only in the presence of an appropriate adult of | ||
+ | the same sex (see Annex I), unless the detainee specifically requests a particular adult of | ||
+ | the opposite sex who is readily available. In the case of a juvenile the search may take | ||
+ | place in the absence of the appropriate adult only if the juvenile signifies in the presence of | ||
+ | the appropriate adult they do not want the adult present during the search and the adult | ||
+ | agrees. A record shall be made of the juvenile's decision and signed by the appropriate | ||
+ | adult. | ||
+ | 7. When an intimate search under paragraph 2 is carried out by a police officer, the officer | ||
+ | must be of the same sex as the detainee (see Annex I). A minimum of two people, other | ||
+ | than the detainee, must be present during the search. Subject to paragraph 6, no person of | ||
+ | the opposite sex who is not a medical practitioner or nurse shall be present, nor shall | ||
+ | anyone whose presence is unnecessary. The search shall be conducted with proper | ||
+ | regard to the sensitivity and vulnerability of the detainee. | ||
+ | (b) Documentation | ||
+ | 8. In the case of an intimate search under paragraph 2, the following shall be recorded as | ||
+ | soon as practicable, in the detainee’s custody record: | ||
+ | the authorisation to carry out the search; | ||
+ | the grounds for giving the authorisation; | ||
+ | the grounds for believing the article could not be removed without an intimate search; | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 51 | ||
+ | which parts of the detainee’s body were searched; | ||
+ | who carried out the search; | ||
+ | who was present; | ||
+ | the result. | ||
+ | 9. If an intimate search is carried out by a police officer, the reason why it was impracticable | ||
+ | for a registered medical practitioner or registered nurse to conduct it must be recorded. | ||
+ | B Strip search | ||
+ | 10. A strip search is a search involving the removal of more than outer clothing. In this Code, | ||
+ | outer clothing includes shoes and socks. | ||
+ | (a) Action | ||
+ | 11. A strip search may take place only if it is considered necessary to remove an article which a | ||
+ | detainee would not be allowed to keep, and the officer reasonably considers the detainee | ||
+ | might have concealed such an article. Strip searches shall not be routinely carried out if | ||
+ | there is no reason to consider that articles are concealed. | ||
+ | The conduct of strip searches | ||
+ | 12. When strip searches are conducted: | ||
+ | (a) a police officer carrying out a strip search must be the same sex as the detainee (see | ||
+ | Annex I); | ||
+ | (b) the search shall take place in an area where the detainee cannot be seen by anyone | ||
+ | who does not need to be present, nor by a member of the opposite sex (see Annex I) | ||
+ | except an appropriate adult who has been specifically requested by the detainee; | ||
+ | (c) except in cases of urgency, where there is risk of serious harm to the detainee or to | ||
+ | others, whenever a strip search involves exposure of intimate body parts, there must | ||
+ | be at least two people present other than the detainee, and if the search is of a | ||
+ | juvenile or mentally disordered or otherwise mentally vulnerable person, one of the | ||
+ | people must be the appropriate adult. Except in urgent cases as above, a search of a | ||
+ | juvenile may take place in the absence of the appropriate adult only if the juvenile | ||
+ | signifies in the presence of the appropriate adult that they do not want the adult to be | ||
+ | present during the search and the adult agrees. A record shall be made of the | ||
+ | juvenile's decision and signed by the appropriate adult. The presence of more than | ||
+ | two people, other than an appropriate adult, shall be permitted only in the most | ||
+ | exceptional circumstances; | ||
+ | (d) the search shall be conducted with proper regard to the sensitivity and vulnerability of | ||
+ | the detainee in these circumstances and every reasonable effort shall be made to | ||
+ | secure the detainee’s co-operation and minimise embarrassment. Detainees who are | ||
+ | searched shall not normally be required to remove all their clothes at the same time, | ||
+ | e.g. a person should be allowed to remove clothing above the waist and redress | ||
+ | before removing further clothing; | ||
+ | (e) if necessary to assist the search, the detainee may be required to hold their arms in | ||
+ | the air or to stand with their legs apart and bend forward so a visual examination may | ||
+ | be made of the genital and anal areas provided no physical contact is made with any | ||
+ | body orifice; | ||
+ | (f) if articles are found, the detainee shall be asked to hand them over. If articles are | ||
+ | found within any body orifice other than the mouth, and the detainee refuses to hand | ||
+ | them over, their removal would constitute an intimate search, which must be carried | ||
+ | out as in Part A; | ||
+ | (g) a strip search shall be conducted as quickly as possible, and the detainee allowed to | ||
+ | dress as soon as the procedure is complete. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 52 | ||
+ | (b) Documentation | ||
+ | 13. A record shall be made on the custody record of a strip search including the reason it was | ||
+ | considered necessary, those present and any result. | ||
+ | Notes for Guidance | ||
+ | A1 Before authorising any intimate search, the authorising officer must make every reasonable | ||
+ | effort to persuade the detainee to hand the article over without a search. If the detainee | ||
+ | agrees, a registered medical practitioner or registered nurse should whenever possible be | ||
+ | asked to assess the risks involved and, if necessary, attend to assist the detainee. | ||
+ | A2 If the detainee does not agree to hand the article over without a search, the authorising | ||
+ | officer must carefully review all the relevant factors before authorising an intimate search. | ||
+ | In particular, the officer must consider whether the grounds for believing an article may be | ||
+ | concealed are reasonable. | ||
+ | A3 If authority is given for a search under paragraph 2, a registered medical practitioner or | ||
+ | registered nurse shall be consulted whenever possible. The presumption should be that | ||
+ | the search will be conducted by the registered medical practitioner or registered nurse and | ||
+ | the authorising officer must make every reasonable effort to persuade the detainee to allow | ||
+ | the medical practitioner or nurse to conduct the search. | ||
+ | A4 A constable should only be authorised to carry out a search as a last resort and when all | ||
+ | other approaches have failed. In these circumstances, the authorising officer must be | ||
+ | satisfied the detainee might use the article for one or more of the purposes in paragraph 2 | ||
+ | and the physical injury likely to be caused is sufficiently severe to justify authorising a | ||
+ | constable to carry out the search. | ||
+ | A5 If an officer has any doubts whether to authorise an intimate search by a constable, the | ||
+ | officer should seek advice from an officer of superintendent rank or above. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 53 | ||
+ | ANNEX B DELAY IN NOTIFYING ARREST OR ALLOWING ACCESS TO LEGAL ADVICE | ||
+ | FOR PERSONS DETAINED UNDER THE TERRORISM ACT 2000. | ||
+ | A DELAYS under TACT Schedule 8 | ||
+ | 1. The rights as in sections 5 or 6, may be delayed if the person is detained under the | ||
+ | Terrorism Act 2000, section 41, has not yet been charged with an offence and an officer of | ||
+ | superintendent rank or above has reasonable grounds for believing the exercise of either | ||
+ | right will have one of the following consequences: | ||
+ | (a) interference with or harm to evidence of a serious offence, | ||
+ | (b) interference with or physical injury to any person, | ||
+ | (c) the alerting of persons who are suspected of having committed a serious offence but | ||
+ | who have not been arrested for it, | ||
+ | (d) the hindering of the recovery of property obtained as a result of a serious offence or in | ||
+ | respect of which a forfeiture order could be made under section 23, | ||
+ | (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, or | ||
+ | (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. | ||
+ | 2. These rights may also be delayed if the officer has reasonable grounds for believing that: | ||
+ | (a) the detained person has benefited from his criminal conduct (to be decided in | ||
+ | accordance with Part 2 of the Proceeds of Crime Act 2002), 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 8(1)(a) of Schedule 8 to TACT), or | ||
+ | (ii) the exercise of the right under paragraph 7 (in the case of an authorisation | ||
+ | under paragraph 8(1)(b) of Schedule 8 to TACT). | ||
+ | 3. Authority to delay a detainee’s right to consult privately with a solicitor may be given only if | ||
+ | the authorising officer has reasonable grounds to believe the solicitor the detainee wants to | ||
+ | consult will, inadvertently or otherwise, pass on a message from the detainee or act in | ||
+ | some other way which will have any of the consequences specified under paragraph 8 of | ||
+ | Schedule 8 to the Terrorism Act 2000. In these circumstances, the detainee must be | ||
+ | allowed to choose another solicitor. See Note B3. | ||
+ | 4. If the detainee wishes to see a solicitor, access to that solicitor may not be delayed on the | ||
+ | grounds they might advise the detainee not to answer questions or the solicitor was initially | ||
+ | asked to attend the police station by someone else. In the latter case the detainee must be | ||
+ | told the solicitor has come to the police station at another person's request, and must be | ||
+ | asked to sign the custody record to signify whether they want to see the solicitor. | ||
+ | 5. The fact the grounds for delaying notification of arrest may be satisfied does not | ||
+ | automatically mean the grounds for delaying access to legal advice will also be satisfied. | ||
+ | 6. These rights may be delayed only for as long as is necessary but not beyond 48 hours from | ||
+ | the time of arrest (or if a person was being detained under TACT Schedule 7, from the time | ||
+ | at which the examination under Schedule 7 began). If the above grounds cease to apply | ||
+ | within this time the detainee must as soon as practicable be asked if they wish to exercise | ||
+ | either right, the custody record noted accordingly, and action taken in accordance with the | ||
+ | relevant section of this Code. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 54 | ||
+ | 7. A person must be allowed to consult a solicitor for a reasonable time before any court | ||
+ | hearing. | ||
+ | B Documentation | ||
+ | 8. The grounds for action under this Annex shall be recorded and the detainee informed of | ||
+ | them as soon as practicable. | ||
+ | 9. Any reply given by a detainee under paragraph 6 must be recorded and the detainee asked | ||
+ | to endorse the record in relation to whether they want to receive legal advice at this point. | ||
+ | C Cautions and special warnings | ||
+ | 10. When a suspect detained at a police station is interviewed during any period for which | ||
+ | access to legal advice has been delayed under this Annex, the court or jury may not draw | ||
+ | adverse inferences from their silence. | ||
+ | Notes for Guidance | ||
+ | B1 Even if Annex B applies in the case of a juvenile, or a person who is mentally disordered or | ||
+ | otherwise mentally vulnerable, action to inform the appropriate adult and the person | ||
+ | responsible for a juvenile's welfare, if that is a different person, must nevertheless be taken | ||
+ | as in paragraph 3.15 and 3.17. | ||
+ | B2 In the case of Commonwealth citizens and foreign nationals, see Note 7A. | ||
+ | B3 A decision to delay access to a specific solicitor is likely to be a rare occurrence and only | ||
+ | when it can be shown the suspect is capable of misleading that particular solicitor and there | ||
+ | is more than a substantial risk that the suspect will succeed in causing information to be | ||
+ | conveyed which will lead to one or more of the specified consequences. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 55 | ||
+ | ANNEX C RESTRICTION ON DRAWING ADVERSE INFERENCES FROM SILENCE AND | ||
+ | TERMS OF THE CAUTION WHEN THE RESTRICTION APPLIES | ||
+ | (a) The restriction on drawing adverse inferences from silence | ||
+ | 1. The Criminal Justice and Public Order Act 1994, sections 34, 36 and 37 as amended by the | ||
+ | Youth Justice and Criminal Evidence Act 1999, section 58 describe the conditions under | ||
+ | which adverse inferences may be drawn from a person’s failure or refusal to say anything | ||
+ | about their involvement in the offence when interviewed, after being charged or informed | ||
+ | they may be prosecuted. These provisions are subject to an overriding restriction on the | ||
+ | ability of a court or jury to draw adverse inferences from a person’s silence. This restriction | ||
+ | applies: | ||
+ | (a) to any detainee at a police station who, before being interviewed, see section 11 or | ||
+ | being charged or informed they may be prosecuted, see section 15, has: | ||
+ | (i) asked for legal advice, see section 6, paragraph 6.1; | ||
+ | (ii) not been allowed an opportunity to consult a solicitor, including the duty | ||
+ | solicitor, as in this Code; and | ||
+ | (iii) not changed their mind about wanting legal advice, see section 6, paragraph | ||
+ | 6.7(d). | ||
+ | Note the condition in (ii) will: | ||
+ | ~ apply when a detainee who has asked for legal advice is interviewed before | ||
+ | speaking to a solicitor as in section 6, paragraph 6.6(a) or (b); | ||
+ | ~ not apply if the detained person declines to ask for the duty solicitor, see | ||
+ | section 6, paragraphs 6.7(b) and (c). | ||
+ | (b) to any person who has been charged with, or informed they may be prosecuted for, an | ||
+ | offence who: | ||
+ | (i) has had brought to their notice a written statement made by another person or | ||
+ | the content of an interview with another person which relates to that offence, see | ||
+ | PACE Code C section 16, paragraph 16.4; | ||
+ | (ii) is interviewed about that offence, see PACE Code C section 16, paragraph 16.5; | ||
+ | or | ||
+ | (iii) makes a written statement about that offence, see Annex D paragraphs 4 and 9, | ||
+ | unless post-charge questioning has been authorised in accordance with section 22 of | ||
+ | the Counter-Terrorism Act 2008, in which case the restriction will apply only if the | ||
+ | person has asked for legal advice, see section 6, paragraph 6.1, and is questioned | ||
+ | before receiving such advice in accordance with paragraph 6.7(b). See paragraph | ||
+ | 15.11. | ||
+ | (b) Terms of the caution when the restriction applies | ||
+ | 2. When a requirement to caution arises at a time when the restriction on drawing adverse | ||
+ | inferences from silence applies, the caution shall be: | ||
+ | ‘You do not have to say anything, but anything you do say may be given in evidence.’ | ||
+ | Where the use of the Welsh Language is appropriate, the caution may be used directly in | ||
+ | Welsh in the following terms: | ||
+ | ‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych chi’n ei ddweud gael | ||
+ | ei roi fel tystiolaeth.’ | ||
+ | 3. Whenever the restriction either begins to apply or ceases to apply after a caution has | ||
+ | already been given, the person shall be re-cautioned in the appropriate terms. The | ||
+ | changed position on drawing inferences and that the previous caution no longer applies | ||
+ | shall also be explained to the detainee in ordinary language. See Note C1. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 56 | ||
+ | Notes for Guidance | ||
+ | C1 The following is suggested as a framework to help explain changes in the position on | ||
+ | drawing adverse inferences if the restriction on drawing adverse inferences from silence: | ||
+ | (a) begins to apply: | ||
+ | ‘The caution you were previously given no longer applies. This is because after that | ||
+ | caution: | ||
+ | (i) you asked to speak to a solicitor but have not yet been allowed an opportunity to | ||
+ | speak to a solicitor. See paragraph 1(a); or | ||
+ | (ii) you have been charged with/informed you may be prosecuted. See paragraph | ||
+ | 1(b). | ||
+ | ‘This means that from now on, adverse inferences cannot be drawn at court and your | ||
+ | defence will not be harmed just because you choose to say nothing. Please listen | ||
+ | carefully to the caution I am about to give you because it will apply from now on. You | ||
+ | will see that it does not say anything about your defence being harmed.’ | ||
+ | (b) ceases to apply before or at the time the person is charged or informed they may be | ||
+ | prosecuted, see paragraph 1(a); | ||
+ | ‘The caution you were previously given no longer applies. This is because after that | ||
+ | caution you have been allowed an opportunity to speak to a solicitor. Please listen | ||
+ | carefully to the caution I am about to give you because it will apply from now on. It | ||
+ | explains how your defence at court may be affected if you choose to say nothing.’ | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 57 | ||
+ | ANNEX D WRITTEN STATEMENTS UNDER CAUTION | ||
+ | (a) Written by a person under caution | ||
+ | 1. A person shall always be invited to write down what they want to say. | ||
+ | 2. A person who has not been charged with, or informed they may be prosecuted for, any | ||
+ | offence to which the statement they want to write relates, shall: | ||
+ | (a) unless the statement is made at a time when the restriction on drawing adverse | ||
+ | inferences from silence applies, see Annex C, be asked to write out and sign the | ||
+ | following before writing what they want to say: | ||
+ | ‘I make this statement of my own free will. I understand that I do not have to say | ||
+ | anything but that it may harm my defence if I do not mention when questioned | ||
+ | something which I later rely on in court. This statement may be given in evidence.’; | ||
+ | (b) if the statement is made at a time when the restriction on drawing adverse inferences | ||
+ | from silence applies, be asked to write out and sign the following before writing what | ||
+ | they want to say; | ||
+ | ‘I make this statement of my own free will. I understand that I do not have to say | ||
+ | anything. This statement may be given in evidence.’ | ||
+ | 3. When a person, on the occasion of being charged with or informed they may be prosecuted | ||
+ | for any offence, asks to make a statement which relates to any such offence and wants to | ||
+ | write it they shall: | ||
+ | (a) unless the restriction on drawing adverse inferences from silence, see Annex C, | ||
+ | applied when they were so charged or informed they may be prosecuted, be asked to | ||
+ | write out and sign the following before writing what they want to say: | ||
+ | ‘I make this statement of my own free will. I understand that I do not have to say | ||
+ | anything but that it may harm my defence if I do not mention when questioned | ||
+ | something which I later rely on in court. This statement may be given in evidence.’; | ||
+ | (b) if the restriction on drawing adverse inferences from silence applied when they were | ||
+ | so charged or informed they may be prosecuted, be asked to write out and sign the | ||
+ | following before writing what they want to say: | ||
+ | ‘I make this statement of my own free will. I understand that I do not have to say | ||
+ | anything. This statement may be given in evidence.’ | ||
+ | 4. When a person who has already been charged with or informed they may be prosecuted for | ||
+ | any offence, asks to make a statement which relates to any such offence and wants to write | ||
+ | it they shall be asked to write out and sign the following before writing what they want to | ||
+ | say: | ||
+ | ‘I make this statement of my own free will. I understand that I do not have to say anything. | ||
+ | This statement may be given in evidence.’; | ||
+ | 5. Any person writing their own statement shall be allowed to do so without any prompting | ||
+ | except a police officer or other police staff may indicate to them which matters are material | ||
+ | or question any ambiguity in the statement. | ||
+ | (b) Written by a police officer or other police staff | ||
+ | 6. If a person says they would like someone to write the statement for them, a police officer, or | ||
+ | other police staff shall write the statement. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 58 | ||
+ | 7. If the person has not been charged with, or informed they may be prosecuted for, any | ||
+ | offence to which the statement they want to make relates they shall, before starting, be | ||
+ | asked to sign, or make their mark, to the following: | ||
+ | (a) unless the statement is made at a time when the restriction on drawing adverse | ||
+ | inferences from silence applies, see Annex C: | ||
+ | ‘I, ............................, wish to make a statement. I want someone to write down what I | ||
+ | say. I understand that I do not have to say anything but that it may harm my defence | ||
+ | if I do not mention when questioned something which I later rely on in court. This | ||
+ | statement may be given in evidence.’; | ||
+ | (b) if the statement is made at a time when the restriction on drawing adverse inferences | ||
+ | from silence applies: | ||
+ | ‘I, ............................, wish to make a statement. I want someone to write down what I | ||
+ | say. I understand that I do not have to say anything. This statement may be given in | ||
+ | evidence.’ | ||
+ | 8. If, on the occasion of being charged with or informed they may be prosecuted for any | ||
+ | offence, the person asks to make a statement which relates to any such offence they shall | ||
+ | before starting be asked to sign, or make their mark to, the following: | ||
+ | (a) unless the restriction on drawing adverse inferences from silence applied, see Annex | ||
+ | C, when they were so charged or informed they may be prosecuted: | ||
+ | ‘I, ............................, wish to make a statement. I want someone to write down what I | ||
+ | say. I understand that I do not have to say anything but that it may harm my defence | ||
+ | if I do not mention when questioned something which I later rely on in court. This | ||
+ | statement may be given in evidence.’; | ||
+ | (b) if the restriction on drawing adverse inferences from silence applied when they were | ||
+ | so charged or informed they may be prosecuted: | ||
+ | ‘I, ............................, wish to make a statement. I want someone to write down what I | ||
+ | say. I understand that I do not have to say anything. This statement may be given in | ||
+ | evidence.’ | ||
+ | 9. If, having already been charged with or informed they may be prosecuted for any offence, a | ||
+ | person asks to make a statement which relates to any such offence they shall before | ||
+ | starting, be asked to sign, or make their mark to: | ||
+ | ‘I, ............................, wish to make a statement. I want someone to write down what I say. I | ||
+ | understand that I do not have to say anything. This statement may be given in evidence.’ | ||
+ | 10. The person writing the statement must take down the exact words spoken by the person | ||
+ | making it and must not edit or paraphrase it. Any questions that are necessary, e.g. to | ||
+ | make it more intelligible, and the answers given must be recorded at the same time on the | ||
+ | statement form. | ||
+ | 11. When the writing of a statement is finished the person making it shall be asked to read it | ||
+ | and to make any corrections, alterations or additions they want. When they have finished | ||
+ | reading they shall be asked to write and sign or make their mark on the following certificate | ||
+ | at the end of the statement: | ||
+ | ‘I have read the above statement, and I have been able to correct, alter or add anything I | ||
+ | wish. This statement is true. I have made it of my own free will.’ | ||
+ | 12. If the person making the statement cannot read, or refuses to read it, or to write the above | ||
+ | mentioned certificate at the end of it or to sign it, the person taking the statement shall read | ||
+ | it to them and ask them if they would like to correct, alter or add anything and to put their | ||
+ | signature or make their mark at the end. The person taking the statement shall certify on | ||
+ | the statement itself what has occurred. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 59 | ||
+ | ANNEX E SUMMARY OF PROVISIONS RELATING TO MENTALLY DISORDERED AND | ||
+ | OTHERWISE MENTALLY VULNERABLE PEOPLE | ||
+ | 1. If an officer has any suspicion, or is told in good faith, that a person of any age may be | ||
+ | mentally disordered or otherwise mentally vulnerable, or mentally incapable of | ||
+ | understanding the significance of questions or their replies that person shall be treated as | ||
+ | mentally disordered or otherwise mentally vulnerable for the purposes of this Code. See | ||
+ | paragraph 1.10 | ||
+ | 2. In the case of a person who is mentally disordered or otherwise mentally vulnerable, ‘the | ||
+ | appropriate adult’ means: | ||
+ | (a) a relative, guardian or other person responsible for their care or custody; | ||
+ | (b) someone experienced in dealing with mentally disordered or mentally vulnerable | ||
+ | people but who is not a police officer or employed by the police; | ||
+ | (c) failing these, some other responsible adult aged 18 or over who is not a police officer | ||
+ | or employed by the police. | ||
+ | See paragraph 1.13(b) and Note 1D | ||
+ | 3. If the detention of a person who is mentally vulnerable or appears to be suffering from a | ||
+ | mental disorder is authorised by the review officer (see paragraphs 14.1 and 14.2 and | ||
+ | Notes 14A and 14B), the custody officer must as soon as practicable inform the appropriate | ||
+ | adult of the grounds for detention and the person’s whereabouts, and ask the adult to come | ||
+ | to the police station to see them. If the appropriate adult: | ||
+ | is already at the station when information is given as in paragraphs 3.1 to 3.5 the | ||
+ | information must be given in their presence; | ||
+ | is not at the station when the provisions of paragraph 3.1 to 3.5 are complied with these | ||
+ | provisions must be complied with again in their presence once they arrive. | ||
+ | See paragraphs 3.15 to 3.16 | ||
+ | 4. If the appropriate adult, having been informed of the right to legal advice, considers legal | ||
+ | advice should be taken, the provisions of section 6 apply as if the mentally disordered or | ||
+ | otherwise mentally vulnerable person had requested access to legal advice. See | ||
+ | paragraphs 3.20, 6.6 and Note E1. | ||
+ | 5. The custody officer must make sure a person receives appropriate clinical attention as soon | ||
+ | as reasonably practicable if the person appears to be suffering from a mental disorder or in | ||
+ | urgent cases immediately call the nearest appropriate healthcare professional or an | ||
+ | ambulance. It is not intended these provisions delay the transfer of a detainee to a place of | ||
+ | safety under the Mental Health Act 1983, section 136 if that is applicable. If an assessment | ||
+ | under that Act is to take place at a police station, the custody officer must consider whether | ||
+ | an appropriate healthcare professional should be called to conduct an initial clinical check | ||
+ | on the detainee. See paragraphs 9.6 and 9.8. | ||
+ | 6. If a mentally disordered or otherwise mentally vulnerable person is cautioned in the | ||
+ | absence of the appropriate adult, the caution must be repeated in the appropriate adult’s | ||
+ | presence. See paragraph 10.11. | ||
+ | 7. A mentally disordered or otherwise mentally vulnerable person must not be interviewed or | ||
+ | asked to provide or sign a written statement in the absence of the appropriate adult unless | ||
+ | the provisions of paragraphs 11.2 or 11.11 to 11.13 apply. Questioning in these | ||
+ | circumstances may not continue in the absence of the appropriate adult once sufficient | ||
+ | information to avert the risk has been obtained. A record shall be made of the grounds for | ||
+ | any decision to begin an interview in these circumstances. See paragraphs 11.2, 11.9 and | ||
+ | 11.11 to 11.13 | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 60 | ||
+ | 8. If the appropriate adult is present at an interview, they shall be informed they are not | ||
+ | expected to act simply as an observer and the purposes of their presence are to: | ||
+ | advise the interviewee | ||
+ | observe whether or not the interview is being conducted properly and fairly | ||
+ | facilitate communication with the interviewee | ||
+ | See paragraph 11.10 | ||
+ | 9. If the custody officer charges a mentally disordered or otherwise mentally vulnerable person | ||
+ | with an offence or takes such other action as is appropriate when there is sufficient | ||
+ | evidence for a prosecution this must be carried out in the presence of the appropriate adult | ||
+ | if they are at the police station. A copy of the written notice embodying any charge must be | ||
+ | given to the appropriate adult. See PACE Code C Section 16. | ||
+ | 10. An intimate or strip search of a mentally disordered or otherwise mentally vulnerable person | ||
+ | may take place only in the presence of the appropriate adult of the same sex, unless the | ||
+ | detainee specifically requests the presence of a particular adult of the opposite sex. A strip | ||
+ | search may take place in the absence of an appropriate adult only in cases of urgency | ||
+ | when there is a risk of serious harm to the detainee or others. See Annex A, paragraphs 6 | ||
+ | and 12(c) | ||
+ | 11. Particular care must be taken when deciding whether to use any form of approved | ||
+ | restraints on a mentally disordered or otherwise mentally vulnerable person in a locked cell. | ||
+ | See paragraph 8.2 | ||
+ | Notes for Guidance | ||
+ | E1 The purpose of the provision at paragraph 3.20 and 6.6 is to protect the rights of a mentally | ||
+ | disordered or otherwise mentally vulnerable detained person who does not understand the | ||
+ | significance of what is said to them. A mentally disordered or otherwise mentally vulnerable | ||
+ | detained person should always be given an opportunity, when an appropriate adult is called | ||
+ | to the police station, to consult privately with a solicitor in the absence of the appropriate | ||
+ | adult if they want. | ||
+ | E2 Although people who are mentally disordered or otherwise mentally vulnerable are often | ||
+ | capable of providing reliable evidence, they may, without knowing or wanting to do so, be | ||
+ | particularly prone in certain circumstances to provide information that may be unreliable, | ||
+ | misleading or self-incriminating. Special care should always be taken when questioning | ||
+ | such a person, and the appropriate adult should be involved if there is any doubt about a | ||
+ | person’s mental state or capacity. Because of the risk of unreliable evidence, it is important | ||
+ | to obtain corroboration of any facts admitted whenever possible. | ||
+ | E3 Because of the risks referred to in Note E2, which the presence of the appropriate adult is | ||
+ | intended to minimise, officers of superintendent rank or above should exercise their | ||
+ | discretion to authorise the commencement of an interview in the appropriate adult’s | ||
+ | absence only in exceptional cases, if it is necessary to avert an immediate risk of serious | ||
+ | harm. See paragraphs 11.2 and 11.11 to 11.13. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 61 | ||
+ | ANNEX F – Not used | ||
+ | ANNEX G FITNESS TO BE INTERVIEWED | ||
+ | 1. This Annex contains general guidance to help police officers and healthcare professionals | ||
+ | assess whether a detainee might be at risk in an interview. | ||
+ | 2. A detainee may be at risk in a interview if it is considered that: | ||
+ | (a) conducting the interview could significantly harm the detainee’s physical or mental | ||
+ | state; | ||
+ | (b) anything the detainee says in the interview about their involvement or suspected | ||
+ | involvement in the offence about which they are being interviewed might be | ||
+ | considered unreliable in subsequent court proceedings because of their physical or | ||
+ | mental state. | ||
+ | 3. In assessing whether the detainee should be interviewed, the following must be considered: | ||
+ | (a) how the detainee’s physical or mental state might affect their ability to understand the | ||
+ | nature and purpose of the interview, to comprehend what is being asked and to | ||
+ | appreciate the significance of any answers given and make rational decisions about | ||
+ | whether they want to say anything; | ||
+ | (b) the extent to which the detainee’s replies may be affected by their physical or mental | ||
+ | condition rather than representing a rational and accurate explanation of their | ||
+ | involvement in the offence; | ||
+ | (c) how the nature of the interview, which could include particularly probing questions, | ||
+ | might affect the detainee. | ||
+ | 4. It is essential healthcare professionals who are consulted consider the functional ability of | ||
+ | the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a | ||
+ | person with severe mental illness to be fit for interview. | ||
+ | 5. Healthcare professionals should advise on the need for an appropriate adult to be present, | ||
+ | whether reassessment of the person’s fitness for interview may be necessary if the | ||
+ | interview lasts beyond a specified time, and whether a further specialist opinion may be | ||
+ | required. | ||
+ | 6. When healthcare professionals identify risks they should be asked to quantify the risks. | ||
+ | They should inform the custody officer: | ||
+ | whether the person’s condition: | ||
+ | is likely to improve; | ||
+ | will require or be amenable to treatment; and | ||
+ | indicate how long it may take for such improvement to take effect. | ||
+ | 7. The role of the healthcare professional is to consider the risks and advise the custody | ||
+ | officer of the outcome of that consideration. The healthcare professional’s determination | ||
+ | and any advice or recommendations should be made in writing and form part of the custody | ||
+ | record. | ||
+ | 8. Once the healthcare professional has provided that information, it is a matter for the | ||
+ | custody officer to decide whether or not to allow the interview to go ahead and if the | ||
+ | interview is to proceed, to determine what safeguards are needed. Nothing prevents | ||
+ | safeguards being provided in addition to those required under the Code. An example might | ||
+ | be to have an appropriate healthcare professional present during the interview, in addition | ||
+ | to an appropriate adult, in order constantly to monitor the person’s condition and how it is | ||
+ | being affected by the interview. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 62 | ||
+ | ANNEX H DETAINED PERSON: OBSERVATION LIST | ||
+ | 1. If any detainee fails to meet any of the following criteria, an appropriate healthcare | ||
+ | professional or an ambulance must be called. | ||
+ | 2. When assessing the level of rousability, consider: | ||
+ | Rousability - can they be woken? | ||
+ | go into the cell | ||
+ | call their name | ||
+ | shake gently | ||
+ | Response to questions - can they give appropriate answers to questions such as: | ||
+ | What’s your name? | ||
+ | Where do you live? | ||
+ | Where do you think you are? | ||
+ | Response to commands - can they respond appropriately to commands such as: | ||
+ | Open your eyes! | ||
+ | Lift one arm, now the other arm! | ||
+ | 3. Remember to take into account the possibility or presence of other illnesses, injury, or | ||
+ | mental condition; a person who is drowsy and smells of alcohol may also have the | ||
+ | following: | ||
+ | Diabetes | ||
+ | Epilepsy | ||
+ | Head injury | ||
+ | Drug intoxication or overdose | ||
+ | Stroke | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 63 | ||
+ | ANNEX I ESTABLISHING GENDER OF PERSONS FOR THE PURPOSE OF SEARCHING | ||
+ | 1. Certain provisions of this and other PACE Codes explicitly state that searches and other | ||
+ | procedures may only be carried out by, or in the presence of, persons of the same sex as | ||
+ | the person subject to the search or other procedure. See Note I1. | ||
+ | 2. All searches and procedures must be carried out with courtesy, consideration and respect | ||
+ | for the person concerned. Police officers should show particular sensitivity when dealing | ||
+ | with transgender individuals (including transsexual persons) and transvestite persons (see | ||
+ | Notes I2, I3 and I4). | ||
+ | (a) Consideration | ||
+ | 3. In law, the gender (and accordingly the sex) of an individual is their gender as registered at | ||
+ | birth, unless they have been issued with a Gender Recognition Certificate (GRC) under the | ||
+ | Gender Recognition Act 2004 (GRA), in which case the person's gender is their acquired | ||
+ | gender. This means that if the acquired gender is the male gender, the person’s sex | ||
+ | becomes that of a man and, if it is the female gender, the person’s sex becomes that of a | ||
+ | woman) and they must be treated as their acquired gender. | ||
+ | 4. When establishing whether the person concerned should be treated as being male or | ||
+ | female for the purposes of these searches and procedures, the following approach which is | ||
+ | designed to minimise embarrassment and secure the person’s co-operation should be | ||
+ | followed: | ||
+ | (a) The person must not be asked whether they have a GRC (see paragraph 8); | ||
+ | (b) If there is no doubt as to as to whether the person concerned should be treated as | ||
+ | being male or female, they should be dealt with as being of that sex. | ||
+ | (c) If at any time (including during the search or carrying out the procedure) there is doubt | ||
+ | as to whether the person should be treated, or continue to be treated, as being male | ||
+ | or female: | ||
+ | (i) the person should be asked what gender they consider themselves to be. If | ||
+ | they express a preference to be dealt with as a particular gender, they should | ||
+ | be asked to indicate and confirm their preference by signing the custody record | ||
+ | or, if a custody record has not been opened, the search record or the officer’s | ||
+ | notebook. Subject to (ii) below, the person should be treated according to their | ||
+ | preference; | ||
+ | (ii) if there are grounds to doubt that the preference in (i) accurately reflects the | ||
+ | person’s predominant lifestyle, for example, if they ask to be treated as woman | ||
+ | but documents and other information make it clear that they live predominantly | ||
+ | as a man, or vice versa, they should be treated according to what appears to be | ||
+ | their predominant lifestyle and not their stated preference; | ||
+ | (iii) If the person is unwilling to express a preference as in (i) above, efforts should | ||
+ | be made to determine their predominant lifestyle and they should be treated as | ||
+ | such. For example, if they appear to live predominantly as a woman, they | ||
+ | should be treated as being female; or | ||
+ | (iv) if none of the above apply, the person should be dealt with according to what | ||
+ | reasonably appears to have been their sex as registered at birth. | ||
+ | 5. Once a decision has been made about which gender an individual is to be treated as, each | ||
+ | officer responsible for the search or procedure should where possible be advised before the | ||
+ | search or procedure starts of any doubts as to the person's gender and the person | ||
+ | informed that the doubts have been disclosed. This is important so as to maintain the | ||
+ | dignity of the person and any officers concerned. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 64 | ||
+ | (b) Documentation | ||
+ | 6. The person’s gender as established under paragraph 4(c)(i) to (iv) above must be recorded | ||
+ | in the person’s custody record, or if a custody record has not been opened, on the search | ||
+ | record or in the officer’s notebook. | ||
+ | 7. Where the person elects which gender they consider themselves to be under paragraph | ||
+ | 4(b)(i) but following 4(b)(ii) is not treated in accordance with their preference, the reason | ||
+ | must be recorded in the search record, in the officer’s notebook or, if applicable, in the | ||
+ | person’s custody record.. | ||
+ | (c) Disclosure of information | ||
+ | 8. Section 22 of the GRA defines any information relating to a person’s application for a GRC | ||
+ | or to a successful applicant’s gender before it became their acquired gender as ‘protected | ||
+ | information’. Nothing in this Annex is to be read as authorising or permitting any police | ||
+ | officer or any police staff who has acquired such information when acting in their official | ||
+ | capacity to disclose that information to any other person in contravention of the GRA. | ||
+ | Disclosure includes making a record of ‘protected information’ which is read by others. | ||
+ | Note for Guidance | ||
+ | I1 Provisions to which paragraph 1 applies include: | ||
+ | In Code C; paragraph 4.1 and Annex A paragraphs 5, 6, 11 and 12 (searches, strip and | ||
+ | intimate searches of detainees under sections 54 and 55 of PACE); | ||
+ | In Code A; paragraphs 2.8 and 3.6 and Note 4; | ||
+ | In Code D; paragraph 5.5 and Note 5F (searches, examinations and photographing of | ||
+ | detainees under section 54A of PACE) and paragraph 6.9 (taking samples); | ||
+ | In Code H; paragraph 4.1 and Annex A paragraphs 6, 7 and 12 (searches, strip and | ||
+ | intimate searches under sections 54 and 55 of PACE of persons arrested under section | ||
+ | 41 of the Terrorism Act 2000). | ||
+ | I2 While there is no agreed definition of transgender (or trans), it is generally used as an | ||
+ | umbrella term to describe people whose gender identity (self-identification as being a | ||
+ | woman, man, neither or both) differs from the sex they were registered as at birth. The | ||
+ | term includes, but is not limited to, transsexual people. | ||
+ | I3 Transsexual means a person who is proposing to undergo, is undergoing or has undergone | ||
+ | a process (or part of a process) for the purpose of gender reassignment which is a | ||
+ | protected characteristic under the Equality Act 2010 (see paragraph 1.0), by changing | ||
+ | physiological or other attributes of their sex. This includes aspects of gender such as dress | ||
+ | and title. It would apply to a woman making the transition to being a man and a man | ||
+ | making the transition to being a woman, as well as to a person who has only just started out | ||
+ | on the process of gender reassignment and to a person who has completed the process. | ||
+ | Both would share the characteristic of gender reassignment with each having the | ||
+ | characteristics of one sex, but with certain characteristics of the other sex. | ||
+ | I4 Transvestite means a person of one gender who dresses in the clothes of a person of the | ||
+ | opposite gender. However, a transvestite does not live permanently in the gender opposite | ||
+ | to their birth sex. | ||
+ | I5 Chief officers are responsible for providing corresponding operational guidance and | ||
+ | instructions for the deployment of transgender officers and staff under their direction and | ||
+ | control to duties which involve carrying out, or being present at, any of the searches and | ||
+ | procedures described in paragraph 1. The guidance and instructions must comply with the | ||
+ | Equality Act 2010 and should therefore complement the approach in this Annex. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 65 | ||
+ | ANNEX J TRANSFER OF PERSONS DETAINED FOR MORE THAN 14 DAYS TO PRISON | ||
+ | 1. When a warrant of further detention is extended or further extended by a High Court judge | ||
+ | to authorise a person’s detention beyond a period of 14 days from the time of their arrest | ||
+ | (or if they were being detained under TACT Schedule 7, from the time at which their | ||
+ | examination under Schedule 7 began), the person must be transferred from detention in a | ||
+ | police station to detention in a designated prison as soon as is practicable after the warrant | ||
+ | is issued, unless: | ||
+ | (a) the detainee specifically requests to remain in detention at a police station and that | ||
+ | request can be accommodated, or | ||
+ | (b) there are reasonable grounds to believe that transferring the detainee to a prison | ||
+ | would: | ||
+ | (i) significantly hinder a terrorism investigation; | ||
+ | (ii) delay charging of the detainee or their release from custody, or | ||
+ | (iii) otherwise prevent the investigation from being conducted diligently and | ||
+ | expeditiously. | ||
+ | Any grounds in (b)(i) to (iii) above which are relied upon for not transferring the detainee to | ||
+ | prison must be presented to the senior judge as part of the application for the extension or | ||
+ | further extension of the warrant. See Note J1. | ||
+ | 2. If at any time during which a person remains in detention at a police station under the | ||
+ | warrant, the grounds at (b)(i) to (iii) cease to apply, the person must be transferred to a | ||
+ | prison as soon as practicable. | ||
+ | 3. Police should maintain an agreement with the National Offender Management Service | ||
+ | (NOMS) that stipulates named prisons to which individuals may be transferred under this | ||
+ | paragraph. This should be made with regard to ensuring detainees are moved to the most | ||
+ | suitable prison for the purposes of the investigation and their welfare, and should include | ||
+ | provision for the transfer of male, female and juvenile detainees. Police should ensure that | ||
+ | the Governor of a prison to which they intend to transfer a detainee is given reasonable | ||
+ | notice of this. Where practicable, this should be no later than the point at which a warrant | ||
+ | is applied for that would take the period of detention beyond 14 days. | ||
+ | 4. Following a detainee’s transfer to a designated prison, their detention will be governed by | ||
+ | the terms of Schedule 8 to TACT 2000 and the Prison Rules and this Code of Practice will | ||
+ | not apply during any period that the person remains in prison detention. The Code will | ||
+ | once more apply if the person is transferred back from prison detention to police detention. | ||
+ | In order to enable the Governor to arrange for the production of the detainee back into | ||
+ | police custody, police should give notice to the Governor of the relevant prison as soon as | ||
+ | possible of any decision to transfer a detainee from prison back to a police station. Any | ||
+ | transfer between a prison and a police station should be conducted by police and this Code | ||
+ | will be applicable during the period of transit. See Note 2J. A detainee should only remain | ||
+ | in police custody having been transferred back from a prison, for as long as is necessary | ||
+ | for the purpose of the investigation. | ||
+ | 5. The investigating team and custody officer should provide as much information as | ||
+ | necessary to enable the relevant prison authorities to provide appropriate facilities to detain | ||
+ | an individual. This should include, but not be limited to: | ||
+ | (i) medical assessments | ||
+ | (ii) security and risk assessments | ||
+ | (iii) details of the detained person’s legal representatives | ||
+ | (iv) details of any individuals from whom the detained person has requested visits, or who | ||
+ | have requested to visit the detained person. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 66 | ||
+ | 6. Where a detainee is to be transferred to prison, the custody officer should inform the | ||
+ | detainee’s legal adviser beforehand that the transfer is to take place (including the name of | ||
+ | the prison). The custody officer should also make all reasonable attempts to inform: | ||
+ | family or friends who have been informed previously of the detainee’s detention; and | ||
+ | the person who was initially informed of the detainee’s detention in accordance with | ||
+ | paragraph 5.1. | ||
+ | 7. Any decision not to transfer a detained person to a designated prison under paragraph 1, | ||
+ | must be recorded, along with the reasons for this decision. If a request under paragraph | ||
+ | 1(a) is not accommodated, the reasons for this should also be recorded. | ||
+ | Notes for Guidance | ||
+ | J1 Transfer to prison is intended to ensure that individuals who are detained for extended | ||
+ | periods of time are held in a place designed for longer periods of detention than police | ||
+ | stations. Prison will provide detainees with a greater range of facilities more appropriate to | ||
+ | longer detention periods. | ||
+ | J2 This Code will only apply as is appropriate to the conditions of detention during the period | ||
+ | of transit. There is obviously no requirement to provide such things as bed linen or reading | ||
+ | materials for the journey between prison and police station. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 67 | ||
+ | ANNEX K DOCUMENTS AND RECORDS TO BE TRANSLATED | ||
+ | 1. For the purposes of Directive 2010/64/EU of the European Parliament and of the Council of | ||
+ | 20 October 2010 and this Code, essential documents comprise records required to be made | ||
+ | in accordance with this Code which are relevant to decisions to deprive a person of their | ||
+ | liberty, to any charge and to any record considered necessary to enable a detainee to defend | ||
+ | themselves in criminal proceedings and safeguard the fairness of the proceedings. | ||
+ | Passages of essential documents which are not relevant need not be translated. See Note | ||
+ | K1. | ||
+ | 2. The documents considered essential for the purposes of this Code and for which (subject to | ||
+ | paragraphs 3 to 7) written translations must be created are the records made in accordance | ||
+ | with this Code of the grounds and reasons for any authorisation of a suspects detention | ||
+ | under the provisions of the Terrorism Act 2000 or the Counter Terrorism Act 2008 (postcharge | ||
+ | questioning) to which this Code applies as they are described and referred to in the | ||
+ | suspect’s custody record. Translations should be created as soon as practicable after the | ||
+ | authorisation has been recorded and provided as soon as practicable thereafter, whilst the | ||
+ | person is detained or after they have been released (see Note K3). See paragraphs 13.12 to | ||
+ | 13.14 and Annex L for application to live-link interpretation. | ||
+ | 3. The custody officer may authorise an oral translation or oral summary of the documents to be | ||
+ | provided (through an interpreter) instead of a written translation. Such an oral translation or | ||
+ | summary may only be provided if it would not prejudice the fairness of the proceedings by in | ||
+ | any way adversely affecting or otherwise undermining or limiting the ability of the suspect in | ||
+ | question to understand their position and to communicate effectively with police officers, | ||
+ | interviewers, solicitors and appropriate adults with regard to their detention and the | ||
+ | investigation of the offence in question and to defend themselves in the event of criminal | ||
+ | proceedings. The quantity and complexity of the information in the document should always | ||
+ | be considered and specific additional consideration given if the suspect is mentally | ||
+ | disordered or otherwise mentally vulnerable or is a juvenile or a 17-year-old (see Code H | ||
+ | paragraph 1.11A). The reason for the decision must be recorded (see paragraph 13.11(e)). | ||
+ | 4. Subject to paragraphs 5 to 7 below, a suspect may waive their right to a written translation of | ||
+ | the essential documents described in the table but only if they do so voluntarily after receiving | ||
+ | legal advice or having full knowledge of the consequences and give their unconditional and | ||
+ | fully informed consent in writing (see paragraph 9). | ||
+ | 5. The suspect may be asked if they wish to waive their right to a written translation and before | ||
+ | giving their consent, they must be reminded of their right to legal advice and asked whether | ||
+ | they wish to speak to a solicitor. | ||
+ | 6. No police officer or police staff should do or say anything with the intention of persuading a | ||
+ | suspect who is entitled to a written translation of an essential document to waive that right. | ||
+ | See Notes K2 and K3. | ||
+ | 7. For the purpose of the waiver: | ||
+ | (a) the consent of a person who is mentally disordered or otherwise mentally vulnerable | ||
+ | person is only valid if the information about the circumstances under which they can | ||
+ | waive the right and the reminder about their right to legal advice mentioned in | ||
+ | paragraphs 3 to 5 and their consent is given in the presence of the appropriate adult, | ||
+ | and the appropriate adult also agrees. | ||
+ | (b) the consent of a juvenile is only valid if their parent’s or guardian’s consent is also | ||
+ | obtained unless the juvenile is under 14, when their parent’s or guardian’s consent is | ||
+ | sufficient in its own right and the information and reminder mentioned in sub paragraph | ||
+ | (a) above and their consent is also given in the presence of the appropriate adult (who | ||
+ | may or may not be a parent or guardian). | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 68 | ||
+ | 8. The detainee, their solicitor or appropriate adult may make representations to the custody | ||
+ | officer that a document which is not included in the table is essential and that a translation | ||
+ | should be provided. The request may be refused if the officer is satisfied that the translation | ||
+ | requested is not essential for the purposes described in paragraph 1 above. | ||
+ | 9. If the custody officer has any doubts about: | ||
+ | providing an oral translation or summary of an essential document instead of a written | ||
+ | translation (see paragraph 3); | ||
+ | whether the suspect fully understands the consequences of waiving their right to a written | ||
+ | translation of an essential document (see paragraph 4); or | ||
+ | about refusing to provide a translation of a requested document (see paragraph 7), | ||
+ | the officer should seek advice from an inspector or above. | ||
+ | Documentation | ||
+ | 10. Action taken in accordance with this Annex shall be recorded in the detainee’s custody record | ||
+ | or interview record as appropriate (see Code H paragraph 13.11(e)). | ||
+ | Note for Guidance | ||
+ | K1 It is not necessary to disclose information in any translation which is capable of | ||
+ | undermining or otherwise adversely affecting any investigative processes, for example, by | ||
+ | enabling the suspect to fabricate an innocent explanation or to conceal lies from the | ||
+ | interviewer. | ||
+ | K2 No police officer or police staff shall indicate to any suspect, except to answer a direct | ||
+ | question whether the period for which they are liable to be detained, or if not detained, the | ||
+ | time taken to complete the interview, might be reduced: | ||
+ | if they do not ask for legal advice before deciding whether they wish to waive their right | ||
+ | to a written translation of an essential document; or | ||
+ | if they decide to waive their right to a written translation of an essential document. | ||
+ | K3 There is no power under TACT to detain a person or to delay their release solely to create | ||
+ | and provide a written translation of any essential document. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 69 | ||
+ | ANNEX L LIVE-LINK INTERPRETATION (PARA. 13.12) | ||
+ | Part 1: When the physical presence of the interpreter is not required. | ||
+ | 1. EU Directive 2010/64 (see paragraph 13.1), Article 2(6) provides “Where appropriate, | ||
+ | communication technology such as videoconferencing, telephone or the Internet may be | ||
+ | used, unless the physical presence of the interpreter is required in order to safeguard the | ||
+ | fairness of the proceedings.” This Article permits, but does not require the use of a live-link, | ||
+ | and the following provisions of this Annex determine whether the use of a live-link is | ||
+ | appropriate in any particular case. | ||
+ | 2. Decisions in accordance with this Annex that the physical presence of the interpreter is not | ||
+ | required and to permit live-link interpretation, must be made on a case by case basis. Each | ||
+ | decision must take account of the age, gender and vulnerability of the suspect, the nature | ||
+ | and circumstances of the terrorism investigation and the impact on the suspect according to | ||
+ | the particular purpose(s) for which the suspect requires the assistance of an interpreter and | ||
+ | the time(s) when that assistance is required (see Note L1). For this reason, the custody | ||
+ | officer must consider whether the ability of the particular suspect, to communicate confidently | ||
+ | and effectively for the purpose in question (see paragraph 3) is likely to be adversely affected | ||
+ | or otherwise undermined or limited if the interpreter is not physically present and live-link | ||
+ | interpretation is used. Although a suspect for whom an appropriate adult is required may be | ||
+ | more likely to be adversely affected as described, it is important to note that a person who | ||
+ | does not require an appropriate adult may also be adversely impacted by the use of live-link | ||
+ | interpretation. | ||
+ | 3. Examples of purposes referred to in paragraph 2 include: | ||
+ | (a) understanding and appreciating their position having regard to any information given to | ||
+ | them, or sought from them, in accordance with this or any other Code of Practice which, | ||
+ | in particular, include: | ||
+ | the caution (see paragraphs C10.1 and 10.12). | ||
+ | the special warning (see paragraphs 10.9 to 10.11). | ||
+ | information about their suspected involvement in the commission, preparation or | ||
+ | instigation of acts of terrorism offence (see paragraphs 10.3, 11.1 and Note 11ZA). | ||
+ | the grounds and reasons for detention (see paragraphs 13.10 and 13.10A). | ||
+ | the translation of essential documents (see paragraph 13.10B and Annex L). | ||
+ | their rights and entitlements (see paragraph 3.14). | ||
+ | intimate and non-intimate searches of detained persons at police stations. | ||
+ | provisions and procedures that apply to taking fingerprints, samples and | ||
+ | photographs from persons detained for the purposes of a terrorism investigation. | ||
+ | (b) understanding and seeking clarification from the interviewer of questions asked during | ||
+ | an interview that must be video recorded with sound (see paragraph 7) and of anything | ||
+ | else that is said by the interviewer and answering the questions. | ||
+ | (c) consulting privately with their solicitor and (if applicable) the appropriate adult (see | ||
+ | paragraphs 3.18, 13.3, 13.6 and 13.9): | ||
+ | (i) to help decide whether to answer questions put to them during interview; and | ||
+ | (ii) about any other matter concerning their detention and treatment whilst in custody. | ||
+ | (d) communicating with practitioners and others who have some formal responsibility for, or | ||
+ | an interest in, the health and welfare of the suspect. Particular examples include | ||
+ | appropriate healthcare professionals (see section 9 of this Code) and Independent | ||
+ | Custody Visitors. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 70 | ||
+ | 4. If the custody officer or the interviewer (subject to paragraph 13.1(b)) is satisfied that for a | ||
+ | particular purpose as described in paragraphs 2 and 3 above, the live-link interpretation | ||
+ | would not adversely affect or otherwise undermine or limit the suspect’s ability to | ||
+ | communicate confidently and effectively for that purpose, they must so inform the suspect, | ||
+ | their solicitor and (if applicable) the appropriate adult. At the same time, the operation of livelink | ||
+ | interpretation must be explained and demonstrated to them, they must be advised of the | ||
+ | chief officer’s obligations concerning the security of live-link communications under paragraph | ||
+ | 13.13 (see Note L2) and they must be asked if they wish to make representations that livelink | ||
+ | interpretation should not be used or if they require more information about the operation | ||
+ | of the arrangements. They must also be told that at any time live-link interpretation is in use, | ||
+ | they may make representations to the custody officer or interviewer that its operation should | ||
+ | cease and that the physical presence of an interpreter should be arranged. | ||
+ | When the authority of an inspector is required | ||
+ | 5. If representations are made that live-link interpretation should not be used, or that at anytime | ||
+ | live-link interpretation is in use, its operation should cease and the physical presence of an | ||
+ | interpreter arranged and the custody officer is unable to allay the concerns raised, live-link | ||
+ | interpretation may not be used, or (as the case may be) continue to be used, unless | ||
+ | authorised in writing by an officer of the rank of inspector or above, in accordance with | ||
+ | paragraph 6. | ||
+ | 6. Authority may be given if the officer is satisfied that for the purpose(s) in question at the time | ||
+ | an interpreter is required, live-link interpretation is necessary and justified. In making this | ||
+ | decision, the officer must have regard to: | ||
+ | (a) the circumstances of the suspect; | ||
+ | (b) the nature and seriousness of the offence; | ||
+ | (c) the requirements of the investigation, including its likely impact on both the suspect and | ||
+ | any victim(s); | ||
+ | (d) the representations made by the suspect, their solicitor and (if applicable) the | ||
+ | appropriate adult that live-link interpretation should not be used (see paragraph 5) | ||
+ | (e) the availability of a suitable interpreter to be physically present compared with the | ||
+ | availability of a suitable interpreter for live-link interpretation (see Note L3); and | ||
+ | (f) the risk if the interpreter is not physically present, evidence obtained using link | ||
+ | interpretation might be excluded in subsequent criminal proceedings. | ||
+ | (g) the likely impact on the suspect and the investigation of any consequential delay to | ||
+ | arrange for the interpreter to be physically present with the suspect. | ||
+ | 7. The separate Code of Practice that governs the conduct and recording of interviews of | ||
+ | persons detained at a police station under section 41 of the Terrorism Act 2000 (TACT) and | ||
+ | of persons in respect of whom an authorisation to question after charge has been given | ||
+ | under section 22 of the Counter-Terrorism Act 2008 requires those interviews to be video | ||
+ | recorded with sound. This will require the visual record to show the live-link interpretation | ||
+ | arrangements and the interpreter as seen and experienced by the suspect during the | ||
+ | interview (see Note L4). | ||
+ | Documentation | ||
+ | 8. A record must be made of the actions, decisions, authorisations and outcomes arising from | ||
+ | the requirements of this Annex. This includes representations made in accordance with | ||
+ | paragraphs 4 and 7. | ||
+ | H | ||
+ | Codes of practice – Code H in connection with the detention, treatment and questioning by police officers of persons | ||
+ | under the Terrorism Act 2000 and the Counter-Terrorism Act 2008 | ||
+ | 71 | ||
+ | Part 2: Modifications for live-link interpretation | ||
+ | 9. The following modification shall apply for the purposes of live-link interpretation: | ||
+ | (a) Code H paragraph 13.4: | ||
+ | For sub-paragraph (b), substitute: “A clear legible copy of the complete statement shall | ||
+ | be sent without delay via the live-link to the interviewer. The interviewer, after | ||
+ | confirming with the suspect that the copy is legible and complete, shall invite the | ||
+ | suspect to sign it. The interviewer is responsible for ensuring that that the signed copy | ||
+ | and the original record made by the interpreter are retained with the case papers for | ||
+ | use in evidence if required and must advise the interpreter of their obligation to keep the | ||
+ | original record securely for that purpose.”; | ||
+ | (b) Code of Practice for video recording interviews with sound – paragraph 4.4 | ||
+ | At the beginning of the paragraph insert: “Before the interview commences, the | ||
+ | operation of live-link interpretation shall be explained and demonstrated to the suspect, | ||
+ | their solicitor and appropriate adult, unless it has been previously explained and | ||
+ | demonstrated (see Code H Annex L paragraph 4).” | ||
+ | (c) Code for video recording interviews with sound - paragraph 4.22 (signing master | ||
+ | recording label) | ||
+ | After the third sentence, insert: “If live-link interpretation has been used, the interviewer | ||
+ | should ask the interpreter to observe the removal and sealing of the master recording | ||
+ | and to confirm in writing that they have seen it sealed and signed by the interviewer. A | ||
+ | clear legible copy of the confirmation signed by the interpreter must be sent via the livelink | ||
+ | to the interviewer. The interviewer is responsible for ensuring that the original | ||
+ | confirmation and the copy are retained with the case papers for use in evidence if | ||
+ | required, and must advise the interpreter of their obligation to keep the original | ||
+ | confirmation securely for that purpose.” | ||
+ | Notes for Guidance | ||
+ | L1 For purposes other than an interview, audio-only live-link interpretation, for example by | ||
+ | telephone (see Code H paragraph 13.12(b)) may provide an appropriate option until an | ||
+ | interpreter is physically present or audio-visual live-link interpretation becomes available. A | ||
+ | particular example would be the initial action required when a detained suspect arrives at a | ||
+ | police station to inform them of, and to explain, the reasons for their arrest and detention | ||
+ | and their various rights and entitlements. Another example would be to inform the suspect | ||
+ | by telephone, that an interpreter they will be able to see and hear is being arranged. In | ||
+ | these circumstances, telephone live-link interpretation may help to allay the suspect’s | ||
+ | concerns and contribute to the completion of the risk assessment (see Code H paragraph | ||
+ | 3.6). | ||
+ | L2 The explanation and demonstration of live-link interpretation is intended to help the suspect, | ||
+ | solicitor and appropriate adult make an informed decision on whether to agree to its use | ||
+ | and to allay any concerns they may have. | ||
+ | L3 Factors affecting availability of a suitable interpreter will include the location of the police | ||
+ | station and the language and type of interpretation (oral or sign language) required. | ||
+ | L4 The Code of Practice referred to is paragraphs 7 and 9, is available here: | ||
+ | https://www.gov.uk/government/publications/terrorism-act-2000-video-recording-code-of-practice. | ||
+ | www.tso.co.uk | ||
+ | The Code contained in this booklet has been issued by the Home Secretary under | ||
+ | the Police and Criminal Evidence Act 1984 and has been approved by Parliament. | ||
+ | Copies of the Codes issued under the Police and Criminal Evidence Act 1984 | ||
+ | must be readily available in all police stations for consultation by police officers, | ||
+ | detained people and members of the public. | ||
+ | CODE H | ||
+ | Revised | ||
+ | Code of Practice in connection | ||
+ | with: | ||
+ | The detention, treatment and | ||
+ | questioning by Police Officers of | ||
+ | persons in police detention under | ||
+ | Section 41 of, and Schedule 8 to, | ||
+ | the Terrorism Act 2000 | ||
+ | The treatment and questioning | ||
+ | by Police Officers of detained | ||
+ | persons in respect of whom an | ||
+ | authorisation to question after | ||
+ | charge has been given under | ||
+ | Section 22 of the Counter-Terrorism | ||
+ | Act 2008 | ||
+ | HCODE H | ||
+ | Code | ||
+ | H | ||
+ | 58459_PACE Code H A5 Cover.indd 1 09/02/2017 15:33 |