Summary of PACE Code of Practice for the Detention, Treatment and Questioning of Persons under s. 41 of, and sch. 8 to, the Terrorism Act 2000 (Code H)
A thick grey line down the margin denotes text that is an extract of the PACE Code itself. This material is examinable for both Sergeants and Inspectors.
As stated at the start of chapter 2.10, Code H has been introduced and applies to people in police detention following their arrest under the Terrorism Act 2000, s. 41; the latest revision applies after midnight on 23 February 2017 notwithstanding that the person has been arrested before that time. In the main, Code H mirrors Code C. The latest revisions to Codes C and H enable the use of use live-link electronic communication systems to provide interpretation services for suspects which would not require the interpreter to be physically present at the police station. The revisions incorporate detailed conditions and safeguards to ensure that live-link interpretation does not adversely impact on the suspect.
Code H is not reproduced within the Manual but should be available in custody suites and at police stations. Generally, the provisions to Code H are mirrored (with modifications as necessary) in the current version of PACE Code C and vice versa in order to ensure consistency; however, in relation to reviews and extensions of detention there are significant differences from the equivalent provisions in PACE Code C owing to the changes made to maximum detention times by the Terrorism Act 2006.
Code H has been expanded in scope to incorporate provisions relating to the post-charge questioning of terrorist suspects. Part 2 of the Counter-Terrorism Act 2008 provides that a judge may authorise the questioning of a person by a constable after that person has been charged with a terrorism offence or an offence with a terrorist connection. The post-charge questioning provisions of the 2008 Act also introduce a new mandatory Code for the video recording with sound of such questioning.
This section covers the scope and applicability of the Code (which are, by definition, different from the equivalent provisions of Code C); it also covers the availability of the Code, definitions, applicability to the deaf, blind and speech impaired, and the use of reasonable force, and in these respects follows Code C.
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.
This section follows Code C. It covers general requirements for making custody records, including the exemption for counter-terrorism officers from disclosing their identities on custody records and provisions as to access to custody records by detainees’ solicitors and disclosure of those records to them.
Section 3—Initial Action in Respect of Arrested Individuals
Code H broadly follows Code C in respect of detainees’ rights and arrangements for exercising them but differs in a number of respects:
• the record will indicate that the arrest was under s. 41 as opposed to indicating the offence in respect of which the arrest was made—Note 3G indicates that, where an arrest is made on grounds of sensitive information which cannot be disclosed, the recorded grounds ‘may be given in terms of the interpretation of ‘terrorist’ set out in s. 40(1)(a) or (b);
• there is a specific provision to the effect that risk assessments do not form part of the custody record and should not be shown to the detainee or his/her legal representative;
• there are provisions relating to the initial steps that may be taken in connection with the identification of suspects;
• the custody officer is allowed to direct custody staff to carry out certain actions in relation to a detainee’s rights and entitlements, need for medical treatment and the risk assessment process.
Section 4—Detainees’ Property
This section of Code H includes a simplification of the circumstances in which a custody officer should search a detainee to ascertain what he/she has in his/her possession but there is no material change in comparison with Code C.
Section 5—Right not to be Held Incommunicado
This section allows a detainee to be visited by those in whose welfare the detainee has an interest. The detainee’s right to have someone informed of his/her whereabouts closely follows the equivalent section of Code C but there is much more detailed guidance on visiting rights. A requirement is imposed for custody officers to liaise with the investigation team to ascertain the risks presented by visits. Where visits from relatives etc. present a risk, consideration of more frequent visits from independent visitor schemes is suggested. Visits from official visitors (‘official visitors’ may include accredited faith representatives and MPs) may be allowed subject to consultation with the officer in charge of the investigation. Note 5B indicates that custody officers should bear in mind the effects of prolonged detention under the Act and consider the health and welfare benefits that visits bring to the health and welfare of detainees who are held for extended periods. However, Note 5G reminds officers that the nature of terrorist investigations means that they need to have ‘particular regard to the possibility of suspects attempting to pass information which may be detrimental to public safety, or to an investigation’.
Section 6—Right to Legal Advice
The principal difference from Code C is that there is provision for an authorisation to be given whereby a detainee may only consult a solicitor within sight and hearing of a qualified officer (a uniformed officer of at least the rank of inspector who has no connection with the investigation). This section also introduces additional safeguards for detainees who change their mind about wanting advice.
Section 7 shows no material change from the equivalent Code C provisions.
Section 8—Conditions of Detention
The main differences from Code C are that there is specific reference to allowing detainees to practise religious observance and to the provision of reading material, including religious texts. Police should consult with representatives of religious communities on provision of facilities for religious observance and handling of religious texts and other articles. The benefits of exercise for detainees, particularly in the cases of prolonged detention, are emphasised. If facilities exist, indoor exercise is to be offered if requested or if outdoor exercise is not practicable. Although the same restrictions on putting a juvenile in a cell apply as under Code C, there is no requirement to include occasions when a juvenile is so confined on the custody record.
Section 9—Care and Treatment of Detained Persons
Section 9 of Code H begins by requiring that, notwithstanding other requirements for medical attention, ‘detainees who are held for more than 96 hours must be visited by a healthcare professional at least once every 24 hours’. In all other material respects, the provisions are the same as under Code C.
Insofar as relevant, the provisions on cautions closely follow those of Code C.
Section 11—Interviews (General)
There are no material differences from Code C under this section. The Code H equivalent is, however, much shorter, reflecting the fact that not all instances covered by the Code C equivalent are relevant to detention of terrorist suspects.
Section 12—Interviews in Police Stations
The only material difference here is set out at para. 12.9:
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.
Note 12C indicates that consideration should be given to the matters referred to in para. 12.9 after a period of over 24 hours without questioning.
The requirements for accredited interpreters to be provided for deaf or non-English speakers, for both general custody procedures and interviews, are the same as under Code C.
This section contains significant changes from the equivalent provisions in Code C, s. 15, owing to the changes made to maximum detention times by the Terrorism Act 2006. It is set out in full below.
14 Reviews and Extensions of Detention under the Terrorism Act 2000
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.
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.
14.11 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.
14.14 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.
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.
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.
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.
(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
15.5 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 Counter-Terrorism 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),
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
15.9 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:
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.’
15.11 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.
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 Counter-Terrorism 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 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?
• 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
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.
8. The grounds for action under this Annex shall be recorded and the detainee informed of them as soon as practicable.
C Cautions and special warnings
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.
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.
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.
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.
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.