The Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018

• Citation: S.I. 2018/46
• Sections: 69

Section 1 Citation

This Order may be cited as the Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018.

Section 2 Commencement

(1) The following provisions come into force on the day after the day on which this Order is made—

(a) articles 1 to 4;

(b) articles 10 to 12;

(c) article 14;

(d) article 18; and

(e) article 24(1) and (3).

(2) The following provisions come into force on the day after the day on which the Order is made or, if later, the day on which section 14 of the Criminal Procedure (Scotland) Act 1995 is repealed—

(a) articles 5 to 9;

(b) article 13;

(c) articles 15 to 17;

(d) articles 19 to 23;

(e) article 24(2); and

(f) the Schedules.

Section 3 Extent

(1) The following provisions extend to Scotland only—

(a) article 7 and Schedule 3;

(b) article 8 and Schedule 4;

(c) article 9 and Schedule 5;

(d) articles 10 to 17;

(e) articles 23 and 24.

(2) Article 18 extends to England and Wales and Northern Ireland only.

(3) Paragraphs 2 and 3 of Schedule 2 extend to England and Wales and Scotland only.

(4) Any provision of this Order not mentioned in paragraphs (1) to (3) extends to England and Wales, Scotland and Northern Ireland.

Section 4 Meaning of the 2016 Act

In this Order, “the 2016 Act” means the Criminal Justice (Scotland) Act 2016 .

Section 5 Cross-border enforcement by constables of territorial police forces

(1) Schedule 1 modifies Part 10 of the Criminal Justice and Public Order Act 1994 .

(2) Schedule 1 does not apply in relation to a case in which a person is arrested or detained before this article comes into force.

Section 6 Exercise of functions by constables and members of non-territorial police organisations

Schedule 2 makes provision about the application of the 2016 Act in relation to—

(a) the Ministry of Defence Police;

(b) the British Transport Police Force; and

(c) the Civil Nuclear Constabulary.

Section 7 Exercise of functions by other officials

(1) Schedule 3 makes provision about the application of the 2016 Act in relation to—

(a) immigration officers;

(b) designated customs officials; and

(c) officers of Revenue and Customs.

(2) Nothing in Parts 2 to 5 of Schedule 3 causes a provision contained in Part 1 of the 2016 Act to apply in relation to a case in which a person is arrested before this article comes into force.

(3) Nothing in Parts 2 to 5 of Schedule 3 causes a provision of the 2016 Act to apply in relation to a case if—

(a) the provision is contained in Part 1 of the 2016 Act and it would not apply in relation to the case had the arrest of the person in question been effected in Scotland by a constable of the Police Service of Scotland under section 1 of that Act; or

(b) the provision is contained in Part 2 of the 2016 Act and it would not apply in relation to the case had the search of the person in question been carried out in Scotland by a constable of the Police Service of Scotland.

Section 8 Service offences etc.

(1) Schedule 4 makes provision about the application of the 2016 Act in relation to persons in police custody by virtue of sections 313 to 318 of the Armed Forces Act 2006 (arrest and detention by civil authorities).

(2) Nothing in Schedule 4 causes a provision of the 2016 Act to apply in relation to a case in which, before this article comes into force, a person—

(a) is arrested; or

(b) surrenders to a constable as being a person subject to service law who has deserted or is absent without leave.

(3) Nothing in Schedule 4 causes a provision of the 2016 Act to apply in relation to a case—

(a) in which a person is arrested, if the provision would not apply in relation to the case had the arrest been effected under section 1 of that Act; or

(b) in which a person surrenders to a constable as being a person subject to service law who has deserted or is absent without leave, if the provision would not apply in relation to the case had the person instead been arrested under section 1 of that Act at the time the person surrendered to the constable.

(4) For the purposes of paragraph (3), it is irrelevant that the hypothetical arrest under section 1 of the 2016 Act which is referred to in that paragraph could not be lawfully effected.

Section 9 Persons arrested in connection with extradition proceedings

(1) Schedule 5 modifies the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) and the 2016 Act as they apply in relation to persons arrested in connection with extradition proceedings.

(2) Paragraph (3) makes transitional provision in relation to section 18H of the 1995 Act (which is inserted by paragraph 1 of Schedule 5).

(3) Where—

(a) relevant data or relevant samples were taken, or provided, in connection with extradition proceedings; and

(b) before this article comes into force those proceedings were finally determined (within the meaning of section 18H(4) of the 1995 Act),

section 18H applies in relation to the data, the samples and any information derived from the samples subject to the modification that the reference in subsection (2) to the final determination of the extradition proceedings is to be read as a reference to the coming into force of this article.

(4) In paragraph (3)—

“relevant data” means physical data to which section 18H of the 1995 Act applies; and

“relevant samples” means samples to which that section applies.

Section 10 Code of practice about investigative functions

(1) A code of practice issued by the Lord Advocate under section 57 of the 2016 Act may deal with matters which, by virtue of section 29(2)(b) or (c) of the Scotland Act 1998, it is outside the legislative competence of the Scottish Parliament to make provision about.

(2) Without prejudice to the generality of paragraph (1), the Lord Advocate may, in exercise of the function conferred by section 57(3)(b) of the 2016 Act, specify a body in a code notwithstanding that it is outside the legislative competence of the Scottish Parliament to make provision about that body or functions which are exercisable by it or on its behalf.

(3) Nothing in this article permits a code to deal with matters other than—

(a) the questioning, and recording of questioning, of persons suspected of committing offences; and

(b) the conduct of identification procedures involving such persons.

(4) In section 57(5) of the 2016 Act—

(a) the word “and” at the end of paragraph (g) is repealed; and

(b) after that paragraph insert—

(ga) any body which the Lord Advocate intends to specify in the code under subsection (3)(b) and (where relevant) the Secretary of State, and

Section 11 Code of practice about searches

(1) The 2016 Act is amended as follows.

(2) In section 74(4)—

(a) at the end of paragraph (b), omit the word “or”; and

(b) after paragraph (c) insert—

(d) the British Transport Police Authority,

(e) the chief constable of the British Transport Police Force,

(f) the Civil Nuclear Police Authority,

(g) the chief constable of the Civil Nuclear Constabulary,

(h) the chief constable of the Ministry of Defence Police, or

(i) the Secretary of State.

(3) In section 76(2), after paragraph (e) insert—

(ea) the British Transport Police Authority,

(eb) the chief constable of the British Transport Police Force,

(ec) the Civil Nuclear Police Authority,

(ed) the chief constable of the Civil Nuclear Constabulary,

(ee) the chief constable of the Ministry of Defence Police,

(ef) the Commissioners for Her Majesty’s Revenue and Customs,

(eg) the Director of Border Revenue,

(eh) the National Crime Agency,

(ei) for each of the persons mentioned in paragraphs (ea) to (eh), the Secretary of State.

Section 12 Duty of other officials to have regard to code of practice about searches

(1) An immigration officer, a designated customs official and an officer of Revenue and Customs must have regard to any code of practice issued under section 73 of the 2016 Act in exercising any function corresponding to a function to which the code applies.

(2) In this article, “immigration officer” and “designated customs official” have the meaning given by paragraph 1 of Schedule 3.

Section 13 Legal Aid (Scotland) Act 1986

(1) In section 8A(2) of the Legal Aid (Scotland) Act 1986 (“the Legal Aid Act”), paragraphs (b) and (c) are repealed.

(2) To the extent that they were made in reliance on paragraph (b) or (c) of section 8A(2) of the Legal Aid Act, any regulations which had effect immediately before the relevant time continue to have effect as they did immediately before the relevant time in relation to a case in which a person is arrested or detained before the relevant time.

(3) In paragraph (2), “the relevant time” means the time at which this article comes into force.

Section 14 Criminal Justice and Public Order Act 1994

(1) The Criminal Justice and Public Order Act 1994 is modified in accordance with paragraphs (3) and (4).

(2) If (in whatever terms) an enactment makes transitional provision to keep a part of a subsection in effect in relation to certain cases despite the repeal of that part , that part of the subsection remains in effect in accordance with the transitional provision despite the repeal of the whole subsection by paragraph (3) or (4).

(3) In section 136, subsection (5) (insofar as not otherwise repealed) is repealed on the later of—

(a) the day that paragraph (a) of the subsection is repealed by Schedule 17 to the Policing and Crime Act 2017 ;

(b) the day that paragraph (b) of the subsection is repealed by Schedule 1 to this Order.

(4) In section 137, subsection (8) (insofar as not otherwise repealed) is repealed on the later of—

(a) the day that paragraph (a) of the subsection is repealed by Schedule 17 to the Policing and Crime Act 2017;

(b) the day that paragraphs (b) and (c) of the subsection are repealed by Schedule 1 to this Order.

Section 15 Criminal Procedure (Scotland) Act 1995

(1) Section 307 of the Criminal Procedure (Scotland) Act 1995 is modified in accordance with paragraphs (3) and (4).

(2) Those modifications do not apply in relation to a case in which a person is arrested or detained before this article comes into force.

(3) In subsection (1AA) the words “(within the meaning of Part 3 of the Criminal Law (Consolidation) (Scotland) Act 1995) ” are repealed.

(4) After that subsection insert—

(1AB) In subsection (1AA)—

“immigration offence” means—

an offence involving conduct which relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement); or

(insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;

“nationality offence” means an offence involving conduct which is undertaken for the purposes of, or otherwise in relation to, an enactment in—

the British Nationality Act 1981 ;

the Hong Kong Act 1985 ;

the Hong Kong (War Wives and Widows) Act 1996 ;

the British Nationality (Hong Kong) Act 1997 ;

the British Overseas Territories Act 2002 ;

an instrument made under any of those Acts.

(1AC) In subsection (1AB), “the Immigration Acts” has the meaning given by section 61 of the UK Borders Act 2007 .

Section 16 Criminal Law (Consolidation) (Scotland) Act 1995

(1) Part 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 is modified in accordance with paragraphs (3) to (7).

(2) Those modifications do not apply in relation to a case in which a person is arrested or detained before this article comes into force.

(3) Subsection (3) of section 23P is repealed .

(4) Sections 24 to 25A are repealed.

(5) In section 26, for subsections (8) to (10) substitute—

(7A) An officer may use reasonable force in exercising any power conferred by this section, except as regards a requirement under subsection (2).

(7B) Sections 3 and 6(1), (2) and (8) of the Criminal Justice (Scotland) Act 2016 (giving and recording of information) apply in relation to a person detained by an officer under this section in connection with the commission of a relevant offence as they apply in relation to a person arrested by the officer in respect of that offence.

(7C) Sections 31 to 34 and 38 to 44 of that Act (questioning, and intimation and access to others) apply in relation to a person detained under this section in connection with the commission of a relevant offence as they apply in relation to a person in custody following arrest by an officer in respect of that offence.

(7D) A person may not be detained under this section on any grounds if the person has been detained under this section before on the same grounds or on grounds arising out of the same circumstances.

(6) Section 26A is repealed.

(7) In section 26B —

(a) in subsection (1), the definitions of “immigration offence” and “nationality offence” are repealed;

(b) for the definition of “officer” in that subsection, substitute—

“officer” means an officer of Revenue and Customs;

(c) in subsection (2), paragraph (b) and the “or” preceding it are repealed.

Section 17 Crime and Disorder Act 1998

(1) Section 110 of the Crime and Disorder Act 1998 is repealed.

(2) The modification made by paragraph (1) does not apply in relation to a case in which a person is detained before this article comes into force.

Section 18 Terrorism Act 2000

The amendments made to Schedule 8 to the Terrorism Act 2000 by paragraph 37 of Schedule 2 to the 2016 Act extend also to England and Wales and Northern Ireland.

Section 19 Finance Act 2007

(1) The Finance Act 2007 is modified in accordance with paragraphs (3) and (4).

(2) Those modifications do not apply in relation to a case in which a person is arrested or detained before this article comes into force.

(3) In section 87—

(a) before subsection (3) insert―

(2E) In the application of those sections to an officer of Revenue and Customs—

(a) sections 136(4B) and 137(7B) apply with the omission of the words from “and, if the constable” to the end;

(b) section 137ZA applies with the omission of subsection (6).

(b) subsection (3) is repealed.

(4) Paragraphs 4 and 5 of Schedule 23 are repealed.

Section 20 UK Borders Act 2007

(1) In section 2(1A)(a) of the UK Borders Act 2007 (power of immigration officer to detain individual thought liable to detention by constable), for “detained by a constable under section 14 of the Criminal Procedure (Scotland) Act 1995” substitute “arrested by a constable under section 1 of the Criminal Justice (Scotland) Act 2016”.

(2) The modification made by paragraph (1) does not apply in relation to a case in which a person is detained before this article comes into force.

Section 21 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

(1) The following provisions of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011 are revoked—

(a) articles 2, 6 and 7;

(b) Schedules 1 and 2.

(2) The modifications made by paragraph (1) do not apply in relation to a case in which a person is arrested or detained before this article comes into force.

Section 22 Crime and Courts Act 2013

(1) The Crime and Courts Act 2013 is modified in accordance with paragraphs (3) and (4).

(2) Those modifications do not apply in relation to a case in which a person is arrested or detained before this article comes into force.

(3) Subsections (9) to (12) of section 55 are repealed.

(4) Paragraphs 43, 45 to 47, 48(a) and 49 of Schedule 21 are repealed.

Section 23 Immigration Act 2016

(1) Section 56 of the Immigration Act 2016 is repealed.

(2) The modification made by paragraph (1) does not apply in relation to a case in which a person is arrested or detained before this article comes into force.

Section 24 2016 Act

(1) The 2016 Act is modified as follows.

(2) In section 58 (disapplication in relation to service offences), after subsection (2) insert—

(2A) This section is subject to Schedule 4 to the Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2018 ( S.I. 2018/46 ).

(3) In section 70(2)(b) (provisions about possession of alcohol), after sub-paragraph (i) insert―

(ia) the chief constable of the British Transport Police Force,

(ib) the chief constable of the Civil Nuclear Constabulary,

(ic) the chief constable of the Ministry of Defence Police,

Section 1 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 is amended as follows.

Section 2 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

In section 136 (execution of warrants)—

(a) before subsection (5) insert—

(4B) Where, under subsection (2)(a) or (3)(b), a constable executes a warrant issued in Scotland, any enactment or rule of law which concerns—

(a) the powers and duties of a constable who executes such a warrant;

(b) the rights of a person arrested under such a warrant;

(c) the procedures to be followed after an arrest under such a warrant,

applies in relation to the arrest (subject to the modifications set out in section 137ZA) as though the warrant had been executed in Scotland and, if the constable who executed it is not a constable of a police force in Scotland, as though the constable were .

(b) in subsection (5), paragraph (b) is repealed.

Section 3 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

In section 137 (cross-border powers of arrest etc.)—

(a) in subsection (2), the words “or detention” are repealed;

(b) in subsection (7)—

(i) the words “or, as the case may be detained,” are repealed;

(ii) for paragraph (b) substitute—

(ba) if he arrested him in England or Wales under subsection (2) above and has charged him with an offence, to take the person arrested to the nearest convenient police station in Scotland or to a police station within a sheriffdom in which the offence is being investigated;

(bb) if he arrested him in England or Wales under subsection (2) above and has not charged him with an offence, to take the person arrested either to a police station in Scotland mentioned in paragraph (ba) above, or to the nearest convenient designated police station in England or Wales;

(bc) if he arrested him in England or Wales under subsection (3) above, to take the person arrested to the nearest convenient designated police station in Northern Ireland or to a designated police station in Northern Ireland in which the offence is being investigated;

(iii) paragraph (c) is repealed;

(iv) in paragraph (d)—

(aa) after the word “Ireland” insert “under subsection (1) above”;

(bb) the words from “or to the nearest” to the end of the paragraph are repealed;

(v) after paragraph (d) insert—

(da) if he arrested him in Northern Ireland under subsection (2) above and has charged him with an offence, to take the person arrested to such police station in Scotland as is mentioned in paragraph (ba) above;

(db) if he arrested him in Northern Ireland under subsection (2) above and has not charged him with an offence, to take the person arrested either to such police station in Scotland as is mentioned in paragraph (ba) above, or to the nearest convenient designated police station in Northern Ireland;

(vi) paragraph (e) is repealed;

(c) before subsection (8) insert—

(7B) Where a constable arrests a person under a power exercised by virtue of subsection (2) above, any enactment or rule of law which concerns—

(a) the powers and duties of a constable who effects an arrest under the power;

(b) the rights of a person arrested under the power;

(c) the procedures to be followed after an arrest under the power,

applies in relation to the arrest (subject to the modifications set out in section 137ZA) as though the arrest had been effected in Scotland and, if the constable who executed it is not a constable of a police force in Scotland, as though the constable were .

(d) in subsection (8), paragraphs (b) and (c) are repealed.

Section 4 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

After section 137 insert—

Arrest under section 136 or 137 in connection with offence in Scotland

(137ZA)

(1) This section makes provision about the application of Part 1 of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) in relation to a person who is arrested by a constable—

(a) in execution of a warrant under section 136(2)(a) or (3)(b); or

(b) under section 137(2).

(2) If, following the arrest, the arrested person is to be taken directly to a place in Scotland to be held in custody, at the same time as being informed in accordance with section 3 of the 2016 Act of the matters mentioned in that section, the person must also be informed of the person’s right to have intimation sent under section 38 of the 2016 Act.

(3) Section 4 of the 2016 Act applies subject to the following modifications—

(a) subsection (1) does not apply;

(b) in subsection (2), as it applies in relation to a person arrested under section 137(2) of this Act, the reference to subsection (1) and the words “this section” in paragraph (b) are to be read as references to section 137(7) of this Act;

(c) in subsection (3), the reference to subsection (1) and the words “this section” are to be read as references to section 136(4) or (as the case may be) section 137(7) of this Act.

(4) In each of sections 5(1)(b), 7(2)(b), 15(3) and 37(4)(b) of the 2016 Act, the reference to section 4 of that Act is to be read as a reference to section 136(4) or (as the case may be) section 137(7) of this Act.

(5) References in Part 1 of the 2016 Act to a police station are to be read as including police stations in England, Wales and Northern Ireland.

(6) If the arrested person is in a police station in England, Wales or Northern Ireland, sections 33(6)(b)(ii) and 42(5)(b)(ii) of the 2016 Act are to be read as though they referred to any person who performs at that police station a function which is equivalent to a function performed at police stations in Scotland by members of police staff appointed under section 26(1) of the Police and Fire Reform (Scotland) Act 2012.

Section 5 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

In section 138 (powers of arrest: supplementary provisions)—

(a) subsections (1A) to (2A) are repealed; and

(b) subsections (6) to (9) are repealed.

Section 6 Modification of Part 10 of the Criminal Justice and Public Order Act 1994

In section 140(4), for the words from “the arrested” to the end, substitute—

any enactment or rule of law which concerns—

(a) the powers and duties of a constable who effects an arrest under a power which a constable of the Police Service of Scotland could have exercised to effect the arrest;

(b) the rights of a person arrested under that power of arrest;

(c) the procedures to be followed after an arrest under that power,

applies in relation to the arrest as though the constable who effected the arrest were a constable of a police force in Scotland.

Section 1 Application of 2016 Act to Ministry of Defence Police

After section 2C of the Ministry of Defence Police Act 1987 insert—

Exercise of powers and privileges in Scotland

(2D)

(1) Where a member of the Ministry of Defence Police exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a) in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a member of the Ministry of Defence Police,

(b) section 69 of the 2016 Act (publication of information by police) does not apply.

Section 2 Application of 2016 Act to British Transport Police Force

After section 31 of the Railways and Transport Safety Act 2003 insert—

Exercise of powers and privileges in Scotland

(31A)

(1) Where a constable of the Police Force exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a) in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a constable of the Police Force,

(b) section 69 of the 2016 Act (publication of information by police) does not apply.

Section 3 Application of 2016 Act to Civil Nuclear Constabulary

After section 56 of the Energy Act 2004 insert—

Exercise of powers and privileges in Scotland

(56A)

(1) Where a member of the Constabulary exercises in Scotland any power or privilege of a constable, Parts 1 and 2 of the Criminal Justice (Scotland) Act 2016 (in this section “the 2016 Act”) apply in relation to the exercise as though the power or privilege were exercised by a constable of the Police Service of Scotland.

(2) For the purposes of subsection (1)—

(a) in section 64 of the 2016 Act (police custody), references to a person arrested by a constable are to be read as including a person arrested by a member of the Constabulary,

(b) section 69 of the 2016 Act (publication of information by police) does not apply.

Section 1 Interpretation

(1) In this Schedule—

“constable” has the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012 ;

“designated customs official” means a person who is designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009 or as a customs revenue official under section 11(1) of that Act;

“Home Office custody suite” means premises wholly or partly used for the detention of persons by designated customs officials;

“immigration offence” means—

an offence involving conduct which relates to the entitlement of one or more persons who are not nationals of the United Kingdom to enter, transit across, or be in, the United Kingdom (including conduct which relates to conditions or other controls on any such entitlement); or

(insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;

“immigration officer” means a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971 ;

“nationality offence” means an offence involving conduct which is undertaken for the purposes of, or otherwise in relation to, an enactment in—

the British Nationality Act 1981 ;

the Hong Kong Act 1985 ;

the Hong Kong (War Wives and Widows) Act 1996 ;

the British Nationality (Hong Kong) Act 1997 ;

the British Overseas Territories Act 2002 ;

an instrument made under any of those Acts;

“office of Revenue and Customs” means premises wholly or partly occupied by Her Majesty’s Revenue and Customs.

(2) In sub-paragraph (1), “the Immigration Acts” has the meaning given by section 61 of the UK Borders Act 2007 .

Section 2 Application of 2016 Act in relation to immigration officers

(1) Chapters 1 to 6 of Part 1 of the 2016 Act and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by immigration officers for an immigration offence or nationality offence and searches by them in connection with such an offence, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by an immigration officer for an immigration offence or nationality offence.

Section 3 General adaptations

In the provisions of the 2016 Act mentioned in paragraph 2(1), references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

Section 4 Section 11 (authorisation for keeping in custody beyond 12 hour limit)

In section 11(2), for paragraph (a) read—

(a) is of or above the grade of chief immigration officer, and

Section 5 Section 66 (cases involving removal of person)

In section 66, for subsection (3) read—

(3) Anything seized by an immigration officer in the course of a search carried out under this section may be retained by the immigration officer or by a constable.

Section 6 Immigration custody

(1) For the purposes of provisions of the 2016 Act as applied by this Part of this Schedule, a person is in immigration custody from the time the person is arrested by an immigration officer, or is transferred into the custody of an immigration officer, until any one of the events mentioned in sub-paragraph (2) occurs.

(2) The events are—

(a) the person is released from custody;

(b) the person is brought before a court in accordance with section 21(2) of the 2016 Act;

(c) the person is brought before a court in accordance with section 28(2) or (3) of the Criminal Procedure (Scotland) Act 1995 ;

(d) the person is brought before a court in accordance with—

(i) any other enactment or rule of law which requires that a person in custody be brought before a court; or

(ii) a term of the warrant under which the person was arrested;

(e) the person is transferred in accordance with the law into the custody of a person who is not an immigration officer;

(f) the Principal Reporter directs under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011 that the person continue to be kept in a place of safety.

Section 7 Powers of search etc. under other enactments

Where a person is arrested by an immigration officer under section 1 of the 2016 Act, an immigration officer may exercise—

(a) any power that would be exercisable by an immigration officer if the person had been arrested under another enactment that confers power on an immigration officer to arrest in relation to the same offence; and

(b) any power within section 47(3)(c) of the 2016 Act that would be exercisable by a constable if the person had been arrested by a constable.

Section 8 Application of 2016 Act in relation to designated customs officials

(1) Chapters 1 to 6 of Part 1 of the 2016 Act and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by designated customs officials and searches by them, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by a designated customs official.

Section 9 General adaptations

In the provisions of the 2016 Act mentioned in paragraph 9, references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

Section 10 Section 1 (power of a designated customs official)

(1) Section 1 applies only in relation to a Revenue and Customs offence relating to a general customs matter or customs revenue matter.

(2) In sub-paragraph (1)—

(a) “Revenue and Customs offence” has the meaning given by subsection (2) of section 23A of the Criminal Law (Consolidation) (Scotland) Act 1995 ;

(b) “general customs matter” and “customs revenue matter” have the meaning given by Part 1 of the Borders, Citizenship and Immigration Act 2009.

Section 11 Section 11 (authorisation for keeping in custody beyond 12 hour limit)

In section 11(2), for paragraph (a) read—

(a) is of or above the grade of higher officer, and

Section 12 Section 66 (cases involving removal of person)

Section 66 applies with the substitution for subsection (3) of—

(3) Anything seized by a designated customs official in the course of a search carried out under this section may be retained by the designated customs official or by a constable.

Section 13 Customs custody

(1) For the purposes of provisions of the 2016 Act as applied by this Part of this Schedule, a person is in customs custody from the time the person is arrested by a designated customs official, or is transferred in accordance with the law into the custody of a designated customs official, until any one of the events mentioned in sub-paragraph (2) occurs.

(2) The events are—

(a) the person is released from custody;

(b) the person is brought before a court in accordance with section 21(2) of the 2016 Act;

(c) the person is brought before a court in accordance with section 28(2) or (3) of the Criminal Procedure (Scotland) Act 1995;

(d) the person is brought before a court in accordance with—

(i) any other enactment or rule of law which requires that a person in custody be brought before a court; or

(ii) a term of the warrant under which the person was arrested;

(e) the person is transferred in accordance with the law into the custody of a person who is not a designated customs official;

(f) the Principal Reporter directs under section 65(2)(b) of the Children’s Hearings (Scotland) Act 2011 that the person continue to be kept in a place of safety.

Section 14 Powers of search etc. under other enactments

Where a person is arrested by a designated customs official under section 1 of the 2016 Act , a designated customs official may exercise any power that would be exercisable by a designated customs official if the person had been arrested under another enactment that confers power on a designated customs official to arrest in relation to the same offence.

Section 15 Application of 2016 Act in relation to officers of Revenue and Customs

(1) Chapters 1 to 6 of Part 1 of the 2016 Act and sections 63, 65, 66 and 68 (power to arrest without warrant, other provisions about arrest and custody by police, and police searches) apply in relation to arrest and custody by officers of Revenue and Customs and searches by them, subject to the adaptations in this Part.

(2) Sections 31 to 33 of the 2016 Act (rights of suspects at interview) apply, subject to those adaptations, in relation to a person who attends voluntarily for the purpose of being interviewed by an officer of Revenue and Customs.

Section 16 General adaptations

In the provisions of the 2016 Act mentioned in paragraph 16, references in column 1 of the table are, subject to the specific adaptations in this Part, to be read in accordance with column 2—

Section 17 Section 1 (power of an officer of Revenue and Customs)

(1) Section 1 applies only in relation to a Revenue and Customs offence.

(2) In sub-paragraph (1) “Revenue and Customs offence” has the meaning given by subsection (2) of section 23A of the Criminal Law (Consolidation) (Scotland) Act 1995 .