Submissions to Schedule 7 Code of Practice Consultation:
May 2014


We made the following submissions on the efficacy of the new Schedule 7 Code of practice in conveying the changes to Schedule 7 made in the Anti-social Behaviour Crime and Policing Act 2014. This consultation took the form of a series of questions in an online form. The questions and our answers are found below.

  1. The reduction on the maximum period of examination from nine to six hours

We believe that although the wording does explain how the time limits apply that this information should appear earlier in the relevant sections. We believe that that code of practice does not make it sufficiently clear that the total maximum time stopped is 6 hours, and that that time is inclusive of the initial 1 hour that an individual can be questioned before they are detained under paragraph 6. Further we believe that to avoid confusion and to make the Code of Practice easier to use there should be a brief summary of the relevant powers at the start of each section in addition to the more detailed explanation that follows.

  1. The extension to individuals detained at a port to inform a named person of their detention and to consult a solicitor privately

This Code of Practice fails to adequately convey this change as it applies to detained individuals. The decision not to allow an individual access to a solicitor or to contact a named individual is dependent on the examining officer’s judgement that postponing the questioning would be likely to prejudice determination of relevant matters. Relevant matters are defined as those matters the examining officer seeks to determine under paragraph 2 or 3 of Schedule 7. The Code of Practice leaves it ambiguous as to the scope of what could reasonably be considered to ‘prejudice the determination of relevant matters’. We are of the view that it is very important that this is clear and unambiguous given that such important rights can be curbed as a result.

The Code of Practice should set out factors that should be considered by examining officers to ensure that when a decision to prevent communications with a solicitor or a name individual is taken that it is not arbitrary and unreasonable. This will improve the compliance of this measure with the Rule of Law by reducing its arbitrariness and ensuring consistency of approach between examining officers. This should also be included in the training examining officers receive. We strongly recommend that this is rectified, and also suggest that a brief summary of the powers is presented at the start of the section to aid with clarity.

  1. The clarification that the right to consult a solicitor includes consultation in person

This right is well communicated in general. We would again advocate that a short summary of the powers and rights was presented at the beginning of the section to aid clarity and quick reference.

  1. Ensuring access to legal advice for all individuals examined for more than one hour

This point is well communicated in general. We would again advocate that a short summary of the powers and rights was presented at the beginning of the section to aid clarity and quick reference

  1. The introducing of a statutory review of the need for continued detention

We would question whether reviews can and should be undertaken remotely (this is not provided for in the legislation). We believe that there is an intrinsic value in having the reviewing officer attend the place of detention and that it provides an important means of ensuring adequate and effective oversight and review of the detention. The Code of Practice must also make clear, as provided for in paragraph 20M (1) (a) and (b), that a review officer must inform the detained person of any of the detained person’s rights under 6 or 7 which have not yet been exercised and if the exercise of those rights is delayed in accordance with provisions of paragraph 8, of the fact that it is being delayed.. The Code of Practice also fails to make clear that the ABCPA adds paragraph 20M which at sub-paragraph 2(a) states that the reviewing officer must assess whether the reasons for an individuals’ access to their rights found in paragraphs 6 and 7 continues to subsist.

  1. The introduction of a statutory requirement for training of examining and reviewing officers

This point is well communicated in general. We would again advocate that a short summary of the powers and rights was presented at the beginning of the section to aid clarity and quick reference

  1. The establishment of a statutory basis for undertaking strip searches to require suspicion that the person is concealing something which may be evidence that the person is involved in terrorism and a supervising officer’s authority

This point is well communicated in general. We would again advocate that a short summary of the powers and rights was presented at the beginning of the section to aid clarity and quick reference

  1. The repeal of the power to seek intimate samples (e.g. blood, semen)

This point could be strengthened by giving the text a more prominent position in the section and being indicated with bold text.

  1. The express provision that an examining officer may make and retain a copy of information obtained or found in the course of an examination

This point is well communicated in general. We would again advocate that a short summary of the powers and rights was presented at the beginning of the section to aid clarity and quick reference

  1. Do you have any other comments on the revised Code?

In general there should be clear summaries of the powers at the beginning of each section in a clear format, which should then be followed by the existing detailed explanations of the powers. We believe that this would increase the usability of the Code of Practice as a reference document.

The Code of Practice should also make clearer to examining officers that an individual’s religion cannot be used as a sole or indicative reason for an individual to be stopped. Although this is currently included in the Code of Practice this should be given greater emphasis and highlighted to all examining officers. It is vital that individuals do not feel that they have been selective due to this reason as it builds mistrust of the Police and Border Agencies within communities harming relationships with the Police and making individuals less willing to co-operate and provide intelligence to the police of their own volition.

The Code of Practice also contains references to screening questions which it states are not conducted under Schedule 7. We would strongly object to this being included within the Schedule 7 Code of Practice as it is likely to cause confusion for both examining officers and examined individuals. If examining officers are to use common law stop and question powers in this way they must make sure that they are making it clear that they are doing so, and that the questions are not being asked under Schedule 7 powers. Further the use of such questioning opens up a concerning avenue for abuse given that there is no duty to record such stops. If screening questions are required for the proper operation of Schedule 7 then they must be placed on a statutory basis and be adequately regulated and reported to sure that there is full and proper accountability.