Part 2: Border security Section 22 and Schedule 3: Port and border controls
Schedule 3 contains powers to stop, question, search and detain a person at UK ports and the Northern Ireland border area for the purpose of determining whether the person appears to be someone who is, or has been, engaged in hostile activity. The provisions are modelled on those in Schedule 7 to the 2000 Act which contain similar powers to stop, question, search and detain persons at a UK port or the Northern Ireland border area for the purpose of determining whether they are or have been concerned in the commission, preparation or instigation of acts of terrorism.
	Paragraph 1 vests the powers in examining officers, namely constables or immigration or customs officers designated under the provisions of Schedule 7 to the 2000 Act (see paragraph 57(3)). The powers are exercisable at a UK port or in the border area in Northern Ireland (see paragraph 57(6)) in respect of a person entering or leaving Great Britain or Northern Ireland, or travelling by air within the United Kingdom (condition 1). They are also exercisable in respect of a person on a ship or aircraft that has arrived at a place in Great Britain or Northern Ireland (condition 2); as such, the power would apply where, amongst other circumstances, a person had arrived at a sea port in Great Britain having sailed from a port in Northern Ireland (and vice versa).
	The selection of a person for examination is not conditional upon the examining officer having grounds to suspect that person of being, or having been, engaged in hostile activity (paragraph 1(4)).
	Paragraph 1(5) and (6) define "hostile activity" and "hostile act" respectively. A person is engaged in hostile activity for the purpose of Schedule 3 if he or she is, or has been, concerned in the commission, preparation or instigation of a hostile act carried out for, or on behalf of, a State other than the UK or otherwise in the interests of a State other than the UK. The activity could be carried out wittingly or unwittingly (paragraph (7)(a)), in the latter case perhaps by a person duped into attempting to smuggle something out of the UK that is damaging to national security. A hostile act is one that threatens national security or the economic well-being of the UK in a way that is relevant to the interests of national security or is an act of serious crime. Serious crime for these purposes is defined in paragraph (7)(d). The terms "national security" and "economic well-being" take their ordinary meaning. Acts that would threaten national security would include espionage and sabotage. Acts that would threaten the economic well-being of the UK would include acts that damage the country’s critical infrastructure or disrupt energy supplies to the UK.
	Paragraph 2 contains a separate power to question a person in the Northern Ireland border area in order to establish whether the person is in that area for the purpose of entering or leaving Northern Ireland. This is essentially a pre-cursor power to enable an examining officer to determine whether condition 1 in paragraph 1 is met.
	Paragraph 3 places certain obligations on a person who is subject to an examination under paragraphs 1 and 2, including providing the examining officer with any information he or she requests and which is in the person’s possession. Such information may be provided either by answering the examining officer’s questions or providing documents (whether in hard copy or held on an electronic device). Wilful failure to provide information would constitute an offence under paragraph 23 of the Schedule.
	Paragraph 4 confers ancillary powers to stop a person or vehicle, or detain a person, for the purpose of conducting an examination. If necessary, paragraph 52 confers a power to use reasonable force to affect a stop or detention.
	Paragraph 5 sets separate time limits of one hour on the period during which a person may be examined without being detained and then provides for an overall limit of six hours on the period a person may be examined (including any period of detention). In calculating the time spent in detention, any period spent in hospital receiving medical treatment or in travelling to or from a hospital is to be disregarded provided the detainee is not being questioned during such time.
	Paragraph 6 debars answers or information given orally by a person during the course of an examination being used in a subsequent criminal trial. The bar is not absolute; paragraph 6(2) enables an answer or information given orally by a person in response to a question asked as part of a Schedule 3 examination to be used in evidence in a criminal trial in the following circumstances:
	Proceedings for an offence under paragraph 23 of Schedule 3;
	On a prosecution for perjury (as defined, in the case of England and Wales and Northern Ireland, in paragraph 6(4));
	On a prosecution for another offence where, in giving evidence, the defendant makes a statement inconsistent with the answer or information provided by him or her in response to a Schedule 3 examination (but only if the defendant or their representative adduces evidence, or asks a question, relating to that answer or information).
	This bar only applies to information provided orally to an examining officer. There is no bar (as considerations of self-incrimination do not arise) to prosecutors relying, in criminal proceedings against an examinee, on information, for example downloaded from an electronic device, obtained from the examinee during the course of a search conducted under Schedule 3.
	Paragraphs 7 to 10 make provision for searches. Paragraph 7 enables an examining officer to search a ship or aircraft to ascertain whether there is anyone on board he or she may wish to examine under paragraph 1. Paragraph 8 enables an examining officer to search a person questioned under paragraph 1, his or her possessions (including those that are, have been or are about to be on a ship or aircraft) and any vehicle he or she has travelled in. Such a search must be conducted by a person of the same sex and must not extend to an intimate search (paragraph 8(4) and (7)). Paragraph 8(5) prevents a person from being strip searched (as defined in paragraph 8(7)) unless: the person has been detained; an examining officer has reasonable grounds to suspect that the person is concealing something which may be evidence that the person is engaged in hostile activity; and a strip search has been authorised by a senior officer (as defined in paragraph 8(6)). Paragraph 9 confers a power to examine goods entering or leaving the country (including postal items) to determine whether they have been used in connection with hostile activity. This includes goods held at the premises operated by a sea or air cargo agent, and in transit sheds. Paragraph 10 allows an examining officer to authorise another person to carry out a search or examination of goods on the officer’s behalf.
	Paragraphs 11 to 16 provide for the retention of property, which includes documents given to an examining officer by a person subject to an examination or items found in a search under paragraph 8 or an examination under paragraph 9. Any article may be retained for up to seven days to enable it to be examined. An article may alternatively be retained for such period as is necessary where there is a belief that: it may be needed as evidence in criminal proceedings or in connection with a decision whether to make a deportation order; that it could be used in connection with carrying out a hostile act; or that its retention is necessary for the purpose of preventing death or significant injury. The retention rules provided here, and in paragraph 14 in relation to copies, are without prejudice to those provided for under any other enactment, for example, the Investigatory Powers Act 2016.
	Paragraphs 12 and 13 sets out the procedure governing the retention of an article retained on the basis that the examining officer believes it could be used in connection with the carrying out of a hostile act or that it is necessary to retain the article for the purpose of preventing death or significant injury. The Investigatory Powers Commissioner (established under section 227 of the Investigatory Powers Act 2016) must be informed as soon as is reasonably practicable. The Investigatory Powers Commissioner has the power to order that the article is destroyed or to authorise its retention if he or she is satisfied that there are reasonable grounds to believe that it has been or could be used in connection with the carrying out of a hostile act or that returning the article could result in a risk of death or significant injury. Stronger safeguards apply to the retention and use of confidential material. The definition of confidential material, in paragraph 12(10) and (11), covers:
	Confidential journalistic material, as defined in section 264(6) and (7) of the Investigatory Powers Act 2016;
	Items subject to legal privilege;
	Personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he or she holds in confidence;
	Other material acquired in the course of a trade etc. that is held in confidence; and
	Human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence.
	The Commissioner may authorise the retention of confidential material if satisfied that the material will be held securely and will be used only as far as necessary and proportionate for a relevant purpose (that is, if its use is necessary in the interests of national security or the economic well-being of the UK so far as those interests are also relevant to the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of preventing death or significant injury) (paragraph 12(5)). In the case of information held on an electronic device, such use could include examination of the information. If the Commissioner is not satisfied of the matters in paragraph 12(5), he must exercise the power to order destruction or order the return of the material to the person from whom it was seized. Such a determination by the Commissioner does not preclude the retention of the material where the officer believes that it may be needed for use as evidence in criminal proceedings or in connection with a decision whether to make a deportation order. If the Commissioner authorises retention and use of the article, the Commissioner may impose any conditions he or she thinks appropriate in relation to its retention or use.
	Before making a determination under paragraph 12, the Commissioner must invite and consider written representations from affected parties, including the person from whom the article was seized (see paragraph 13(1) and (6)). Where a determination to destroy or retain the article is then made, the Commissioner must inform the person from whom the article was taken.
	By virtue of section 227(8), the Investigatory Powers Commissioner may delegate his or her functions under paragraph 12 to a Judicial Commissioner. Where a determination is made by a Judicial Commissioner, an affected party may ask the Investigatory Powers Commissioner to reconsider a determination made by the Judicial Commissioner. A decision of the Investigatory Powers Commissioner may be challenged by seeking judicial review of the decision.
	The process for securing authorisation for the retention and use of an examinee's property could take approximately four weeks or longer. Paragraphs 14 to 16 provide for an expedited process where there is an urgent need for the article to be examined or otherwise used for the purpose of preventing (i) the carrying out of a hostile act, or (ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring. The urgent process can be invoked if the time it would take for the requirements of paragraphs 12 and 13 to be complied with in relation to the article would not enable such use to take place with sufficient urgency. It allows the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine the property (as well as take copies of information from it, including confidential material) before a decision has been made by the Commissioner. This mechanism would require authorisation to be given or withheld by the Commissioner (or a judicial commissioner) after the event (and where the Commissioner withholds authorisation, he or she would have the power to direct that the article be returned and information taken from it, including copies, not used and destroyed). As with the standard process provided for in paragraph 13, the decision of the Commissioner will be taken after consideration of any representations made by affected parties and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner.
	Paragraph 17 provides a power to make and retain copies of anything obtained under paragraphs 3, 8 or 9 of the Schedule. The copy may be retained for as long as is necessary: for the purpose of determining whether a person is engaged in hostile activity; where there is a belief that it may be needed for use as evidence in criminal proceedings or in connection with a decision whether to make a deportation order; where retention is in the interests of national security, the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security, where necessary for the purpose of preventing or detecting an act of serious crime, or while there officer believes it is necessary to prevent death or significant injury.
	Paragraphs 18 to 22 set out the procedure governing the retention of copies that consist of or includes confidential material (see paragraph 152 above as to the meaning of confidential material).
	The Investigatory Powers Commissioner must be informed as soon as is reasonably practicable. The Commissioner may authorise the retention of the copy if two conditions are satisfied. The first is that the Commissioner believes retention is necessary in the interests of national security or the economic well-being of the UK so far as those interests are also relevant to the interests of national security, or for the purpose of preventing or detecting serious crime or preventing death or significant injury. The second condition is that the Commissioner is satisfied that the confidential material will be held securely and that it will be used only as far as necessary and proportionate for a relevant purpose (as defined in paragraph 18(9)). If these two conditions are not met, the Commissioner must order the destruction of the copy. The obligation on the police to then destroy the copy would not apply if the copy was believed to be needed for use as evidence in criminal proceedings or in connection with a decision whether to make a deportation order. Even if the conditions are met, the Commissioner may still impose any conditions the Commissioner thinks necessary as to the use or retention of the copy.
	Paragraph 20 provides for an urgent process for the retention and use of copies that consist of or include confidential material. This mirrors the process described above in relation to a person’s property. This also ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property, including by enabling affected parties to make representations to the Commissioner.
	Paragraph 23 provides for two criminal offences, as follows:
	Wilful failure to comply with a duty imposed under Part 1 of the Schedule, for example the duty in paragraph 3(a) on a person subject to a Schedule 3 examination to give the examining officer any information that the officer requests;
	Wilful obstruction or frustration of a search or examination under Part 1 of the Schedule, for example a refusal by a person subject to a Schedule 3 examination to provide an examining officer with the password for an electronic device so that the officer can examine its content.
	The maximum penalty for the offence is three months’ imprisonment, or a fine of £2,500, or both.
	Paragraph 24 provides that the rights conferred by section 1 of the Immigration Act 1971 are not a barrier to the exercise of the powers in Part 1 of Schedule 3. Section 1 of the Immigration Act 1971 provides, amongst other things, that persons with a right of abode in the United Kingdom are free to come and go into and from the United Kingdom "without let or hindrance" except as required by the Immigration Act to enable a person’s right of abode to be established.
	Paragraph 25 provides that a person detained under Schedule 3 may be detained at a place designated by the Secretary of State under paragraph 1(1) of Schedule 8 to the 2000 Act.
	Paragraph 26 confers power on an examining officer to take steps to photograph, measure or identify a detainee. This paragraph does not confer a power to take the fingerprints of a detainee or take a DNA sample; such powers are instead conferred by paragraphs 34 (in relation to England and Wales and Northern Ireland) and 42 (in relation to Scotland).
	Paragraph 27 requires the video recording (with sound) of any interview by a constable of a detainee conducted at a police station. The requirement to video record interviews does not apply to an examination that takes place at a port or border area.
	Paragraph 28 provides that a detainee is to be considered in legal custody throughout the period of the detainee’s detention.
	Paragraphs 29 to 33 set out the rights of persons detained in England, Wales and Northern Ireland. Paragraphs 37 to 41 make analogous provision for detainees in Scotland. These rights apply to persons detained at ports as well as at a police station. The rights are: the right of a detained person in England and Wales or Northern Ireland to have a named person informed of the fact of his or her detention (paragraph 29); the right of a detained person in England and Wales or Northern Ireland to consult a solicitor in private (paragraph 30); and the right of a detained person in Scotland to have a solicitor or another person informed of the fact of his or her detention and to consult a solicitor in private (paragraphs 37). These rights may be qualified by paragraphs 31 and 32 in relation to England and Wales and Northern Ireland, and paragraph 39(4) and (7) in relation to Scotland in that a police officer of at least the rank of superintendent may, in certain exceptional circumstances, require the detainee to consult a different solicitor of the detainee’s choosing (in practice, this is likely to be the duty solicitor). For example, such circumstances could include where continuing to have a consultation with the original solicitor could lead to interference with or harm to evidence of a serious offence.
	Paragraphs 34 to 36 make provision for the taking of fingerprints and DNA samples from persons detained in England, Wales and Northern Ireland with or without their consent. Paragraph 42 makes analogous provision for detainees in Scotland by applying the provisions in section 18 of the 1995 Act with necessary modifications.
	Paragraphs 43 to 51 establish rules governing the retention and destruction of fingerprints, DNA samples and DNA profiles derived from samples.
	Paragraph 43 sets out the basic rules governing the destruction of fingerprints and DNA profiles taken under the power in Schedule 3 ("paragraph 43 material"). Paragraph 43(2) requires the destruction of paragraph 43 material if it appears to the responsible chief officer of police that the material was taken unlawfully. Any other paragraph 43 material must be destroyed as soon as reasonably practicable, subject to the operation of the provisions in paragraphs 44, 46 or 47 detailed below. It is a general feature of these provisions that material must be destroyed unless one or more of those paragraphs applies to that material, in which case the paragraph which delivers the longest retention period will determine the period of retention.
	Paragraph 43(5) and (6) enables a person’s paragraph 43 material, which would otherwise fall to be destroyed, to be retained for a short period until a speculative search of the relevant databases has been carried out. The fingerprints and DNA profile of a detained person may be searched against the national fingerprint and DNA databases respectively to ascertain whether they match any other fingerprints or DNA profile on those databases. Where such a match occurs, it may serve to confirm the person’s identity, indicate that he or she had previously been arrested or detained under a different name, or indicate that the person may be linked to a crime scene from which fingerprints or a DNA sample had been taken.
	Paragraph 44(1) governs the retention period applicable where a person has been convicted of a recordable offence (or, in Scotland, an offence punishable by imprisonment). Where a person has been convicted of a recordable offence (other than a single exemption conviction, as defined in paragraph 45(4)), his or her paragraph 43 material may be retained indefinitely. Paragraph 45 defines what constitutes a conviction for these purposes; the definition includes convictions abroad for offences which would constitute a recordable offence in this country. The definition of a conviction in paragraph 45 includes convictions in overseas jurisdictions. Paragraph 44(3) and (4) provides that where a person has no previous conviction, or a single exempt conviction, his or her fingerprints and DNA profile may be retained for six months.
	Paragraph 46 makes provision for the retention of material for the purposes of national security. Where a person’s paragraph 43 material would otherwise fall to be destroyed, it may be retained for up to five years where a chief officer of police determines that it is necessary to retain it for the purposes of national security (a "national security determination"). A chief officer may renew a national security determination in respect of the same material, thus further extending the retention period by up to five years at a time.
	Paragraph 47 deals with the situation where the police hold multiple sets of fingerprints in respect of the same individual. Where the original set of fingerprints is paragraph 43 material, this paragraph enables a single national security determination to be made covering multiple sets of fingerprints where two conditions apply. The first condition is that the second, or subsequent, set of fingerprints is paragraph 43 material or was taken or provided under PACE, the Police and Criminal Evidence (Northern Ireland) Order 1989, the 1995 Act, Schedule 8 to the 2000 Act or Schedule 6 to the 2011 Act. The second condition is that each set of fingerprints must have been taken from a person arrested or detained in the relevant jurisdiction, or made subject to a TPIM notice. Where these conditions are met, the retention regime in Schedule 3 would apply to each set of fingerprints. Consequently, a national security determination made under paragraph 45 in respect of the original set of fingerprints would also authorise the retention of any subsequent set of fingerprints taken under the listed provisions. If the original set of fingerprints is required to be destroyed under the provisions in the Schedule, it may still be possible to retain the second and any subsequent set of fingerprints if the relevant retention regime applicable to those fingerprints so provides.
	Paragraph 48 provides that all copies of fingerprints and DNA profiles held by the police must be destroyed when the obligation to destroy material set out in paragraph 43 applies.
	Paragraph 49 provides for the immediate destruction of samples if it appears to the responsible chief officer of police that the material was taken unlawfully. In addition, DNA samples must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample (including the carrying out of the necessary quality and integrity checks) and, in any event, within six months of the taking of the sample. Any other sample must similarly be destroyed within six months of it having been taken. Paragraph 49(6) enables a person’s DNA or other sample, which would otherwise fall to be destroyed, to be retained until a DNA profile has been derived from the sample and a speculative search of the relevant database has been carried out.
	Paragraph 50 restricts the purposes for which fingerprints and DNA samples and profiles may be put, namely they may only be used in the interests of national security, for the purposes of a terrorist investigation, for the investigation of crime or for identification-related purposes. Where a responsible chief officer of police considers that a relevant search (that is, the checking of fingerprints or DNA profiles against other material held) is desirable, paragraph 50(2) provides an express power to carry out such a search. Paragraph 50(3) provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence.
	Paragraphs 52 to 55 provide for the review of detention of a person detained under Schedule 3. Paragraph 52 provides that a person’s detention under Schedule 3 must be reviewed periodically by a review officer no later than one hour after the start of detention and at subsequent intervals of no more than two hours. The review officer may authorise continued detention only if satisfied that it remains necessary for the purposes of exercising a power conferred by paragraph 1 or 2 of Schedule 3 (questioning for the purpose of determining whether the person appears to be a person who is or has been engaged in hostile activity). If the review officer does not authorise continued detention then the person must be released. The other paragraphs specify that the review officer must give a detained person or their solicitor an opportunity to make representations about their detention (paragraph 53), must ensure that the detained person is informed of any rights that are unexercised or have been delayed (paragraph 54) and must make a written record of the review and must inform the detained person if continued detention is authorised (paragraph 55).
	Paragraph 56 requires the Home Secretary to issue a code of practice about the training of examining officers, the exercise by examining officers of the powers under the Schedule, the video recording of interviews of detainees and reviews of detention under Part 3 of the Schedule. Examining officers must carry out their functions under the Schedule in accordance with the code of practice. Paragraph 57 provides for the code of practice, any revisions of the code, to be brought into force by regulations (subject to the affirmative procedure).
	Paragraph 60 enables information acquired by an examining officer to be supplied to the Home Office for use in relation to immigration, by customs officers, a police officer, the National Crime Agency or other person specified in regulations (subject to the affirmative procedure). Section 19 of the 2008 Act separately enables any person to disclose information to any of the intelligence services for the purposes of the exercise by that service of any of its functions.
	Paragraph 62 places a duty on the Investigatory Powers Commissioner to keep under review the operation of the provisions in Schedule 3 and report annually to the Secretary of State (in practice, the Home Secretary). The report must be laid before Parliament (subject to a power to redact certain sensitive information). The Commissioner (supported by other Judicial Commissioners) has a broad remit to keep under review the use of investigatory powers as provided for in section 229 of the Investigatory Powers Act 2016. As the duty under this paragraph will form one of the functions of the Investigatory Powers Commissioner, it will attract the various ancillary powers in the Investigatory Powers Act 2016, including those in sections 227 (which enables the Investigatory Powers Commissioner to delegate functions to the Judicial Commissioners), 235 (which requires people to provide a Judicial Commissioner with all the information and documents that the Judicial Commissioner may need) and 238 (which enables the Investigatory Powers Commissioner to delegate certain functions to his staff). Paragraph 55(5) applies the provisions in section 229(6) and (7) of the Investigatory Powers Act 2016. Those provisions seek to ensure that the oversight activities of the Judicial Commissioners do not have a negative effect upon the ability of law enforcement agencies and security and intelligence agencies to perform their statutory functions. The Judicial Commissioners will have to decide for themselves if their proposed activity would, for example, prejudice national security or impede the effectiveness of operations.
	Paragraph 63 amends Schedule 4 to the Channel Tunnel (International Arrangements) Order 1993. The effect of paragraph 63(1) is to modify the provisions in Schedule 3 so as to adapt to rail traffic passing through the Channel Tunnel the provisions of the Schedule which are framed in terms of movements by sea and air.