15 Charging and post-charge questioning in terrorism cases

15.1 Charging of detained persons is covered by PACE and guidance issued under PACE by the Director of Public Prosecutions. Decisions to charge persons to whom this Code (H) applies, the charging process and related matters are subject to section 16 of PACE Code C.

15.2 Under section 22 of the Counter-Terrorism Act 2008, a judge of the Crown Court may authorise the questioning of a person about an offence for which they have been charged, informed that they may be prosecuted or sent for trial, if the offence:

is a terrorism offence as set out in section 27 of the Counter-Terrorism Act 2008; or

is an offence which appears to the judge to have a terrorist connection. See Note 15C.

The decision on whether to apply for such questioning will be based on the needs of the investigation. There is no power to detain a person solely for the purposes of post-charge questioning. A person can only be detained whilst being so questioned (whether at a police station or in prison) if they are already there in lawful custody under some existing power. If at a police station the contents of sections 8 and 9 of this Code must be considered the minimum standards of treatment for such detainees.

15.3 The Crown Court judge may authorise the questioning if they are satisfied that:

further questioning is necessary in the interests of justice;

the investigation for the purposes of which the further questioning is being proposed is being conducted diligently and expeditiously; and

the questioning would not interfere unduly with the preparation of the person’s defence to the charge or any other criminal charge that they may be facing.

See Note 15E

15.4 The judge authorising questioning may specify the location of the questioning.

15.5 The judge may only authorise a period up to a maximum of 48 hours before further authorisation must be sought. The 48 hour period would run continuously from the commencement of questioning. This period must include breaks in questioning in accordance with paragraphs 8.6 and 12.2 of this Code (see Note 15B).

15.6 Nothing in this Code shall be taken to prevent a suspect seeking a voluntary interview with the police at any time.

15.7 For the purposes of this section, any reference in sections 6, 10, 11, 12 and 13 of this Code to:

‘suspect’ means the person in respect of whom an authorisation has been given under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning of terrorist suspects) to interview them;

‘interview’ means post-charge questioning authorised under section 22 of the 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

15.8 In section 6 of this Code, for the purposes of post-chargequestioning:

access to a solicitor may not be delayed under Annex B; and

paragraph 6.5 (direction that a detainee may not exercise the right to consult a solicitor by consulting the solicitor who attends for the purpose of the consultation, or who would so attend but for the giving of the direction, but may instead be exercised by consulting a different solicitor of the detained person’s choosing) does not apply.

15.9 In section 10 of this Code, unless the restriction on drawing adverse inferences from silence applies (see paragraph 15.10), for the purposes of post-charge questioning, the caution must be given in the following terms before any such questions are asked:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

Where the use of the Welsh Language is appropriate, a constable may provide the caution directly in Welsh in the following terms:

“Does dim rhaid i chi ddweud dim byd. Ond gall niweidio eich amddiffyniad os na fyddwch chi’n sôn, wrth gael eich holi, am rywbeth y byddwch chi’n dibynnu arno nes ymlaen yn y Llys. Gall unrhyw beth yr ydych yn ei ddweud gael ei roi fel tystiolaeth.”

15.10 The only restriction on drawing adverse inferences from silence, see Annex C, applies in those situations where a person has asked for legal advice and is questioned before receiving such advice in accordance with paragraph 6.7(b).

15.11 In section 11, for the purposes of post-charge questioning, whenever a person is questioned, they must be informed of the offence for which they have been charged or informed that they may be prosecuted, or that they have been sent for trial and about which they are being questioned.

15.12 Paragraph 11.2 (place where questioning may take place) does not apply to post-charge questioning.

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).

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 69 of the Sentencing Code. Under section 69 of the Code a court must in certain circumstances determine whether an offence has a terrorist connection. 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. 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 it appears that the offence has 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 beforecharge?

How and why was the need to question after charge first recognised?

How is the questioning expected to contribute further to thecase?

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.