Annex B: Delay in notification of arrest and whereabouts or allowing access to legal advice for persons detained under the Terrorism Act 2000

1. The rights as in sections 5 or 6, may be delayed if the person is detained under the Terrorism Act 2000, section 41 or Schedule 7, 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. These rights may not be delayed if the person has been detained under section 43B of the Terrorism Act 2000.

4. Authority to delay a detainee’s right to consult privately with the solicitor of their choice 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.

5. 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.

6. 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.

7. 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 initially being detained under Schedule 7 to TACT or Schedule 3 to the CT and Border Security Act 2019, from the time at which the examination under the relevant Schedule 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. A person must be allowed to consult a solicitor for a reasonable time before any court hearing.

9. The grounds for action under this Annex shall be recorded and the detainee informed of them as soon as practicable.

10. Any reply given by a detainee under paragraph 6 must be recorded and the detainee asked to endorse the record in relation to whether they want to receive legal advice at this point.

11. When a suspect detained at a police station is interviewed during any period for which access to legal advice has been delayed under this Annex, the court or jury may not draw adverse inferences from their silence.

B1 Even if Annex B applies in the case of a juvenile, or a or a vulnerable person, 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.

B2 In the case of Commonwealth citizens and foreign nationals, see Note 7A.

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.