From: Office for Security and Counter-Terrorism (OSCT)
For more information contact: Simon Watkin 020 7035 3752 or Peter Robinson 020 7035 4156
Addressed to: College of Policing Chief Officers of Police Police and Crime Commissioners
Schedule 7 to the Terrorism Act 2000
All Special Branch Ports Officers need to be aware that on 6 November 2013 the High Court handed down a judgment that has immediate implications where individuals are detained for examination under Schedule 7 to the Terrorism Act 2000 (‘Schedule 7’). The effect of the judgment is that any person who is detained, whether at a port or police station, has the right to consult a solicitor in private, in person and at any time during the period of detention. This includes before questioning begins and having a solicitor present during questioning.
The TACT 2 Notice of Detention explains to persons detained for examination: “You may consult either in person, in writing or on the telephone, privately with a solicitor. If you do not wish to do so now, you may do so later and at any time while you are detained.”
The following guidance for interpreting the TACT2 is provided for examining officers:
A person detained for examination has the right to consult privately with a solicitor regardless of whether the person is detained at a port or a police station.
A person detained for examination has the right to consult with a solicitor privately whether by phone, in writing (including by text or e-mail) or in person. If the examining officer, or any other officer, remains in the room during the consultation it will NOT be considered private, and you will NOT be allowing the detained person to exercise the right to consult privately.
A person detained for examination has the right to consult with a solicitor at any time. This means whenever they want, whether in person, in writing or by telephone, and as often as they want.
A person detained for examination may choose to exercise their right to consult with a solicitor privately in person before questioning begins. This must be allowed, and will require that questioning is delayed for a reasonable period pending the arrival of a solicitor.
A person detained for examination may choose to exercise their right to consult with a solicitor during questioning. This must be allowed and will require that questioning is suspended for a reasonable period.
A person detained for examination is not entitled to exercise their right to consult with a solicitor in a manner which will frustrate the proper purpose of the examination.
Illustrative examples of circumstances in which an examining officer might consider that the exercise of the right to consult with a solicitor will frustrate the proper purpose of the examination and would cause unreasonable delay to the process of examination include a person detained for examination seeking to consult in person where the waiting time for the arrival of the solicitor would mean that an examination could not be properly conducted or seeking to consult privately with the solicitor repeatedly during questioning.
 Abdelrazag Elosta v. The Commissioner of Police for the Metropolis  EWHC 3397(QB)