Skip to main content Skip to accessibility

This website is not compatible with your web browser. You should install a newer browser. If you live in Jersey and need help upgrading call the States of Jersey web team on 440099.

gov.je

Information and public services for the Island of Jersey

L'înformâtion et les sèrvices publyis pouor I'Île dé Jèrri

Counter-Terrorism and Security Act 2015 - Schedule 1: Code of Practice for Officers

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 1 December 2017:

MINISTERIAL DECISION REFERENCE: MD-HA-2017-0085
Decision Date: 30 November 2017
DECISION SUMMARY TITLE: Jersey Code of Practice under Schedule 1 to the Counter-Terrorism and Security Act 2015 (as extended to Jersey)
DECISION SUMMARY AUTHOR:	Policy Officer, Community and Constitutional Affairs	IS THE DECISION SUMMARY PUBLIC OR EXEMPT? (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
REPORT TITLE: Jersey Code of Practice for Officers exercising functions under Schedule 1 to the Counter-Terrorism and Security Act 2015 in connection with seizing and retaining travel documents.
REPORT AUTHOR OR NAME OF PERSON GIVING REPORT: (if different from Decision Summary Author)	Director of Revenue and Immigration, JCIS and Senior Law Officer, LOD	IS THE REPORT PUBLIC OR EXEMPT (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
DECISION AND REASON FOR THE DECISION: The Assistant Minister for Home Affairs, in the absence and on behalf of the Minister, approved and brought into force the Jersey Code of Practice for Officers exercising functions under Schedule 1 to the Counter-Terrorism and Security Act 2015 in connection with seizing and retaining travel documents. The States Assembly agreed on 19th July 2017 that a request be made to Her Majesty in Council for the extension of Part 1 and Part 4 of, and Schedules 1, 2, 3, 4 and 5 to, the Counter-Terrorism and Security Act 2015 (P.42/2017). A Draft of this Code of Practice was included with the Proposition. The Counter-Terrorism and Security (Jersey) Order 2017 was granted Royal Assent on 11th October 2017, registered by the Royal Court on 3rd November 2017 and came into force on 10th November 2017. The code of practice is issued under paragraph 18 of Schedule 1 to the Counter-Terrorism and Security Act 2015 as extended to Jersey by the Counter-Terrorism and Security (Jersey) Order 2017.
RESOURCE IMPLICATIONS: None as a consequence of this Ministerial Decision.
ACTION REQUIRED: The Assistant Minister decided to approve and sign off the code, thus bringing it into force.
SIGNATURE:			POSITION: Connétable Deidre Mezbourian Assistant Minister for Home Affairs
DATE SIGNED:			EFFECTIVE DATE OF THE DECISION:

Hide report

Counter-Terrorism and Security Act 2015 - Schedule 1: Code of Practice for Officers

Goverment of Jersey logo - mono Minister for Home Affairs

Jersey Code of Practice for Officers exercising functions under Schedule 1 to the Counter-Terrorism and Security Act 2015 [1] in connection with seizing and retaining travel documents.

28th November 2017

CONTENTS

Introduction

Key roles

Use of the power when individuals are arriving in Jersey
Legal status of the code of practice

Scope of the power



Reasonable suspicion



Applicability



Children



Location



Travel documents



Criminal offence

Exercising the power



Police training



Directing JCIS officers



JCIS training and designation processes

Applying the powers



Terrorism-related activity



Searches

Retention of travel documents



Immigration status



72 hour review authorisation



Application to the Magistrate for an extension of the 14 day period



Restrictions on repeated use of powers against the same person



Notification requirements



Written notification



Written disclosure



Monitoring of the use of the power



Return of documents

Complaints

Annex – Glossary of terms

INTRODUCTION

1. This code of practice is issued under paragraph 18 of Schedule 1 to the Counter-Terrorism and Security Act 2015 as extended to Jersey by the Counter-Terrorism and Security (Jersey) Order 2017 (referred to hereafter in this code as “Schedule 1”). It includes:

the procedure under which the Minister may designate immigration officers and customs officials (“JCIS officers”) to exercise functions under Schedule 1;
the training to be undertaken by persons who are to exercise powers under Schedule 1;
the exercise by police and JCIS officers of their functions under Schedule 1;
the information to be provided to a person subject to the exercise of powers under Schedule 1 and when and how that information should be provided; and
the process for reviewing the decision to authorise retention of travel documents1 within 72 hours

of the taking of the documents.

The code applies to police officers and JCIS officers only when they are exercising their functions under Schedule 1.

Schedule 1 provides a power to allow for the taking and retention of travel documents for a period of up to 14 days where a person is at a port and the police officer reasonably suspects that the person is there:
1. with the intention of leaving Jersey for the purpose of involvement in terrorism-related activity outside the British Islands; or
2. has arrived in Jersey with the intention of leaving again soon for the purpose of involvement in terrorism-related activity outside the British Islands.

For the purposes of this code of practice, the above is referred to as “the test”.

Under Schedule 1, the 14 day retention period begins at 00.00 hours on the day after the documents were first taken, e.g. if the documents were retained at 22.00 on Monday, the retention period starts from 00.00 on Tuesday and would end a fortnight later at 23.59 Monday. A senior police officer of at least the rank of chief inspector may apply to the Magistrate to extend the retention period beyond 14 days if more time is required to investigate the case or consider further disruptive action (this is referred to as the “14 day retention period”). The Magistrate cannot extend the retention period by more than 30 days, beginning at the next 00.00 hours the day after the documents were first taken (this is referred to as “the 30 day retention period”).

Unless travel documents need to be retained for use in criminal or deportation proceedings, they must be returned, as soon as possible, if any of the following circumstances occur (whichever comes first):
1. if the statutory test to retain travel documents is no longer met;
2. if an authorising officer has declined to authorise retention of the passport;
3. where consideration of further disruptive activity has been completed and no further action taken;
4. if the 14 day retention period has ended and the Magistrate has not extended.

1 Definition of travel documents can be found at paragraph 30 (see also Glossary of Terms in the Annex)

Unless travel documents need to be retained for use in criminal or deportation proceedings, then where the Magistrate has extended the period of retention of travel documents, the documents must be returned:
1. if the statutory test to retain travel documents is no longer met;
2. where consideration of further disruptive activity has been completed and no further action taken;
3. at the end of the extended period of retention set by the Magistrate, if no further extension up to 30 days has been granted;
4. at the end of the 30 day period.

Key roles

A police officer may determine whether the test to exercise the power is met and exercise the power to search, take, inspect and retain documents.

A police officer may:

require a person to hand over all travel documents in his or her possession;
search for travel documents relating to the person and to take possession of any the officer finds;
inspect any travel documents relating to the person; and
where authorisation is obtained, retain travel documents for up to 14 days.

In order to retain documents for a period of up to 14 days, the police officer must seek the authority of an ‘authorising officer’. An ‘authorising officer’ means a senior police officer of at least the rank of Chief Inspector. The authorising officer must be satisfied that the test has been met. If the authorising officer does not give authorisation to retain the documents, then they must be returned to the person as soon as reasonably practicable. This procedure is referred to in this code as “authorisation”. A decision on authorisation must be provided in writing or verbally as soon as is reasonably practicable. If provided verbally it should be recorded in writing as soon as is reasonably practicable.

JCIS officers may also exercise powers under Schedule 1. The scope of a JCIS officers’ powers will depend on whether he or she has been certified by the Minister to perform specific powers under the Schedule. A JCIS officer may or may not be a designated JCIS officer.[2]

A designated JCIS officer is one who has been designated by the Minister to exercise powers under Schedule 1 where directed to do so by a police officer. Designated JCIS officers are not entitled to determine whether the test has been met. Designated JCIS Officers are entitled to exercise powers under Schedule 1 only where directed to do so by a police officer. The police officer is responsible for determining whether the test is met and for seeking authorisation. Where a designated JCIS officer has been given a direction he or she must, where possible, comply with that direction. A designated JCIS officer should pass travel documents to a police officer as soon as reasonably practicable and must do so where authorisation for retention has been given.

A police officer may, therefore, where satisfied that the test is met, direct a designated JCIS officer to exercise powers under Schedule 1. A police officer may direct a designated JCIS officer to:

require a person to hand over all travel documents in his or her possession;
search for travel documents relating to the person and take possession of any the JCIS officer finds;
inspect any travel documents relating to the person; and
retain travel documents relating to the person while a police officer seeks authorisation [3] and, where authorisation is obtained, pass the documents to a police officer.

There may be occasions where a JCIS officer (whether designated or not) has a concern that an individual at port may be travelling for terrorism-related purposes. If so, the JCIS officer should refer his or her concern to the police in the usual way.

If through the course of routine immigration duties the JCIS officer is already in lawful possession of travel documents, Schedule 1 entitles the JCIS officer to retain them while the concern is referred to the police. This referral may result in a police officer giving direction to a designated JCIS officer at a port to exercise the power under Schedule 1 or directing a JCIS officer already in possession of documents who is not designated to pass the documents to a police officer. In summary, a JCIS officer who is not designated may on direction by a police officer:
1. retain any travel documents that have lawfully come into their possession whilst they seek advice from a police officer (which they must do as soon as possible);
2. pass any travel documents that have lawfully come into their possession to a police officer.

Within 72 hours of a travel document first coming into the possession of a police officer or a designated JCIS officer and where retention of the document under Schedule 1 has been authorised, a reviewing officer must carry out a review of the decision by the authorising officer to authorise the retention of the documents. The term ‘reviewing officer’ means a senior police officer of at least the rank of Superintendent and of at least as high a rank as the authorising officer for the particular case under consideration. The reviewing officer should be outside the chain of command of the authorising officer. The review must commence before the 72 hour period has lapsed, beginning from the time at which the travel documents first came into possession of a police officer or JCIS officer (even if taken under a power other than Schedule 1, which means that it is crucial that the time at which the documents were first taken is recorded). The reviewing officer must write to the Chief Officer of the force to which the police officer retaining the documents belongs (or is on secondment to) in order to advise of his or her findings. The Chief Officer must consider those findings and take whatever action is appropriate. This may include either returning travel documents or upholding the original decision to retain the travel documents.

Under Schedule 1, there is no power to detain a person whose travel documents have been seized and retained. These powers are not intended to be used as a long-term disruption tool but as a means to take immediate action to disrupt travel where it is assessed that the purpose of the travel is involvement in terrorism-related activity outside the British Islands. This allows consideration of whether other long-term disruption action would be appropriate.

Once the power has been exercised, if investigations conclude that the person was not intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, travel documents must be returned to the person at the earliest opportunity.

Use of the power when individuals are arriving in Jersey

If an individual is arriving in Jersey, the power may be used if a police officer reasonably suspects that the person will leave soon for the purpose of involvement in terrorism related activity outside the British Islands. In determining ‘soon’ the police officer should assess whether the individual will remain in Jersey for a sufficient period to allow for alternative disruptive action to be taken in relation to the individual without the need to seize and retain his or her travel documents. If so, Schedule 1 must not be used.

Legal status of this code of practice

Police officers (of any rank) and JCIS officers (whether or not designated) must exercise any functions conferred upon them by Schedule 1 in accordance with this code of practice. This code of practice is admissible in evidence in civil and criminal proceedings and may be taken into account by a court or tribunal in any case where it is considered relevant.

This code of practice must be available at police offices at ports, and JCIS offices as appropriate, where the power is, or is likely to be used. The code must form part of the published departmental instructions/guidance for JCIS officers. The code should also be accessible to members of the public on the websites of the relevant agencies, including the police, Home Affairs and JCIS.

SCOPE OF THE POWERS

Reasonable suspicion

The power to seize and retain travel documents at a port may be exercised if the test is met. The test uses the evidential standard of ‘reasonable suspicion’ which is used in relation to many other police powers. What constitutes reasonable grounds for suspicion will depend on the circumstances in each individual case. There must be an objective basis for the police officer’s state of mind based on facts. Such information must be specific to the personal conduct of the person. It can include observation of the behaviour of the person; information obtained from any other source; or a combination of these. Reasonable suspicion cannot be formed on the basis of assumptions about the attitudes, beliefs or behaviour of persons who belong to particular groups or categories of people. To exercise powers under Schedule 1 on this basis would be discriminatory.

There are two probable scenarios where a potential case for exercise of Schedule 1 may be identified:
1. information is provided to the police before or when a person arrives at a port; or
2. at port, on the basis of observation of behaviour, information obtained from any other source, or a combination of these.

Applicability

Schedule 1 powers can be exercised at a port in respect of any person of any age, of any nationality, and whether or not they are resident in Jersey.

The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The power contained in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied. The power must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner may reduce its effectiveness.

It is unlawful for officers to discriminate against, harass or victimize any person on the grounds of the protected characteristics [4] of: race, sex, sexual orientation, gender reassignment, pregnancy and maternity or age when using their powers.

Children

Special care must be taken when considering exercising the power where it is evident that the person is a child. For the purposes of this Code, a child means anyone who appears to be under the age of 18 in the absence of clear evidence that he or she is older.

When dealing with cases involving children (whether in family groups or unaccompanied), police officers, or designated JCIS officers, need to be aware of the necessity to safeguard a child’s safety and welfare. This includes being alert to potential indicators of abuse or neglect and to the risks which abusers may pose to children.

Officers exercising powers under Schedule 1 must bear in mind that children can be easily intimidated especially if they are travelling alone but, equally, that they can be vulnerable to exploitation by adults wishing to further terrorist aims. While officers are not precluded from seizing and/or retaining travel documents from children, in doing so they must have due regard to the vulnerability of the child.

Where a police officer or JCIS officer exercises powers under Schedule 1, the following points must be considered:
1. If it is proposed to search the child and the child is travelling with a responsible adult, the child must be searched in the presence of that responsible adult, unless that person is thought to be exerting influence or pressure which could be detrimental to the child’s interest or is obstructive, or the child objects to the presence of this individual.
2. If the police officer or JCIS officer decides to search the child in the absence of the responsible adult with whom that child is travelling then:
  - the reasons for taking that decision must be recorded in writing;
  - two officers of the same sex as the child should, where reasonably practicable, be present during the search.
3. If the child is travelling unaccompanied, the officer:
  - must attempt to contact the child’s parent or legal guardian; if they cannot be contacted, the officer must assess the child’s safety and welfare and consider, if necessary, the provisions of legislation such as Article 41 of the Children (Jersey) Law 20024; and
  - where the officer has child protection concerns, referral should be made to the appropriate police unit and/or the Children’s Service. It is routine for both police and JCIS officers to make referrals to the Children’s Service where child protection issues are identified and where the Children’s Service will assume responsibility for the welfare of the child.

Location

The power can be exercised when the person is present at a port, that is to say, the Airport, any sea port or any other place at which a person is able, or attempting, to get on or off any craft, vessel or vehicle in connection with entering or leaving Jersey.

4 https://www.jerseylaw.je/laws/revised/PDFs/12.200.pdf

Travel documents

Under the power contained in Schedule 1, a travel document means anything that is, or appears to be:
1. a passport; or
2. a ticket or other document that permits a person to make a journey by any means, from Jersey to a place outside Great Britain or the Bailiwick of Guernsey or the Isle of Man.

This means that a boarding pass or ticket permitting travel from Jersey to Northern Ireland is ‘a travel document’ for the purpose of Schedule 1 and, where the test is met, can be taken and retained. However any other ticket permitting travel from Jersey to any part of the British Islands (other than Northern Ireland) cannot be taken and retained.

A passport means:

a United Kingdom passport;
a passport issued by, or on behalf of, the authorities of a country or territory outside the British Islands, or by, or on behalf of, an international organisation; or
a document that can be used (in some or all circumstances) instead of a passport, such as an identity card.

Criminal offence

It is a criminal offence under Schedule 1 for a person to:

refuse to hand over all travel documents in his or her possession without reasonable excuse to do so; or
intentionally obstruct or seek to frustrate a search.

A person guilty of either or both of these offences is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding level 3 on the (Jersey) standard scale of fines.[5] A designated JCIS officer exercising this power has the same powers of arrest without warrant as a police officer in relation to these offences.

EXERCISING THE POWER

Police training

Before the power comes into force, a briefing package will be rolled out to police officers located at ports and to officers of the rank of Chief Inspector and higher who will act as authorising officers and of the rank of Superintendent and higher who will act as reviewing officers. This will provide guidance on the use of the power and their functions under Schedule 1.

Directing JCIS officers

In the majority of cases, it is expected that the power will be exercised by the police. However where a police officer is satisfied that the test is met, he or she has a discretion to direct a designated JCIS officer to exercise powers under Schedule 1 or to direct any other JCIS officer to retain a travel document (which the JCIS officer is already in lawful in possession of) in order to pass it to a police officer as soon as reasonably practicable.

The discretion to direct may be useful, for example, where the police officer has received information which gives grounds to suspect that a person is en route to a particular port where there is no police presence, with the intention of leaving Jersey for the purpose of involvement in terrorism-related activity. In these circumstances, the police officer should contact JCIS at the port in question and explain that the test in Schedule 1 may be met should the person arrive at the port. The JCIS officer should make contact with the police in the event that the person arrives at a port. The police officer may then make a determination as to whether the test is met on the basis of both the prior information and any additional information offered by the JCIS officer, for example, confirmation that the person is at the port.

Examples of scenarios in which a police officer may exercise their power to direct a designated JCIS officer include when:
1. a police officer determines that the test is met but he or she may not be available at a port to exercise the power;
2. a police officer determines that the test is met on the basis of information (such as following a conversation with JCIS officers or other law enforcement officers at a port) but it is not reasonably practicable for the police to exercise the power themselves, for example, because there is no police presence at the port.

A police officer may direct a designated JCIS officer verbally or in writing, but the details of the direction must be recorded in writing both by the directing police officer and by the receiving JCIS officer.

JCIS Officer training, designation and accreditation processes

The Minister has the power to designate JCIS officers for the purpose of exercising functions under Schedule 1. A ‘designated officer’ may exercise powers under Schedule 1 where directed by a police officer to do so. ‘Designated’ JCIS officers will have completed the required training in the exercise of the power and received confirmation of their designated status. Designated JCIS officers will at all times require police direction to exercise the power.

When a JCIS officer has undertaken the training programme, it is expected that that that officer will be suitably prepared to exercise the power. At this point, the officer will receive a letter of designation from or on behalf of the Minister which will confirm his or her designation.

Schedule 1 provides for “accredited” JCIS officers to be able both to determine whether the test is met and to exercise the powers under that Schedule. As mentioned previously the Minister has not designated any of the JCIS officers as accredited officers; and will not do so without first having revised this code of practice.

APPLYING THE POWERS

Terrorism-related activity

Schedule 1 powers may only be exercised where a police officer is satisfied that a person is at a port and the officer has reasonable grounds to suspect that the person is there with the intention of travelling for the purpose of involvement in terrorism-related activity outside the British Islands. Under the power, terrorism-related activity is any one or more of the following:
1. the commission, preparation or instigation of acts of terrorism;
2. conduct that facilitates the commission, preparation or instigation of such acts, or is intended to do so;
3. conduct that gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so;
4. conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in the commission, preparation, or instigation of acts of terrorism.

Searches

Where the test is met, a police officer or a designated JCIS officer (on the direction of a police officer) may search a person for travel documents relating to that person. Police officers and designated JCIS officers have the power to search:
1. a person;
2. anything that person has with him or her; and
3. any vehicle in which the officer believes the person to have been travelling or to be about to travel.

To enable a search under this power a police officer or designated JCIS officer may:

stop a person or vehicle for the purpose of exercising the power;
if necessary, use reasonable force for the purpose of exercising the power;
authorise a person to carry out a search on the officer’s behalf.

Every reasonable effort must be made to minimize potential embarrassment or offence that may be caused to a person being searched. A search of a person shall be carried out by a police officer or a designated JCIS officer or another person authorised to do so on their behalf. A person authorised to carrying out a search on behalf of a police officer or a designated JCIS officer shall be of the same sex as the person searched.

A baggage search need not be carried out by a person of the same sex, but where that is requested or where an objection is raised to the search being conducted by a person of the opposite sex, the search should be conducted by a person of the same sex where that is reasonably practicable. If it is not reasonably practicable, the police officer or designated JCIS officer should record the objection in writing, but may proceed with the search.

Searches under these powers do not preclude a search being carried out under other powers if appropriate, for example where a police officer has other powers by virtue of Jersey customary law or of statute.

When a search of a person is carried out the police officer or designated JCIS officer must, if not uniformed, show a warrant card or similar evidence of his or her authority, but need not give his or her name. If requested, the police officer or designated JCIS officer must provide sufficient information to the person or his or her representative, such as an identification number and location, which would enable the officer to be identified in the event of any query or complaint.

RETENTION OF TRAVEL DOCUMENTS

Travel documents may be retained for up to 14 days for the purpose of disrupting an individual’s ability to leave Jersey while investigations are undertaken into whether it is appropriate to take further disruptive action against the individual.

Travel documents may continue to be retained:
1. while consideration in given to canceling the person’s passport;
2. while consideration is given to charging the person with an offence;
3. while consideration is given to making the person subject to any order or measure to be made or imposed by a court, or by the Minister for purposes connected with protecting members of the public from a risk of terrorism; or
4. while steps are taken to carry out any of these measures. Temporary support arrangements
This power can be used against any person of any nationality. The person does not need to be

resident in Jersey or elsewhere in the British Islands.

Retaining the passport (and other travel documents, if applicable) of a person who is not resident in Jersey or elsewhere in the British Islands will have the effect of preventing the individual from returning to their country of residence for the 14 day retention period (or potentially up to 30 days if the retention period is extended by the Magistrate). The power to retain travel documents of persons not resident in the British Islands must be exercised only where there are compelling reasons to do so. This is because the exercise of the power in relation to persons not resident in the British Islands is likely to have a significantly greater impact upon that person’s freedoms than if that person were so resident. Accordingly for the exercise of the power to be proportionate in these circumstances, the police officer must be able to demonstrate that there are particularly compelling reasons for exercising it.

Where the power to retain the passport is exercised against a non-resident person, a police officer or designated JCIS officer must inform the person that if he or she does not have the means to cover basic living costs for the duration of the retention period, provision may be made for basic accommodation and living costs.

Immigration status

Where authorisation is obtained for retention of travel documents belonging to a person who is a foreign national, the officer exercising the power must inform the person that his or her presence in Jersey is lawful whilst the person’s documents are being retained. Individuals who do not have leave to remain in Jersey will be expected to take all reasonable steps to leave Jersey once their travel documents are returned. If the foreign national has leave to remain in Jersey, he or she would remain on those leave conditions unless/until they are altered under immigration powers. This information should form part of the notice that is served in writing to the individual at port, as described at paragraph 69 of the code.

If the exercise of this power means that travel companions are also unable to leave Jersey during the retention period, JCIS may use pre-existing immigration powers to permit entry or leave to remain in Jersey, if required. Applications for leave or entry should be considered on a case-by-cases basis.

72 hour review of authorisation

Within 72 hours of travel documents being seized and retained, beginning from the time at which the travel documents first came into possession of the officer (even if taken under a power other than Schedule 1, in which case the time documents were first taken must be recorded) a reviewing officer must consider whether the decision to authorise the retention of the documents was flawed. The reviewing officer must be a senior police officer of at least the rank of Superintendent and of at least as high a rank as the authorising officer in the case under review. The reviewing officer should be outside the chain of command of the authorising officer. All relevant papers and records held by any officer exercising functions under Schedule 1 must be made available to the reviewing officer for the purposes of their review.

The findings of the review must be communicated in writing to the Chief Officer. The Chief Officer must consider it and take whatever action he or she deems appropriate. This may include returning travel documents or upholding the original decision to retain the travel documents. If the Chief Officer decides to take action that is not in accordance with the findings of the review then he or she must record their reasoning in writing.

All 72 hour review letters should if possible be copied to the National Policing Lead for Counter-Terrorism for their information. If designated JCIS officers were involved in the incident, the reviewing officer should consider whether their chain of command should also be involved in this correspondence, for information.

Application to the Magistrate for an extension of the 14 day retention period

If it is assessed that additional time is required to investigate whether it is appropriate to take alternative disruptive measures against a person, a police officer of at least the rank of Chief Inspector may apply to the Magistrate for an extension of the retention period beyond the 14 day period. The Magistrate cannot grant an extension that exceeds the 30 day retention period. Any application must be made before the end of the initial 14 day retention period. An application will only be heard if reasonable efforts have been made to notify the person to whom the application relates of the time when the application was made and of the date, time and location of the hearing.

At a hearing, the Magistrate will neither examine the merits of the exercise of the power nor review the officer’s decision to exercise it. The Magistrate will instead consider whether persons responsible for considering the possibility of taking additional disruptive action (and taking steps in relation to that) have been acting diligently and expeditiously in the investigation. If the Magistrate concludes that they have been, then he or she must grant an extension. Any extension granted by the Magistrate cannot extend the retention period beyond the 30 day period. If the Magistrate grants an extension for a period ending before the end of the 30 day period the police may make one further application to extend the retention period but not beyond the 30 day retention period.

The person to whom the application relates must be given the opportunity to make oral or written representations to the Magistrate in relation to the application. The person is entitled to be legally represented at the hearing. An adjournment may be granted by the Magistrate to enable the person to obtain legal representation. The adjournment must be to a date before the end of the 30 day period, and the retention of the travel documents must also be extended until that date.

The Magistrate may exercise discretion to exclude the person to whom the application relates and their legal representative from any part of the court hearing. Any application to invite the Magistrate to exclude must be made to him or her only where it is considered that disclosure of matters referred to in that part of the hearing to the person or his legal representatives would damage national security. In addition, the police may apply to the Magistrate for an order to withhold specified information from the individual or their legal representative. To make this order, the Magistrate must be satisfied that there are reasonable grounds for believing that if the specified information were disclosed:
1. evidence of an offence under the Terrorism (Jersey) Law 2002 would be interfered with or harmed;
2. the recovery of property obtained as a result of an offence under the Terrorism (Jersey) Law 2002 would be hindered;
3. the recovery of property in respect of which a forfeiture order could be made under the Terrorism (Jersey) Law 2002 would be hindered;
4. the apprehension, prosecution or conviction of a person who is suspected of being a terrorist would be made more difficult as a result of the person being alerted;
5. the prevention of an act of terrorism would be made more difficult as a result of a person being alerted;
6. the gathering of information about the commission, preparation or instigation of an act of

terrorism would be interfered with;

a person would be interfered with or physically injured; or
national security would be put at risk.

Where an application is made to withhold such information from the person, the Magistrate must exclude the person and his or her legal representatives from the hearing of that application.

If the Magistrate does not grant an extension of the retention period, the travel documents must be returned no later than the expiry of the retention period.

Restrictions on repeated use of the powers against the same person

If the power is exercised against the same person more than twice in any six month period, on the third occasion (and on any subsequent occasion in that six month period), then the retention period is limited to five days, instead of 14 days, beginning from 00.00 hours on the day after the travel documents were taken. To extend retention beyond this period, a senior police officer of at least the rank of Chief Inspector must apply to the Magistrate under the same procedure as that outlined above. A further extension (of up to 30 days) may only be granted where the Magistrate is satisfied that the relevant persons are acting diligently and expeditiously in relation to the matters referred to at paragraph 47 of the code and there are circumstances justifying the further use of the power in relation to the same person.

The power is not meant to be used as a long term disruption tool but as a means to enable the police to take immediate action to disrupt travel while investigations are undertaken into whether an alternative disruptive action would be appropriate. It would be highly unusual for the power to be exercised in such quick succession against the same individual in a six month period. There must be exceptional circumstances justifying the further use of this power in relation to the same person.

Notification requirements

A police officer or designated JCIS officer exercising a power to take possession of travel documents or to search for travel documents must inform the person subject to the exercise of those powers that:

i. the person is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, and

ii. the police officer or designated JCIS officer is therefore entitled under Schedule 1 to the Counter Terrorism and Security Act to exercise the power to take possession of these documents.

A police officer or designated JCIS officer is entitled to retain travel documents that have come into his or her possession under Schedule 1 while an application for authorisation is considered by a senior officer. Where the officer is retaining the documents pending authorisation, and the officer does not expect the authorisation to be dealt with immediately, the officer must additionally inform the person that:

i. the person is suspected of intending to leave Jersey for the purposes of involvement in terrorism-related activity outside the British Islands (if the person has not already been informed of this during exercise of powers referred to above); and

ii. the police officer or designated JCIS officer is therefore entitled under Schedule 1 to the Counter-Terrorism and Security Act to retain the document while the matter is considered by a senior police officer (authorising officer).

A JCIS officer (whether designated or not) may be directed by a police officer to pass travel documents which are already lawfully in the officer’s possession to a police officer. The JCIS officer must tell the person that the person’s travel documents have been passed to the police because he or she is suspected of intending to leave Jersey for the purpose of involvement in terrorism-related activity outside the British Islands, and that the police are holding the person’s documents whilst consideration is given to whether the documents should be retained. This does not apply if the JCIS officer expects the police to deal with the application for authorisation immediately.

Where authorisation is granted, the police officer or designated JCIS officer must inform the person that authorisation from a senior police officer has been given to retain their travel documents and that this means that the documents may be retained for up to 14 days while any of the following takes place:

i. while consideration is given to canceling the person’s passport (in the case of a British passport);

ii. while consideration is given to charging the person with an offence;

iii. while consideration is given to making the person subject to any order or measure to be made or imposed by a court, or by the Minister for purposes connected with protecting members of the public from a risk of terrorism; or

iv. while steps are taken to carry out any of these measures.

The individual must also be informed that the travel documents cannot be retained beyond 14 days, beginning 00.00 the day after the documents were seized, unless the retention period is extended by the Magistrate, in which case the documents cannot be retained for more than 30 days in total; and that the travel documents must be returned once the 14 day period (or extended period) expires, or if the above conditions no longer apply, whichever comes first.

Written notification

Where authorisation has been granted by a senior police officer, the officer (whether a police officer or a designated JCIS officer) in possession of the travel documents must issue a written notice at port informing the individual that his or her travel documents are being retained under Paragraph 5 of Schedule 1 to the Counter Terrorism and Security Act 2015. The notice should:
1. provide a case reference number;
2. state the date and time at when the documents first came into possession of the officer (whether or not by means of exercise of Schedule 1 powers);
3. inform the person that his or her travel documents are being retained under Paragraph 5 of Schedule 1 to the Counter-Terrorism and Security Act 2015;
4. inform the person that if he or she is a foreign national who requires leave to enter or remain in Jersey and is already in possession of valid leave that:
  - he or she would remain on those leave conditions unless/until action is taken to review that leave status under immigration law, or that
  - if he or she is a foreign national who requires leave to enter or remain in Jersey and does not have leave or the person’s leave expires within the next 30 days that he or she will be deemed to be not unlawfully in Jersey during the retention period;
5. provide contact details to enable the individual to contact the police regarding the retention of their travel documents;
6. advise that the documents may be retained by the police for up to 14 days (or 30 if extended by the Magistrate) and that the retention period begins at 00.00 on the day after the day on which documents are seized;
7. explain that the person’s documents will be securely stored;
8. inform the person that, where the police are in possession of the person’s address, they will, if appropriate, return the documents to him or her by secure post, or advise of how to make alternative arrangements to collect the travel documents;
9. provide information about where this Code of Practice can be accessed;
10. provide information about how an individual can make a complaint;
11. confirm that the individual has a right to legal representation at any court hearing to extend the period of retention;
12. inform the person that they may write to the police at a given address to request reasons for the retention of their travel documents and the police must provide a response within 42 days. This notice should inform the person that they will not be provided with any information that might prejudice national security; and
13. invite the person to notify the police of the person’s place of residence or the contact details of his or her lawyer so that the lawyer can be notified if an application for further extension of the documents’ retention is made.

If a person’s travel documents are returned within 14 days from the day after they were retained, an accompanying notice will be issued with the travel documents by the police reminding the individual that he or she may formally request reasons as to why their travel documents were seized and retained. If a formal request is received, as full a response as possible (consistent with protecting national security and other data protection considerations) must be provided within 42 days.

If an application is made to the Magistrate to extend the retention period of the travel documents, a notice must be issued by the police to the person concerned informing him or her of the application to extend the retention period. While the court hearing will not examine the merits of the exercise of this power nor review the officer’s decision to exercise it, this notice should inform the individual of the reasons why his or her travel documents were seized and retained as fully as possible without prejudicing national security (and consistent with other data protection considerations). This will enable a person to understand why the person is under investigation and in turn to consider whether the case is being considered diligently and expeditiously. The notice should also inform the individual of the time on which the application to the Magistrate was made and the time and location of the hearing. It must confirm the person’s right to make written or oral representations to the Magistrate and his or her entitlement to legal representation.

Written disclosure

A police officer exercising the power to retain documents under Schedule 1 must issue the person subject to the exercise of this power with reasons for its exercise in their case if requested. The reasons must be as full as possible but without prejudicing national security. Accordingly, the police officer must very carefully consider the level of detail provided. A case-by-case assessment should take place to consider what information can be disclosed to an individual without damaging national security.

Monitoring of the use of the power

The police must monitor the use of this power and should consider in particular whether there is any evidence that it is being exercised on the basis of stereotyped images or inappropriate generalisations. Consideration should be given to whether the records reveal any trends or patterns which give cause for concern, and if so take appropriate action to address this. Monitoring records should, where possible, include:

i. Age;

ii. Disability;

iii. Gender;

iv. Race;

v. Religion and Beliefs; and

vi. Sexuality.

Return of travel documents

The individual should have been informed at the point of retention that his or her travel documents will be returned by secure post (if appropriate). If alternative arrangements are necessary, the individual should be informed of these arrangements as required.

COMPLAINTS

Complaints about the Police

Complaints about the conduct of police officers exercising the powers under Schedule 1 should be directed to the appropriate authorities and dealt with in accordance with the Police (Complaints and Discipline) (Jersey) Law 1999.[6] This is the link to the official website of the Jersey Police Complaints Authority (JPCA) https://www.gov.je/Government/Comments/Pages/PoliceComplaintsAuthority.aspx .

Complaints about JCIS officers

Complaints about the conduct of JCIS officers exercising the power should be sent to:

Jersey Customs and Immigration Service, Maritime House, Avenue de la Reine, St Helier, Jersey.

Notification of the outcome of any complaint must include information about how to appeal the decision and any time limits involved.

ANNEX

GLOSSARY OF KEY TERMS

14 day period	The 14 day period starts from the next 00.00 hours the day after the taking of the travel documents e.g. if the documents were retained at 22.00 on Monday, the retention period starts from 00.00 on Tuesday and would end a fortnight later on 23.59 Monday.
30 day period	The 30 day period starts the next 00.00 hours the day after the taking of the travel documents
Schedule 1	Schedule 1 to the Counter Terrorism and Security Act 2015, as extended to Jersey by the Counter Terrorism and Security (Jersey) Order 2017
The power	The power under Schedule 1 to seize and retain travel documents
Authorising officer	A police officer of at least the rank of Chief Inspector who must authorise the retention of travel documents.
JCIS officer	A Jersey immigration officer or a customs official.
Police officer	A member of the States of Jersey Police Force or a Member of the Honorary Police
Designated JCIS officer	A JCIS officer who has been designated by the Minister to exercise the power, but only on direction from a police officer.
Involvement in terrorism-related activity	Involvement in terrorism-related activity is any one or more of the following: a) the commission, preparation or instigation of acts of terrorism; b) conduct that facilitates the commission, preparation or instigation of such acts, or is intended to do so; c) conduct that gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so; d) conduct that gives support or encouragement to individuals who are known or believed by the person concerned to be involved in conduct falling within paragraph a). It is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.
Judicial Authority	The Magistrate is the judicial authority referred to in Schedule 1 that presides over applications to extend travel document retention periods.
Passport	A United Kingdom passport or a passport issued by or on behalf of

	the authorities of a country or territory outside the British Islands, or by or on behalf of an international organisation, or a document that can be used (in some or all circumstances) instead of a passport.
Port	An airport, a sea port, or any other place in Jersey at which a person is able, or attempting, to get on or off any craft, vessel or vehicle in connection with entering or leaving Jersey.
Reviewing officer	A senior police officer of at least the rank of Superintendent and of at least the same rank as the authorising officer who took the decision in the case, who will review the decision to authorise retention of documents within 72 hours.
Senior police officer	A police officer of at least the rank of Chief Inspector.
Travel documents	Anything that is or appears to be (a) a passport, or (b) a ticket or other document that permits a person to make a journey by any means from Jersey to a place outside Great Britain or the Bailiwick of Guernsey or the Isle of Man i.e. a ticket permitting travel outside the UK or from Jersey to Northern Ireland (but not from Northern Ireland to Jersey).

Signed:

Date:

[1] As extended to Jersey by the Counter-Terrorism and Security (Jersey) Order 2017

[2] Although Schedule 1 makes provision for JCIS officers to be designated by the Minister as ‘accredited’, no such designation is intended to be made for the time being.

[3] From a Chief Inspector

[4] See Discrimination (Jersey) Law 2013 https://www.jerseylaw.je/laws/revised/Pages/15.260.aspx

[5] i.e. £10,000

[6] https://www.jerseylaw.je/laws/revised/PDFs/23.325.pdf

Our sites