Terrorism Act 2000

Commentary

Schedule 5: Terrorist Investigations

114.This Schedule, which is activated by section 37, corresponds to Schedule 7 to the PTA and was discussed in Chapter 6 of the Government’s consultation document. Part I deals with England, Wales and Northern Ireland; Part II makes corresponding provision for Scotland. Most of the Schedule replicates the provisions of the PTA with some modification as indicated below.

Paragraphs 1–3: Searches

115.These paragraphs correspond to paragraphs 2–2A of Schedule 7 to the PTA and have the same effect, bringing together the provisions for dwellings in paragraph 2 and non-residential premises in paragraph 2A. They deal with warrants permitting search for and seizure of ordinary material (as opposed to “excepted material” as defined in paragraph 4).

116.In the PTA, paragraph 2(1)(a) defined relevant material in relation to “the investigation” – that is, the investigation for which the warrant was issued. The equivalent provision in the Act, paragraph 1(3)(a), includes in the definition anything likely to be of substantial value to “a terrorist investigation”, that is, any terrorist investigation. This is intended to enable a police officer to seize and retain not only material relevant to the investigation for which the warrant was issued but any material relevant to investigation of any of the matters specified in section 32 without having to go back to court for a further warrant. A similar change is made throughout the rest of the Schedule.

117.Sub-paragraph (5)(c) of paragraph 1 gives the judge discretion over the necessity for a warrant in the particular case. This sub-paragraph replaces the conditions in paragraph 2(2) of Schedule 7 to the PTA. The reasoning behind this is best illustrated by a hypothetical example. Suppose the police need to find, seize and retain certain material on certain premises. They successfully contact a person entitled to grant entry to the premises and access to the material. That person is content to grant them such entry and access, but is not content for the material to be seized and retained. The police therefore need a warrant to authorise seizing and retaining the material; but the conditions in paragraph 2(2) of Schedule 7 to the PTA are not met, so under the PTA the justice of the peace cannot issue a warrant. It is to cover this eventuality that, in replicating this provision, a more general test that “the issue of a warrant is likely to be necessary in the circumstances of the case” has been substituted.

Paragraph 4: Excepted material

118.The material in this paragraph is similar to that in the second half of paragraph 1 of Schedule 7 to the PTA. It defines the categories of material to which the different investigative powers in the Schedule can be applied.

Paragraphs 5–10: Excluded and special procedure material: production and access

119.These paragraphs correspond to paragraphs 3–4 of Schedule 7 to the PTA and have the same effect. They provide for “production orders”.

Paragraphs 11–12: Excluded and special procedure material: search

120.These paragraphs correspond to paragraph 5 of Schedule 7 to the PTA and have the same effect. They provide similar warrants to those in paragraphs 1–3 but this time for excluded and special procedure material.

Paragraphs 13–14: Explanations

121.These paragraphs correspond to paragraph 6 of Schedule 7 to the PTA. There is one change in effect. A person’s response to an explanation order represents information given under compulsion and cannot normally be used in evidence against him, as this would be a breach of the right against self-incrimination (or “right to silence”). The PTA provided two exceptions to this general principle.

• The first is if the criminal trial in question is for the offence of giving a false or misleading answer to the explanation order itself (at paragraph 6(3)(a) in the PTA).

• The second is in a trial for any other offence, if in that trial the person makes a statement inconsistent with his response to the explanation order (at paragraph 6(3)(b) in the PTA).

The first of these exceptions is replicated in the Act (at paragraph 13(4)) but the second has been dropped.

Paragraphs 15–16: Urgent cases

122.These paragraphs correspond to paragraph 7 of Schedule 7 to the PTA and have similar effect. They provide that in urgent cases a police superintendent may issue warrants and explanation orders, so long as he notifies the Secretary of State. The condition in paragraph 7(1) that the action must be “in the interests of the State” has been dropped. This is because the Act applies to all forms of terrorism: the power might therefore be used in a case where the terrorism was directed against another country.

Paragraphs 19–21: Secretary of State orders

123.Under paragraph 8 of Schedule 7 to the PTA, in Northern Ireland only, the Secretary of State may authorise the police to carry out searches for, or require the production of, material in connection with investigations into terrorist finance offences or in relation to the offence of directing a terrorist organisation. These paragraphs replicate those provisions, again for Northern Ireland only, in an updated form consistent with the other provisions in Schedule 5 to the Act. Section 112(5) ensures that the provisions are treated as if they were in Part VII of the Act. This will mean that, along with all the Northern Ireland specific measures, these provisions will be temporary and renewable.