Part 7 – Miscellaneous
Inquiries
Section 74 – Inquiries: intercept evidence
202.Section 74 amends section 18 of RIPA to allow disclosure of intercept material to a person appointed as counsel to an inquiry held under the Inquiries Act 2005, in addition to the panel of an inquiry. But the inquiry panel may not order the disclosure of intercept material unless it is satisfied that there are exceptional circumstances that make the disclosure essential (see section 18(8A) of RIPA).
Amendment of definition of “terrorism” etc
Section 75 – Amendment of definition of “terrorism” etc
203.Section 75 gives effect to Lord Carlile’s 12th recommendation in his January 2007 report on the definition of terrorism. This was that the definition of terrorism in section 1(1) of the 2000 Act be amended to include, in paragraph (c), the purpose of advancing a racial cause (in addition to a political, religious or ideological cause). Although a racial cause will in most cases be subsumed within a political or ideological cause this amendment is designed to put the matter beyond doubt that such a cause is included. A similar amendment is made to paragraph 4(2)(c) of Schedule 21 to the Criminal Justice Act 2003 which makes provision in relation to the minimum term for mandatory life sentences. That paragraph provides that the starting point for a murder done for the purpose of advancing a political, religious or ideological cause will be life. And similar amendments are made to other pieces of legislation where these words appear.
Terrorist offences
Section 76 – Offences relating to information about members of armed forces etc
204.This section inserts a new section 58A into the 2000 Act which creates a criminal offence. The offence is committed when a person either elicits or attempts to elicit information about a member of the armed forces or the intelligence services or a constable, which is likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates information of that kind. This offence is based in part on the offence in section 103 of the 2000 Act (which ceased to have effect on 31 July 2007 by virtue of the Terrorism (Northern Ireland) Act 2006). A person who is able to prove that he had a reasonable excuse for his actions is able to rely on that as a defence. This must be read with section 118 of the 2000 Act as amended by section 76(3), the effect of which is to limit the burden on the accused to an evidential burden, so that if that person adduces evidence sufficient to raise an issue with respect this defence, the prosecution must then prove beyond reasonable doubt that there is no such defence. The offence is punishable with a maximum sentence of 10 years imprisonment, or to a fine or both.
Schedule 8 – Offences relating to information about members of armed forces etc: supplementary provisions
205.New section 58A(5) of the 2000 Act adds supplementary provisions in an additional Schedule 8A to the 2000 Act (inserted by Schedule 8 to this Act). These provisions make the offence compliant with the “E-Commerce Directive” (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Official Journal L 178 17/07/2000 p.1-16)).
Section 77 – Terrorist property: disclosure of information about possible offences
206.Subsection (2) of this section makes a clarifying amendment to section 19(1) of the 2000 Act. This makes it clear that the offence in section 19 of failing to disclose a belief or suspicion of an offence under sections 15 to 18 (a terrorist finance offence) applies to all persons in employment, whether or not they are employed in a trade, profession or business.
207.Subsection (3) inserts a new section 23C into the 2000 Act defining “employment” and a corresponding definition of “employer” for the purposes of Part 3 of that Act (terrorist property). The definition is wider than the usual definition of employment, including contractors, office-holders (such as trustees of a charity), individuals on a formal work experience programme or training (for example an intern in a bank) and volunteers.
208.Subsection (4) makes transitional provision to the effect that, where the wider definition of employment catches a person it did not previously catch, that person will have a duty to inform of a belief or suspicion that a terrorist offence has been committed if they continue to hold that belief or suspicion after commencement, even if the information on which it is based came to the person before commencement.
Control orders
Section 78 – Control orders: powers of entry and search
209.This section adds three new sections after section 7 of the Prevention of Terrorism Act 2005 (“PTA”). The new sections provide constables with the power to enter and search the premises of individuals subject to control orders who are reasonably suspected of absconding or of failing to grant access to premises when required to do so. They also allow a constable to apply to a justice of the peace (or, in the case of Scotland, a sheriff and, in the case of Northern Ireland, a lay magistrate) for a warrant to enter and search premises for the purpose of monitoring compliance with a control order. In the context of the PTA “premises” can include vehicles that are owned or controlled by the controlled person (see section 15 of that Act). The three new sections are added by subsection (1).
210.New section 7A (absconding) gives a constable the power to enter (if necessary by force) and search premises if the officer reasonably suspects that the controlled person has absconded. Once a constable has this initial “reasonable suspicion” the entry and search power can be exercised to determine whether the controlled person has in fact absconded and, if it appears that he has, to search for any material that may assist in apprehending him. However in circumstances where, prior to these powers being exercised a constable knows that a controlled person has absconded he can enter and search the property for any material that may assist in apprehending the controlled person without the purpose of this entry and search being to determine whether there has been an abscond.
211.The term “abscond” is not defined in the PTA and it is intended that it should have its ordinary meaning: “to leave hurriedly and secretly, flee from justice” and, in this particular context, to avoid the obligations of a control order. The premises to which new section 7A applies are:
the residence of an individual subject to a control order;
any other premises to which a controlled person is required to grant access in accordance with an obligation imposed by or under a control order; and
premises to which a controlled person has in the past but is no longer required to grant access in accordance with an obligation imposed by or under a control order and with which there is reason to believe that the controlled individual is or was recently connected.
212.New section 7B (failure to grant access to premises) gives a constable the power to enter (if necessary by force) and search premises where the constable reasonably suspects that the controlled person has failed to permit entry (as required by the control order) at a time when, by virtue of an obligation under the control order, the person is required to be in that person’s residence. The purpose of any such entry and search is to determine whether any of the obligations imposed by a control order have been contravened or, if it appears that there has been such a contravention, to search for any material that may assist in any subsequent investigation. The premises to which this new section applies are premises to which the controlled person is obliged to grant access under the person’s control order obligations.
213.New section 7C (monitoring compliance with a control order) allows a constable to apply to a justice of the peace (or, in Scotland, a sheriff and, in Northern Ireland, a lay magistrate) for a warrant to enter and search the premises of a controlled person to determine whether a controlled individual is complying with that person’s obligations. Such a warrant may only be granted if the justice of the peace (or sheriff or lay magistrate) is satisfied that it is necessary for the purposes of determining whether the controlled person is complying with the control order obligations. In order for the requirement of necessity to be met it is envisaged that such warrants will most often be applied for where the police have previously attempted to conduct unannounced visits that have failed due to the apparent absence of the individual. The premises to which this new section applies are the same as for new section 7A (see above).
214.Subsection (2) of section 78 provides that obstruction of a police officer acting under any of new sections 7A, 7B or 7C is an offence punishable, on summary conviction, by a fine not exceeding level 5 on the standard scale (currently £5000) and a prison sentence up to 51 weeks (in England and Wales) or six months (in Scotland and Northern Ireland). The powers of a magistrates’ court to impose a prison sentence of 51 weeks are provided by section 281(5) of the Criminal Justice Act 2003. This provision has not yet been commenced and until it is reference to the prison sentence of 51 weeks should be read as a reference to a prison sentence of 6 months (see section 9(8) of the PTA).
215.Subsection (3) provides that these amendments will apply regardless of when the control order was made.
Section 79 – Control orders: meaning of involvement in terrorism-related activity
216.Section 1(9) of the PTA defines involvement in terrorism-related activity as any one or more of the following:
the commission, preparation or instigation of acts of terrorism;
conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.
217.Subsection (1) of section 79 amends section 1(9)(d) so that it reads “conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c).”
218.This amendment removes an unintended ambiguity in the original definition, which could be read as capturing individuals who unknowingly provided support or assistance to individuals known or believed by the Secretary of State to be involved in terrorism-related activity. It also removes an unnecessary potential circularity in the definition. Currently, an individual (A) could have a control order imposed on him because he was supporting another individual (B) known or believed to be supporting a third person (C) involved in terrorism-related activity within paragraphs (a) to (c). There could in theory be any number of links in this chain: A knows or believes B who knows or believes C who knows or believes D, and so on before it leads to someone (Z) who is actually engaged in conduct referred to within paragraphs (a) to (c). At present all persons in this chain could have a control order imposed against them. The definition was not and is not intended to be this wide. This amendment ensures that only support for someone directly involved in terrorism-related activity (conduct falling within section 1(9)(a) to (c)) is captured so that in the example referred to above only the person directly giving support and assistance to Z would be caught by the definition.
219.Subsection (2) provides that the revised definition set out in subsection (1) is deemed to have had effect since the 2005 Act came into force. This is the way in which the provision has always been interpreted and reflects the fact that the “tightened” definition is the one that has always been applied. This subsection is also intended to ensure that the basis upon which previous or current control orders have been made or upheld by the courts is not called into question as a result of a change in the definition of terrorism-related activity.
Section 80 –Time allowed for representations by controlled persons
220.Section 3 of the PTA makes provision in relation to the supervision by the court of the making of non-derogating control orders. Once a non-derogating control order has been made, the Secretary of State’s decision to make the control order and impose the obligations in it are subject to mandatory review by the court. (In the case of a controlled person whose principal of residence is in Scotland the court is the Outer House of the Court of Session; in the case of a controlled person whose principle place of residence is in Northern Ireland the court is the High Court in Northern Ireland; and in any other case the court is the High Court in England and Wales (see section 15 of the PTA)). This review is a full hearing with the court applying judicial review principles to the decisions taken (this is commonly known as a “3(10) hearing” after the section in the PTA that provides for it). Section 3 requires the court to give an individual subject to a control order the opportunity to make representations to the court about directions for the 3(10) hearing in relation to that control order.
221.Subsections (2) and (3) of this section amend section 3 so that when a control order is made following permission from the court, the individual will be given an opportunity to make representations within seven days from the time that the order is served upon him and not, as currently, seven days from the time the court gives permission. There may for operational reasons be a gap – possibly longer than seven days – between the time a control order is made and the time it is served. The PTA as currently drafted potentially requires the court to give an individual the opportunity to make representations before the order is served – and thus before the individual is aware of the control order or bound by its obligations. This is impractical and operationally undesirable. This amendment will apply to control orders made after this section comes into force.
222.By virtue of new subsection (7A)(b), the amendment does not change the position regarding the timing of the opportunity for an individual to make representations in relation to urgent control orders made without the permission of the court. By definition, the individual in such cases is already aware of the control order and bound by its obligations.
Section 81 – Applications for anonymity for controlled persons
223.Subsections (1) to (3) of this section make a technical amendment to the anonymity provisions in paragraph 5 of the Schedule to the PTA. The intention of paragraph 5 is to ensure that the anonymity of individuals subject to a control order can be maintained throughout the process. Paragraph 5 states that anonymity orders can be applied for after a control order has been made. It is the Secretary of State that has the power to make a non-derogating control order. However (except in cases of urgency) before the power to make an order arises the Secretary of State must apply to the court for permission to make a control order (or in the case of derogating control orders, when the Secretary of State applies for the court to make such an order). The amendments in this section mean that the Secretary of State can make an application for an anonymity order to protect the identity of the controlled person at the stage when permission is being sought from the court to make the control order rather than when the control order is actually made.
224.Subsection (4) provides that this amendment will be deemed always to have had effect. This reflects the original policy intention and current practice followed by the courts, which the section does not seek to change. Moreover, subsection (4) ensures that all current anonymity orders made when permission for the control order was sought from the courts and before this section comes into force will be unaffected.
Pre-charge detention of terrorist suspects
Section 82 – Pre-charge detention: minor amendments
225.Subsection (1) makes a minor amendment to paragraph 9 of Schedule 8 to the 2000 Act (direction that detained person may consult a solicitor only within sight and hearing of a qualified officer). This is a consequential amendment that was overlooked when that Schedule was amended by the Proceeds of Crime Act 2002.
226.Subsection (2) amends paragraph 29(4) of Schedule 8 to the 2000 Act to remove the words “after consulting the Lord Chancellor”. This paragraph defines “judicial authority” for the purposes of hearings extending pre-charge detention for up to 14 days – which may, as amended, be conducted in England and Wales by a District Judge designated by the Lord Chief Justice and in Northern Ireland, by a county court judge designated by the Lord Chief Justice of Northern Ireland.
Forfeiture of terrorist cash
Section 83 – Forfeiture of terrorist cash: determination of period for which cash may be detained
227.This section amends paragraph 3 of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001 (“ATCSA”) (detention of seized cash), so as to provide that in calculating the period of 48 hours for which cash may initially be detained, only working days are taken into account. Paragraph 3(1) corresponds to section 295(1) of the Proceeds of Crime Act 2002, which was amended in similar terms by section 100 of the Serious Organised Crime and Police Act 2005.
Section 84 – Forfeiture of terrorist cash: appeal against decision in forfeiture proceedings
228.This section substitutes paragraphs 7 and new 7A in Schedule 1 to ATCSA (appeals against decision in forfeiture proceedings). Some of the amendments are to take account of amendments made to the 2000 Act by section 22 of the Terrorism Act 2006 (name changes by proscribed organisations). Specific provision is made for the timing of appeals against a decision in forfeiture proceedings relating to “terrorist cash” where the forfeiture depends on the proscription of an organisation and the organisation in question is subsequently de-proscribed as a result of an appeal to the Proscribed Organisations Appeal Commission (POAC). Section 22 of the 2006 Act amended the 2000 Act to allow the Secretary of State to specify by order an alternative name for a proscribed organisation and to provide for appeals to POAC against such orders. Where the appeal is successful, the Secretary of State is required by section 5(5) of the 2000 Act to make an order under section 3(8) effectively revoking the earlier order. New paragraph 7A takes account of this circumstance and provides that an appeal may be brought at any time before the end of 30 days beginning with the date the de-proscription order comes into force.
229.Paragraph 7 of Schedule 1 to ATCSA corresponds to section 299 of the Proceeds of Crime Act 2002. That section was substituted by section 101 of the Serious Organised Crime and Police Act 2005. The paragraph 7 substituted by this section reflects the changes made to section 299 of the 2002 Act. These are: (a) the applicant for a forfeiture order is given the right of appeal against the court’s refusal to make an order; and (b) the requirement that the hearing of an appeal against a forfeiture order is by way of a rehearing is omitted.
230.The new paragraph 7 also provides that the right of appeal in Scotland is to the sheriff principal (rather than the Court of Session).
Costs of policing at gas facilities
Section 85 – Policing at gas facilities: England and Wales
231.Section 85 allows the Secretary of State to require gas transporters to pay certain costs of policing gas facilities in England and Wales. Subsection (1) sets out the circumstances in which these new powers may be exercised by the Secretary of State: the Secretary of State must consider that the provision of “extra police services” is necessary because there is a risk of loss or of disruption to the supply of gas which would have a serious impact on the United Kingdom (or a part of it).
232.Subsection (2) defines “extra police services” to mean either the use of police services from the Ministry of Defence Police under section 2(2)(e) of the Ministry of Defence Police Act 1987 (agreement by Secretary of State to provide MOD police services) or from English and Welsh police forces under section 25(1) of the Police Act 1996 (provision of special services on request).
233.Subsection (3) provides that the Secretary of State may require a designated gas transporter to pay all or part of the costs of the extra policing incurred by the Secretary of State.
234.Subsection (4) defines “gas facility” and subsection (5) explains what is meant in subsection (3) by a gas transporter having an interest in a gas facility.
Section 86 – Policing at gas facilities: Scotland
235.Section 86 makes corresponding provision for Scotland. Subsection (1) of this section makes identical provision to that which applies in England and Wales.
236.Subsection (2) defines “extra police services” to mean either the use of police services from the Ministry of Defence Police under section 2(2)(e) of the Ministry of Defence Police Act (as for England and Wales) or police services provided under an agreement, entered into at the request of the Secretary of State, between the occupier of the gas facility and the police authority, chief constable of the police force or joint police board, for the police area where the gas facility is situated.
237.Subsection (3) provides that where the services of the Ministry of Defence Police have been used the Secretary of State may require a designated gas transporter to pay all or part of the costs of the extra policing incurred by the Secretary of State.
238.Subsection (4) provides that if requested by the occupier of the gas facility the Secretary of State must require a designated gas transporter to pay the reasonable costs incurred by the occupier under any agreement entered into at the Secretary of State’s request, between the occupier of the gas facility and the police authority, chief constable of the police force or joint police board, for the police area where the gas facility is situated.
Section 87 – Designated gas transporters
239.Subsection (1) of this section provides that the Secretary of State may by order designate a person as a gas transporter for the purposes of sections 85 to 90. A designated gas transporter must be a holder of licence issued under section 7 of the Gas Act 1986. Such an order is subject to negative resolution procedure (see subsection (3)).
Section 88 – Costs of policing at gas facilities: recovery of costs
240.This section makes provision for the designated gas transporter to be able to recoup the costs that it has had to pay for the extra policing from its customers. Subsection (1) of this section empowers the Secretary of State to determine the amount of the costs to be paid by the designated gas transporter under section 85 or 86, the manner and time when the costs are to be paid and the persons to whom the costs are to be paid.
241.Subsection (2) provides that where a designated gas transporter is required to pay costs under section 86, the occupier of the gas facility can recover the costs directly from the designated gas transporter.
242.Subsection (3) provides that, despite any licence condition to the contrary, a designated gas transporter can, in determining its charges for conveying gas, take into account: (a) any payments it has made under sections 85 or 86; and (b) reasonable costs that it has incurred as a party to an agreement under section 13 of the Police (Scotland) Act 1967 for the guarding, patrolling and watching of the gas facility entered into at the Secretary of State’s request.
243.Subsection (4) makes provision for the Secretary of State to direct the Gas and Electricity Markets Authority (GEMA) to allow the designated gas transporter to take into account in determining its charges: (a) any payments it has made under sections 85 or 86; or (b) any payments made or costs incurred in or in relation to a specified period.
244.Subsection (5) imposes a consultation requirement upon the Secretary of State to consult GEMA and the designated gas transporter prior to making a direction under subsection (4).
Section 89 – Costs of policing at gas facilities: supplementary provisions
245.This section sets out an additional consultation obligation upon the Secretary of State. Under subsection (1) the Secretary of State must consult a designated gas transporter and GEMA prior to: (a) requiring the designated gas transporter to pay costs under sections 85 or 86 for the first time; (b) requiring the gas transporter to pay costs in respect of a particular gas facility; and (c) requiring the gas transporter to pay the costs of extra police services provided on a subsequent occasion at a gas facility.
246.Subsection (2) states that the Secretary of State is not required to: (a) consult anyone other than GEMA or the designated gas transporter before requiring a designated gas transporter to pay costs under section 85 or 86; or (b) to take into account representations made after 28 days from when the designated gas transporter or GEMA were first consulted under subsection (1).
Section 90 – Application of provisions to costs incurred before commencement
247.This section makes provision for sections 85 – 89 to apply to the costs of providing extra policing at key gas sites from 16 January 2007 up to the day before these provisions come into force, in the same way that these provisions will apply after this period. All the provisions relating to costs of policing at gas facilities will be commenced two months after Royal Assent (see section 100(3)).
Appointment of special advocates in Northern Ireland
Section 91 – Appointment of Special Advocates in Northern Ireland
248.This section provides that certain references to the Attorney General for Northern Ireland in current legislation are substituted with references to the Advocate General for Northern Ireland. The purpose of the amendments is to enable the transfer of a number of functions of the Attorney General for Northern Ireland relating to the appointment of special advocates to the Advocate General for Northern Ireland. The provisions of primary legislation to be amended are contained in section 6(2)(c) of the Special Immigration Appeals Commission Act 1997, paragraph 7(2)(c) of Schedule 3 to the 2000 Act, and paragraph 6(2) (c) of Schedule 6 to the ATCSA. A provision of secondary legislation contained in rule 9(1) of the Northern Ireland Act Tribunal (Procedure) Rules 1999 is also to be amended. These changes will come into force upon the devolution of justice matters in Northern Ireland, and the coming into force of section 27 of the Justice (Northern Ireland) Act 2002 (c.26) which creates the office of Advocate General for Northern Ireland.
