Terrorism Prevention and Investigation Measures Bill (HL Bill 91)

Section 7

SCHEDULE 2 Urgent cases: reference to the court etc

Application

1 This Schedule applies if the Secretary of State—

(a) 5makes the relevant decisions in relation to an individual, and

(b) imposes measures on the individual.

Statement of urgency

2 The TPIM notice must include a statement that the Secretary of State
reasonably considers that the urgency of the case requires measures to be
10imposed without obtaining the permission of the court under section 6.

Reference to court

3 (1) Immediately after serving the TPIM notice, the Secretary of State must refer
to the court the imposition of the measures on the individual.

(2) The function of the court on the reference is to consider whether the relevant
15decisions of the Secretary of State were obviously flawed.

(3) The court’s consideration of the reference must begin within the period of 7
days beginning with the day on which the TPIM notice is served on the
individual.

(4) The court may consider the reference—

(a) 20in the absence of the individual;

(b) without the individual having been notified of the reference; and

(c) without the individual having been given an opportunity (if the
individual was aware of the reference) of making any
representations to the court.

(5) 25But that does not limit the matters about which rules of court may be made.

Decision by court

4 (1) In a case where the court determines that a decision of the Secretary of State
that condition A, condition B or condition C is met is obviously flawed, the
court must quash the TPIM notice.

(2) 30In a case where the court determines that a decision of the Secretary of State
that condition D is met is obviously flawed, the court must quash those of
the measures which it determines that decision relates to.

(3) If sub-paragraph (1) does not apply, the court must confirm the TPIM notice
(subject to any quashing of measures under sub-paragraph (2)).

(4) 35If the court determines that the Secretary of State’s decision that the urgency
condition is met is obviously flawed, the court must make a declaration of
that determination (whether it quashes or confirms the TPIM notice under
the preceding provisions of this paragraph).

Procedures on reference

5 (1) In determining a reference under paragraph 3, the court must apply the
principles applicable on an application for judicial review.

(2) The court must ensure that the individual is notified of the court’s decision
5on a reference under paragraph 3.

Interpretation

6 (1) References in this Schedule to the urgency condition being met are
references to condition E being met by virtue of section 3(5)(b) (urgency of
the case requires measures to be imposed without obtaining the permission
10of the court).

(2) In this Schedule “relevant decisions” means the decisions that the following
conditions are met—

(a) condition A;

(b) condition B;

(c) 15condition C;

(d) condition D;

(e) the urgency condition.

Section 15

SCHEDULE 3 Appeals against convictions

1 20An individual who has been convicted of an offence under section 23(1) may
appeal against the conviction if—

(a) a TPIM notice, the extension of a TPIM notice, or the revival of a
TPIM notice is quashed, or measures specified in a TPIM notice are
quashed; and

(b) 25the individual could not have been convicted had the quashing
occurred before the proceedings for the offence were brought.

2 An appeal under this Schedule is to be made—

(a) in the case of a conviction on indictment in England and Wales or
Northern Ireland, to the Court of Appeal;

(b) 30in the case of a conviction on indictment or summary conviction in
Scotland, to the High Court of Justiciary;

(c) in the case of a summary conviction in England and Wales, to the
Crown Court; or

(d) in the case of a summary conviction in Northern Ireland, to the
35county court.

3 (1) The right of appeal under this Schedule does not arise until there is no
further possibility of an appeal against—

(a) the decision to quash the notice, extension, revival or measures, or

(b) any decision on an appeal made against that decision.

(2) 40In determining whether there is no further possibility of an appeal against a
decision of the kind mentioned in sub-paragraph (1), any power to extend

the time for giving notice of application for leave to appeal, or for applying
for leave to appeal, must be ignored.

4 (1) On an appeal under this Schedule to any court, that court must allow the
appeal and quash the conviction.

(2) 5An appeal under this Schedule to the Court of Appeal against a conviction
on indictment—

(a) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(b) may not be brought after the end of the period of 28 days beginning
10with the day on which the right of appeal arises by virtue of
paragraph 3; and

(c) is to be treated as an appeal under section 1 of the Criminal Appeal
Act 1968 or, in Northern Ireland, under section 1 of the Criminal
Appeal (Northern Ireland) Act 1980, but does not require leave in
15either case.

(3) An appeal under this Schedule to the High Court of Justiciary against a
conviction on indictment—

(a) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(b) 20may not be brought after the end of the period of 28 days beginning
with the day on which the right of appeal arises by virtue of
paragraph 3; and

(c) is to be treated as an appeal under section 106 of the Criminal
Procedure (Scotland) Act 1995 for which leave has been granted.

(4) 25An appeal under this Schedule to the High Court of Justiciary against a
summary conviction—

(a) may be brought irrespective of whether the appellant pleaded guilty;

(b) may be brought irrespective of whether the appellant has previously
appealed against the conviction;

(c) 30may not be brought after the end of the period of two weeks
beginning with the day on which the right of appeal arises by virtue
of paragraph 3;

(d) is to be by note of appeal, which shall state the ground of appeal;

(e) is to be treated as an appeal for which leave has been granted under Part 10 of the Criminal Procedure (Scotland) Act 1995; and

(f) 35must be in accordance with such procedure as the High Court of
Justiciary may, by Act of Adjournal, determine.

(5) An appeal under this Schedule to the Crown Court or to the county court in
Northern Ireland against a summary conviction—

(a) may be brought irrespective of whether the appellant pleaded guilty;

(b) 40may be brought irrespective of whether he has previously appealed
against the conviction or made an application in respect of the
conviction under section 111 of the Magistrates’ Courts Act 1980 or
Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981
(S.I. 1981/1675 (N.I. 26)S.I. 1981/1675 (N.I. 26)) (case stated);

(c) 45may not be brought after the end of the period of 21 days beginning
with the day on which the right of appeal arises by virtue of
paragraph 3; and

(d) is to be treated as an appeal under section 108(1)(b) of that Act or, in
Northern Ireland, under Article 140(1)(b) of that Order.

Section 18

SCHEDULE 4 Proceedings relating to terrorism prevention and investigation measures

5Introductory

1 In this Schedule—

• “appeal proceedings” means proceedings in the Court of Appeal or the
  Inner House of the Court of Session on an appeal relating to TPIM
  proceedings;

• 10“the relevant court” means—

  (a)

  in relation to TPIM proceedings, the court;

  (b)

  in relation to appeal proceedings, the Court of Appeal or the
  Inner House of the Court of Session;

• “rules of court” means rules for regulating the practice and procedure
  15to be followed in the court, the Court of Appeal or the Inner House
  of the Court of Session.

Rules of court: general provision

2 (1) A person making rules of court relating to TPIM proceedings or appeal
proceedings must have regard to the need to secure the following—

(a) 20that the decisions that are the subject of the proceedings are properly
reviewed, and

(b) that disclosures of information are not made where they would be
contrary to the public interest.

(2) Rules of court relating to TPIM proceedings or appeal proceedings may
25make provision—

(a) about the mode of proof and about evidence in the proceedings;

(b) enabling or requiring the proceedings to be determined without a
hearing;

(c) about legal representation in the proceedings;

(d) 30enabling the proceedings to take place without full particulars of the
reasons for the decisions to which the proceedings relate being given
to a party to the proceedings (or to any legal representative of that
party);

(e) enabling the relevant court to conduct proceedings in the absence of
35any person, including a party to the proceedings (or any legal
representative of that party);

(f) about the functions of a person appointed as a special advocate (see
paragraph 10);

(g) enabling the court to give a party to the proceedings a summary of
40evidence taken in the party’s absence.

(3) In this paragraph—

(a) references to a party to the proceedings do not include the Secretary
of State;

(b) references to a party’s legal representative do not include a person
appointed as a special advocate.

(4) Nothing in this paragraph is to be read as restricting the power to make rules
of court or the matters to be taken into account when doing so.

5Rules of court: disclosure

3 (1) Rules of court relating to TPIM proceedings or appeal proceedings must
secure that the Secretary of State is required to disclose—

(a) material on which the Secretary of State relies,

(b) material which adversely affects the Secretary of State’s case, and

(c) 10material which supports the case of another party to the proceedings.

(2) This paragraph is subject to paragraph 4.

4 (1) Rules of court relating to TPIM proceedings or appeal proceedings must
secure—

(a) that the Secretary of State has the opportunity to make an application
15to the relevant court for permission not to disclose material
otherwise than to the relevant court and any person appointed as a
special advocate;

(b) that such an application is always considered in the absence of every
party to the proceedings (and every party’s legal representative);

(c) 20that the relevant court is required to give permission for material not
to be disclosed if it considers that the disclosure of the material
would be contrary to the public interest;

(d) that, if permission is given by the relevant court not to disclose
material, it must consider requiring the Secretary of State to provide
25a summary of the material to every party to the proceedings (and
every party’s legal representative);

(e) that the relevant court is required to ensure that such a summary
does not contain material the disclosure of which would be contrary
to the public interest.

(2) 30Rules of court relating to TPIM proceedings or appeal proceedings must
secure that provision to the effect mentioned in sub-paragraph (3) applies in
cases where the Secretary of State—

(a) does not receive the permission of the relevant court to withhold
material, but elects not to disclose it, or

(b) 35is required to provide a party to the proceedings with a summary of
material that is withheld, but elects not to provide the summary.

(3) The relevant court must be authorised—

(a) if it considers that the material or anything that is required to be
summarised might adversely affect the Secretary of State’s case or
40support the case of a party to the proceedings, to direct that the
Secretary of State—

(i) is not to rely on such points in the Secretary of State’s case, or

(ii) is to make such concessions or take such other steps as the
court may specify, or

(b) 45in any other case, to ensure that the Secretary of State does not rely
on the material or (as the case may be) on that which is required to
be summarised.

(4) In this paragraph—

(a) references to a party to the proceedings do not include the Secretary
of State;

(b) references to a party’s legal representative do not include a person
5appointed as a special advocate.

Article 6 rights

5 (1) Nothing in paragraphs 2 to 4, or in rules of court made under any of those
paragraphs, is to be read as requiring the relevant court to act in a manner
inconsistent with Article 6 of the Human Rights Convention.

(2) 10The “Human Rights Convention” means the Convention within the
meaning of the Human Rights Act 1998 (see section 21(1) of that Act).

Rules of court: anonymity

6 (1) Rules of court relating to TPIM proceedings or appeal proceedings may
make provision for—

(a) 15the making by the Secretary of State or the relevant individual of an
application to the court for an order requiring anonymity for that
individual, and

(b) the making by the court, on such an application, of an order
requiring such anonymity;

20and the provision made by the rules may allow the application and the order
to be made irrespective of whether any other TPIM proceedings have been
begun in the court.

(2) Rules of court may provide for the Court of Appeal or the Inner House of the
Court of Session to make an order in connection with any appeal
25proceedings requiring anonymity for the relevant individual.

(3) In sub-paragraphs (1) and (2) the references, in relation to a court, to an order
requiring anonymity for the relevant individual are references to an order by
that court which imposes such prohibition or restriction as it thinks fit on the
disclosure—

(a) 30by such persons as the court specifies or describes, or

(b) by persons generally,

of the identity of the relevant individual or of any information that would
tend to identify the relevant individual.

(4) In this paragraph “relevant individual” means an individual on whom the
35Secretary of State is proposing to impose, or has imposed, measures.

Initial exercise of rule-making powers by Lord Chancellor

7 (1) The first time after the passing of this Act that rules of court are made in
exercise of the powers conferred by this Schedule in relation to proceedings
in England and Wales or in Northern Ireland, the rules may be made by the
40Lord Chancellor instead of by the person who would otherwise make them.

(2) Before making rules of court under sub-paragraph (1), the Lord Chancellor
must consult—

(a) in relation to rules applicable to proceedings in England and Wales,
the Lord Chief Justice of England and Wales;

(b) in relation to rules applicable to proceedings in Northern Ireland, the
Lord Chief Justice of Northern Ireland.

(3) But the Lord Chancellor is not required to undertake any other consultation
before making the rules.

(4) 5A requirement to consult under sub-paragraph (2) may be satisfied by
consultation that took place wholly or partly before the passing of this Act.

(5) Rules of court made by the Lord Chancellor under sub-paragraph (1)—

(a) must be laid before Parliament, and

(b) if not approved by a resolution of each House before the end of 40
10days beginning with the day on which they were made, cease to have
effect at the end of that period.

(6) In determining that period of 40 days no account is to be taken of any time
during which Parliament is dissolved or prorogued or during which both
Houses are adjourned for more than 4 days.

(7) 15If rules cease to have effect in accordance with sub-paragraph (5)—

(a) that does not affect anything done in previous reliance on the rules,
and

(b) sub-paragraph (1) applies again as if the rules had not been made.

(8) The following provisions do not apply to rules of court made by the Lord
20Chancellor under this paragraph—

(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary
procedure for civil procedure rules);

(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978
(statutory rules procedure).

(9) 25Until the coming into force of section 85 of the Courts Act 2003, the reference
in sub-paragraph (8)(a) to section 3(6) of the Civil Procedure Act 1997 is to
be read as a reference to section 3(2) of that Act.

Use of advisers

8 (1) In any TPIM proceedings or appeal proceedings the relevant court may if it
30thinks fit—

(a) call in aid one or more advisers appointed for the purposes of this
paragraph by the Lord Chancellor, and

(b) hear and dispose of the proceedings with the assistance of the
adviser or advisers.

(2) 35The Lord Chancellor may appoint advisers for the purposes of this
paragraph only with the approval of—

(a) the Lord President of the Court of Session, in relation to an adviser
who may be called in aid wholly or mainly in Scotland;

(b) the Lord Chief Justice of Northern Ireland, in relation to an adviser
40who may be called in aid wholly or mainly in Northern Ireland;

(c) the Lord Chief Justice of England and Wales, in any other case.

(3) Rules of court may regulate the use of advisers in proceedings who are
called in aid under sub-paragraph (1).

(4) The Lord Chancellor may pay such remuneration, expenses and allowances
to advisers appointed for the purposes of this paragraph as the Lord
Chancellor may determine.

9 (1) The Lord President of the Court of Session may nominate a judge of the
5Court of Session who is a member of the First or Second Division of the Inner
House of that Court to exercise the function under paragraph 8(2)(a).

(2) The Lord Chief Justice of Northern Ireland may nominate any of the
following to exercise the function under paragraph 8(2)(b)—

(a) the holder of one of the offices listed in Schedule 1 to the Justice
10(Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).

(3) The Lord Chief Justice of England and Wales may nominate a judicial officer
holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to
exercise the function under paragraph 8(2)(c).

15Appointment of special advocate

10 (1) The appropriate law officer may appoint a person to represent the interests
of a party in any TPIM proceedings or appeal proceedings from which the
party (and any legal representative of the party) is excluded.

(2) A person appointed under sub-paragraph (1) is referred to in this Schedule
20as appointed as a “special advocate”.

(3) The “appropriate law officer” is—

(a) in relation to proceedings in England and Wales, the Attorney
General;

(b) in relation to proceedings in Scotland, the Advocate General for
25Scotland;

(c) in relation to proceedings in Northern Ireland, the Advocate General
for Northern Ireland.

(4) A person appointed as a special advocate is not responsible to the party to
the proceedings whose interests the person is appointed to represent.

(5) 30A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person
has a general qualification for the purposes of section 71 of the
Courts and Legal Services Act 1990;

(b) in the case of an appointment by the Advocate General for Scotland,
35the person is an advocate or a solicitor who has rights of audience in
the Court of Session or the High Court of Justiciary by virtue of
section 25A of the Solicitors (Scotland) Act 1980;

(c) in the case of an appointment by the Advocate General for Northern
Ireland, the person is a member of the Bar of Northern Ireland.

Section 24

SCHEDULE 5 Powers of entry, search, seizure and retention

Introductory

1 This Schedule confers powers of entry, search, seizure and retention on
5constables in connection with the imposition of measures on individuals.

2 A power conferred on a constable by virtue of this Schedule—

(a) is additional to powers which the constable has at common law or by
virtue of any other enactment, and

(b) is not to be taken as affecting those powers.

3 10A constable may detain an individual for the purpose of carrying out a
search of that individual under a power conferred by virtue of this Schedule.

4 A constable may use reasonable force, if necessary, for the purpose of
exercising a power conferred on the constable by virtue of this Schedule.

Entry and search for purposes of serving TPIM notice

5 (1) 15For the purpose of serving a relevant notice on an individual, a constable
may—

(a) enter any premises where the constable has reasonable grounds for
believing the individual to be, and

(b) search those premises for that individual.

(2) 20A “relevant notice” means—

(a) a TPIM notice;

(b) a notice under section 5(2) extending a TPIM notice;

(c) a notice under section 12(3) varying a TPIM notice as mentioned in
paragraph (c) of that subsection; or

(d) 25a notice under section 13(3) reviving a TPIM notice.

Search of individual or premises at time of serving TPIM notice

6 (1) This paragraph applies if a TPIM notice is being, or has just been, served on
an individual.

(2) A constable may (without a warrant)—

(a) 30search the individual for the purpose mentioned in sub-paragraph
(3);

(b) enter and search, for that purpose, any premises mentioned in sub-
paragraph (4).

(3) The purpose is that of ascertaining whether there is anything on the
35individual, or (as the case may be) in the premises, that contravenes
measures specified in the TPIM notice.

(4) The premises referred to in sub-paragraph (2)(b) are—

(a) the individual’s place of residence;

(b) other premises to which the individual has power to grant access.

(5) 40A constable may seize anything that the constable finds in the course of a
search carried out under a power conferred by this paragraph—

(a) for the purpose of ascertaining whether measures specified in the
TPIM notice are being or are about to be contravened by the
individual;

(b) for the purpose of securing compliance by the individual with
5measures specified in the TPIM notice;

(c) if the constable has reasonable grounds for suspecting that—

(i) the thing is or contains evidence in relation to an offence, and

(ii) it is necessary to seize it in order to prevent it being
concealed, lost, damaged, altered or destroyed.

10Search of premises on suspicion of absconding

7 (1) This paragraph applies if a constable reasonably suspects that an individual
in respect of whom a TPIM notice is in force has absconded.

(2) The constable may (without a warrant) enter and search any premises
mentioned in sub-paragraph (3)—

(a) 15for the purposes of determining whether the individual has
absconded;

(b) if it appears that the individual has absconded, for anything that may
assist in the pursuit and arrest of the individual.

(3) The premises referred to in sub-paragraph (2) are—

(a) 20the individual’s place of residence;

(b) other premises to which the individual has power to grant access;

(c) any premises to which the individual had power to grant access and
with which there is reason to believe that the individual is or was
recently connected.

(4) 25A constable may seize anything that the constable finds in the course of a
search carried out under a power conferred by this paragraph—

(a) if the constable reasonably believes that the thing will assist in the
pursuit or arrest of the individual;

(b) if the constable has reasonable grounds for suspecting that—

(i) 30the thing is or contains evidence in relation to an offence, and

(ii) it is necessary to seize it in order to prevent it being
concealed, lost, damaged, altered or destroyed.

Search for compliance purposes

8 (1) A constable may apply for the issue of a warrant under this paragraph for
35the purpose of determining whether an individual in respect of whom a
TPIM notice is in force is complying with measures specified in the notice.

(2) A warrant under this paragraph may authorise a constable to do either or
both of the following—

(a) to search the individual;

(b) 40to enter and search the individual’s place of residence or any other
premises that are specified in the warrant.

(3) An application for a warrant under this paragraph must be made to the
appropriate judicial authority.