House of Commons - Explanatory Note
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Clause 63: Preliminary inquiry

55.    This clause is concerned with committal proceedings in the Magistrates' Court. It allows the prosecutor to request a preliminary inquiry in relation to scheduled offences. The provision was introduced in 1975 following the Gardiner Report, as a means of dealing with the problem of non-recognition of the court system by many defendants. In ordinary law a preliminary inquiry may be held only if the prosecutor requests it and the accused does not object. The effect of this clause is that the alternative less expeditious preliminary investigation can be avoided. However, if the court considers that a preliminary investigation is in the interest of justice, it will not accede to the prosecution request for a preliminary inquiry. While committal proceedings remain part of the system, Clause 63 is useful as a means of keeping delays to a minimum.

Clause 64: Limitation of power to grant bail

56.    This clause provides that in the case of a scheduled offence bail applications must be dealt with by a High Court judge or a judge of the Court of Appeal. The provision owes its origin to the fact that prior to its introduction, when magistrates were dealing with bail applications in terrorist cases, the courts became crowded with persons who tried to intimidate the court and who created a threatening atmosphere. Under the ordinary law there is a presumption, as opposed to a discretion, that bail will be granted, subject to similar considerations.

Clause 65: Bail: legal aid

57.    This provision is peculiar to scheduled offences as a consequence of the special arrangements provided by Clause 63. The arrangements are such that the defendant may make application for legal aid directly to the High Court which is hearing the bail application rather than through the High Court to the Law Society, which is the procedure for legal aid in ordinary criminal cases.

Clause 66: Maximum period of remand in custody

58.    This clause provides that in the case of a scheduled offence, the maximum period of remand in custody will be 28 days. The justification for this dates back to Sir George Baker's report in 1984 (Cm 9222, paragraphs 84-88). He reported that to bring a person charged with a scheduled offence before a magistrate every seven days was meaningless, especially since the magistrates' court was precluded from granting bail in the majority of scheduled cases.

Clause 67-68: Young persons: custody on remand and directions

59.    This clause applies to a young person (aged 14 to 16 inclusive) on remand for a scheduled offence. It provides that for security purposes a young person may be held in prison, or elsewhere, which is usually the (secure) Young Offenders Centre, at Hydebank Wood. Under ordinary law, a young person would be remanded to a training school or remand home, although if a young person is certified by the court to be unruly or depraved, he may be committed to a remand centre or the Young Offenders Centre. Given the gravity of scheduled offences, insecure accommodation would not be appropriate. The Secretary of State may give a direction for special arrangements to be made if necessary to prevent the escape or to ensure the safety of the young persons or others.

Clauses 69-70: Time limits for preliminary proceedings

60.    This provides that time limits may be set for the stages of proceedings leading up to trial in scheduled cases. The provision is based on section 22 of the Prosecution of Offences Act 1985, which is in force in England and Wales and provides for custody time limits. The power in Clause 69 has never been used, although an administrative time limit scheme has been operating since 1992, based on the provisions in Clause 69.

Clause 71: Court for trial

61.    The background to this provision is to be found in Sir George Baker's 1984 Report, which was written at the time of the accomplice evidence (supergrass) trials, when court accommodation in Northern Ireland was under severe pressure. He recommended that provision should be made to enable the Lord Chancellor, after consultation with the Lord Chief Justice, to direct that trial on indictment of a scheduled offence should be held at the Crown Court sitting elsewhere than in Belfast.

Clause 72: Mode of trial on indictment

62.     This clause provides for the mode of trial on indictment of scheduled offences to be by a court sitting without a jury - a "Diplock trial" - but with all the powers, authorities and jurisdiction of a jury court. It also provides that where both scheduled and non-scheduled offences are charged, the case is to be conducted as if all the offences charged were scheduled. The Diplock Court system dates back to 1972 when the Diplock Commission found that the jury system as a means of trying terrorist crime was under strain and in danger of breaking down. It highlighted the danger of perverse acquittals and intimidation of jurors. There is an unfettered right of appeal from the decision of the trial judge.

Clause 73: Admission in trial on indictment

63.     This clause provides for the admissibility in evidence, in trials on indictment, of confessions made by persons charged with scheduled offences. It imposes an obligation on the court to exclude or disregard any evidence which has been obtained by subjecting the accused to torture or other improper treatment, or, in such a case, to order a fresh trial to be heard before a differently constituted court. It also provides for confession evidence to be excluded on the grounds of fairness to the accused or otherwise in the interests of justice.

Clause 74: Possession: onus of proof

64.     This clause makes provision for the onus of proof in trials on indictment for offences of possession of firearms and explosives. The provision dates back to the Diplock Commission and its intended effect is to make it incumbent on the accused to give an explanation where explosives or firearms are found in his possession. Previously, defendants had been acquitted by claiming no knowledge of such articles found in their possession.

Clause 76: Restricted remission

65.     This clause provides that the remission granted in respect of a sentence of imprisonment of 5 years or more for a scheduled offence, shall not exceed one third of the term. This provision was introduced in 1989 as a response to the increased violence of the time. Its effect is mitigated by the Northern Ireland (Remission of Sentences) Act 1995. That Act provides for the release on licence of those prisoners at the half-way point of sentence. Whilst on licence, such prisoners may be recalled up until the two-thirds point if they are thought likely to commit further offences or if their continued liberty would pose a threat to the safety of the public. From the two-thirds point on they may be granted remission.

Clause 77: Conviction during remission

66.     This clause applies to a person convicted of a scheduled offence committed during a period of remission for a previous conviction for which that person was sentenced to a custodial sentence of more than 1 year. In calculating the unexpired portion of a previous sentence it is important to note that time continues to run while a person is at large and so the actual effect of the clause will depend on the time when the later offence is committed. This means that a person released on remission after serving say 2 years of a four year sentence who re-offended after the full term (4 years) of the sentence was expired will not be affected by the clause, but a person who re-offended and was re-convicted after three years would be required to serve one year before starting his new sentence (the unexpired portion does not attract remission).

Clause 79: Constables' power of arrest and seizure

67.     This clause confers on the police a general power of arrest on reasonable suspicion, but without a warrant, for scheduled offences and other offences under these provisions It also provides an associated power of entry and search and a general power to seize anything which a constable has reasonable grounds to suspect may be used in the commission of a scheduled offence or a non-scheduled offence under this Bill.

Clause 80: Armed forces' power of arrest and seizure

68.     This clause confers on a member of the Armed Forces general powers of arrest, entry, search and seizure without a warrant when there is reasonable grounds for suspecting the person of committing an offence or of being a terrorist. There is no equivalent PACE power, since PACE does not apply to the Army. Subsection (6) provides that subsection (2) does not seek to legalise any act which would be unlawful under the Human Rights Act 1998.

Clause 81: Munitions and transmitters

69.     See notes on Schedule 9 below.

Clause 82: Explosives inspectors

70.     This power is primarily intended for use by those who provide security at Court premises, since the powers of an explosives inspector under the Explosives Act 1875 (c. 17) do not extend to public places. Some members of the Health and Safety Executive also have powers under that Act to enable them to conduct annual inspections of licensed explosives factories and magazines.

Clause 83: Unlawfully detained persons

71.     This clause allows a police officer or soldier to enter any premises to search for persons who are believed to be unlawfully detained in circumstances where their life is in danger. No warrant is necessary.

Clauses 84-85: Examination of documents

72.     These clauses allow the police and Army to examine any document or record found in the course of a search to ascertain whether it contains any information of a kind likely to be useful to terrorists. No warrant nor reasonable suspicion is required.

Clause 86: Power to stop and question

73.     This clause empowers the police and Army to stop and question persons as to their identity, movements or knowledge of any recent incident endangering life.

Clauses 87-90: Power of entry; taking possession of land; road closure: permission

74.     Clause 88 allows the police or army to enter premises to preserve the peace, maintain order or on the authorisation of the Secretary of State. The common law power of the police is to enter in order to save life or limb, to prevent serious damage to property and to deal with or prevent a breach of the peace. Clause 90 allows for road closures. Powers to interfere with public highways are to be found under road traffic law (Road Traffic Act 1988). There are no other provisions to permit the police to interfere with highways etc, although they may take specific action such as denying access to highways to prevent public disorder or a potential breach of the peace under the Public Order Act 1986. While Lord Lloyd recommended that these provisions should be removed once lasting peace is established, the powers are still necessary in terms of land requisitioned for both RUC stations and security force bases and to provide protection for residents at sectarian interfaces where the fear of attack by opposing community factions remains real.

Clause 91: Road closure: direction

75.     This clause is used to make permanent road closures and to provide for town barriers. The condition is the preservation of the peace and the maintenance of order: reasonable suspicion is not required. Lord Lloyd recommends this provision be removed once lasting peace is established.

Clause 92: Supplementary

76.     This clause - combined with Clause 83 and Schedule 9 - allows for vehicles to be stopped and searched.

Clause 93: Preservation of the peace: regulations

77.     This clause enables the Secretary of State to make regulations for the preservation of the peace and the maintenance of order. The Northern Ireland (Emergency Provisions) Regulations 1975 and 1991 were made under the equivalent section of the EPA. The power is wide-ranging but regulations made under it are subject to the affirmative resolution procedure by Parliament.

Clause 95: Independent Assessor of Military Complaints Procedures

78.     The Office of the Independent Assessor of Military Complaints Procedures came into existence in its current form under the EPA 1996. Lord Colville had recommended it in his review of the 1978 and 1987 Acts and the appointment is discretionary, looking forward to a time when the Army will no longer patrol in support of the RUC. The Independent Assessor's role is to review procedures for the investigation of complaints about the army and to investigate any representations made to him about those procedures. While the Secretary of State has a power (rather than a duty) to appoint an Assessor, the Government has said that the position will remain while the Army is needed to act in support of the police in Northern Ireland.

Clauses 96-98: Police and army powers code of practice; Video recording code of practice; Codes of practice: supplementary

79.     These clauses continue the power of the Secretary of State to prepare, publish, issue and revise codes of practice on the seizure and retention of property by the police and the powers of the police and army under this Part. It also provides for a silent video recording scheme in the Holding Centres.

Clause 100: Terrorist information

80.     This clause makes it an offence to collect or possess information about specified persons which is likely to be useful to terrorists. Possessing such information is also an offence. Subsection (2) defines the persons relevant to this section. Subsection (4) provides that it is a defence to prove that a person had a reasonable excuse for the collection of such information.

Clause 101: Police powers: records

81.     This clause places a requirement on the Chief Constable of the RUC to make arrangements for records to be kept when powers are exercised under this Part of the Act. It is envisaged that records will be kept unless there are reasons which make this impractical: for example following a major incident when the police by necessity would need to stop and question large numbers of people.

Clause 103: Specified organisations: interpretation

82.     This clause defines specified organisations for the purposes of clauses 104 to 107. Clauses 103 to 107 are based on sections 1, 2 and 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 which was introduced after the Omagh bomb.

Clause 104: Proscribed organisations: evidence

83.     This clause provides that oral evidence from a police officer of at least the rank of superintendent to the effect that the accused is or was a member of a specified organisation shall be admissible as evidence of such membership. This is subject to subsection (3)(b), which provides that a suspect cannot be committed for trial, be found to have a case to answer or be convicted solely on the basis of the officer's statement.

Clause 105: Proscribed organisations: inference

84.     This clause provides that the court may draw inferences from an accused's failure to mention a fact material to an offence which he could reasonably be expected to mention when questioned. The court may only draw such inferences where the accused was permitted to consult a solicitor before being questioned. As in Clause 104, the accused shall not be committed for trial, found to have a case to answer or be convicted solely on the basis of inferences under this clause.

Clause 106: Supplementary

85.     This clause makes it clear that clauses 104 and 105 do not prejudice the admissibility of other evidence, preclude the drawing of other inferences, or prejudice other legislation which states that certain evidence is inadmissible in proceedings.

Clause 107: Forfeiture orders

86.     This clause makes provision for the court to order forfeiture of money or property. This applies where a person is convicted of an offence under Section 10 or 11 and belonged to a specified organisation (as defined by Clause 103) at the time the offence was committed. The court is able to order forfeiture of money or property if the individual had it in his possession when the offence was committed and if it had been used, or was likely to be used, in connection with the activities of the specified organisation. As with forfeiture provisions elsewhere in the Bill the court must give an opportunity to be heard to any other individual who has an interest in money or property which could be subject to a forfeiture order under this section.

Schedule 2: Proscribed oRganisations

87.     See notes to Part II above.


Paragraphs 1-3

88.     These paragraphs provide that the officers of the Proscribed Organisations Appeal Commission ("POAC") will be appointed by the Lord Chancellor and that he will be responsible for their remuneration.

Paragraphs 4-5

89.     These paragraphs set out the Commission's sitting arrangements and the areas in which the Lord Chancellor may make rules governing POAC's proceedings.

Paragraphs 6-7

90.     These paragraphs set out arrangements for designating an individual with the locus to represent an organisation, and a person to represent the interests of the organisation, or other applicant who is appealing, for any parts of the proceedings from which they and their legal advisers are excluded by the Commission (by virtue of one of the rules made under paragraph 5).

Paragraph 8

91.     This paragraph provides that section 9(1) of the Interception of Communications Act 1985, which bars intercept material evidence from being used in proceedings, will not apply for POAC proceedings. It goes on to stipulate that such material must not be disclosed to the organisation, its legal representatives or the applicant.

Schedule 4: Forfeiture orders

92.     If a person is convicted of a terrorist property offence under Part III of the Bill, then property connected with the offence will be subject to forfeiture, under Clause 19. This kind of forfeiture is known as "criminal forfeiture" because it follows conviction for a criminal offence. It is to be distinguished from the "civil forfeiture" which applies under Clause 24 to terrorist cash seized at borders. Schedule 4, which corresponds to Schedule 4 of the PTA and has similar effect, sets out the procedure for criminal forfeiture under Clause 19.

93.     The Schedule is in four Parts, subdivided as shown below:

  • Part I: England and Wales


Implementation of forfeiture orders

Restraint orders


Proceedings for an offence: timing

Enforcement of orders made elsewhere in the British Islands

Enforcement of orders made in designated countries

  • Part II: Scotland


Implementation of forfeiture orders

Restraint orders


Proceedings for an offence: timing

Enforcement of orders made elsewhere in the British Islands

Enforcement of orders made in designated countries

  • Part III: Northern Ireland


Implementation of forfeiture orders

Restraint orders


Proceedings for an offence: timing

Enforcement of orders made elsewhere in the British Islands

Enforcement of orders made in designated countries

  • Part IV: Insolvency: United Kingdom provisions

Paragraphs 2-4: Implementation of forfeiture orders

94.     These paragraphs correspond to paragraphs 1-2 of Schedule 4 of the PTA and have the same effect. Sub-paragraph (2) of paragraph 2 allows for the fact that a forfeiture order could be made on conviction but set aside if the conviction is overturned on appeal: while such an outcome is still a possibility, the money or other property will not be handed over. The exception is an appeal "out of time": in other words, the possibility that a case may be looked at again years later in the light of new or newly-discovered evidence. Forfeiture orders can come into effect when this possibility still exists.

95.     Section 140 of the Magistrates' Court Act 1980 provides as follows:

    Subject to any enactment relating to customs or excise, anything other than money forfeited on a conviction by a magistrates' court or the forfeiture of which may be enforced by a magistrates' court shall be sold or otherwise disposed of in such manner as the court may direct; and the proceeds shall be applied as if they were a fine imposed under the enactment on which proceedings for the forfeiture are founded.

It is disapplied by sub-paragraph (4) of paragraph 2 to ensure there is no overlap with sub-paragraph (1)(b)-(c).

Paragraphs 5-8: Restraint orders

96.     These paragraphs correspond to paragraphs 3-6 of Schedule 4 of the PTA and have the same effect. The purpose of restraint orders is to prevent someone accused of a Part III offence from selling his property in order to avoid forfeiture. They can therefore be made at an early stage in the case: even (under sub-paragraph (4) of paragraph 5) before proceedings have been formally instituted. Although the restraint order is formally made by the High Court, the prosecution can apply without notice (that is, ex parte) to a judge in chambers (sub-paragraph (5)). This is because in some cases it is important to act as quickly as possible.

97.     Paragraph 8 provides for restraint orders to be treated in the same manner as certain civil actions under the Land Charges Act 1972 and the Land Registration Act 1925 and enables the orders to be registered, so restricting dealing in the restrained property.

Paragraph 9: Compensation

98.     This paragraph corresponds to paragraph 7 of Schedule 4 of the PTA and has similar effect. Whereas under the PTA, compensation could only be paid where proceedings had been instituted, under the Bill it will also be payable where a restraint order is made in relation to expected proceedings but the proceedings are not in the event instituted.

Paragraph 10: Proceedings for an offence: timing

99.     This paragraph corresponds to paragraphs 3(8-9) of Schedule 4 of the PTA and have the same effect.

Paragraphs 11-12: Enforcement of orders made elsewhere in the British Islands

100.     These paragraphs correspond to paragraphs 8-9 of Schedule 4 of the PTA and have the same effect. They allow orders made in Scotland, Northern Ireland, the Isle of Man and the Channel Isles to be enforced in England and Wales. (There are similar provisions in the Scotland and Northern Ireland Parts of the Schedule.)

101.     Paragraph 12 provides that the order made in Scotland, Northern Ireland or the Islands must be registered with the High Court: under sub-paragraphs (3-4) of paragraph 12 it is for the High Court to make rules about how exactly such orders are to be initially registered and later cancelled or varied. Once the order is registered, the rest of paragraph 12 ensures that all the powers and functions of the originating court are transferred to the High Court.

Paragraph 13: Enforcement of orders made in designated countries

102.     This paragraph corresponds to paragraph 10 of Schedule 4 of the PTA and has the same effect. It makes it possible for restraint and forfeiture orders made in other countries to be enforced in England and Wales in accordance with the procedures in an Order in Council designating that country.

Paragraphs 14-41: Scotland and Northern Ireland

103.     These paragraphs make provision for Scotland and Northern Ireland equivalent to that for England and Wales in paragraphs 1-13.

Paragraphs 42-50: Insolvency: UK Provisions

104.     These paragraphs allow for cases where a person subject to a forfeiture order is declared bankrupt. Under sub-paragraph (3) of paragraph 44, the forfeiture order is set aside; but under paragraph 45, the Secretary of State is taken to be a creditor, and has to be paid after the debts of all other creditors. If the bankruptcy order is annulled then under paragraph 46 the forfeiture order comes back into effect. Paragraphs 48-49 provide limited protection from liability for insolvency practitioners in respect of the exercise of their duties.

Schedule 5: Terrorist investigations

105.     This Schedule, which is activated by Clause 36, corresponds to Schedule 7 of 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 deals with Scotland. Most of the Schedule replicates the provisions of the PTA with some modification as indicated below.

Paragraphs 1-3: Searches

106.     These paragraphs correspond to paragraphs 2-2A of Schedule 7 of 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).

107.     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 Bill, 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 avoid the situation where a police officer finds material relevant to a different terrorist investigation and has to go back to court for a further warrant. A similar change is made throughout the rest of the Schedule.

108.     Sub-paragraph (5)(c) of paragraph 1 gives the judge a broad discretion over the necessity for a warrant in the particular case. This sub-paragraph replaces a narrower set of conditions in paragraph 2(2) of Schedule 7 of the PTA, modelled on section 8 of the Police and Criminal Evidence Act 1984 (c. 60) (search warrants). Those conditions focus on the need to enter the premises, whereas the purpose of the warrant is not only to allow the constable to enter and search premises but also to seize and retain any relevant material found there.

Paragraph 4: Excepted material

109.     The material in this paragraph is similar to that in the second half of paragraph 1 of Schedule 7 of 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

110.     These paragraphs correspond to paragraphs 3-4 of Schedule 7 of the PTA and have the same effect. They provide for "production orders".

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

111.     These paragraphs correspond to paragraph 5 of Schedule 7 of 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

112.     These paragraphs correspond to paragraph 6 of Schedule 7 of 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 sub-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 sub-paragraph 6(3)(b) in the PTA).

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

Paragraphs 15-16: Urgent cases

113.     These paragraphs correspond to paragraph 7 of Schedule 7 of 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 Bill applies to all forms of terrorism: the power might therefore be used in a case where the terrorism was directed against another country.

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Prepared: 2 December 1999