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84. Subsection (4) sets out that in the case of offences occurring wholly or partly abroad, proceedings may be brought in any place in the United Kingdom, and that for incidental purposes, the offence may be treated as having been committed in that place. This is to ensure that court and other criminal proceedings provisions can operate properly and effectively.
Subsections (5) and (6)
85. Subsection (5) amends section 3 of the Explosive Substances Act 1883 (c. 3). Under section 3(1)(a) of that Act it is an offence to carry out certain acts preparatory to causing an explosion. The preparatory acts must take place in the UK or its dependencies, or, in the case of a citizen of the UK or colonies, anywhere in the world. At the moment in order for the offence to be committed the explosion must be intended to take place in the UK or the Republic of Ireland. This means that it is not an offence to do acts preparatory to an explosion in a country other than the UK or the Republic of Ireland. Subsection (5) amends section 3 so that the explosion can be planned to take place anywhere in the world. Subsection (6) provides that the amendment to the Explosive Substances Act 1883 only applies to Scotland so far as the act that may be considered an offence is an act of terrorism, an act for the purposes of terrorism, or that any possession or control of a substance is for the purposes of terrorism. The provision is so limited because section 3 of the Explosive Substances Act 1883 is only a reserved matter within the meaning of the Scotland Act 1998 insofar as it relates to terrorism.
Clause 18 - Liability of company directors etc.
86. This clause provides that offences under Part 1 of this Bill that are committed by corporate bodies will also be committed by a senior officer of that body if the offence was committed by the corporate body with his consent or connivance, or on account of his neglect. Of the offences in Part 1 a corporate body is most likely to be prosecuted for an offence under clause 2 of disseminating terrorist publications. Both the senior officer (or officers, if consent, connivance, or neglect can be proved against each) and the body corporate will be liable for the offence. Subsection (1) relates to bodies corporate and provides that a director, manager, secretary or other similar officer of the body can be held liable under this section on the stated grounds. Subsection (2) makes a similar provision in relation to Scottish firms. Subsection (3) provides that the term "director" includes members of a corporate body if that body is managed by its members rather than directors as such.
Clause 19 - Consents to prosecutions
87. Subsection (1) sets out that prosecutions for offences in Part 1 of this Bill may only be carried out in England and Wales with the consent of the Director of Public Prosecutions or, in Northern Ireland, with the consent of the Director of Public Prosecutions for Northern Ireland. This is subject to a case falling into subsection (2).
Subsections (2) and (3)
88. Subsection (2) provides that, in a case where it appears to the Director of Public Prosecutions, or Director of Public Prosecutions for Northern Ireland, that the offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, a prosecution may only be brought if the Attorney General, or, in the case of Northern Ireland, the Advocate General for Northern Ireland, agrees with the DPP's, or the DPP for Northern Ireland's, decision to give consent. Subsection (3) provides a transitional in relation to the time before the commencement of Section 27(1) of the Justice (Northern Ireland) Act 2002. Prior to that time the Advocate General for Northern Ireland will not be in existence and so the Attorney General for Northern Ireland must agree with the DPP for Northern Ireland's decision to consent instead.
Clause 20 - Interpretation of Part 1
89. Clause 20 provides interpretation provisions and other definitions for Part 1 of the Bill.
90. Subsection (1) provides that definitions used in the TACT also apply to Part 1 of this Bill. Such definitions that are generally relevant to the Bill are discussed at paragraphs 16-19.
91. Subsection (2) contains a number of definitions including the definition of Convention offence as set out in Schedule 1 to the Bill.
92. Subsection (3) clarifies references to the public. In particular it makes it clear that public can mean the public of a country other than the UK. It also makes it clear that, other than in clause 9(4) (definition of radioactive material), it includes a meeting or other group of persons that the public can attend. A meeting or group will be included in the definition even if payment or other conditions must be satisfied before a person will be admitted.
Subsections (4) to (6)
93. Subsection (4) defines the term "publishing a statement", for the purposes of Part 1 of the Bill. This definition covers references to publication in the offence of encouragement of terrorism in clause 1. The definition does not include references to publication in clause 2, due to the fact that publication for the purposes of clause 2 is already defined in clause 2(12). The definition in subsection (4) includes publishing a statement in any manner to the public, providing an electronic service by which means the public have access to the statement, or using an electronic service provided by another in relation to the material supplied by him so as to enable the public to have access to the statement. The second limb of the definition will include internet service providers. The third limb of the definition will include those who run websites that contain message boards and those that post messages on such message boards. Subsection (6) clarifies references to a statement, detailing that these are references to a communication of any description and are not limited to words. This means that images such as videos will be covered.
Subsections (9) to (11)
94. Subsection (9) enables the Secretary of State to modify Schedule 1 (Convention offences) to add or remove items, and make such supplemental, incidental, consequential and transitional provisions as are needed as a consequence of amendments to the list. Subsection (10) sets out that any such order may only add an offence in or as regards Scotland if the provision creating the offence would be outside the legislative competence of the Scottish Parliament. Subsection (11) sets out that such an order is subject to the affirmative resolution procedure.
Schedule 1 - Convention Offences
95. The definition of Convention offence is set out in clause 20(2) and it covers the offences listed in Schedule 1 and any offence equivalent to the listed offences under the law of a country or territory outside the UK. Schedule 1 defines Convention offences for the purposes of Part 1 of this Bill. References to Convention offences can be found in clauses 1 (encouragement of terrorism), 3 (application of sections 1 and 2 to internet activity, etc.), 6 (training for terrorism) and 8 (attendance at a place used for terrorist training). The new offences in clauses 1 and 6 implement provisions of the Council of Europe Convention for the Prevention of Terrorism. The Convention offences are intended to cover the concept of terrorist offence in the Convention. Terrorist offence is defined in Article 1 of the Convention as all the offences covered by the treaties listed in the Appendix to the Convention. As those treaties have been implemented in UK law, Schedule 1 lists the offences in UK law.
96. The following categories of offences are included: explosives offences, offences relating to biological weapons, offences against internationally protected persons, hostage taking, hijacking and other offences against aircraft, offences involving nuclear material, offences under the Aviation and Maritime Security Act 1990, offences involving chemical weapons, offences relating to terrorist funds, directing a terrorist organisation, offences involving nuclear weapons, and common law offences (such as conspiracy, incitement and attempting to commit an offence) relating to Convention offences. As well as being drafted in terms of Convention offences the provisions of the Bill that refer to Convention offences are also drafted by reference to the wider concept of acts of terrorism.
Clause 21 - Grounds of proscription
97. Section 3 of the TACT gives the Secretary of State power to add an organisation to the list of proscribed organisations in Schedule 2 of that Act if he believes that the organisation is concerned in terrorism. The term "concerned in terrorism" is defined in section 3(5), and includes that the organisation promotes or encourages terrorism (section 3(5)(c)). Organisation is defined in section 121 of the TACT as including any association or combination of persons. A number of the offences in the TACT are dependent on an organisation being proscribed, for example, the offences in section 11 (membership of a proscribed organisation) and section 12 (support for a proscribed organisation). Also some of the powers in the TACT can be exercised on the basis that an organisation is proscribed, for example, the resources of a proscribed organisation can be seized as terrorist cash under Part 3 of the TACT (see in particular section 25).
98. Clause 21 widens the grounds of proscription. It provides that a group may be considered to promote or encourage terrorism under section 3(5)(c) if its activities include the unlawful glorification of terrorism or its activities are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. Glorification of conduct is unlawful if persons who become aware of it could reasonably be expected to infer that the conduct is glorified as conduct that should be emulated. As in Part 1 of the Bill conduct and conduct of a description of conduct are both covered. Glorification and statement are both defined in similar terms to Part 1 of the Bill. Glorification is defined to include praise and celebration. Statement is defined to include a communication without words consisting of sounds, images or both.
Clause 22 - Name changes by proscribed organisations
99. Section 3 of the TACT defines a proscribed organisation for the purposes of the TACT as an organisation listed in Schedule 2 to that Act or an organisation that operates under the same name as a listed organisation. Various offences under the TACT depend on an organisation being proscribed. This clause deals with the situation in which an organisation is the same as an organisation that appear in Schedule 2 to the TACT but it is operating under a name that is different to that listed in Schedule 2 and the situation in which an organisation listed in Schedule 2 is operating under several names not all of which appear in Schedule 2.
100. Subsection (2) amends section 3 of the TACT. New subsection (6) of section 3 provides that if the Secretary of State believes that an organisation that is listed in Schedule 2 is operating under a name that is not specified in Schedule 2 or that an organisation is operating under a different name but is the same as a listed organisation he can make an order to the effect that the name that does not appear in Schedule 2 is another name for the listed organisation. The effect of such an order is that the organisation included in the order will be treated as if it were listed in Schedule 2 under both the name already specified for it in the Schedule and the other name given in the order (new subsection (7)). This effect continues while the order is in force and the organisation is listed in Schedule 2. The Secretary of State has the power to revoke the order in new subsection (8) of section 3.
101. An order under these provisions is subject to the negative resolution procedure. This is in contrast to an order amending Schedule 2 which is subject to the affirmative resolution procedure.
Subsections (3) to (7)
102. These subsections apply the existing provisions in the TACT for review of and appeal against proscription to an order that a name be treated as another name for a listed organisation. Section 4 of the TACT allows those who have an interest in an organisation being proscribed to apply to the Secretary of State to have an organisation de-proscribed. Subsections (3) and (4) of this clause amend section 4 to allow similar applications in respect of an order that a name be treated as another name for a listed organisation. Subsection (5) includes orders to treat a name as another name for a listed organisation in section 5 of the TACT which allows an appeal to the Proscribed Organisations Appeal Commission (POAC) if the Secretary of State refuses to revoke an order following an application under section 4. An appeal is also possible against POAC's decision under section 6 although this does not require specific amendment by the clause.
103. If an appeal is successful under section 5 then the Secretary of State is obliged to revoke his order as provided for in new section 5(5A) of the TACT to be inserted by subsection (6) of the clause. Subsection (7) includes the new orders into section 7 of the TACT. Section 7 sets out the effect of a successful appeal on a conviction that was dependent on an organisation being proscribed.
Subsections (8) to (11)
104. Subsections (8) to (11) make a number of amendments to the TACT that are consequential on the creation of the new type of order and its inclusion in the appeal process.
Clause 23 - Extension of period of detention by judicial authority
105. This clause contains amendments to Schedule 8 to the TACT, which deals, among other things, with extension of detention prior to charging of those arrested under section 41 of the TACT. The original maximum period of detention of seven days was extended to a maximum of fourteen days by section 306 of the Criminal Justice Act 2003.
106. Subsection (2) widens the group of people who may apply for a warrant of further detention under paragraph 29 of Schedule 8 and for an extension of detention under paragraph 36 of Schedule 8. At the moment only a police officer of at least rank of superintendent may make those applications. As amended, in England and Wales a Crown Prosecutor, in Scotland a procurator fiscal, in Northern Ireland the Director of Public Prosecutions for Northern Ireland, and anywhere in the UK a police officer of the rank of superintendent or above may apply for a warrant of further detention or for extension of the period of detention. As a consequence of this change subsection (6) substitutes a new paragraph 37 into Schedule 8. Paragraph 37 provides that any detained person must be released if the grounds on which his continued detention was authorised are no longer met and there is no other reason for him to be held. The new paragraph 37 is expanded so that as well as referring to a police officer deciding if continued detention is justified it also refers to other people that may be in charge of the case.
Subsections (3) and (4)
107. Subsection (3) amends paragraph 29(3) of Schedule 8 so that when a court agrees to an extension of the period of detention, the period of the extension will normally be seven days. This is subject to new sub-paragraph (3A). At the moment the extension can be for anything up to seven days. Subsection (4) inserts a new subparagraph (3A) into paragraph 29 that provides that the court may issue a warrant of further detention for less than seven days if either the application for the warrant specifies a shorter time period or the judicial authority is satisfied that there are special circumstances that mean that an extension for as long as seven days is inappropriate.
108. Subsection (5) amends paragraph 36 of Schedule 8, which deals with the extension of warrants of further detention. The amendments have two effects. Firstly, each period of extension must be for seven days unless the application asks for a shorter period or the judicial authority to which the application is made is satisfied that there are special circumstances which mean that it would be inappropriate to detain the suspect for a further seven days. Secondly, the maximum period that a warrant of further detention can last in total is extended from 14 days to three months. In cases where detention for a further seven days would exceed the three month limit, the judicial authority can only authorise continued detention up to the three month limit.
109. Subsection (7) sets out that the amendments made to the procedures for extension of detention under Schedule 8 of the TACT shall not apply if the arrest of the person under detention occurred before the commencement of this clause of the Bill, or if his examination under Schedule 7 to the TACT began before the commencement of this clause of the Bill.
Clause 24 - Grounds for extending detention
110. This clause amends the grounds for authorising extended detention under Schedule 8 to the TACT, for review officers (during the first 48 hours of detention) and for the judicial authority (thereafter).
111. At the moment paragraph 23(1) of Schedule 8 lists a number of grounds on which a review officer can decide to continue to detain a person. Subsection (1) adds to that list. It sets out that a review officer may extend detention if he is satisfied that it is necessary pending the result of an examination or analysis of any relevant evidence or an examination or analysis that may result in relevant evidence being obtained. An examination or analysis would include a DNA test.
Subsections (2) and (3)
112. Subsections (2) and (3) make the same change to the grounds for issuing a warrant of further detention in paragraph 32 of Schedule 8. By virtue of paragraph 36(4) of Schedule 8 this new ground will also apply in relation to an application for extension of a warrant of further detention.
113. Subsection (5) sets out that the amendments made to the grounds for extension of detention under Schedule 7 of the TACT shall not apply if the arrest of the person under detention occurred before the commencement of this clause of the Bill, or if his examination under Schedule 7 to the TACT began before the commencement of this clause of the Bill.
Clause 25 - All premises warrants: England and Wales and Northern Ireland
114. Under Paragraph 1 of Schedule 5 to the TACT a constable can apply to a justice of the peace for a warrant to enter and search premises for the purposes of a terrorist investigation. At the moment that application and warrant must specify the set of premises to which it relates. Under paragraph 11 of Schedule 5 a constable may apply to a Circuit judge for a warrant to enter and search premises for excluded and special procedure material. Those terms are defined in paragraph 4 of Schedule 5 and are given the same meaning as in the Police and Criminal Evidence Act 1984. Under section 11 of that Act excepted material means personal records that a person has acquired or created in the course of any trade, business, profession or other occupation, or for the purpose of any paid or unpaid office and which he holds in confidence; human tissue or tissue fluid that has been taken for medical diagnosis or treatment and which a person holds in confidence; and journalistic material which consists of documents or records other than documents and which a person holds in confidence. Under section 14 of that Act special procedure material means journalistic material that is not excluded material; and material acquired or created in the course of any trade, business, profession or other occupation, or for the purpose of any paid or unpaid office and which is held subject to an express undertaking of confidence or an obligation of confidence imposed by any enactment. As with a warrant under paragraph 1, at the moment a warrant in relation to excluded or special procedure material must relate to specific premises. This clause amends Schedule 5 to allow all premises warrants to be issued. These provisions are based on the provisions in sections 113 and 114 of the SOCAP which amend the Police and Criminal Evidence Act 1984 to allow all premises warrants to be granted under that Act.
115. A number of terms that are used in clauses 25 and 26 are defined in the TACT. Premises is defined in section 121 as including any place and in particular including a vehicle, an offshore installation within the meaning given in section 44 of the Petroleum Act 1998 and a tent or moveable structure. Vehicle is defined later in section 121 as including an aircraft, hovercraft, train or vessel. Section 44 of the Petroleum Act 1998 covers various installations that are maintained in the water or on the foreshore or other land that is intermittently covered with water and which do not have a link with dry land such as oil or gas rigs. Dwelling is defined in section 121 of the TACT as a building or part of a building used as a dwelling and a vehicle which is habitually stationary and is used as a dwelling.
Subsections (2) and (3)
116. Subsections (2) and (3) amend paragraph 1 of Schedule 5 to the TACT to provide that search warrants under that Schedule may authorise the searching not just of named premises but also any premises occupied or controlled by a specified person (known as an "all premises" warrant).
117. Subsection (4) amends paragraph 1(5) to provide that an all premises warrant may only be granted where it is not reasonably practicable to specify in the application for the warrant all the premises which the person to which the application relates occupies or controls and which might need to be searched. This subsection also makes a number of consequential changes.
Subsections (5) and (6)
118. Subsection (5) amends the TACT to provide that paragraph 2 of Schedule 5 only applies to specified premises warrants and subsection (6) goes on to insert a paragraph 2A into Schedule 5 for all premises warrant that corresponds to paragraph 2. Paragraph 2 cannot apply to all premises warrants because it refers to an application not relating to residential premises and with an all premises warrant the premises to which it relates will not be known at the time of the application. Under paragraph 2A if the justice of the peace is not convinced of the necessity of the warrant he may still grant it if the other conditions are met, so long as the application is made by a police officer of at least the rank of superintendent, the warrant is not executed in respect of residential premises and the warrant is executed within 24 hours of being issued. The new paragraph includes a definition of residential premises as any premises which the constable exercising the power to enter and search has reasonable grounds for believing are used wholly or mainly as a dwelling.
Subsections (7) and (8)
119. Subsections (7) and (8) amend paragraph 11 of Schedule 5 to the TACT, which allows for applications for search warrants involving excluded or special procedure material following an order under paragraph 5 for access to and production of such material, to allow all premises warrants to be made in such cases.
Subsections (9) and (10)
120. Subsections (9) and (10) amend paragraph 12 of Schedule 5 to the TACT, which sets out the test for granting a warrant under paragraph 11. The tests for an all premises warrant are the same as for a specified premises warrant but are modified to take account of the fact that there are no premises to be specified.
Clause 26 - All premises warrants: Scotland
121. This clause provides for similar changes to those made in clause 25 to provide for all premises warrants in terrorist investigations in Scotland.
Clause 27 - Search, Seizure and forfeiture of terrorist publications
122. This clause creates a power of seizure and forfeiture in relation to terrorist publications within the meaning of clause 2.
Subsections (1) and (2)
123. Subsection (1) grants a justice of the peace the power to issue a warrant authorising a constable to enter and search premises and seize any article on those premises that meets the test in subsection (2) if he is satisfied that there are reasonable grounds for suspecting that an article that meets the test in subsection (2) is on those premises. The test in subsection (2) is that the article is likely to be subject to conduct of the kind mentioned in clause 2(1)(a) to (e) (distribution etc.) and it would be treated as a terrorist publication (as defined in clause 2(2)).
124. Subsection (3) entitles the person exercising the power conferred by the warrant to use reasonable force in doing so.
Subsections (4) and (5)
125. If a warrant is granted on the basis of an information laid by or on behalf of the Director of Public Prosecutions ("the DPP"), or, in Northern Ireland, the Director of Public Prosecutions for Northern Ireland, the articles seized under it are liable to be forfeited under the procedure in Schedule 2 (as introduced by subsection (8)). Subsection (4) states that items seized under the authority of a warrant may be removed by a constable to such a place as he thinks fit, and may be retained there until returned or otherwise disposed of in accordance with procedures outlined. Subsection (5) sets out that only those items seized under a warrant issued following an information laid by the DPP or the DPP for Northern Ireland shall be liable to forfeiture. Subsection (5) also provides that if forfeited, articles may be destroyed or disposed of by a constable in whatever manner he sees fit.
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