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Subsections (6) and (7)
126. Subsection (6) amends the Criminal Justice and Police Act 2001 to include the powers of seizure in this clause in Parts 1 and 3 of Schedule 1 of that Act. This will enable a bulk of material to be taken away to be read, rather than being examined on the premises, to see if it should be seized. This is needed for cases where large numbers of publications are held at a set of premises. Subsection (7) sets out that existing rules for seized property contained in the Police (Property) Act 1897, and the Police (Northern Ireland) Act 1998 shall not apply to articles seized under authority of the powers outlined in this clause as the Bill provides specific powers for the treatment of seized property.
Subsections (9) and (10)
127. Subsection (9) provides a number of definitions. "Article" is defined as having the same meaning as in Part 1 of this Act (defined in Clause 20 (interpretation of Part 1)). "Premises" is defined as having the same meaning as in section 23 of the Police and Criminal Evidence Act 1984 (c.60). The definition in that Act defines premises as including any place and in particular including any vehicle, vessel, aircraft, hovercraft, offshore installation, renewable energy installation, tent or movable structure. Subsection (10) modifies clause 27 in its application to Scotland.
Schedule 2 - Seizure and forfeiture of terrorist publications
128. Schedule 2 sets out the procedure for forfeiture of terrorist publications seized under clause 27 of this Bill. Schedule 2 is closely based on the forfeiture provisions in Schedule 3 to the Customs and Excise Management Act 1979 (c.2).
129. Paragraph 2 sets out that notice must be given by the constable responsible for the seizure to every person whom he believes to be the owner of any article seized. If there is no such person, or it is not reasonably practical for such notice to be given, it should be given to the person the constable believes is the occupier of the premises where the article was seized. The notice must set out what has been seized, and the grounds of seizure. Only if a notice has been properly given under paragraph 1 or it was not reasonably practicable to comply with paragraph 1 can an article be forfeited (sub-paragraph (5)). Sub-paragraphs (3), (4) and (6) further set out requirements about the manner in which the notice must be given.
Paragraphs 3 and 4
130. These paragraphs set out that a person claiming that any seized article is not liable to forfeiture may give notice of such a claim to a constable at any police station in the police area in which the seizure took place. Such a notice, which must be given in writing, must be given within one month of the notice of the seizure, or the seizure itself if no notice has been given.
131. Paragraph 5 provides that forfeiture is automatic if no claim is made under paragraphs 3 and 4 within the time for making a claim under those paragraphs (one month), or if an attempt is made to make a claim but the requirements of 3 and 4 are not complied with.
132. Paragraph 6 provides for forfeiture by the court in cases where a claim is made. When a notice claiming that an article seized is not liable to forfeiture has been received, the relevant constable must decide whether to take proceedings to ask the court to condemn the article as forfeited. This decision should be taken as soon as reasonably practicable following the notice of the claim. For the court to order the condemnation of an article to forfeiture, it must be satisfied of two matters: firstly, that the item was liable for forfeiture when seized, and secondly, that its forfeiture would not be unjust. If the court is not satisfied that these tests have been met, it must order the return of the item to the person it believes is entitled to it. If the constable decides not to take proceedings for condemnation, then the constable must return the article to the person who appears to be the owner of it as soon as reasonably practicable following the decision not to take proceedings for condemnation.
Paragraphs 7 to 11
133. These paragraphs set out the procedure for forfeiture proceedings in court. These proceedings will be civil proceedings. Paragraph 7 sets out the courts in which such proceedings may be instituted. Paragraph 8 states that such proceedings may only be instituted in a court if it has jurisdiction in relation to the place where the article to which they relate was seized. Paragraph 10 sets out the procedure for appeals against decisions of summary jurisdiction courts to higher courts. Paragraph 11 sets out that for the duration of any appeal the seized items will remain in the possession of the constable who seized them.
Paragraphs 12 to 17
134. Paragraph 12 sets out that if an article is condemned as forfeited by the court, it will be deemed to have been forfeited from the time of the seizure. If 12 months after a requirement to return property arises an article that should have been returned is still with a constable and it is not reasonably practicable for it to be returned the constable can dispose of it (paragraph 13). Paragraphs 14 and 15 set out provisions of proof, detailing that the fact, form and manner of seizure is to be assumed to have been by the process set out in this Bill, unless the contrary is shown. They also detail how the condemnation of an article as forfeited may be proved. Paragraph 16 sets out special provisions for the property of a body corporate, two or more partners, and more than five persons. Paragraph 17 provides that the returning of an item to a person in line with requirements in this Schedule does not affect the rights of any other person in respect of that article. This ensures that property and ownership rights in an article are not affected by its return to a particular individual.
Clause 28 - Power to search vehicles under Schedule 7 to the Terrorism Act 2000 (c.11)
135. This clause extends paragraph 8(1) of Schedule 7 to the TACT to allow an examining officer (i.e. a constable, an immigration officer or a customs officer) to search a vehicle at a port which is on a ship or aircraft, or which the examining officer reasonably believes has been or is about to be on a ship or aircraft for the purposes of determining whether a person the examining officer is questioning under paragraph 2 of Schedule 7 falls within section 40(1)(b) of the TACT. A person falls within section 40(1)(b) of the TACT if he is or has been concerned in the commission, preparation or instigation of acts of terrorism. At the moment an examining officer does not have the power to search vehicles in these circumstances, even though he does have the power to search vehicles in the Northern Ireland border area (see paragraph 8(2) of Schedule 7). The definition of vehicle in section 121 of the TACT (which provides that "vehicle" includes an aircraft, hovercraft, train or vessel) does not extend to Schedule 7.
Clause 29 - Extension to internal waters of authorisations to stop and search
136. This clause amends sections 44 and 45 of the TACT. Section 44 provides that an authorisation may be given for a particular police area or part of a police area and under the authorisation a constable may stop a vehicle in the area and search the vehicle, the driver of the vehicle, a passenger in the vehicle and anything on or in the vehicle or carried by the driver or a passenger. Subsection (2) adds a new subsection to section 44 to enable an authorisation under section 44 to include internal waters adjacent to any area or place specified under section 44(4) or part of such internal waters. Subsections (3) and (4) make amendments to sections 44 and 45 to ensure that "driver" in those sections makes sense in the context of a vehicle which is not a car. "Driver" is defined in Section 52 of the TACT as including the person who was driving the vehicle when it was left on a road, if it was left on a road. Under section 45 a constable may seize an article found during a search under section 44.
Clause 30 - Amendment of the Intelligence Services Act 1994 (c.13)
137. Clause 30 makes amendments to the ISA in relation to the powers of the security and intelligence services with respect to warrants to carry out acts both overseas and in the UK.
138. Subsection (2) grants the Secretary of State the power to nominate specified senior officials who will then be entitled in urgent cases to authorise warrants under section 5 of the ISA (warrants authorising actions of the security and intelligence services).
139. Subsection (3) provides that such warrants issued by the senior officials nominated by the Secretary of State may only authorise actions that would, if done outside the British Islands, be covered by a current authorisation issued by a Secretary of State under section 7 of the ISA (authorisations of acts outside the British Islands). It further provides that the person issuing any such warrant must inform the Secretary of State as soon as practicable after such a warrant is issued.
140. Subsection (4) amends the duration for which warrants issued by senior officials may last from two to five working days.
141. Subsection (5) amends the duration for which authorisations issued by senior officials under section 7 of the ISA may last from two to five working days. These warrants relate to the authorisation of actions outside the British Islands that would otherwise be contrary to UK law.
142. Subsection (6) adds a provision to section 7 of the ISA that actions carried out in relation to property overseas that have been authorised by the Secretary of State under that section, and that are capable of being authorised by a warrant under Section 5, may continue after a certain change of circumstances for up to five working days. These changes of circumstances are the discovery that the property to which the actions relate was actually in the British Islands, when it was previously believed that it was outside, or the discovery that the target had been brought into the British Islands. The period of five working days is deemed to have begun at the point that it first appears to a member of the Intelligence Service, or to GCHQ, that a change of circumstances has occurred.
Clause 31 - Interception warrants
143. Clause 31 makes amendments to the provisions concerning the duration and modification of, and safeguards attached to, interception warrants issued pursuant to Part 1 of the Regulation of Investigatory Powers Act 2000.
144. Subsection (2) amends section 9(6) of the Regulation of Investigatory Powers Act 2000, bringing into line the duration of the initial interception warrant issued in the interests of national security or for the purpose of safeguarding the economic wellbeing of the United Kingdom with the duration of any such warrant when renewed. Previously, these warrants lasted only for three months when first issued, but could be renewed for a six month period. This amendment provides that both initial and renewed warrants will now last for a maximum of 6 months.
145. Subsections (3) and (4) amend section 10 of the Regulation of Investigatory Powers Act 2000, to allow modifications of the schedules of an intercept warrant, issued in the interests of national security, to be made by a senior official who is either the person to whom it is addressed, or one of their subordinates. Such modifications cease to have effect at the end of the fifth working day.
146. Subsections (5), (6) and (7) amend section 16 of the Regulation of Investigatory Powers Act 2000, which provides extra safeguards in the case of warrants to which section 8(4) certificates apply. One of these safeguards is a general prohibition on examining material intercepted under such warrants selected by reference to an individual who is known to be for the time being in the British Islands or by a factor which has as its purpose the identification of material contained in communications to or from such an individual. However, section 16(3) of the Regulation of Investigatory Powers Act 2000 allows such selection, provided certain conditions are met. One of those conditions is that the material relates only to communications sent during the period specified in the section 8(4) certificate, such period having a maximum of 3 months. Subsections (5)(a) and (6) make amendments such that, in cases where the section 8(4) certification has been issued in the interests of national security, that maximum period is increased from 3 to 6 months.
147. Section 16(5) of the Regulation of Investigatory Powers Act 2000 further allows such selection where there has been a change of circumstances which would otherwise mean that selection for examination would no longer be possible because an individual is found to have entered the British Islands. Selection can only continue pursuant to this provision for one working day after the day on which the change of circumstances became apparent. Subsections (5)(b) and (7) make amendments such that, in cases where the section 8(4) certification has been issued in the interests of national security, that period is increased from one to five working days.
Clause 32 - Disclosure notices for the purposes of terrorist investigations
148. This clause extends the regime contained in Part 2, chapter 1 of the SOCAP under which a disclosure notice may be issued by the Investigating Authority, requiring those on whom such a notice is served to provide specific information as set out in the notice. Refusal to provide information is an offence, punishable by imprisonment for up to 51 weeks, or a fine. Providing false or misleading information is an offence, punishable by imprisonment for up to two years, or a fine, or both. The Investigating Authority is defined as the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, or the Lord Advocate.
Subsections (1) and (2)
149. Subsection (1) amends section 60(1) of the SOCAP to extend the powers of the Investigating Authority to enable the issuing of disclosure notices in terrorist investigations. At the moment a disclosure notice can only be issued in connection with the investigation of specific offences.
150. Subsection (3) amends section 62 of the SOCAP to add provide that a disclosure notice may be given where the Investigating Authority believes that a person has information that relates to a terrorist investigation. There must also be reasonable grounds for believing both that the person to whom the notice is issued has relevant information and that any information provided is likely to be of substantial value to that investigation.
151. Subsection (4) inserts definitions of "act of terrorism", "terrorism", and "terrorist investigation", into section 70 of the SOCAP for the purpose of the disclosure notice provisions. These terms are defined by reference to the TACT. The definition of terrorism and act of terrorism are discussed at paragraphs 15-18 of these explanatory notes. The definition of "terrorist investigation" in the TACT is set out at Section 32 of that Act. This includes, for example, the investigation of the commission, preparation, or instigation of an act of terrorism, or the resources of a proscribed organisation.
Clause 33 - Amendment of the definition of "terrorism" etc.
152. This clause amends two definitions. These amendments are required to eliminate the disparity between definitions of terrorism in UK law and the equivalent definitions in various international Conventions which the UK aims to implement. Examples of international agreements in which the disparity exists are the EU Framework Decision of 13 June 2002 on Combating Terrorism, and the International Convention for the Suppression of Acts of Terrorism. These Conventions allow for actions to be termed as terrorist if, among other tests, the use or threat of action is designed to influence international governmental organisations (such as the United Nations), in addition to State parties' governments.
153. The clause amends the definition of "terrorism", in section 1 of the TACT to include the carrying out of acts where the use or threat is designed to influence an international governmental organisation. The new definition, as amended will read:
1. - (1) In this Act "terrorism" means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
Secondly, the clause amends section 113 of the ATCSA in a similar way. Section 113 makes it an offence to use noxious substances in a way likely to cause violence against a person, serious damage to property or to endanger life or to make members of the public fear their life is endangered. The action must be designed to intimidate the public or to influence a government. The amendment extends to this to international governmental organisations.
Clause 34 - Applications for extended detention of seized cash
154. This clause amends Schedule 1 to the ATCSA. That Schedule makes provision for the forfeiture of terrorist cash. Under paragraph 2 of the Schedule an authorised officer may seize any cash if he has reasonable grounds for suspecting that it is terrorist cash. Terrorist cash means cash that is intended to be used for terrorist purposes, cash which consists of is the resources of a proscribed organisation and property that is earmarked as terrorist property.
155. Once terrorist cash has been seized paragraph 3 of the Schedule governs the length of time it can be detained. Initially the cash can be detained for 48 hours after which the authorised officer must apply to a Magistrates' Court (or in Scotland a sheriff) to extend the period of detention. The first application for extension can also be made, outside Scotland, to a justice of the peace (paragraph 3(3)). This clause adds a new subparagraph to paragraph 3 that provides that if the first application for extension of detention of terrorist cash is made to a justice of the peace (or the sheriff, in the case of Scotland) it can be heard without notice being given to the person affected by the order or that person's legal representative and can be heard in private in the absence of the affected person and his legal representative. The person affected will have the opportunity to challenge the making of the order at a later date because he will be served with a copy of it (paragraph 3(4)) and can apply for it to be discharged (paragraph 5). Subsection (2) provides that this amendment will not be retrospective, and may only be applied to applications to extend detention of seized cash made after the commencement of this section.
Clause 35 - Review of terrorism legislation
Subsections (1) to (6)
156. Subsection (1) provides that the Secretary of State must appoint a person to review the operation of the provisions of the TACT and of Part 1 of this Bill. This will replace section 126 of the TACT that provides for the annual review of the TACT. Subsection (2) sets out that such a person may carry out such reviews from time to time and the outcome of such a review must be reported to the Secretary of State. Under subsections (3) and (4) the first review and report must be completed in the year following the laying before Parliament of the last report under section 126 of the TACT and subsequently reviews and reports must be conducted and produced at least annually. Subsection (5) sets out that the Secretary of State must lay a copy of any report before Parliament. Subsection (6) allows for the reimbursing of the reviewer for costs incurred in the course of his duties.
Clause 36 - Consequential amendments and repeals
157. Clause 36 makes a number of consequential amendments to the TACT and introduces Schedule 3 to the Bill which makes a number of repeals. All of these repeals are consequential on the substantive changes made elsewhere in the Bill.
Subsections (1) to (4)
158. Subsection (1) amends the definition of "terrorist investigation" in the TACT to include investigation of the offences in Part 1 of this Bill, other than clauses 1 and 2. Subsection (2) amends section 117 of the TACT relating to consents to prosecutions. The amendment provides that, if it appears to the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland, that an offence to which the consent to prosecutions provisions in the TACT apply, has been carried out for a purpose wholly or partly connected with the affairs of a country other than the UK, prosecution will only proceed if the Attorney General, or, in Northern Ireland, the Advocate General for Northern Ireland, agrees with the DPP's or the DPP for Northern Ireland's decision to consent. The subsection also provides a transitional provision in relation to section 27(1) of the Justice (Northern Ireland) Act 2002. Before that provision comes into force the Advocate General for Northern Ireland will not be in existence and so during that time the Attorney General for Northern Ireland must agree with the DPP for Northern Ireland instead. Subsection (3) amends the TACT to provide for supplemental powers of the courts in respect of forfeiture orders made under sections 54, 58 and 103 of that Act, entitling the courts to make any such provision as appears to be necessary for giving effect to forfeiture. Subsection (4) adds the offences in Part 1 of this Bill to the list of Scheduled Offences in Schedule 9 to the TACT. These are offences in respect of which special procedures, such as trial without jury, apply in Northern Ireland.
Clause 38 - Short title, commencement and extent
159. Under clause 38(5) the Bill extends to the whole of the United Kingdom except the provisions in clause 17 relating to the use of explosives for non terrorist purposes do not extend to Scotland (since this is a devolved matter). The clause provides for the extension of the Bill, with such modifications as are seen fit, to the Channel Islands or Isle of Man by Her Majesty by Order in Council.
FINANCIAL EFFECTS OF THE BILL
160. This Bill is unlikely to result in significant costs for the public sector. It is intended to contribute to a climate in which terrorism related activity is harder to carry out and therefore to deter terrorist attacks. It is, of course, impossible to quantify how many attacks might be prevented or the consequent benefit to the economy.
161. It may be that the Bill will lead to a small increase in the number of prosecutions but it is equally likely that it will enable people to be prosecuted for more appropriate offences. Some of the provisions in the Bill may lead to cost savings - for example, the ability to deal with proscribed organisations which change their names might prevent unnecessary applications to the proscribed organisations Appeals Commission.
EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
162. Nearly all the costs resulting from the provisions are manpower costs. These costs will, however, be minimal.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
163. The measures contained in the Terrorism Bill will impose no costs on the private, voluntary or charitable sectors.
164. This Bill is unlikely to result in significant costs for the public sector. It is intended to contribute to a climate in which terrorism related activity is harder to carry out. It may be that more individuals are successfully prosecuted under the offences contained in this Bill than would have been prosecuted otherwise. But the offences are intended to deter people from engaging in terrorism related activities, rather than to permit more prosecutions; and the operational measures are intended to prevent terrorism related activity as much as to catch those who engage in it.
EUROPEAN CONVENTION ON HUMAN RIGHTS
165. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either house of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary (the Rt. Hon. Charles Clarke) has made the following statement:
"In my view the provisions of the Terrorism Bill are compatible with the Convention rights"
166. The Bill raises a number of issues which affect rights under the European Convention of Human Rights. Those considered to be the most significant are set out below.
167. Clause 1 raises issues in relation to the requirement in Article 7 that the criminal law should be sufficiently accessible and precise to enable an individual to know in advance whether his conduct is criminal. This requirement is relevant in the context of clause 1 because the offence is one of degree where a judgement will need to be made as to whether a particular statement falls to be classified as an offence or not. The Home Office has concluded that in its view the clause is compatible with Article 7 because the constituent parts of the offence are clearly laid out in a publicly accessible piece of primary legislation and the consequences of action falling within the offence are clearly formulated in the clause.
168. In the opinion of the Home Office the defences in clause 1(5) and clause 2(8) and (9) place a legal burden of proof on the defence in relation to the elements of those defences. Accordingly, this raises issues under Article 6(2). In the view of the Home Office the placing of such a burden on the defence does not breach the presumption of innocence in Article 6(2) because the matters in the defences are within the knowledge of the defendant.
169. Clauses 1, 2, 6 and 21 engage Article 10, which guarantees the right to freedom of expression, to the extent that they impose restrictions on that freedom. However, as the restrictions relate to statements that encourage terrorism, could be useful to terrorists or amount to training in terrorist skills, the Home Office's view is that any such interference can be justified under Article 10(2) as being necessary and proportionate measures in the interests of national security and for the prevention of disorder or crime.
170. The provisions of clause 3 have the effect that a person cannot take advantage of the defences in clauses 1 and 2 if he has been served with a notice under that clause and failed to comply with it. In such circumstances, he will be deemed to have endorsed the statement or publication in respect of which he is prosecuted. However, the Home Office considers that this does not breach Article 6(2) by presuming the person's endorsement because the notice will set out the consequences of any failure to comply with it. Clause 3 also provides a reasonable excuse defence for a failure to comply with the notice.
171. Article 1 of the First Protocol, which protects the right to peaceful enjoyment of possessions, is engaged by clause 7 and clause 27 (in connection with Schedule 2). It is engaged by those provisions because they involve the possibility of permanently depriving a person of his possessions. In the case of clause 7 those possessions would be associated with terrorism training and in relation to clause 27 and Schedule 2 those possessions would be terrorist publications. The Home Office's view is that any interference with Article 1 of the First Protocol can be justified as a legitimate and proportionate control of use of property in the general and public interest of the prevention of crime and in association with criminal proceedings.
172. Clause 12 raises issues under the requirement in Article 7 that the criminal law should be sufficiently accessible and precise because a person must know the boundaries of a civil nuclear site in order to know whether he is committing an offence by crossing them. The Home Office is of the view that the offence is compatible with Article 7 because each civil nuclear site has a clear perimeter fence.
173. Clause 21 engages Article 11, which protects the right to freedom of peaceful assembly and association (clause 21 also engages Article 10 - see paragraph 3 above). The freedom of association aspect of Article 11 is engaged by clause 21 because it expands the grounds on which an organisation can be proscribed and, if an organisation is proscribed, membership of it becomes a criminal offence. However, the Home Office is of the view that, although the clause engages Article 11(1), any interference can be justified under Article 11(2) as necessary and proportionate in pursuit of the legitimate aims of national security and of the prevention of disorder or crime.
174. Clauses 23 and 24 engage Article 5, which protects the right to liberty and security of person. Those clauses engage Article 5 because they relate to a person who is detained having been arrested under section 41 of the TACT or detained under Schedule 7 to the TACT. Under clause 23 the maximum period of detention is extended from 14 days to three months and seven days is set as the normal period for which a judicial authority may authorise extension of the period of detention. Under clause 24 the circumstances in which a person's detention under Schedule 8 to the TACT can be continued are clarified. In relation to clause 23, the Home Office has concluded that detention under the new provisions is compatible with Article 5 because further extension is at the discretion of a judicial authority and under paragraph 37 of Schedule 8 a person must be released straight away if the reason for his detention ceases to apply before the seven day extension is at an end. In relation to clause 24, the Home Office has concluded that the provisions are compatible with Article 5 because they identify aspects of the investigation which is being conducted for the purpose of charging the detained person with an offence (or releasing him).
175. Clauses 25, 26 and 27 engage Article 8, which protects the right to private and family life, home and correspondence (clause 27 also engages Article 1 of the First Protocol - see paragraph 5 above). These clauses engage Article 8 because they involve powers to enter and search premises and seize items found there. The Home Office has concluded that any interference by these clauses with Article 8(1) can be justified under Article 8(2) as being necessary and proportionate in pursuit of the legitimate aims of national security and of the prevention of disorder or crime.
176. Clause 34 engages the right to a public judgment and hearing in Article 6 but the Home Office has concluded that the clause is compatible with those requirements because the changes made by it do not affect the hearing at which a final determination as to civil rights is made.
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