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This is a corrected copy and is being issued free of charge to all known recipients of the original publication. These notes refer to the Counter-Terrorism Bill as introduced in the House of Commons on 24th January 2008 [Bill 63]
COUNTER-TERRORISM BILL
EXPLANATORY NOTES
INTRODUCTION
1. These notes refer to the Counter-Terrorism Bill as introduced in the House of Commons on 24th January 2008. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a section or part of a section does not seem to require any explanation or comment, none is given.
SUMMARY
3. The Bill amends the law in relation to terrorism in a number of distinct ways. It includes provisions relating to: the gathering and sharing information for counter-terrorism and other purposes, including the disclosure of information to and by the intelligence services; the period of pre-charge detention in terrorist cases; post-charge questioning of terrorism suspects; the prosecution of terrorism offences and punishment of convicted terrorists; notification requirements for persons convicted of terrorism-related offences; asset freezing proceedings under United Nations terrorism orders; inquests and inquiries dealing with sensitive information; and various other miscellaneous measures. New powers and offences will be created by the provisions of the Bill and existing terrorism legislation will be amended and reformed.
4. Prior to the introduction of this Bill, the Government undertook an extensive consultation on possible measures for inclusion in the Bill and published documents to facilitate that consultation. The consultation documents included measures recommended following an inter-departmental review of existing counter-terrorism legislation and in reports by the independent reviewer of terrorism legislation, Lord Carlile of Berriew Q.C.
Bill 63—EN 54/3
OVERVIEW
5. The Bill's Parts and Schedules are as follows.
6. Part 1 (powers to gather and share information) contains provisions for new powers relating to the removal of documents for examination in the context of a search under existing terrorism legislation. It also provides a power for a constable to take fingerprints and samples from people subject to control orders and amends the law relating to the retention and use of fingerprints and DNA samples. It also contains provisions on the disclosure of information to and by the intelligence services and their use of such information.
7. Part 2 (detention and questioning of terrorist suspects) provides for a temporary extension to the maximum amount of time that terrorist suspects can be held before being charged to 42 days. However, this extension may be made available only by the Secretary of State, and only if there are compelling operational reasons to do so. This Part also provides that terrorist suspects may be questioned after they have been charged. The questioning will be limited to the offence for which the person has been charged and adverse inferences from the silence of the suspect may be drawn by a court.
8. Part 3 (prosecution and punishment of offences) provides for specified terrorism offences committed anywhere in the UK to be tried in any part of the UK. It also requires the Attorney General's or Advocate General for Northern Ireland's consent for prosecution of specified terrorism offences committed outside the UK. This Part also deals with sentences for terrorism offences: the court is to consider a terrorist connection as an aggravating factor when considering sentence. It also extends the forfeiture regime applicable in terrorist cases.
9. Part 4 (notification requirements) makes provision about notification of certain information to the police by individuals who are convicted and sentenced to 12 months or more for a terrorism or terrorism-related offence. They must provide the police with certain personal information when they are not in custody, notify any subsequent changes to this information and confirm its accuracy annually. And under Schedule 5, courts may make foreign travel orders which will enable restrictions to be placed on the overseas travel of those subject to the notification requirements.
10. Part 5 (asset freezing proceedings) amends the Regulation of Investigatory Powers Act 2000 so that intercept material can be used in asset freezing cases relating to terrorism (cases in which assets are frozen for the purposes of a UN terrorism order). It also provides an enabling power for the Lord Chancellor (in the first instance) to make court procedure rules about the use of special advocates, closed hearings and the withholding of evidence in civil court proceedings relating to asset freezing decisions.
11. Part 6 (inquests and inquiries) create provisions for coroners' inquests to take place without a jury if the Secretary of State has certified that the inquest will involve the consideration of material that should not be made public in the interests of national security, the relationship between the United Kingdom and another country, or otherwise in the public interest. This Part also amends the Regulation of Investigatory Powers Act 2000 to allow intercept material to be disclosed in exceptional circumstances to: (i) coroners and counsel to the inquest in cases where the Secretary of State has issued a certificate requiring the inquest to he held without a jury; and (ii) to counsel to an inquiry held under the Inquiries Act 2005 (in addition to the inquiry panel).
12. Part 7 (miscellaneous) amends the definition of terrorism in section 1 of the Terrorism Act 2000 (and various other pieces of terrorism legislation) by inserting a reference to a racial cause. This Part also creates an offence of eliciting, publishing or communicating information relating to members of armed forces which is likely to be of use to terrorists, and amends the offence of failing to disclose information about a suspected terrorist offence. It also includes some amendments to the control order regime, amendments to provisions on forfeiture of terrorist cash, a new scheme relating to the recovery of costs of policing at gas facilities and a provision on the appointment of special advocates in Northern Ireland.
13. Part 8 contains supplementary provisions.
TERRITORIAL EXTENT AND APPLICATION
14. Most of the Bill extends to the whole of the United Kingdom, although provisions amending or repealing other enactments have the same extent as the enactment being amended or repealed. In addition, a number of provisions apply in only one of the three jurisdictions. The provisions of the Bill with a more limited territorial extent or application are as follows:
- In Part 1, in the clauses on taking fingerprints etc. from controlled persons, clause 10 amends the Police and Criminal Evidence Act 1984 ("PACE") and therefore extends only to England and Wales, clause 11 only applies to persons subject to control orders in Scotland and clause 12 amends the Police and Criminal Evidence (Northern Ireland) Order 1989 ("PACE NI") and therefore extends only to Northern Ireland.
- In the provisions in Part 1 on the retention and use of fingerprints and samples, clause 14 amends PACE and extends only to England and Wales and clause 15 amends PACE NI and extends only to Northern Ireland.
- In Part 2, in the clauses on post-charge questioning, clause 23 applies only in England and Wales, clause 24 in Scotland and clause 25 in Northern Ireland.
- In Part 3, clause 29 (sentences for offences with a terrorist connection: England and Wales) applies to court proceedings in England and Wales and clause 30 applies to court proceedings in Scotland. There is no corresponding provision for Northern Ireland.
- In Part 6 (inquests and inquiries), clauses 64 and 65 amend the Coroners Act 1988 which extends only to England and Wales.
- In Part 7, there are separate clauses applicable in England and Wales and in Scotland on the recovery of costs of policing at gas facilities (clauses 77 and 78).
- Clause 83 (appointment of special advocates in Northern Ireland) substitutes references to the "Advocate General for Northern Ireland" for references to the "Attorney General for Northern Ireland" in various pieces of legislation; the primary application of this clause will therefore be in Northern Ireland.
15. The Bill only deals with reserved matters as respects Scotland and excepted matters as respect Northern Ireland. It does not confer any functions on the National Assembly for Wales, and in general applies to Wales in the same way as it applies to England.
16. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
17. The Bill does not contain any provisions that would invoke a legislative consent motion in Northern Ireland.
COMMENTARY ON CLAUSES
PART 1 - POWERS TO GATHER AND SHARE INFORMATION
Power to remove documents for examination
Clause 1 - Power to remove documents for examination
18. Clause 1 provides a new power for a constable to remove documents in the course of a search for the purpose of ascertaining whether they may be seized. Documents removed under clause 1 may be retained until the examination is complete. This power might be used, for example, to remove documents in a foreign language for translation.
19. Subsection (1) limits the situations in which the new power may be used: it may only be used in the context of searches under the listed provisions of the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006.
20. Subsection (3) makes provision in relation to documents stored in an electronic form.
21. Subsection (4) provides that where a document is removed under this power, a constable has the same powers of seizure (at common law and under statute) as if it had not been removed. This will include the general power of seizure under section 19 of PACE which allows a constable lawfully on premises to seize a document if the constable believes that it is evidence in relation to any offence.
Clause 2 - Offence of obstruction
22. Clause 2 creates the offence of wilfully obstructing a constable in the exercise of the power conferred by clause 1. This is a summary offence, punishable by a maximum penalty of up to 51 weeks' imprisonment in England and Wales (but before section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months), 12 months' imprisonment in Scotland and 6 months' imprisonment in Northern Ireland.
Clause 3 - Power to remove documents: items subject to legal privilege
23. Clause 3 deals with documents that are, or may be, privileged. Under subsection (1) a constable may not remove a document if he has reasonable cause to believe that it is an item subject to legal privilege or has such an item comprised in it (for example it is a document which includes correspondence with a lawyer in it but also includes other information). If it is discovered that a document that has been removed is an item subject to legal privilege, or has such an item comprised in it, it must be returned immediately (subsection (3)). However, a document which has an item subject to legal privilege comprised in it may be removed or retained if it is not reasonably practicable to separate the legally privileged part from the rest of the document without prejudicing the lawful use of the latter if it were to be seized (subsections (2) and (4)). This will be the case for example where tearing out legally privileged information from a larger document would also remove non-legally privileged information, which might comprise evidence of an offence, on the reverse of the page.
24. Subsection (5) provides that where parts of a document which are subject to legal privilege are retained because it is not reasonably practicable to separate it from those parts which are not, the documents subject to legal privilege must not be used in any other way but to facilitate the examination of the rest of the document.
25. Subsection (6) defines an "item subject to legal privilege" for the purpose of this clause by reference to PACE, in England and Wales, the Proceeds of Crime Act 2002 in Scotland, and PACE NI in Northern Ireland.
Clause 4 - Record of removal
26. Subsection (1) provides that a constable who removes a document using the new power of removal must make a written record of the removal as soon as is reasonably practicable.
27. Subsections (2), (3) and (4) set out the matters to be included in such record and subsection (8) makes specific provision as to how the reference to the address of the premises in subsection (2) is to be interpreted where the search is of a vehicle. Many of the listed search powers include searches of vehicles (for example, searches under Schedule 5 to the Terrorism Act 2000 may be of "any premises", and "premises" is defined in section 121 of that Act to include vehicles).
28. Subsections (5) and (6) provide that a constable must, within a reasonable time of receiving a request, supply a copy of the search record to a person with an interest in the document as defined.
29. Subsection (7) provides that if a document has been found during the course of a search under a warrant in England and Wales or Northern Ireland, the constable must endorse the warrant stating that the document was removed under the provisions of clause 1 of this Bill. This is so that the person or court which issued the warrant will be aware of the action that has been taken under it when the warrant is returned to them.
Clause 5 - Retention of documents
30. Clause 5 provides that documents removed under this clause cannot be retained for more than 48 hours unless further retention - up to a maximum of 96 hours from the time of removal - is authorised by a constable of at least the rank of chief inspector.
Clause 6 - Access to documents
31. Clause 6 allows a person referred to in subsection (2) to have access, on request, to a document retained under the provisions of clause 1, under the supervision of a constable. This is subject however to the officer in charge of the investigation (defined in subsection (4)) being able to refuse such access on the grounds set out in subsection (3). The examination of a document under this power might not be part of an investigation into an offence (for example where the document was removed during the search of a terrorist suspect prior to arrest). This explains why the grounds in clause 6(3)(a) are required. The ground in clause 6(3)(d) is to cover for example a document which the officer has reasonable grounds to believe constitutes information useful to terrorists.
Clause 7 - Photographing and copying of documents
32. Clause 7 provides that a document removed under clause 1 may not be photographed or copied (although a document in electronic form may be copied in order to produce it in a visible and legible form).
33. On return of the document, electronic copies must be destroyed and any hard copies made under subsection (1) must be returned at the same time (subsection (2)).
34. Subsections (3) and (4) provide that the persons referred to in subsection (3) can request a certificate to show that all copies have been so destroyed, made inaccessible or returned and such a certificate must be issued within three months of the request. The certificate is to be issued by the "relevant chief officer of police" as defined in subsection (5).
Clause 8 - Return of documents
35. This clause provides that a document that is to be returned (because the time limit for retention has expired or the document is not one that may be seized) (and any copy) is to be returned to the person searched or the occupier of the premises on which it was found. However, where another person appears to have a better right to the document, the document must be returned instead to that person, and where different persons claim to be entitled to the document, it may be retained for as long as reasonably necessary to determine who has best claim to it.
Clause 9 - Power to remove documents: supplementary provisions
36. Subsection (2) means that when a search is carried out under section 52(1) of the Anti-Terrorism, Crime and Security Act 2001, references in these provisions to a constable should be read as references to an authorised officer as defined in that section - as that search power is conferred on an authorised officer rather than a constable.
Power to take fingerprints and samples from person subject to control order
Clause 10 - Power to take fingerprints and samples: England and Wales
37. Clause 10 amends sections 61, 63, 63A, 64 and 65 of PACE, providing a constable with powers relating to the taking and use of fingerprints and non-intimate samples from an individual subject to a control order. (The control order regime is contained in the Prevention of Terrorism Act 2005.) Both "fingerprints" and "non-intimate samples" have the same meaning as that given in section 65 of PACE. That is, "fingerprints" include palm prints and "non-intimate samples" means a sample of hair other than pubic hair; a sample taken from a nail or from under a nail; a swab taken from any part of a person's body including the mouth but not any other body orifice; saliva and a footprint or a similar impression of any part of a person's body other than a part of his hand. These amendments will apply to all individuals subject to control orders that are in force from the time this clause is commenced, regardless of when the control order was made, but the provisions will not apply to individuals whose control orders have already lapsed (see subsection (5) and clause 13).
38. Subsections (1) and (2) provide a constable with the power to take fingerprints and non-intimate samples respectively without the appropriate consent of an individual subject to a control order. Appropriate consent is defined in section 65 of PACE as meaning: (a) in relation to a person who has attained the age of 17 years, the consent of that person; (b) in relation to a person who has not attained that age but has attained the age of 14 years, the consent of that person and his parent or guardian; and (c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian. PACE Code D (Code of Practice for the Identification of Persons by Police Officers) provides that a constable can use reasonable force to ensure compliance with this provision where the appropriate consent is withheld.
39. Subsection (3)(a) provides a constable with the power to check the fingerprints and non-intimate samples of an individual subject to a control order against the same databases that other fingerprints etc. taken under PACE may be checked against (see PACE section 63A, as amended by clause 14). So the fingerprints or samples may be checked against other such fingerprints or samples and/or information derived from other samples that are held by or on behalf of any relevant law enforcement authority or are held in connection with or as a result of an investigation of an offence or which are held by or on behalf of the Security Service or the Secret Intelligence Service. Relevant law enforcement authorities are defined in section 63A(1A) of PACE to include a police force and the Serious Organised Crime Agency. The definition also includes persons outside the territory of the United Kingdom whose functions correspond to those of a police force and any other public authority with functions in any part of the British Islands which consist of or include the investigation of crimes or the charging of offenders.
40. Subsection (3)(b) provides a constable with powers to require a controlled individual to attend a police station for the purposes of having their fingerprints and/or non-intimate samples taken. In the event that such a request is not complied with, the person may be arrested without a warrant (see the amendment to section 63A(7) made by subsection (6)).
41. Subsection (4) allows the retention of a controlled individual's fingerprints and non-intimate samples taken under the new provisions, subject to the safeguards in section 64 of PACE (as amended by clause 14). These safeguards ensure that any such samples retained are only used for purposes related to the interests of national security, the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom the material came.
42. Subsection (6) makes consequential amendments of PACE, many of which mean that fingerprints and non-intimate samples taken from a controlled person will be subject to the same provisions as fingerprints and non-intimate samples taken under current PACE powers. These include safeguards such as requiring a constable to inform the individual concerned of the reason for taking the fingerprints or non-intimate sample without consent (this will normally be simply that they are subject to a control order) before they are taken and informing them that the fingerprints and/or samples may be the subject of a "speculative search". The matters of information must also be recorded as soon as it is practicable to do so. The term "speculative search" is defined at section 65 of PACE and it is taken to mean that the fingerprints and/or non-intimate samples can be randomly checked against other samples that have been taken under current PACE powers as mentioned in relation to subsection (3).
Clause 11 - Power to take fingerprints and samples: Scotland
43. Clause 11 makes similar provision to clause 10 for Scotland in relation to the taking of fingerprints and non-intimate samples from an individual subject to a control order. The clause creates new free-standing powers rather than amending any existing legislation. The main area of difference between the powers in England and Wales and the powers in Scotland is that any samples that are obtained may be used only for the purposes of a terrorist investigation or in the interests of national security. This difference is necessary in order to avoid making provision in areas that are within devolved competence.
Clause 12 - Power to take fingerprints and samples: Northern Ireland
44. Clause 12 makes corresponding provision to clause 10 for Northern Ireland in relation to the taking of fingerprints and non-intimate samples from an individual subject to a control order. It amends PACE NI.
Clause 13 - Power to take fingerprints and non-intimate samples: transitional provision
45. Clause 13 makes transitional provision for the powers in clauses 10, 11 and 12 and provides that the powers to take fingerprints and non-intimate samples from a person subject to a control order will have effect at the time the clauses are commenced regardless of when the control order was made.
Retention and use of fingerprints and samples
46. Clauses 14 to 17 amend PACE, PACE NI, and the Terrorism Act 2000 in two ways. First, they allow fingerprints and samples taken under these Acts to be cross-checked against samples held by or on behalf of the Security Services or Secret Intelligence Service. Second, they amend the relevant provisions so that the purposes for which material obtained under each provision can be kept and used for is the same. This is to facilitate easier use of the National DNA and other databases. The purposes in each case are the interests of national security, the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution, or for purposes related to the identification of a deceased person or of the person from whom the material came.
Clause 14 - Material subject to the Police and Criminal Evidence Act 1984
47. Subsection (2) amends section 63A(1) of PACE to allow samples (fingerprints, impressions of footwear or DNA samples) taken under PACE to be checked against other fingerprints, impressions of footwear or samples held by or on behalf of the Security Service (MI5) or the Secret Intelligence Service (MI6 or SIS). The clause adds a similar power to check information derived from other samples against that information derived from material held by the Security Services or the Secret Intelligence Service. Samples may be taken from a person under PACE if the person is suspected of being involved with a recordable offence, has been charged with a recordable offence or informed that he will be reported for such an offence, or, following the amendments made by clause 10, if he is subject to a control order.
48. Subsection (3) amends section 63A(1ZA) of PACE similarly to allow the cross checking against material held by the Security Service or the Secret Intelligence Service of material taken from a person under section 61(6A), which allows a constable to take a person's fingerprints etc. if the person's name cannot be ascertained or if the constable believes the person has given a false name.
49. Subsection (5) inserts a new subsection (1AB) into section 64 of PACE that sets out the purposes for which samples can be used. The clause expands the uses to permit samples to be used in the interest of national security as well as for the purposes already listed in section 64, which are purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for purposes relating to the identification of a deceased person or the person from whom the material came.
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