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Clause 15 - Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989
50. Clause 15 amends PACE NI to make changes for Northern Ireland that have the same effect to those made above to PACE for England and Wales. These will permit samples and fingerprints to be checked against records held by or on behalf of the Security Service or the Secret Intelligence Service and for the use of such samples to be expanded to include when it is in the interests of national security.
Clause 16 - Material subject to the Terrorism Act 2000: England, Wales and Northern Ireland
51. Clause 16 amends paragraph 14 of Schedule 8 to the Terrorism Act 2000 (the 2000 Act). Schedule 8 to the 2000 Act governs the treatment of persons detained under that Act. Paragraph 14 applies to fingerprints or samples taken under Schedule 8. Paragraph 14 is amended so that such samples may be used in the interests of national security and in the identification of a deceased person or of the person from whom the material came, in addition to the uses already allowed for in paragraph 14 (in a terrorist investigation or in the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution). This ensures that the purposes cover all those for which fingerprints and samples taken under PACE and PACE NI may be used following the amendments effected by clauses 14 and 15. It also provides that samples taken under the 2000 Act in England, Wales and Northern Ireland may be cross checked against material held under clause 18. Paragraph 14 already allows cross checking against material referred to in section 63A PACE (and PACE NI) and so the amendments to these provisions adding in references to material held by or on behalf of the Security Service or the Secret Intelligence Service means that the 2000 Act samples can be cross checked against those too.
Clause 17 - Material subject to the Terrorism Act 2000: Scotland
52. Clause 17 makes similar amendments to paragraph 20 of Schedule 8 to the 2000 Act. Paragraph 20 governs the use of fingerprints and samples of those detained under the 2000 Act in Scotland. Subsection (2) inserts after sub-paragraph 3 of paragraph 20 a new sub-paragraph (3A) which will allow samples obtained in Scotland under the 2000 Act to be used for purposes of a terrorist investigation, in the interest of national security, for the purposes related to the prevention and detection of crime or the investigation of an offence or the conduct of a prosecution.
53. Subsection (3) adds a new paragraph 21 to Schedule 8 that applies, with modifications, section 20 of the Criminal Procedure (Scotland) Act 1995. The effect is that the 2000 Act samples may be cross checked against samples taken under the 1995 Act, samples referred to in section 63A of PACE and against material held under clause 18.
Clause 18 - Material not subject to existing statutory restrictions
54. Clause 18 provides a statutory framework for the use and retention of DNA samples and fingerprints that are not held subject to other existing statutory restrictions.
55. Subsection (2) restricts the uses to which such samples and fingerprints held by a law enforcement authority in England, Wales or Northern Ireland may be put. They may only be used in the interest of national security, for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or for the purposes related to the identification of a deceased person or of the person from whom the material came.
56. Subsection (3) imposes a condition that must be met before the samples and fingerprints may be used for the purposes set out in subsection (2). The condition is that the material must have been either: (i) obtained by the authority pursuant to an authorisation under the Police Act 1997 or the Regulation of Investigatory Powers Act 2000; (ii) supplied to the authority by another law enforcement body (domestic or foreign); or (iii) otherwise lawfully obtained by the authority for one of the purposes in subsection (2).
57. Subsection (4) clarifies certain terms used in subsection (2): use of material includes allowing a check to be made against it and disclosing to another person; the reference in subsection (2) to crime includes actions which constitute a criminal offence under law of any part of the UK or a territory outside the UK or actions which would have been a criminal offence had they been conducted in the UK; and the references to investigations and prosecutions are also given a wide meaning, so as to apply equally to investigations and prosecutions which are conducted outside the UK.
58. Subsection (5) defines terms used in this section.
59. Subsection (6) sets out "the existing statutory restrictions" which are referred to in subsection (1).
Disclosure of information and the intelligence services
Clauses 19 to 21 - Disclosure of information and the intelligence services
60. Clause 19 allows anyone to give information to the intelligence services (defined as the Security Service, the Secret Intelligence Service, and the Government Communications Headquarters (GCHQ)) so that the organisation concerned can do its job as set out in law. The person giving information can do so regardless of any duty to keep the information private or of any other restriction, other than those mentioned in clause 20 (subsections (6) and (7)). Information given to an intelligence service for one purpose can be used by it for another if that other purpose is also to enable the intelligence service to do its job as set out in law (subsection 2)). Information obtained by an intelligence service may be disclosed by it if this is necessary for the exercise of its functions, or for specified other purposes (such as for the purposes of criminal proceedings): the purposes allowed for each of the three organisations are set out in subsections (3) to (5). The intelligence services may disclose information in accordance with this clause regardless of any other duties or pre-existing statutory restrictions, other than those mentioned in clause 20 (subsections (6) and (7)).
61. Clause 20 makes it clear that the limits on getting and passing on information in the laws governing each intelligence service still apply without change. It further makes it clear that the Data Protection Act 1998 and Part 1 of the Regulation of Investigatory Powers Act 2000 still apply unaffected. Subsection (4) makes it clear that the new provisions on disclosure and use of information by the intelligence services are not to cast doubt on their previous practices.
PART 2 - DETENTION AND QUESTIONING OF TERRORIST SUSPECTS
Pre-charge detention
Clause 22 - Period of pre-charge detention
62. This clause brings into effect Schedule 1 to the Bill. Schedule 1 amends Schedule 8 to the Terrorism Act 2000 (the "2000 Act") which deals with the detention (prior to charge) of those arrested under section 41 of the 2000 Act (persons reasonably suspected to be a terrorist). The original maximum period that such a person could be detained prior to his being charged was seven days. This was extended to fourteen days by section 306 of the Criminal Justice Act 2003 and to 28 days by section 23 of the Terrorism Act 2006 (subject to a "sunset provision" which means that whether the maximum period should be 14 or 28 days is debated annually by Parliament). Schedule 1 introduces a reserve power which the Secretary of State may make available only in specified circumstances. When the reserve power is available, the maximum period for pre-charge detention is extended to 42 days. However, the reserve power only remains available for a maximum of 60 days.
Schedule 1 - Amendments relating to period of pre-charge detention
Part 1 - Reserve power to further extend maximum of pre-charge detention
63. Paragraph 1 inserts a new Part 4 after Part 3 of Schedule 8 to the 2000 Act (detention). Part 3 deals with extension to the detention (prior to charge) of terrorist suspects arrested under section 41 of the 2000 Act. The new Part 4 provides for a reserve power which enables the current maximum limit of pre-charge detention to be extended to 42 days in specified circumstances. The power will only be available for a limited period of up to 60 days.
64. Paragraph 38 of the new Part 4 defines "the reserve power" as the power conferred by paragraph 42 (that the period specified in a warrant for further detention may be extended to a maximum of 42 days).
65. Paragraph 39(1) of the new Part 4 sets out the details of the condition that the reserve power may be made available only if there has been a report stating that there is operational need for it. Under sub-paragraph (1) the Secretary of State can make an order under paragraph 40 declaring the reserve power available only if he or she has received a joint report from the Director of Public Prosecutions and a chief officer of police in England and Wales; the Crown Agent and the chief constable of a police force in Scotland; or the Director of Public Prosecutions for Northern Ireland and the Chief Constable of the Police Service of Northern Ireland.
66. Sub-paragraphs (2) to (5) give details on what the report must contain: it must include a statement from both persons making the report that they are satisfied there are reasonable grounds for believing that the detention of one or more persons beyond the current maximum limit will be necessary for the purposes of obtaining or preserving "relevant evidence" (defined in sub-paragraph (4)) or pending the examination and analysis of relevant evidence or material that might give rise to relevant evidence. The report needs to give details of the grounds for their belief.
67. The report also needs to include a statement that those making it are satisfied the investigation of the suspect is being carried out diligently and expeditiously (sub-paragraph (5)).
68. Paragraph 40 gives power to the Secretary of State to make the reserve power available by order (although the exercise of this power is subject to the provisions of paragraph 39 requiring a report from the DPP and the police). An order under this paragraph is not subject to any Parliamentary procedure: sub-paragraph (3) provides that the provisions in the 2000 Act relating to the Parliamentary procedure for statutory instruments do not apply.
69. Paragraph 40(2) provides that the reserve power may be used to extend the detention of anyone who is detained under section 41 of the 2000 Act at the time when the reserve power is made available and anyone subsequently detained under section 41 of the 2000 Act during the period in which the reserve power remains available (that is for either 30 days or 60 days from its first becoming available: see new paragraph 45). However, when the power ceases to be available, a person who is detained only by virtue of that power must be immediately released (paragraph 45(4)).
70. Paragraph 41 provides that, if the Secretary of State makes an order making the reserve power available, then he or she must lay a statement before Parliament within two days of making the order (or if that is not practicable, as soon as is practicable). The statement must explain that an investigation is being conducted into the commission, preparation or instigation of an act of terrorism or an act that appears to have been done for the purposes of terrorism and that, as a result of the investigation, there is an exceptional operational need (sub-paragraph (2)).
71. The statement must also state that the Secretary of State is satisfied that the reserve power is needed urgently for the purposes of that investigation and that making it available is compatible with Convention rights (sub-paragraph (3)). It may also include any other information that the Secretary of State considers appropriate (sub-paragraph (4)). This may include, for example, the current threat level to the UK. The statement must not include the name of any person then detained under section 41 of the 2000 Act (as a suspected terrorist) or anything that might prejudice any criminal proceedings that might result from the investigation.
72. Paragraph 42 contains the "reserve power" itself. The reserve power is a power enabling certain specified persons to apply for an extension of a person's warrant of further detention, beyond the maximum permitted under the Terrorism Act 2006. In England and Wales, such applications are to be made by the Director of Public Prosecutions or a Crown Prosecutor acting with his consent. (The consequential amendments made in paragraph 2 of Part 2 of this Schedule mean that the provisions of the Prosecution of Offences Act 1985 that give Crown Prosecutors the same powers as the DPP in certain areas do not apply.) In Scotland, applications under the reserve power are to be made by the Lord Advocate or procurator fiscal in Scotland, and in Northern Ireland by Director of Public Prosecutions for Northern Ireland.
73. Applications for an extension must be to a senior judge (defined in paragraph 43(4) as a judge of the High Court or of the High Court of Justiciary or, in England and Wales, a designated circuit judge, in Scotland, a sheriff or in Northern Ireland a designated county court judge). Paragraph 42(4) provides that the extension granted on an application under this paragraph lasts for a period ending with the earlier of 7 days from the end of the last period of extension, or 42 days from the "relevant time" (defined in paragraph 43(3) as the time of the person's arrest under section 41 or, if prior to their arrest they were detained under Schedule 7 to the 2000 Act, the beginning of their examination under Schedule 7).
74. But under sub-paragraph (5), the judge need not extend the period for the total length of time set out in sub-paragraph (4): he or she may require the suspect to be detained for a shorter period if he or she is satisfied that there are circumstances that mean that an extension for the full length of time would be inappropriate. A shorter period may also be granted if the application itself is for a shorter period.
75. Under sub-paragraph (6), when an extension has been granted, the specified period must be shown on the warrant, and, where the extension takes the total period of pre-charge detention beyond 28 days, the person applying for the extension (or in Scotland, the Crown Agent) must inform the Secretary of State and provide him or her with the information set out in paragraph 44(3) and (4), which is needed by the Secretary of State in order to make a report to Parliament on such extensions.
76. Paragraph 43(1) states that paragraphs 30(3) and 31 to 34 of Part 3 of Schedule 8 to the 2000 Act apply to an application under paragraph 42 as they apply to any application for a warrant of further detention, with modifications reflecting the fact the application will always be to a senior judge rather than a judicial authority (a judicial authority may only hear an application for an extension up to 14 days). These paragraphs relate to how an application for an extension is to be made (by oral or written notice to the judge), notice to be given to the detainee, grounds for the judge to extend detention, representation and information that may be withheld.
77. Paragraph 43(2) allows a senior judge to adjourn the hearing of an application under paragraph 42 but only if the hearing is adjourned to a date before the end of the person's existing authorised period of detention. This does not apply to an adjournment under paragraph 33(2) of Schedule 8 to the 2000 Act, which is an adjournment to enable the detainee to obtain legal representation.
78. Paragraph 44 sets out the Secretary of State's duty to report to Parliament if an extension for more than 28 days is granted. The Secretary of State must lay a statement before Parliament as soon as practicable giving details of the date on which the period was extended, the number of days by which the period has been extended and the total number of days for which the person's detention has been authorised. The statement must also give details of the court that heard the application and the place where the person is being detained but it must not give the name of the detained person or contain any material that might prejudice a prosecution.
79. Paragraph 45 makes provision about how long the reserve power is to remain available after the Secretary of State has made an order under paragraph 40. The maximum time period for which the reserve power will remain available is 60 days (sub-paragraph (1)). However, for it to remain available for the full 60 days, the decision of the Secretary of State to make the order under paragraph 40 must be approved by a resolution of each House of Parliament. If there is no Parliamentary approval of the Secretary of State's decision within 30 days of the order being made, the power ceases to be available after 30 days (sub-paragraph (2)). This would happen not only if Parliament voted against the order, but also if Parliament were not available to vote (for example if it had been dissolved). During times in which Parliament is adjourned or prorogued, it may be possible for it to be recalled under the standing orders in order to debate the Secretary of State's decision.
80. Under sub-paragraph (3), the power may lapse before 30 days if, during the first 30 days that the power is available, a Minister moves to approve the decision of the Secretary of State to make the order and this motion is negatived by either House.
81. When the reserve power ceases to be available, a detainee, whose detention was authorised by the power (in other words, following an application under paragraph 42) and is not otherwise legally detained, must be released immediately (sub-paragraph (4)).
82. Paragraph 46(1) provides that after any period during which the reserve power was available, the Government's independent reviewer of terrorism legislation must carry out a review and send a copy of his or her report on the outcome of the review to the Secretary of State. (The independent reviewer of terrorism is appointed under section 36 of the Terrorism Act 2006. The post is currently held by Lord Carlile of Berriew Q.C.) The report must be sent to the Secretary of State within six months of the power ceasing to be available and the Secretary of State must lay a copy before Parliament (see sub-paragraphs (6) and (7)).
83. Sub-paragraphs (2) to (4) set out what must be considered in the review and contained in the report. The report must state whether in the reviewer's opinion the Secretary of State's decision to make the reserve power available was reasonable in all the circumstances - after considering whether the requisite report from the DPP or Crown Agent and police had been received, and all the other relevant information before the Secretary of State. The review must also consider the case of every individual detained in pursuance of the reserve power and the report must state whether in the reviewer's opinion the relevant procedures for applications for extended detention were followed and the provisions relating to the treatment and review of detained persons were complied with.
84. Sub-paragraph (5) provides that the Secretary of State may pay the expenses and allowances of the independent reviewer.
Part 2 - Consequential amendments
85. Part 2 of Schedule 1 makes consequential amendments to the Prosecution of Offences Act 1985, the Terrorism Act 2000 and the Terrorism Act 2006. The effect of paragraph 2 is that the provisions of the Prosecution of Offences Act 1985 giving a Crown Prosecutor the same powers as the DPP do not apply, so that an application to extend pre-charge detention for terrorist suspects may be made only by the DPP himself or by a Crown Prosecutor with the express consent of the DPP or a Crown Prosecutor he personally authorises to give such consent. The amendments to the 2000 Act made by paragraphs 3 to 6 include the insertion of new paragraphs 36 (under which an extension for up to 28 days may be authorised) and 36A (supplementary provisions) which do not change the substance of what is currently contained in paragraph 36. The consequential amendments to the 2006 Act made by paragraph 7 take account of the new paragraph 36A but do not change the main effect of section 25 of that Act which is the "sunset provision" that makes provision for the annual renewal of the maximum period of pre-charge detention of 28 days (failing which the maximum period reverts to 14 days.
Diagrammatic representation of reserve power to further extend maximum of pre-charge detention
GRAPHIC HERE
Post-charge questioning
Clause 23 - Post-charge questioning: England and Wales
86. Clause 23 allows a constable to question a person in England and Wales about the terrorism offence (as defined in clause 26) for which they have been charged or after they have been officially informed that they may be prosecuted for the offence. It is also possible to question the person after charge where a judge of the Crown Court makes an order for a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996 (c.25) and this order is made on the basis that the offence has a terrorism connection (see subsection (3)).
87. Subsections (4) and (5) provide that codes of practice under section 66 of PACE may be used to make provision about post-charge questioning.
88. Subsection (6) extends the application of section 34(1) of the Criminal Justice and Public Order Act 1994 (c.33), which allows adverse inferences to be drawn from an accused's silence, to cover the situation when an accused person is interviewed after charge or after they have been officially informed that they may be prosecuted.
Clause 24 - Post-charge questioning: Scotland
89. Clause 24 allows a constable to question a person in Scotland after they have been charged by the police with a terrorism offence or when they appeared on petition in respect of the offence and the Crown considers (and it has been "averred in the petition") that the offence has a terrorist connection (as defined in clause 85). The suspect may be questioned about the offence with which they have been charged, and questioning may continue until the commencement of trial.
Clause 25 - Post-charge questioning: Northern Ireland
90. Clause 25 allows a constable to question a person in Northern Ireland after they have been charged, or after they have been officially informed that they may be prosecuted, about the terrorism offence with which the person has been charged.
91. Subsections (3) and (4) provide that codes of practice under Article 65 of PACE NI can make provision about post-charge questioning.
92. Subsections (5) and (6) amend the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)) to allow adverse inferences to be drawn when a person remains silent when being questioned post-charge about a terrorist-related offence.
Clause 26 - Post-charge questioning: meaning of "terrorism offence"
93. Clause 26 sets out the terrorism offences to which clauses 23 to 25 apply: the list of terrorism offences in subsection (1) includes most of the offences under the Terrorism Act 2000 and the Terrorism Act 2006, and the inchoate offences related to these offences (conspiracy, attempt, incitement etc.) are also covered (see subsection (2)). Subsections (3) and (4) allow the Secretary of State to amend this list of offences by order; this is subject to the affirmative resolution procedure.
PART 3 - PROSECUTION AND PUNISHMENT OF TERRORIST OFFENCES
Jurisdiction
Clause 27 - Jurisdiction to try offences committed in the UK
94. Clause 27 provides for UK-wide jurisdiction for specified terrorism offences, regardless of where in the UK the offence took place. The purpose of this clause is to remove the need to have separate trials for connected terrorist offences which occur in different jurisdictions within the UK. The common law currently provides that a significant part of an offence must take place within the part of the UK in which the court trying the offence is located. Lord Carlile's report on proposed measures for inclusion in the Bill highlighted this issue. Subsections (2) and (3) set out the offences to which this provision is to apply. These are the offence under section 113 of the Anti-Terrorism, Crime and Security Act 2001 and all offences under the 2000 and 2006 Terrorism Acts (other than those with an extra-territorial element and those that do not have UK-wide extent) and ancillary offences. Subsection (4) and (5) allow the Secretary of State to amend the list of terrorism offences in subsections (2) and (3) by order (subject to the affirmative resolution procedure). Subsection (6) provides that this clause, and any order amending the list of offences to which it applies, will apply to offences falling within it irrespective of whether they are committed before or after commencement.
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