|Counter-Terrorism Bill - continued||House of Commons|
|back to previous text|
Clause 28 - Consent to prosecution of offence committed outside UK
95. This clause amends section 117(2A) of the Terrorism Act 2000 and section 19(2) of the Terrorism Act 2006 so that the consent of the Attorney General or the Advocate General for Northern Ireland (or prior to the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002, the Attorney General for Northern Ireland) is required before the DPP or DPP for Northern Ireland may consent to the prosecution of the offences to which those provisions apply, if it appears to the latter that the offence was committed outside the UK. The offences which require such consent are any offence under the 2000 Act other than those listed in section 117(1) of the 2000 Act or any offence under Part 1 of the 2006 Act. This amendment is based on recommendation 15 of Lord Carlile's January 2007 report on the definition of terrorism.
Clause 29 - Sentences for offences with a terrorist connection: England and Wales
96. Clause 29 is included in response to recommendation 8 of Lord Carlile's January 2007 report on the definition of terrorism, that a terrorist connection should be considered to be an aggravating factor in sentencing. This is important where offenders are convicted of offences other than those under the terrorism legislation but where the offence is connected with terrorism (for example an explosives offence). Such offences (under the general law) account for approximately 40% of terrorist cases.
97. Under subsections (1) to (3) a court in England and Wales considering a person's sentence for an offence listed in Schedule 2 must, if it appears that there was or may have been a terrorist connection, make a determination as to whether there was, hearing evidence if need be (for example following a guilty plea) and taking account of any representations by the prosecution or defence. If it determines that there was a terrorist connection, the court must treat that as an aggravating factor when sentencing the offender (subsection (4)). "Terrorist connection" is defined in clause 85.
98. Schedule 2 sets out the list of offences under the general law (as opposed to offences under the terrorism legislation) for which the court should consider whether there is a terrorist connection. The offences included in this Schedule are those most frequently prosecuted in terrorism related cases. The list of offences in Schedule 2 is applicable not only in the provisions in the Bill about aggravated sentencing, but also in those relating to forfeiture (see clause 33) and those containing the notification requirements (see clause 45).
99. Subsection (6) provides that this statutory aggravating factor will apply only in relation to offences committed on or after commencement.
100. Clause 30 provides that in Scotland the sentencing court must treat a terrorist connection (as defined in clause 85), proved to the trial court, as an aggravating factor when sentencing for an offence specified in Schedule 2 to this Bill (offences where terrorist connection to be considered). Subsection (4) requires a court imposing an aggravated sentence for an offence connected to terrorism to state the extent and reasons for the difference between the sentences it imposed and that it would have imposed if the offence had not been determined to be connected to terrorism. Subsection (5) provides that evidence from a single source is sufficient in this connection - which is different from the usual position under the law in Scotland where corroboration is required. Subsection (6) provides that this new aggravating factor will only apply in relation to offences committed on or after commencement.
101. This clause provides the Secretary of State with a power to amend (by order subject to the affirmative resolution procedure) the list of offences in Schedule 2 for which the court must consider whether there was a terrorist connection.
102. Schedule 2 sets out the list of offences under the general law (as opposed to offences under the terrorism legislation) for which a connection to terrorism should be considered for the purposes of aggravated sentencing (clauses 29 and 30), forfeiture (clauses 32 to 37) and the application of the notification requirements in Part 4 of the Bill. The offences included in this Schedule are those most frequently prosecuted in terrorism related cases.
Clause 32 - Forfeiture: terrorist property offences
103. Clause 32 replaces section 23 of the Terrorism Act 2000 (forfeiture: terrorist property offences), which deals with the power of a court to order the forfeiture of money or other property from a person convicted by it of offences under sections 15 to 18 of the 2000 Act ("terrorist finance" offences). The principal change made to section 23 is that the court may make a forfeiture order in respect of money or other property which had been used for the purposes of terrorism. So, for example, the court could order the forfeiture of a flat which was used for making bombs.
104. The new section 23(2) concerns those convicted of an offence under section 15(1) or (2) or 16 of the 2000 Act. This allows the court to make a forfeiture order in respect of money or other property which had been used for the purposes of terrorism, or which the convicted person intended or had reasonable cause to suspect might be used for the purposes of terrorism.
105. The new section 23(3) makes similar provision for offences committed under section 15(3). The forfeiture power applies to money or other property which had been used for the purposes of terrorism, or which the convicted person knew or had reasonable cause to suspect would or might be used for those purposes.
106. The new section 23(4) concerns offences committed under sections 17 and 18 of the 2000 Act. This power to make a forfeiture order covers money or property which had been used for the purposes of terrorism or which the convicted person intended for such use.
107. The new section 23(5) covers offences committed under section 17 (funding arrangements), and refers specifically to money or property related to the arrangement in question. It allows the forfeiture of such money or property which had been used for the purposes of terrorism or which at the time of the offence the person knew or had reasonable cause to suspect might be used for those purposes.
108. The new section 23(6) and (7) are in the same terms as the existing section 23(5) and (6).
109. Clause 33 inserts a new section 23A into the Terrorism Act 2000. This allows the court which convicts a person of certain offences to order the forfeiture of money or other property in the possession or under the control of the convicted person at the time of the offence and which either had been used for the purposes of terrorism or was intended by that person to be used for those purposes, or which the court believes will be used for the purposes of terrorism unless forfeited. The offences in respect of which this power of forfeiture is available are certain offences under the 2000 Act and the Terrorism Act 2006 (but not the terrorist finance offences, which are covered by new section 23), and, in England and Wales and in Scotland (but not in Northern Ireland) offences falling within Schedule 2 which the court determines have a terrorist connection (as defined in clause 85).
110. Section 23A(2) sets out the offences in the Terrorism Act 2000 and Terrorism Act 2006 to which this section applies, and new subsection (3) also applies the section to ancillary offences.
111. Section 23A(4) provides that this section also applies to offences in Schedule 2 to the Bill which the court determines has a terrorist connection.
112. Section 23A(5) allows the Secretary of State to amend the lists of offences in subsections (2) and (3) by Order, subject to affirmative resolution (see subsection (2) of clause 33).
113. Clause 34 inserts a new section 23B into the Terrorism Act 2000 which contains supplementary provisions in relation to the court's power to make a forfeiture order under section 23 or 23A.
114. Section 23B(1) allows a person other than the convicted person who claims to have an interest in anything which can be forfeited to be given an opportunity to be heard by the court before it makes an order.
115. Section 23B(2) requires the court, before making an order, to have regard to the value of the property and the likely effect a forfeiture order will have on the convicted person.
116. Section 23B(3) makes provisions for procedures in Scotland.
117. Section 23B(4) gives effect to Schedule 4 to the 2000 Act which makes further provision in relation to forfeiture orders made under sections 23 and 23A. Schedule 4 is consequentially amended by Schedule 3 to the Bill.
118. Subsection (1) of clause 35 inserts a new paragraph 4A into Part 1 of Schedule 4 to the Terrorism Act 2000. Paragraph 4A(1) allows a court making a forfeiture order in a case where the offender has been convicted of an offence which has resulted in a person suffering personal injury, loss or damage, or where any such offence is taken into consideration, to order that an amount is to be paid to that person out of the proceeds of the forfeiture. The court may specify a sum which the amount to be paid may not exceed.
119. Paragraph 4A(2) defines for this purpose the proceeds of forfeiture as being the aggregate amount of any forfeited money plus the proceeds of any sale or disposal of forfeited property, after deduction of the costs of the sale or disposal. This sum will then be reduced by the amount of any payment made under paragraph 2(1)(d) (to a person with an interest in the property) or 3(1) (to a receiver appointed to implement the forfeiture order).
120. Paragraph 4A(3) provides that a court may only make an order under this paragraph if it is satisfied that it would have made an order under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 (which is the general power under which a court may make a compensation order on conviction) requiring the offender to pay compensation, if it had not been for the inadequacy of the offender's means.
121. Subsection (2) inserts new paragraph 17A into Part 2 of Schedule 4, making similar provision in Scotland.
122. Subsection (3) inserts new paragraph 32A into Part 3 of Schedule 4, making similar provision for Northern Ireland.
123. Subsection (1) of clause 36 substitutes a new section 120A into the Terrorism Act 2000.
124. New section 120A(1) sets out some specific items, connected to the offence, which may be forfeited in relation to specific offences in the Terrorism Act 2000. For sections 54 and 58, there is no change as to what may be forfeited. Forfeiture under section 57 (possession for terrorist purposes) is new. Section 58A (eliciting etc. information about members of the armed forces) is a new provision, inserted into the 2000 Act by clause 69.
125. New section 120A(2) provides that the court must give an opportunity to be heard to any person other than the convicted person who claims to have an interest in anything which can be forfeited under this section. (Provision to this effect is currently in sections 54 and 58.)
126. New section 120A(3) provides that a forfeiture order does not come into effect until all possibilities of it being varied or set aside on appeal have been exhausted. (Provision to this effect is currently in sections 54 and 58.)
127. New section 120A(4) allows the court to make any provision necessary to give effect to the forfeiture, including provisions relating to the retention, handling, disposal or destruction of what is forfeited. Destruction might be ordered for example in relation to articles seized whose continued existence are considered dangerous.
128. Subsection (2) of clause 36 inserts a new section 11A into the Terrorism Act 2006. Subsection (1) of new section 11A allows for the forfeiture on conviction for an offence under sections 9 or 10 of the Terrorism Act 2006 of any radioactive device or material, or any nuclear facility made or used in the commission of the offence.
129. Subsection (2) of section 11A sets out similar powers in relation to an offence committed under section 11 of the Terrorism Act 2006, allowing the forfeiture of certain nuclear materials which were the subject of demands or threats falling within subsections (1) and (3) of that section.
130. Clause 37 gives effect to Schedule 3 which makes amendments consequential to the new provisions concerning forfeiture orders in clauses 32 to 36.
131. Schedule 3 contains amendments consequential on those made by clauses 28 to 32.
Clause 38 - Scheme of this Part
132. This is an introductory clause relating to the new notification scheme for convicted terrorists sentenced to 12 months or more and the related civil orders.
Clause 39 - Offences to which this Part applies: terrorism offences
133. This clause lists a number of terrorism offences (and ancillary offences related to them, such as conspiracy and incitement) to which this Part of the Bill applies. It also provides the Secretary of State with an order-making power to amend this list of offences, subject to the affirmative resolution procedure and to transitional provisions.
134. Clause 40 provides that the provisions of this Part do not apply when the offence is dealt with by a service court and defines service court. In practice it is not anticipated that offences which may trigger the notification requirements will ever be dealt with by service courts.
135. Clause 41 provides that an individual will be subject to the notification requirements if he was convicted and given a relevant sentence (broadly, 12 months or more) for a terrorism offence prior to commencement of this Part and immediately before commencement the person is imprisoned or detained, has been released on licence or is unlawfully at large. This retrospective application does not apply to offences with a terrorist connection as there will have been no determination to this effect by the court prior to commencement.
Clause 42 - Sentences triggering notification requirements
136. Clause 42 provides that the notification requirements apply to a person who: (a) is convicted of a relevant offence and receives a sentence of imprisonment or detention for a period or term of 12 months or more in relation to that offence; or (b) is found not guilty by reason of insanity or is found to be under a disability and to have done the act charged in respect of such an offence punishable by 12 months' imprisonment or more and is made subject to a hospital order. The clause sets out all the different types of sentences that could be given in each jurisdiction of the UK for 12 months or more.
137. Clause 43 allows the Secretary of State to change the sentence threshold for a person to be subject to the notification requirements by an order subject to the affirmative resolution procedure. The order will have effect subject to the transitional provisions described in subsection (3).
Clause 44 - Initial notification
138. Clause 44 sets out the information the offender must supply to the police when he first makes a notification and the time scales within which he is required to provide that information. Subsection (1) provides that an individual must notify the police of the specified information within three days beginning with the day the person was dealt with for the offence or, where these provisions have retrospective application, within three days of the commencement of this Part.
139. Subsections (2) and (3) set out the information which is required from the person subject to the notification requirements, and includes the person's name (or names) and address (or addresses), his date of birth and national insurance number. The definition of "home address" is found at clause 55.
140. In calculating the period within which an offender must give notification under subsection (1), any time when the offender meets the conditions in subsection (4) - for instance any time when he is serving a sentence of imprisonment - does not count. As an offender will usually be sent straight to prison (or hospital) following his conviction for a relevant offence, this will usually mean that he will have to make his initial notification within three days of his release (unless he is subsequently taken back into detention or custody during that three day period, for example if he is arrested for a different offence - in which case the remainder of the three day period is again suspended).
141. Subsection (5) relates to a case where a person who receives a triggering conviction and sentence is already subject to the notification requirements by virtue of an earlier offence. If in these circumstances the person has made an initial notification in accordance with subsection (1) in respect of the earlier offence, he is not required to notify again in accordance with subsection (1). However, this applies only where the notification period in respect of the earlier offence lasts throughout the period specified in subsection (1), as extended in accordance with subsection (4) if appropriate.
142. This Part of the Bill also applies to offences under the general law set out in Schedule 2 which have a terrorist connection (as defined in clause 85). Subsection (1) of clause 45 provides that the notifications provisions apply when a court in England and Wales or in Scotland has determined that an offence has a terrorist connection for the purposes of the aggravated sentencing provisions under clause 29 or 30. Since the Bill does not contain corresponding provision on aggravated sentencing for offences with a terrorist connection for Northern Ireland, the notification provisions will apply in Northern Ireland only to terrorism offences falling within clause 39.
143. Clause 46 sets out the requirements on a relevant offender to notify the police of changes to the details he has already notified. This includes the requirement in subsection (3) that a person who stays at an address in the UK for a period of seven days or for a combined period of seven days within 12 months, must notify the police of this address. This might apply for example where the person stays at a friend or relative's house or a hotel in the UK for this length of time.
144. Subsection (4) provides that a person who is subject to the notification requirements who is released from custody, released from imprisonment or detention pursuant to a sentence of a court or from detention in hospital must notify the police of this fact. This will mean for example that where a person who was given a suspended sentence subsequently has his sentence activated, he must notify the police on his release from prison. Clause 55 defines "release" as including release on licence but not temporary release.
145. Subsections (7) and (8) provide that notification of any changes must be made before the end of the period of three days following the events specified in this clause. Where the event is residing or staying at another premises as described in subsection (3) then the three day notification period begins when the seven day period set out in that subsection ends. When determining the period within which notification is to be given under this clause, any periods spent in custody, imprisonment, detention or detained in a hospital are to be disregarded.
146. Subsection (10) provides that any notification under this section must be accompanied by the other information given to the police at the initial notification.
147. Clause 47 provides that one year after the initial notification, a notification of change or a notification under this clause, the individual must re-notify the police of the information specified in clause 44(2). This requirement does not apply if the individual has made a notification of change within that period (subsection (2)). The effect of this clause is that the offender must re-notify his details to the police at least annually.
148. Subsection (3) provides that if the period of one year specified in subsection (1) ends while the person is in custody, imprisoned, detained or detained in a hospital, then the period is treated as having continued until three days after the period in custody, imprisonment, detention or hospital detention ceases.
149. This clause describes how and where an offender is required to notify information to the police under the clauses relating to initial notification, notification of change and periodic re-notification. Subsection (2) provides that the person must notify by attending a police station in the person's local police area (as defined in clause 49) and making an oral notification to a police officer or other person authorised by the officer in charge of the station. Where the person is away from their usual home address for a period of seven days or a period amounting to seven days during a year, then they can notify at a police station local to their temporary address (subsection (3)).
150. The police must acknowledge the notification by the person in writing and in the form specified by the Secretary of State (subsections (4) and (5)).
151. Subsection (6) allows the police to take fingerprints from the person making the notification and to photograph any part of him for the purpose of verifying the person's identity. "Photograph" is defined for these purposes in clause 55 and could include for example taking an iris scan.
152. Clause 50(1) provides a power for the Secretary of State to make regulations setting out additional notification requirements for persons subject to the notification scheme in relation to foreign travel.
153. Subsection (2) sets out details the person must notify to the police concerning their departure (such as date of departure, the country the person is travelling to and their point of arrival) and allows the regulations to give further details. Subsection (3) concerns the details that must be disclosed about the person's return to the UK: these will be given in the regulations.
154. Subsections (4) to (6) provide that a notification under this clause must be made in accordance with the regulations; the regulations may make different provisions for different descriptions or categories of person (for example they may provide that the requirements apply only in relation to intended foreign travel of three days or more); and the regulations will be subject to affirmative resolution procedure.
Clause 51 - Period for which notification requirements apply
155. Clause 51 sets out the period during which a person will be subject to the notification requirements. In the most serious cases, where a person is sentenced to imprisonment or detention for 5 years or more, the notification requirements will apply for an indefinite period, which means the rest of his life (subsection (1)). Where the sentence is less than 5 years (but 12 months or more), the requirements will apply for 10 years (subsection (2)). The notification period starts with the day on which the person is dealt with (subsection (3)). However, subsection (6) provides that in determining whether the notification period has expired, any time the individual has spent in custody by order of a court, serving a sentence of imprisonment or detention or detained in hospital shall be discounted. This means for example that where a person whose sentence attracts a notification period of 10 years goes to prison immediately following sentence, the 10 years will in effect run from the date he is released.
156. Subsection (4) describes how the period operates in respect of a person who has been found not guilty by reason of insanity or found to be under a disability but who is subsequently tried for the offence.
157. Subsection (5) sets out how to calculate the notification period where an offender is sentenced for more than one terrorist-related offence and these sentences are terms of imprisonment running consecutively or partly concurrently. Where the terms are consecutive, they are to be added together. For example, where an offender is sentenced to 4 years' imprisonment for one terrorist-related offence and 10 years' imprisonment for another such offence, to run consecutively, the sentence would be treated as 14 years' imprisonment for the purposes of working out the notification period (in this case, life). Terms will be partly concurrent when they are imposed on different occasions. An example would be where an offender is sentenced to 2 years' imprisonment for a terrorist-related offence, and 6 months into this term he is sentenced to 4 years' imprisonment for a second such offence. Where this is the case, the notification period is based on the combined length of the terms minus any overlapping period. In the example given, the combined length of the sentences would be 6 years and the overlapping period would be the remaining 18 months of the 2-year sentence. So the sentence for the purposes of working out the notification period would be four and a half years.
|© Parliamentary copyright 2008||Prepared: 18 February 2008|