|Counter-Terrorism Bill - continued||House of Commons|
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Clause 52 - Offences relating to notification
158. Under clause 52, failure without reasonable excuse to comply with any of the notification requirements, or providing false information in response to any of the requirements, constitutes an offence. A reasonable excuse might be where an offender does not notify within the required timescale because he is in hospital following an accident. Such an offence is an either way offence with a maximum sentence of five years' imprisonment (subsection (2)). Subsection (4) provides that the offence of failing to give a notification continues throughout the period during which the required notification is not given, but an offender cannot be prosecuted more than once for the same failure. However if an offender fails to comply with a requirement, is convicted for this offence and then fails to comply again in respect of the same requirement, he commits a new offence and may be prosecuted again.
159. Subsection (5) provides that the offence may be tried in a court with jurisdiction in a place where the person resides or is found. The "is found" limb is to cover the case of a person with no fixed abode.
Clause 53 -Notification orders
160. This clause gives effect to Schedule 4, which makes provision for notification orders. These may be made to make individuals dealt with outside the UK for a corresponding foreign offence subject to the notification requirements of this Part.
161. Schedule 4 makes provision for notification orders, which make individuals who have been dealt with outside the UK for relevant offences subject to the notification requirements of Part 4 of the Bill. A notification order might be sought in respect of a UK national who has been convicted of a foreign terrorism offence and who is deported to the UK on release from prison abroad. It might also be sought in respect of a foreign national with such a conviction who is in the UK.
162. Paragraph 2 defines "corresponding foreign offences" (those offences which may trigger an application being made for a notification order). These are acts which constitute an offence in the jurisdiction in which they are committed and which "correspond to an offence to which this Part applies". This means that it would have been an offence under clause 39 if committed in the UK (terrorism offences which, subject to the sentence threshold, automatically trigger the application of the notification provisions) or an offence listed in Schedule 2 that had a terrorist connection.
163. Paragraph 2(4) provides that, on an application for a notification order, it will be deemed that an act corresponds to an offence to which Part 4 applies unless the defendant serves a notice disputing this and requiring the applicant to prove it or if the court allows the defendant to require such proof without the serving of a notice.
164. Paragraph 3 sets out the three conditions for making a notification order. First, an individual must have been convicted of a corresponding foreign offence and given a sentence or hospital order equivalent to that required for notification requirements to apply where the conviction or relevant finding was in the UK (as set out in clause 42). Second, the sentence must either have been imposed after the commencement of this Schedule, or when the Schedule was commenced the individual was imprisoned or detained, released on licence or equivalent, or was unlawfully at large as a result of the sentence. Third, the period for which a person would be subject to notification requirements under clause 51 has not expired. A court must make a notification order if these three conditions are met.
165. Paragraph 4 sets out the circumstances in which the police may apply for a notification order and the procedure to be followed in England and Wales. The application must be made by the chief officer of police for the area where the individual resides, or where the officer believes the person is or intends to come. This would enable, for example, the chief officer of Kent Police to make an application in respect of a person who is currently in France but who is believed (by the chief officer) to have plans to arrive in Dover within the next few days. Paragraphs 5 and 6 make corresponding provision for Scotland and Northern Ireland.
166. Paragraphs 7, 8 and 9 provide, for England and Wales, Scotland and Northern Ireland respectively, a power for an individual made subject to a notification order to appeal against the making of their order to a higher court.
167. Paragraph 10 provides that the notification requirements in Part 4 of the Bill apply to a person made subject to a notification order, but sets out the modifications to those provisions that are necessary to make them work in connection with such persons.
168. This clause gives effect to Schedule 5, which makes provision for foreign travel restriction orders which may, in specified circumstances, be made in respect of persons subject to the notification requirements.
169. Paragraph 1 of Schedule 5 introduces the concept of a foreign travel restriction order. Such an order may be made in respect of individuals subject to the notification requirements (including by virtue of being subject to a notification order). This is a civil preventative order under which the court may prohibit the person from travelling abroad where and so far as it is necessary to do so to prevent the person from engaging in terrorism activity abroad.
170. Paragraph 2 sets out the conditions for making a foreign travel restriction order. If these are met, the court may make an order. First, the person must be subject to the notification requirements. Second, the person must, since being dealt with (usually, sentenced for) the offence, have acted in a way which gives reasonable cause to believe that such an order is necessary to prevent him from taking part in terrorism activity outside the UK. "Terrorism activity" is defined in paragraph 16 of this Schedule. In the case where the notification requirements apply retrospectively, the person must have acted in such a way since commencement. Although this is a civil order, the standard of proof will be the criminal one.
171. Paragraph 3 sets out the circumstances in which the police may apply to a magistrates' court for a foreign travel restriction order and the procedure for doing so in England and Wales. Paragraphs 4 and 5 make corresponding provisions for Scotland and Northern Ireland.
172. Paragraph 6 enables a foreign travel restriction order to prevent a person subject to it from travelling to any country outside the UK which is named or described in the order, travelling to any country outside the UK other than the countries named in the order (this may be used, for example, where the offender is banned from travelling anywhere in the world other than to a named country which he may need to visit for family reasons) or travelling to any country outside the UK. A person subject to an order prohibiting all foreign travel must surrender all their passports at the police station specified in the order on or before the order takes effect or within a specified time. The person's passports must be returned as soon as is reasonably practicable after the order ceases to have effect. "Passport" is defined in clause 55 and includes both foreign and UK passports and other travel documents.
173. Paragraph 7 provides that the foreign travel restriction order lasts for a fixed period, to be specified in the order, of not more than 6 months and that where the person is already subject to a foreign travel restriction order, the earlier order ceases to have effect.
174. Paragraphs 8 sets out provisions permitting the variation, renewal or discharge of a foreign travel restriction order in England and Wales. A defendant may wish to apply for a variation of an order if for example the order prohibits him from travelling to a particular country but during the course of the order he has to attend an urgent business meeting there. The police may wish to apply for a renewal of an order if, on the expiry of the previous order, they still have cause to believe that the defendant poses a risk of committing terrorist acts abroad. Any of the persons specified in paragraph 8(1) may make an application for an order varying, renewing or discharging a foreign travel order.
175. Paragraph 8(2) provides that an application for variation, renewal or discharge may be made to the court which made the original order; or to a magistrates' court in the area where the subject of the order resides (this will generally be the case where the subject of the order is making the application); or to any magistrates' court in the police area of the chief officer making the application.
176. Paragraph 8(4) provides that the court considering the application must hear any person mentioned in paragraph 8(1) who wishes to be heard. Having done so, paragraph 8(3) allows the court to make any order varying, renewing or discharging the order it considers appropriate, subject to the restrictions in paragraph 11.
177. Paragraphs 9 and 10 make corresponding provision for Scotland and Northern Ireland.
178. Paragraph 11 provides that a foreign travel restriction order may only be renewed or varied so as to contain prohibitions necessary to prevent the person subject to the order from taking part in terrorism activities outside the UK.
179. Paragraph 12 provides a right of appeal in England and Wales to the Crown Court against the making of a foreign travel restriction order or against the making of an order varying, renewing or discharging a foreign travel order, or against the refusal to make such an order. Paragraph 12(3) provides for the court to make such an order as it consider necessary to give effect to its judgement of the appeal, and to make incidental and consequential orders as appear just.
180. Paragraphs 13 and 14 make corresponding provision for Scotland and Northern Ireland.
181. Paragraph 15 makes it an offence for a person to breach any prohibition contained within a foreign travel restriction order without reasonable excuse. Paragraph 15(4) provides that the court cannot make a conditional discharge where someone is convicted of this offence in England and Wales or Northern Ireland, or a probation order where the conviction is in Scotland.
182. Clause 55 provides definitions of terms used in Part 4, including in Schedules 4 and 5.
Clause 56 - Asset Freezing Proceedings
183. Clause 56 defines "asset freezing proceedings" and related terms for the purposes of Part 5, which provides a power to make court rules for asset freezing proceedings. Asset freezing proceedings are proceedings on an application to set aside an asset freezing decision, which is a decision of the Treasury to give a direction for the purposes of a UN terrorism order about the freezing of a suspected terrorist's funds. Subsection (3) contains the list of the UN terrorism orders, and subsection (4) includes a power for HM Treasury, by order, to make changes to the list.
Clauses 57 - General provisions about rules of court
184. Clause 57 specifies matters about which the rules of court for asset freezing proceedings may make provision. Subsection (2) requires the maker of the rules of court to have regard to both the need for a proper review of the asset freezing decision which is subject to challenge, and the need to ensure that certain disclosures are not made, where this would be contrary to the public interest. Subsections (3) and (4) contain a non-exhaustive list of matters which the rules of court may cover. This includes provision concerning:
185. Clause 58 requires rules of court to contain certain provisions relating to HM Treasury's disclosure obligations, including rules relating to applications by HM Treasury to withhold material from disclosure. Subsection (3) provides that the Treasury must be given an opportunity to apply for permission not to disclose sensitive material (and the application must be heard in private) and that the court must be required to give permission not to disclose the material if to do so would be contrary to the public interest. Where the court gives permission for material not to be disclosed, it must consider requiring HM Treasury to provide a summary of the material, although such a summary must not itself contain material the disclosure of which would be contrary to the public interest.
186. If, having applied, the Treasury do not receive the court's permission to withhold sensitive material, but elect not to disclose it anyway, rules of court must authorise the court to direct either that the Treasury may not rely on the material or, if it adversely affects their case, to make such concessions as the court specifies (subsection (5)).
187. Subsection (6) however makes it clear that nothing in clause 58, or in rules of court made under clause 58, is to be seen as requiring the court to act in a manner incompatible with the right of the applicant to a fair hearing. This provision is included to ensure that this Part, and rules of court made under it, comply with the European Convention on Human Rights, following the House of Lords decision in Secretary of State for the Home Department v. MB ( UKHL 46).
188. Clause 59 permits the appointment of a special advocate in asset freezing proceedings. This procedure corresponds with the special representation procedure contained in the Prevention of Terrorism Act 2005 (see paragraph 7 of the Schedule). A special advocate is a qualified lawyer who has passed through the Government's security vetting process, whose role is to represent the interests of a party to asset freezing proceedings (including any appeal) in circumstances where that party and his own legal representative are excluded from the proceedings. The special advocate is appointed by the appropriate law officer and is not responsible to the party whose interests he is appointed to represent.
189. Clause 60 amends section 18 of the Regulation of Investigatory Powers Act 2000 ("RIPA"), to enable the disclosure of intercepted communications in asset freezing proceedings. Section 17 of RIPA contains a general prohibition on the use of intercepted communications in legal proceedings. Section 18 of RIPA lists certain exceptions to that general prohibition and this clause adds asset freezing proceedings to that list of exceptions.
Clause 61 - Allocation of proceedings to Queen's Bench Division
190. Clause 61 provides that asset freezing provisions are to be allocated to the Queen's Bench Division.
191. Clause 62 allows the Lord Chancellor, the first time the power is used, to exercise the power conferred by clauses 57 and 58 to make rules of court. The Lord Chancellor must consult the Lord Chief Justice (or, where the rules are applicable to Northern Ireland, the Lord Chief Justice of Northern Ireland), before making such rules, but this requirement may be satisfied by any consultation that takes place before commencement (see subsection (3)). The rules will come into effect only if approved by the House of Commons and the House of Lords within 40 days of being made (subsection (4)).
192. Clause 63 identifies where the meanings of certain defined terms used in this Part can be found.
Clause 64 and 65 - Inquests involving material affecting national security etc
193. Clauses 64 and 65 amend the Coroners Act 1988.
194. Clause 64(2) inserts a new section 8A into the Coroners Act 1988 which allows the Secretary of State to issue a certificate in relation to an inquest if, in her opinion, the inquest will involve the consideration of material that should not be made public in the interests of national security, in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest. The effect of such a certificate is that the inquest will be held without a jury. A certificate may be issued before an inquest has begun or at any time before its conclusion. If the inquest has already begun with a jury, the coroner must discharge the jury. The Secretary of State may revoke a certificate at any time before the conclusion of the inquest.
195. Clause 65(1) inserts new sections 18A to 18C into the Coroners Act 1988. New section 18A provides for the appointment of specially appointed coroners to hold inquests where a certificate has been issued under section 8A. New section 18B sets out provisions governing the powers and duties of specially appointed coroners who hear certified inquests and new section 18C permits the Secretary of State to revoke the appointment of a specially appointed coroner in specified circumstances.
196. Clause 64(3) and 65(2) provide that the amendments to the Coroners Act 1988 will be capable of applying to any inquests which are ongoing on the day they come into effect, in addition to any inquests beginning on or after that day.
197. Clause 66(1) amends section 18 of the RIPA to allow disclosure of intercept material to a person appointed as counsel to an inquiry held under the Inquiries Act 2005, in addition to the panel of an inquiry. But the inquiry panel may not order the disclosure of intercept material unless it is satisfied that there are exceptional circumstances that make the disclosure essential (see section 18(8A) of RIPA).
198. Clause 67(1) to (3) amends section 18 of RIPA to allow disclosure of intercept material to a coroner and to a person appointed as counsel to an inquest in cases where a certificate has been issued under section 8A of the Coroners Act 1988 but only if the coroner is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained.
199. Clauses 66(2) and 67(4) provide that the amendments to RIPA set out in clauses 66 and 67 have effect with regard to any inquests or inquiries which have begun but have not been concluded before the day on which those clauses come into effect, in addition to any inquests or inquiries beginning on or after that day.
Amendment of definition of "terrorism" etc
Clause 68 - Amendment of definition of "terrorism" etc
200. Clause 68 gives effect to Lord Carlile's 12th recommendation in his January 2007 report on the definition of terrorism. This was that the definition of terrorism in section 1(1) of the Terrorism Act 2000 be amended to include, in paragraph (c), the purpose of advancing a racial cause (in addition to a political, religious or ideological cause). Although a racial cause will in most cases be subsumed within a political or ideological cause this amendment is designed to put the matter beyond doubt that such a cause is included. A similar amendment is made to paragraph 4(2)(c) of Schedule 21 to the Criminal Justice Act 2003 which makes provision in relation to the minimum term for mandatory life sentences. That paragraph provides that the starting point for a murder done for the purpose of advancing a political, religious or ideological cause will be life. And similar amendments are made to other pieces of legislation where these words appear.
Clause 69 - Offences relating to information about members of armed forces
201. This clause, which inserts a new section 58A into the 2000 Act, creates a criminal offence which is committed when a person either elicits or attempts to elicit information about members of the armed forces which is likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates information of that kind. Section 58 of the Terrorism Act 2000 already prohibits the collecting of information which is likely to be of use to a person taking part in acts of terrorism. This new offence is based in part on section 103 of the 2000 Act (which ceased to have effect on 31 July 2007 by virtue of the Terrorism (Northern Ireland) Act 2006). A person who is able to prove that he had a reasonable excuse for his actions is able to rely on that as a defence. This must be read with section 118 of the 2000 Act (as amended by clause 69(3)), the effect of which is to limit the burden on an accused, in respect of certain provisions in the Act, to prove a particular matter if the accused wishes to rely on proof of that matter as a defence. If the accused adduces evidence which is sufficient to raise an issue with respect to a particular matter, the prosecution must then prove beyond reasonable doubt that it does not exist. The offence is punishable with a maximum sentence of 10 years imprisonment, or to a fine or both.
202. Subsection (2) makes a clarifying amendment to section 19(1) of the 2000 Act. This makes it clear that the offence in section 19 of failing to disclose a belief or suspicion of an offence under sections 15 to 18 (a "terrorist finance" offence) applies to all persons in employment, whether or not they are employed in a trade, profession or business.
203. Subsection (3) inserts a new section 23C into the 2000 Act defining "employment" for the purposes of Part 3 of that Act (with a corresponding definition for "employer"). The definition is wider than the usual definition of employment, including contractors, office-holders (such as trustees of a charity), individuals on a formal work experience programme or training (for example an intern in a bank) and volunteers.
204. Subsection (4) makes transitional provision to the effect that, if the wider definition of employment catches a person it did not previously catch, that person will have a duty to inform of a belief or suspicion that a terrorist offence has been committed if they continue to hold that belief or suspicion after commencement, even if the information on which it is based came to the person before commencement.
Clause 71 - Control orders: powers of entry and search
205. Clause 71 adds three new sections after section 7 of the Prevention of Terrorism Act 2005 ("PTA"). The new sections provide constables with the power to enter and search the premises of individuals subject to control orders who are reasonably suspected of absconding or of failing to grant access to premises when required to do so. They also allow a constable to apply to a justice of the peace (or, in the case of Scotland, a sheriff and, in the case of Northern Ireland, a lay magistrate) for a warrant to enter and search premises for the purpose of monitoring compliance with a control order. In the context of the PTA "premises" can include vehicles that are owned or controlled by the controlled person (see section 15 of that Act). The three new sections are added by subsection (1).
206. New section 7A (absconding) gives a constable the power to enter (if necessary by force) and search premises if the officer reasonably suspects that the controlled person has absconded. Once a constable has this initial "reasonable suspicion" the entry and search power can be exercised to determine whether the controlled person has in fact absconded and, if it appears that he has, to search for any material that may assist in apprehending him. However in circumstances where, prior to these powers being exercised a constable knows that a controlled person has absconded he can enter and search the property for any material that may assist in apprehending the controlled person without the purpose of this entry and search being to determine whether there has been an abscond.
207. The term "abscond" is not defined in the PTA and it is intended that it should have its ordinary meaning: "to leave hurriedly and secretly, flee from justice" and, in this particular context, to avoid the obligations of a control order. The premises to which new section 7A applies are the residence of an individual subject to a control order and any other premises to which a controlled person is or at any time has been, required to grant access in accordance with an obligation imposed by or under a control order (see subsection (2)).
208. New section 7B (failure to grant access to premises) gives a constable the power to enter (if necessary by force) and search premises where the constable reasonably suspects that the controlled person has failed to permit entry (as required by the control order) at a time when, by virtue of an obligation under the control order, the person is required to be in that person's residence. The purpose of any such entry and search is to determine whether any of the obligations imposed by a control order have been contravened or, if it appears that there has been such a contravention, to search for any material that may assist in any subsequent investigation. The premises to which this new section applies are premises to which the controlled person is obliged to grant access under the person's control order obligations.
209. New section 7C (monitoring compliance with a control order) allows a constable to apply to a justice of the peace (or, in Scotland, a sheriff and, in Northern Ireland, a lay magistrate) for a warrant to enter and search the premises of a controlled person to determine whether a controlled individual is complying with that person's obligations. Such a warrant may only be granted if the justice of the peace (or sheriff or lay magistrate) is satisfied that it is necessary for the purposes of determining whether the controlled person is complying with the control order obligations. In order for the requirement of necessity to be met it is envisaged that such warrants will most often be applied for where the police have previously attempted to conduct unannounced visits that have failed due to the apparent absence of the individual. The premises to which this new section applies are the same as for new section 7A (see above).
210. Subsection (2) of clause 71 provides that obstruction of a police officer acting under any of new sections 7A, 7B or 7C is an offence punishable, on summary conviction, by a fine not exceeding level 5 on the standard scale (currently £5000) and a prison sentence up to 51 weeks (in England and Wales) or six months (in Scotland and Northern Ireland). The powers of a magistrates' court to impose a prison sentence of 51 weeks are provided by section 281(5) of the Criminal Justice Act 2003. This provision has not yet been commenced and until it is reference to the prison sentence of 51 weeks should be read as a reference to a prison sentence of 6 months (see section 9(8) of the PTA).
211. Subsection (3) provides that these amendments will apply regardless of when the control order was made.
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