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Clause 72 - Control orders: meaning of involvement in terrorism-related activity
212. Section 1(9) of the PTA defines involvement in terrorism-related activity as any one or more of the following:
a) the commission, preparation or instigation of acts of terrorism;
b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.
213. Clause 72 amends 1(9)(d) so that it reads "conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c)."
214. This amendment removes an unintended ambiguity in the original definition, which could be read as capturing individuals who unknowingly provided support or assistance to individuals known or believed by the Secretary of State to be involved in terrorism-related activity. It also removes an unnecessary potential circularity in the definition. Currently, an individual (A) could have a control order imposed on him because he was supporting another individual (B) known or believed to be supporting a third person (C) involved in terrorism-related activity within paragraphs (a) to (c). There could in theory be any number of links in this chain: A knows or believes B who knows or believes C who knows or believes D, and so on before it leads to someone (Z) who is actually engaged in conduct referred to within paragraphs (a) to (c). At present all persons in this chain could have a control order imposed against them. The definition was not and is not intended to be this wide. This amendment ensures that only support for someone directly involved in terrorism-related activity (conduct falling within section 1(9)(a) to (c)) is captured so that in the example referred to above only the person directly giving support and assistance to Z would be caught by the definition.
Clause 73 -Time allowed for representations by controlled persons
215. Section 3 of the PTA makes provision in relation to the supervision by the court of the making of non-derogating control orders. Once a non-derogating control order has been made, the Secretary of State's decision to make the control order and impose the obligations in it are subject to mandatory review by the court. (In the case of a controlled person whose principle place of residence is in Scotland the court is the Outer House of the Court of Session; in the case of a controlled person whose principle place of residence is in Northern Ireland the court is the High Court in Northern Ireland; and in any other case the court is the High Court in England and Wales (see section 15 of the PTA)). This review is a full hearing with the court applying judicial review principles to the decisions taken (this is commonly known as a "3(10) hearing" after the section in the PTA that provides for it). Section 3 requires the court to give an individual subject to a control order the opportunity to make representations to the court about directions for the 3(10) hearing in relation to that control order.
216. This clause (subsection (2) and the new subsection (7A)(a) inserted by subsection (3)) amends section 3 so that when a control order is made following permission from the court, the individual will be given an opportunity to make representations within seven days from the time that the order is served upon him and not, as currently, seven days from the time the court gives permission. There may for operational reasons be a gap - possibly longer than seven days - between the time a control order is made and the time it is served. The PTA as currently drafted potentially requires the court to give an individual the opportunity to make representations before the order is served - and thus before the individual is aware of the control order or bound by its obligations. This is impractical and operationally undesirable. This amendment will apply to control orders made after this clause comes into force.
217. By virtue of new subsection (7A)(b), the amendment does not change the position regarding the timing of the opportunity for an individual to make representations in relation to urgent control orders made without the permission of the court. By definition, the individual in such cases is already aware of the control order and bound by its obligations.
Clause 74 - Applications for anonymity for controlled persons
218. Clause 74 makes a technical amendment to the anonymity provisions in paragraph 5 in the Schedule to the PTA. The intention of paragraph 5 is to ensure that the anonymity of individuals subject to a control order can be maintained throughout the process. Paragraph 5 states that anonymity orders can be applied for after a control order has been made. It is the Secretary of State that has the power to make a non-derogating control order. However (except in cases of urgency) before the power to make an order arises the Secretary of State must apply to the court for permission to make a control order (or in the case of derogating control orders, when the Secretary of State applies for the court to make such an order). The amendments in this clause mean that the Secretary of State can make an application for an anonymity order to protect the identity of the controlled person at the stage when permission is being sought from the court to make the control order rather than when the control order is actually made. This amendment will be deemed always to have had effect, to reflect the original policy intention and current practice.
Forfeiture of terrorist cash
Clause 75 - Forfeiture of terrorist cash: determination of period for which cash may be detained
219. This clause amends paragraph 3 of Schedule 1 to the Anti-Terrorism, Crime and Security Act 2001 ("ATCSA") (detention of seized cash), so as to provide that in calculating the period of 48 hours for which cash may initially be detained, only working days are taken into account. Paragraph 3(1) corresponds to section 295(1) of the Proceeds of Crime Act 2002, which was amended in similar terms by section 100 of the Serious Organised Crime and Police Act 2005.
Clause 76 - Forfeiture of terrorist cash: appeal against decision in forfeiture proceedings
220. This clause substitutes paragraphs 7 and new 7A in Schedule 1 to the ATCSA (appeals against decision in forfeiture proceedings). Some of the amendments are to take account of amendments made to the 2000 Act by section 22 of the Terrorism Act 2006 (name changes by proscribed organisations). Specific provision is made for the timing of appeals against a decision in forfeiture proceedings relating to "terrorist cash" where the forfeiture depends on the proscription of an organisation and the organisation in question is subsequently de-proscribed as a result of an appeal to the Proscribed Organisations Appeal Commission (POAC). Section 22 of the 2006 Act amended the 2000 Act to allow the Secretary of State to specify by order an alternative name for a proscribed organisation and to provide for appeals to POAC against such orders. Where the appeal is successful, the Secretary of State is required by section 5(5) of the 2000 Act to make an order under section 3(8) effectively revoking the earlier order. New paragraph 7A takes account of this circumstance and provides that an appeal may be brought at any time before the end of 30 days beginning with the date the de-proscription order comes into force.
221. Paragraph 7 of Schedule 1 to the ATCSA corresponds to section 299 of the Proceeds of Crime Act 2002. That section was substituted by section 101 of the Serious Organised Crime and Police Act 2005. The paragraph 7 substituted by this clause reflects the changes made to section 299 of the 2002 Act. These are (a) the applicant for a forfeiture order is given the right of appeal against the court's refusal to make an order and (b) the requirement that the hearing of an appeal against a forfeiture order is by way of a rehearing is omitted.
222. The new paragraph 7 also provides that the right of appeal in Scotland is to the sheriff principal (rather than the Court of Session).
Costs of policing at gas facilities
Clause 77 - Policing at gas facilities: England and Wales
223. Clause 77 allows the Secretary of State to require gas transporters to pay certain costs of policing gas facilities in England and Wales. Subsection (1) sets out the circumstances in which these new powers may be exercised by the Secretary of State: the Secretary of State must consider that the provision of "extra police services" is necessary because of there is a risk of loss or of disruption to the supply of gas which would have a serious impact on the United Kingdom (or a part of it).
224. Subsection (2) defines "extra police services" to mean either the use of police services from the Ministry of Defence Police under section 2(2)(e) of the Ministry of Defence Police Act 1987 (agreement by Secretary of State to provide MOD police services) or from English and Welsh police forces under section 25(1) of the Police Act 1996 (provision of special services on request).
225. Subsection (3) provides that the Secretary of State may require a designated gas transporter to pay all or part of the costs of the extra policing incurred by the Secretary of State.
226. Subsection (4) defines "gas facility" and subsection (5) explains what is meant in subsection (3) by a gas transporter having an interest in a gas facility.
Clause 78 - Policing at gas facilities: Scotland
227. Clause 78 makes corresponding provision for Scotland. Subsection (1) of this clause makes identical provision to that which applies in England and Wales.
228. Subsection (2) defines "extra police services" to mean either the use of police services from the Ministry of Defence Police under section 2(2)(e) of the Ministry of Defence Police Act (as for England and Wales) or police services provided under an agreement, entered into at the request of the Secretary of State, between the occupier of the gas facility and the police authority, chief constable of the police force or joint police board, for the police area where the gas facility is situated.
229. Subsection (3) provides that where the services of the Ministry of Defence Police have been used the Secretary of State may require a designated gas transporter to pay all or part of the costs of the extra policing incurred by the Secretary of State.
230. Subsection (4) provides that if requested by the occupier of the gas facility the Secretary of State must require a designated gas transporter to pay the reasonable costs incurred by the occupier under any agreement entered into at the Secretary of State's request, between the occupier of the gas facility and the police authority, chief constable of the police force or joint police board, for the police area where the gas facility is situated.
Clause 79 - Designated gas transporters
231. Subsection (1) of this clause provides that the Secretary of State may by order designate a person as a gas transporter for the purposes of clauses 77 to 81. A designated gas transporter must be a holder of licence issued under section 7 of the Gas Act 1986. Such an order is subject to negative resolution procedure (see subsection (3)).
Clause 80 - Costs of policing at gas facilities: recovery of costs
232. This clause makes provision for the designated gas transporter to be able to recoup the costs that it has had to pay for the extra policing from its customers. Subsection (1) of this clause empowers the Secretary of State to determine the amount of the costs to be paid by the designated gas transporter under clause 77 or 78, the manner and time when the costs are to be paid and the persons to whom the costs are to be paid.
233. Subsection (2) provides that where a designated gas transporter is required to pay costs under clause 78, the occupier of the gas facility can recover the costs directly from the designated gas transporter.
234. Subsection (3) provides that, despite any licence condition to the contrary, a designated gas transporter can, in determining its charges for conveying gas, take into account: (a) any payments it has made under clauses 77 or 78; and (b) reasonable costs that it has incurred as a party to an agreement under section 13 of the Police (Scotland) Act 1967 for the guarding, patrolling and watching of the gas facility entered into at the Secretary of State's request.
235. Subsection (4) makes provision for the Secretary of State to direct the Gas and Electricity Markets Authority (GEMA) to allow the designated gas transporter to take into account in determining its charges: (a) any payments it has made under clauses 77 or 78; or (b) any payments made or costs incurred in or in relation to a specified period.
236. Subsection (5) imposes a consultation requirement upon the Secretary of State to consult GEMA and the designated gas transporter prior to making a direction under subsection (4).
Clause 81 - Costs of policing at gas facilities: supplementary provisions
237. This clause sets out an additional consultation obligation upon the Secretary of State. Under subsection (1) the Secretary of State must consult a designated gas transporter and GEMA prior to: (a) requiring the designated gas transporter to pay costs under clauses 77 or 78 for the first time; (b) requiring the gas transporter to pay costs in respect of a particular gas facility; and (c) requiring the gas transporter to pay the costs of extra police services provided on a subsequent occasion at a gas facility.
238. Subsection (2) states that the Secretary of State is not required to: (a) consult anyone other than GEMA or the designated gas transporter before requiring a designated gas transporter to pay costs under clause 77 or 78; or (b) to take into account representations made after 28 days from when the designated gas transporter or GEMA were first consulted under subsection (1).
Clause 82 - Application of provisions to costs incurred before commencement
239. This clause makes provision for clauses 77 and 78 to apply to the costs of providing extra policing at key gas sites from 16 January 2007 to the day before these provisions come into force. They will be commenced two months after Royal Assent (see clause 90(3)).
Appointment of special advocates in Northern Ireland
Clause 83 - Appointment of Special Advocates in Northern Ireland
240. This clause contains amendments to three provisions of primary legislation in respect of the appointment of Special Advocates in Northern Ireland. These provisions are contained in section 6(2)(c) of the Special Immigration Appeals Commission Act 1997, paragraph 7(2)(c) of Schedule 3 to the 2000 Act in respect of the Proscribed Organisations Appeal Commission and paragraph 6(2)(c) of Schedule 11 to the Anti-terrorism, Crime and Security Act 2001 in respect of the Pathogens Access Appeal Commission. There are also similar amendments to certain pieces of secondary legislation. The amendments provide that refererences to the Attorney General for Northern Ireland are substituted with the Advocate General for Northern Ireland. These changes will come into force upon the devolution of justice matters in Northern Ireland, and the coming into force of section 27 of the Justice (Northern Ireland) Act 2002 which creates the office of Advocate General for Northern Ireland.
PART 8 - SUPPLEMENTARY PROVISIONS
General definitions
Clause 84 -Meaning of "terrorism"
241. This defines "terrorism" for the purposes of the Bill by reference to the definition of terrorism in section 1 of the Terrorism Act 2000 (which is amended by clause 68 of the Bill).
Clause 85 - Meaning of offence having a "terrorist connection"
242. This clause explains what is meant in the Bill by an offence having a "terrorist connection". This is relevant to the provisions on aggravated sentencing (see clauses 29 and 30), forfeiture (see clause 33) and notification (see clause 45), which apply in England and Wales and in Scotland (but not in Northern Ireland).
Orders and regulations
Clause 86 - Orders and regulations
243. This clause provides that orders and regulations under the Bill must be made by statutory instrument but that orders and regulations are interchangeable. It also makes general provision which allows such subordinate legislation to make different provision for different cases or circumstances and to include supplementary, incidental, consequential, transitional and saving provisions.
Clause 87 - Orders and regulations: affirmative and negative resolution procedure
244. This clause describes what is meant by the affirmative and negative resolution procedures. It also allows statutory instruments made under the Bill to be subject to a Parliamentary procedure offering a higher level of scrutiny than that provided for in the Bill.
Financial provisions
Clause 88 - Financial provisions
245. This is a standard clause relating to money to be paid out and received as a result of provisions of the Bill.
Repeals
Clause 89 - Repeals
246. This clause gives effect to Schedule 6 which sets out the repeals made by the Bill.
Final provisions
Clause 90 - Commencement
247. This clause makes specific provision as to when various provisions in the Bill are to come into force and provides that other provisions are to be commenced by order (which may also make transitional and saving provisions).
Clause 91 - Extent
248. This clause provides that the provisions of this Bill extend to the whole of the UK except as provided otherwise in the clauses of the Bill, and that the extent of amendments or repeals to existing legislation correspond to the extent of that existing legislation.
Clause 92 - Short title
249. This clause provides that the short title of the Bill is the Counter-Terrorism Act 2008.
FINANCIAL EFFECTS OF THE BILL
250. This Bill is unlikely to result in significant costs for the public sector. It is intended to contribute to a climate in which terrorism related activity is harder to carry out and therefore to deter terrorist attacks. It is, of course, impossible to quantify how many attacks might be prevented or the consequent benefit to the economy.
EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
251. Nearly all the costs resulting from the provisions are manpower costs. These costs will, however, be minimal.
EUROPEAN CONVENTION ON HUMAN RIGHTS
252. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary (the Rt. Hon. Jacqui Smith) has made the following statement:
a) "In my view the provisions of the Terrorism Bill are compatible with the Convention rights".
253. Where a measure is not expressly detailed in this section then it is not considered to raise any significant ECHR issues.
254. Clause 1 confers on a constable the power to remove a document found during a search under various terrorism-related search powers in order to examine it (for up to 96 hours) to ascertain whether it is one he has power to seize. The Secretary of State considers that this power will engage Article 8 (which protects the right to private and family life and correspondence) and Article 1 of the First Protocol (which protects a person's peaceful enjoyment of his property) but that any interference with these rights is justified.
255. The interference will be in accordance with the law because the power appears in the Bill. In terms of Article 8, the legitimate aims that this provision pursues are national security and the prevention of disorder or crime. The search powers and warrants to which the powers of removal apply are all contained in terrorism legislation. These include a search of a terrorist suspect, a search during a terrorist investigation, a search for evidence of commission of weapons-based offences, a search in connection with the enforcement of control orders and a search for terrorist publications. In terms of Article 1 of the First Protocol, the removal and ultimate seizure is in the general interest because it is aimed at the prevention of crime and is in association with criminal proceedings.
256. The interference is also necessary in a democratic society. The pressing social need that the power addresses is the need to ensure that effective searches may be carried out in order to seize evidence of offences connected to terrorism, to remove from circulation publications related to terrorism (which could result in offences being committed) and to assist in the enforcement of control orders. There are a number of aspects to these powers that make them proportionate:
a) The power only exists in the context of searches carried out under the terrorism legislation.
b) The criminal nature of some of the documents that might be found (encouraging or being useful to terrorists) means that they should be removed from circulation.
c) The removal could result in evidence being uncovered which could result or assist in a criminal prosecution for a terrorism-related or other offence.
d) Documents subject to legal privilege are protected.
e) A record of the removal must be made and on request, a copy must given to a person with an interest in the document.
f) On request, and subject to legitimate restrictions, supervised access must be granted to such a person.
g) A document may only be retained under this power for a maximum of 96 hours.
h) Restrictions and safeguards apply in relation to taking copies of the document removed.
257. Clauses 10 to 12 confer powers on constables to take, use and retain fingerprints and non-intimate samples from an individual subject to a control order without appropriate consent. It is likely that the power to take fingerprints and samples will engage Article 8, which protects the right to respect for private life. In respect of the use and retention of any fingerprints and samples that have been taken there is case-law to suggest that Article 8 is not engaged. Even if the use and retention of fingerprints and samples does engage Article 8 the Secretary of State considers that any interference with Article 8 rights can be justified.
258. The power appears in the Bill, so it will be in accordance with the law. The power will pursue a legitimate aim as it will be exercised in the interests of national security and the prevention of disorder or crime. The Secretary of State considers that the exercise of the power will be proportionate because the power can only be exercised by a constable; the power can only be exercised in respect of a person who is the subject of a control order; reasons for the taking of any fingerprints and/or non-intimate samples and the use to which they may be put must be given and recorded; the fingerprints and non-intimate samples can only be used for a limited set of purposes related to national security, the prevention, detection or investigation of a crime, the conduct of a prosecution or the identification of a deceased person or of the person from whom a body part came; only fingerprints and non-intimate samples are caught by the power and it does not extend to intimate samples; the fingerprints and non-intimate samples will only be made available to a limited category of persons and an individual will not be identifiable to the untutored eye simply from the profile of their fingerprint and/or non-intimate sample.
259. These clauses also confers powers on a constable to arrest any controlled person who has failed to comply with a constable's request that the controlled person attend a police station in order to have their fingerprints and/or non-intimate samples taken. It is likely that this power of arrest will engage Article 5 which provides that everyone has the right to liberty and security of person and that no one shall be deprived of his liberty save in certain prescribed circumstances and in accordance with a procedure prescribed by law.
260. The power of arrest appears in the Bill so it will be in accordance with a procedure prescribed by law. Furthermore any such deprivation of liberty will come under Article 5(1)(b) which allows for the lawful detention of a person in order to secure the fulfilment of any obligation prescribed by law.
261. Clauses 14 to 18 concern the retention and use of DNA samples, fingerprints and impressions of footwear. Clause 14(1)-(3) amends section 63A of the Police and Criminal Evidence Act 1984 to provide that fingerprints, impressions of footwear and samples can be cross checked against similar material held by or on behalf of the Security Service or the Secret Intelligence Service. The purposes for which such cross checking may be undertaken is limited by existing restrictions in section 64(1A) of the 1984 Act that is amended by clause 14(4) and (5). Clauses 15 to 17 amend the Police and Criminal Evidence (Northern Ireland) Order 1989 and the Terrorism Act 2000 to ensure that fingerprints, impressions of footwear and samples collected under different powers can be used for the similar purposes. This is to facilitate easier use of the National DNA database. The use of fingerprints and DNA samples engages Article 8 (right to privacy) of the ECHR. Article 8 is a qualified right permitting interference where necessary and proportionate for the specified purposes. The leading domestic case on DNA and fingerprints is the House of Lords' decision in R v Marper ([2004] UKHL 39) which held that the retention and use of fingerprints and DNA samples could be justified under Article 8. Clause 14(1) to (3) raise no ECHR issues as they do not expand the general purposes for which this material can be used but rather simply explicitly provides for cross checking against material held by or on behalf of the Security Service or the Secret Intelligence Service. The substantive new purpose for which DNA samples and fingerprints can be used for is that provided for by clauses 14(5) is the interests of national security. The use of private information for this purpose is specifically provided for by Article 8(2). Therefore whilst the use of material in each particular case would need to be justified, adding that additional purpose to Police and Criminal Evidence Act 1984 and the Terrorism Act is compatible with the ECHR.
262. Clause 18 provides a legislative regime to cover the retention and use of fingerprints and DNA samples by law enforcement bodies outside of the existing statutory regimes.
263. This clause seeks to mirror the restrictions on use found in the Police and Criminal Evidence Act 1984 which have been upheld by the House of Lords in Marper. They aim to confirm that the use of this material is "in accordance with the law" for the purposes of Article 8 of the ECHR by making the law more accessible and foreseeable. Clause 18 does this by providing a legal framework for DNA samples or fingerprints obtained in certain specified circumstances, providing that they may be used by specified law enforcement bodies (eg the police or SOCA) for certain specified purposes (eg national security). The framework is a permissive one and in each case to comply with Article 8 the actual retention and use of DNA samples and fingerprints within this new framework would still need to be necessary for one of the specified purposes.
264. The effect of clause 19 is three-fold. It provides first that, where a person discloses information to any of the intelligence services (the Security Service, SIS or GCHQ), for the purposes of that service's functions, such disclosure does not breach any duty of confidence owed by that person or any other restriction. Secondly, it provides that where any of the intelligence services discloses information for the permitted statutory purposes, similarly such disclosure does not breach any duty of confidence owed by that service or any other restriction. Thirdly, it provides that information obtained by any of the intelligence services for the purpose of its functions may be used for the purpose of any of its other functions.
265. However, it should be noted that these provisions substantially reflect the position at common law. The public interest exceptions to the general duty of confidentiality have been long-established and are well-recognised by the UK Courts, for example in relation to the protection of national security or the prevention of crime. The seminal case in this connection (in relation to the banker's duty of confidence to his customer) is Tournier v The National Provincial and Union Bank of England ([1924] 1KB 461). See also the judgment of Mr Justice Staughton (High Court) in the case of Libyan Arab Foreign Bank v Bankers Trust ([1989] 3All ER 252).
266. Under the existing statutory provisions (section 2(2)(a) of the Security Service Act 1989 and sections 2(2)(a) and 4(2)(a) of the Intelligence Services Act 1994), the intelligence services may acquire information where this is necessary for the proper discharge of their functions (in particular, in relation to the protection of national security). Similarly, they may disclose information for this purpose or for the prevention or detection of serious crime or for the purpose of any criminal proceedings). Before acquiring and disclosing information, the intelligence services take care to ensure that the acquisition or disclosure (as the case may be) is both necessary for the specified statutory purposes and proportionate. The intelligence services will continue to apply the necessity and proportionality tests following the enactment of clause 19 in relation to the acquisition and disclosure of information and will similarly apply these tests so far as their internal use of information for different statutory functions is concerned.
267. These clauses engage Article 8(1) of the ECHR (everyone has the right to respect for his private and family life, his home and his correspondence). These provisions are in accordance with the law as they appear in the Bill and they pursue the legitimate aims under Article 8(2) of the protection of national security and the prevention of crime.
268. Clause 19 permits information which is subject to an obligation of confidence to be disclosed, whether to or by an intelligence service. However, these clauses only allow such disclosure where it is necessary for the protection of national security or for the prevention of crime. This statutory constraint, coupled with the care taken by the intelligence services in applying the twin tests of necessity and proportionality, will ensure that such additional interference with the exercise of the right as may result from the enactment of clause the provisions will be justified under Article 8(2).
269. Clause 22 and Schedule 1 to the Bill provide that the maximum period of pre-charge detention that will be available for suspects arrested under section 41 of the 2000 Act will, for the period during which the reserve power is available, be 42 days. The Secretary of State considers that these provisions are compatible with Article 5 of the ECHR (right to liberty).
270. Article 5(1)(c) permits detention for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence. The provisions fall within this limb of Article 5(1) as they provide for the continued detention of persons reasonably suspected of having committed terrorist offences for the purpose of enabling the charging of that person.
271. There is no specific ECtHR jurisprudence on the length of time that a person can be detained before he is charged but there is the overarching principle that detention under Article 5 must not be arbitrary. Extended pre-charge detention under these provisions is not arbitrary. This is because of the motivation and effect of the detention - the prevention of suspected terrorists from absconding while the expeditious investigation into a terrorist offence proceeds - and because the detention is in keeping with the reasons for detention in Article 5(1) and Article 5 more generally.
272. The detention is proportionate to the attainment of its purpose. The need to detain terrorist suspects for longer than others before charge is necessary for a number of reasons, including the following. First, with recent terrorist attacks designed to cause mass casualties, the need to ensure public safety by preventing such attacks means that it is necessary to make arrests at an earlier stage than in the past. This often means that less evidence has been gathered at the point of arrest, which means that more time is needed to gather sufficient evidence to charge a suspect. Secondly, longer time limits are needed to cope with the fact that terrorist networks are often international, requiring enquiries to be made in many different jurisdictions and often requiring finding interpreters for rare and remote dialects. Thirdly, terrorist networks are increasingly using sophisticated technology and communications techniques: in recent cases a large number (sometimes in the hundreds) of computers and hard drives have been seized with much of the data on those computers having been encrypted.
273. In the light of this, the Secretary of State considers that detention for up to 42 days is not arbitrary for the following reasons:
a) The maximum limit for pre-charge detention will only be made available when the Home Secretary is satisfied there is an operational need for it - and this judgment may not be made until she has received a report form the DPP and police confirming this to be their view. She must make a statement to Parliament that she is satisfied there is an urgent need for the reserve power and that its availability is compatible with ECHR rights.
b) The higher limit will only remain in force for 60 days, and then only if Parliament has approved the continuance of the limit by affirmative resolution within 30 days.
c) There will still be the need for a high court judge to authorise any detention at least every 7 days, and applications for extensions beyond 28 days may only be made (in England and Wales) by the DPP or a Crown Prosecutor with the consent of the DPP or a designated Crown Prosecutor, (in Northern Ireland) by the DPP for Northern Ireland or (in Scotland) by the Lord Advocate or procurator fiscal with the Lord Advocate's consent. The requirement in these provisions for continual judicial oversight of extended pre-charge detention provides the safeguard guaranteed in Article 5(3) for judicial control of an individual's right to liberty.
d) Further detention may only be granted if the police can demonstrate that one of the reasons in paragraph 32(1) and (1A) of Schedule 8 applies and the judge is satisfied that the investigation is being conducted diligently and expeditiously. Those reasons are that there are reasonable grounds for believing that further detention is necessary: to obtain relevant evidence; to preserve relevant evidence; or pending the outcome of an examination or analysis of relevant evidence or that could lead to relevant evidence.
e) If at any point before a warrant is due for renewal a person's detention no longer meets the test for detention he must be released as specifically provided for in paragraph 37 of Schedule 8.
f) Further oversight is provided by the provision that the Secretary of State must report to Parliament on each occasion pre-charge detention is extended beyond 28 days; and by the requirement on the independent reviewer of terrorism to report annually on whether the decision to make the reserve power available was reasonable in all the circumstances and whether the proper procedures have been followed in respect of such pre-charge detention. This report is to be laid before Parliament and will be debated.
274. Clauses 23 to 26 allow a person to be questioned about a terrorism-related offence after they have been charged with the offence or after they have been officially informed that they may be prosecuted for it. The clauses also allow the court (in England, Wales or Northern Ireland) to draw a negative inference from a suspect's silence if he fails to mention things when questioned that he later relies on in court. It is possible that the questioning of a suspect after charge may exonerate them and so might in certain circumstance be to the benefit of the suspect. It will also enable the police to give suspects the opportunity to respond to any new evidence and to give their explanation.
275. The right to a fair trial under Article 6 includes the right of a person charged with a criminal offence to remain silent and not to incriminate himself. UK criminal law already allows for negative inferences to be drawn from a silence when a suspect is questioned. The circumstances in which this can be done are set out in sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994, which will also apply in relation to post-charge questioning. The European Court of Human Rights has considered the question of whether or not the drawing of adverse inferences is a breach of Article 6(2) on a number of occasions, notably in the case of John Murray v. the United Kingdom [1996]. They have held that the drawing of negative inferences is not, of itself, a breach of a defendant's Article 6 rights. It is therefore considered by the Secretary of State that these provisions are compatible with Article 6(2).
276. Clauses 29 to 31 provide that where a court (in England and Wales or Scotland) determines that an offence has a connection to terrorism, it must treat this as an aggravating factor when sentencing the offender.
277. The Secretary of State considers that this provision will engage Article 6 but that it is compatible with the criminal limb of that Article which guarantees a fair trial. The determination will only be made where the court is satisfied that the offence has a terrorist connection to the criminal standard. The person convicted of the relevant offence will have all the protections afforded by Article 6 in criminal proceedings. After the conclusion of a trial, the person will be able to make submissions as to why the court should not make a determination; and if the person pleaded guilty and denies the offence had a connection to terrorism, the matter will be determined by hearing evidence and witnesses may be cross-examined.
278. Article 7 prevents a heavier penalty being imposed on an offender than that which was applicable at the time the offence was committed. The provisions relating to aggravated sentencing will apply only to offences committed on or after commencement and so no issue as to Article 7 arises.
279. Clauses 32 to 37 extend the forfeiture provisions that attach to various terrorism offences. The Secretary of State considers that these provisions engage Article 8 and Article 1 of the First Protocol but that any interference with these rights is justified.
280. The provisions are in accordance with the law, as they appear in the Bill. In terms of Article 8, they pursue the legitimate aims of national security and the prevention of disorder or crime. In terms of Article 1 of the First Protocol, the forfeiture is in the general interest because it is aimed at the prevention of crime and, in particular terrorism, and because property that may now be forfeited is that which the court believes would otherwise be used for the purposes of terrorism. Removing such property from circulation is aimed at disrupting terrorist activity. The forfeiture is also in association with criminal proceedings because the forfeiture is made on conviction and is imposed in addition to any sentence. It will therefore act as a deterrent to participating in terrorist-related offences.
281. The Secretary of State considers the provisions are proportionate to these pressing social needs for the following reasons:
a) There is provision that where a person other than the convicted person claims to be the owner of or otherwise interested in anything which can be forfeited, the court shall give him an opportunity to make representations before a forfeiture order is made.
b) The criminal purposes for which the money or other property has already been used means that the offender should not be able to continue to benefit from it.
c) In relation to the potential future use of property, the court must either be satisfied that the offender intended its use for the purposes of terrorism, or that there are reasonable grounds for believing it would be used for the purposes of terrorism.
d) There is provision that the victim of personal injury or loss as a result of the offence may be compensated from the proceeds of the forfeiture.
e) The court has a discretion as to whether or not to make a forfeiture order. It is unlawful for a court to act in a way which is incompatible with the ECHR (section 6 of the Human Rights Act 1998). A court may not therefore make an order which infringes Article 8 or Article 1 of the First Protocol.
282. Clauses 38 to 55 set out a new notification regime in relation to persons convicted of terrorist-related offences and sentenced to 12 months' imprisonment or more. This may also apply to persons convicted of such offences overseas where a UK court imposes a notification order under Schedule 4.
283. The Secretary of State considers that the notification scheme does not amount to a penalty for the purposes of Article 7 and so its retrospective application is not incompatible with Article 7. The scheme will apply to persons who have been convicted but not sentenced for a terrorist-related offence prior to commencement and to offenders convicted of terrorism offences prior to commencement, who are still serving their sentence, are on licence or are unlawfully at large immediately before commencement.
284. This scheme is not a penalty for the following reasons:
a) The nature and purpose of the notification scheme is to contribute to a lower rate of re-offending and the protection of the public, not to punish the offender.
b) The domestic characterisation points to the measures being an administrative requirement as they simply impose an obligation on offenders to furnish information to the authorities.
c) The requirement to provide information to the police is not sufficiently severe as to amount to a penalty.
d) Although the requirements are imposed following a conviction, they are not imposed at the discretion of the court as part of the sentencing process, and independent criminal proceedings have to be brought for breach of the notification requirements.
285. Further, although the notification requirements engage Article 8, as they constitute an interference with an offender's private life, such interference is justified. The measures are clearly in accordance with the law, being a measure in the Bill, and pursue the legitimate aims of the interests of national security, the prevention of crime and the protection of rights and freedoms of others. They are also proportionate because of the gravity of harm that the measures are designed to address. Indeed, the ECHR imposes a duty on States to take certain measures to protect individuals from such serious forms of harm. The purpose of the notification scheme is to enable the police to monitor the whereabouts of convicted terrorists and conduct expeditious investigations of terrorist offences.
286. The Court of Appeal in Forbes v Home Secretary ([2006] EWCA Civ 962) upheld the mandatory nature of the application of the sex offender notification provisions on the grounds that the effectiveness of the scheme might be undermined without it. The same reasoning applies in the context of the terrorist notification scheme.
287. Schedule 5 makes provision in relation to a foreign travel restriction order which restricts the foreign travel of a person subject to the notification requirements. Such orders constitute civil rather than criminal proceedings and so attract, and are compatible with, the protections afforded under the civil limb of Article 6. The proceedings are not criminal because the purpose of the order is not directed at trial and punishment but rather the restraint of a person with a proven record of terrorist-related offending and whose conduct satisfies the court that a proportionate restriction on foreign travel is necessary to prevent him from being involved in terrorist activity overseas. Furthermore the orders do not impose a penalty. Separate criminal proceedings are required for a breach of an order.
288. This view on Article 6 is supported by case law concerning various other types of preventative orders, including B v Chief Constable of Avon & Somerset Constabulary ([2001] 1 WLR 340) (concerning preventative orders imposing prohibitions on sex offenders in the community), R v Crown court of Manchester ex parte McCann ([2002] 3 WLR 1313), (anti-social behaviour orders) and Gough and another v Chief Constable of the Derbyshire Constabulary ([2002] EWCA Civ 351) (football banning orders). However, despite the civil classification, which means the civil rules of evidence apply, the court will (following McCann) apply an exacting standard of proof, which will be hard to distinguish from the criminal standard.
289. The Secretary of State believes that the foreign travel restriction order is compatible with Article 7 notwithstanding that the triggering conviction may have taken place prior to the commencement of the legislation. The order does not constitute a penalty for the same reasons set out above in relation to the notification scheme. This is supported by the decision in Gough that a similar type of order restricting foreign travel (a football banning order) does not constitute a penalty.
290. Foreign travel orders will engage defendants' Article 8(1) rights as they will prevent them from travelling freely to countries of their choice. However, the imposition of the orders is justifiable under Article 8(2). The legitimate aims of the orders are the interests of national security, public safety or the economic well-being of the country, the prevention of crime and protection of the rights and freedoms of others. The order can only be imposed where the court is satisfied that the offender has acted in such a way that it is "necessary" to make one in order to prevent him from being involved in terrorist activity overseas. This is a high threshold and the harm the order is aimed at preventing is grave. Under section 6 of the Human Rights Act 1998 the court must act compatibly with the defendant's Convention rights when imposing an order. Further, the provisions in the Bill are drafted so that the prohibitions on travel must be proportionate. Similar preventative orders have been found to be compatible with Article 8 in domestic and ECtHR case law.
291. Clause 56 is a permissive clause outlining the potential scope of the rules of court to be prepared in connection with asset freezing proceedings. Clause 58 includes provision allowing the Treasury to withhold material which would otherwise have to be disclosed. But subsection (6) provides that the clause (or rules of court made under it) does not require the court to act in a manner inconsistent with the applicant's Article 6 ECHR rights. The House of Lords recently considered (in Secretary of State for the Home Department v MB [2007] UKHL 46) the corresponding (and virtually identical) provision of the Prevention of Terrorism Act 2005 allowing the withholding of evidence (and use of special advocates), noting that the provision would not normally infringe an applicant's Article 6 rights, but that it could in extreme cases. The House of Lords therefore ruled that it did not infringe Article 6, provided that an express preservation of the Article 6 rights was implied into the provision. For that reason, the qualification on the Rules' ability to provide for proceedings which proceed without telling the applicant the nature of the case against him, has been expressly stated in the Counter-Terrorism Bill, so that the wording of the clause reflects the meaning the court would give it. In light of the House of Lords decision, the provision is human rights compliant.
292. Clause 59 permits the actual appointment of the special advocate. This is on the same basis as in other legislation. The Secretary of State considers that the actual appointment of the special advocate does not itself engage the ECHR. The special advocate is appointed to represent the applicant, and this is an important aspect of the context which makes the provisions ECHR compliant.
293. Clause 60 provides an extension of the use of intercept evidence and engages Article 6 and Article 8 of the ECHR. With regard to Article 6, this issue was considered by the European Court of Human Rights in Khan v United Kingdom (ECHR case 35394/97). In that case the Court found that the use of intercept evidence did not violate the appellant's right to a fair hearing. The Court found that the central consideration was whether the proceedings as a whole were fair, concluding that they were. This approach was followed in PG and JH v UK (ECHR case 44787/98) with regard to Article 6.
294. Any interference with Article 8 is justified. The provisions are (i) in accordance with the law, (ii) in pursuit of a legitimate aim and (iii) necessary in a democratic society. In this case the first limb is satisfied by virtue of the provisions being set out in the Bill. The purpose of the ability to rely on intercept evidence is to enhance the robustness of the asset freezing regime, which exists in pursuit of public safety and national security. The necessity of the ability to rely on such evidence may vary on a case by case basis, but it is clear that, in the context of asset freezing, a preventative procedure, it may be necessary to be able for the Treasury to use all available evidence in order to explain and support the view that it has "reasonable suspicion" as set out in the UN terrorism orders.
295. Clause 69 inserts a new section 58A into Terrorism Act 2000 which makes it a criminal offence to elicit, or attempt 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 to publish or communicate information of that kind. 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. The offence is punishable with a maximum sentence of 10 years imprisonment, or to a fine or both.
296. The offence is likely to engage rights under Articles 8 (private and family life) and 10 (freedom of expression) but any interference with these rights is justified as it will be in accordance with the law, in pursuit of a legitimate aim and necessary in a democratic society. As this provision will be included in legislation it will satisfy the first requirement. Its purpose is to prevent serious crime and protect national security. This is a legitimate aim that appears in Articles 8 and 10. It is also proportionate. Article 2 requires everyone's life to be protected by law. Where individuals in a particular group are considered to be a risk it is legitimate for proportionate measures to be put in place aimed at reducing the risk. This clause is intended to protect the lives of members of the Armed Forces. Its ambit and the prescribed penalty are considered to be necessary and proportionate having regard to the effect of Article 2. A defence of reasonable excuse is available. The court must balance interference with the person's rights and freedoms against the need to protect society from the harm caused by serious crime. The court is a public authority for the purposes of the Human Rights Act 1998 and it must, therefore, act compatibly with the Convention rights as required by section 6 of the Human Rights Act 1998.
297. This clause will also engage the right to a fair trial under Article 6. Section 58A(2) provides that it is a defence for a person to prove that he had a reasonable excuse for his action. This is to be read in conjunction with section 118 of the 2000 Act which provides that this will be an evidential rather than a legal burden - the defendant will only have to raise an issue as to his reasonable excuse and then it will be for the prosecution to prove beyond reasonable doubt that this is not the case. The courts have ruled that an "evidential burden" such as this is compatible with the presumption of innocence under Article 6(2) provided it is imposed in pursuance of a legitimate aim and is proportionate to the achievement of that aim. The Secretary of State considers that this provision satisfies both of those conditions.
298. Clause 70 inserts a new definition of "employment" in Part 3 of the 2000 Act which extends the scope of the offence in section 19 of that Act (disclosure of information), to include persons such as volunteers, trustees of a charity and interns in a bank. This clause will engage a person's rights under Article 8(1), as a criminal sanction will be imposed on a new range of people for failure to disclose to a constable a belief or suspicion that a terrorist finance offence has been committed. However, such interference is justified.
299. This provision will be included in legislation, which meets the first requirement for it to be in accordance with the law. Its purpose is to prevent crime and to protect the interests of national security - legitimate aims that appear in Article 8(2). Action against terrorist finance offences is widely recognised, both domestically and internationally, as being vitally important in order to combat terrorism.
300. The provision is proportionate:
a) The extension of the offence is designed to cover persons who might well come across information giving rise to a suspicion of a terrorist finance offence during the course of their work.
b) The disclosure must be based on actual belief or suspicion.
c) The provisions only require disclosure to the police or an authorised member of staff of SOCA.
d) It is a defence to prove that the person disclosed his suspicion in accordance with his employer's established procedures.
e) Section 19 does not require the disclosure of information subject to legal privilege.
301. Clause 71 confers powers on constables to enter and search the premises of individuals subject to control orders. Such powers will engage a person's right to respect for his private life under Article 8 of the ECHR. Interference with this Article of the Convention can be justified if it meets the three stage test of being in accordance with the law, being in pursuit of a legitimate aim and being necessary in a democratic society.
302. The powers of entry and search will be set out in the Bill, which meets the first limb of the test for justification. The purpose of powers is that they will be exercised in the interests of national security and public safety that are legitimate aims for the purposes of the second part of the test for justification.
303. The Secretary of State believes that the exercise of the power will be proportionate for the following reasons. First the power can only be exercised by a constable. Secondly the power under section 7C can only be exercised with a warrant from a justice of the peace and such warrant will only be granted where it is necessary to determine whether the controlled person is complying with obligations imposed by or under his control order and for the purpose of determining whether a controlled person is complying with the obligations imposed by or under the control order. Thirdly under sections 7A and 7B any entry and search will take place without a warrant but then only in tightly defined circumstances relating to reasonable suspicion on the part of a constable of abscond or failing in a duty to grant access to premises. Furthermore any entry and search will be for specified and limited purposes. Fourthly, force to enter can only be used if it is necessary to do so. Finally the premises that can be searched and entered have been tightly defined.
304. Clauses 77 to 82 make provision for the payment of costs incurred in providing extra police services at key gas sites. Costs incurred by the Ministry of Defence or by a police authority on or after 16 January 2007 in policing, at the Secretary of State's request, key gas sites with a view to their increased protection will be funded, with effect from the commencement of these provisions, by gas transporters who may pass on the costs to gas consumers in accordance with arrangements made by the Secretary of State.
305. The funding arrangements can apply where the Secretary of State considers that the provision of extra police services at the site is necessary because of a risk of loss of or disruption to the supply of gas connected with it; and that such loss or disruption would have a serious impact on the UK or any part of it.
306. It is also considered that that these provisions exhibit predominantly public law features and therefore Article 6(1) of the ECHR is not engaged. The State, not the gas transporter, has responsibility for determining when, where and how extra policing should be provided at key gas sites. Accordingly, the proposal cannot be considered as involving the determination of either the gas transporter or the gas consumer's civil rights or obligations
307. However, even if Article 6 were found to be engaged, the Secretary of State also considers that the gas transporter and consumers rights are safeguarded by the availability of judicial review, by which means these persons can challenge the Secretary of State's decision. These provisions would therefore be compatible with Article 6(1).
308. The provisions may involve interference with either the gas transporter's licence or the gas transporter's economic interest in the pursuit of the licensed activity of the level of severity required in order to engage Article 1, Protocol 1 of the ECHR. However, in the view of the Secretary of State, such interference is justified. The provisions are clearly in accordance with the law. They pursue the legitimate one of ensuring security of gas supply for gas consumers. In determining whether interference is proportionate, States are accorded a wide margin of appreciation. A number of factors point to the proposal's being proportionate. Firstly the Secretary of State's power to put the funding arrangements in to place is limited to particular the existence of particular circumstances. Secondly, the gas transporter must be consulted before being required to pay any costs. Thirdly, the gas transporter is able to recover all reasonable costs incurred or payments made and will not end up out of pocket. The Secretary of State is able to direct the Gas and Electricity Markets Authority to ensure that there is no impediment to the recovery of the gas transporters costs.
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