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Prevention of Terrorism Bill


Prevention of Terrorism Bill

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(6)   

Where a person is convicted by or before any court of an offence under

subsection (1) or (2), it is not to be open to the court, in respect of that offence—

(a)   

to make an order under section 12(1)(b) of the Powers of Criminal

Courts (Sentencing) Act 2000 (c. 6) (conditional discharge);

(b)   

to make an order under section 228(1) of the Criminal Procedure

5

(Scotland) Act 1995 (c. 46) (probation orders); or

(c)   

to make an order under Article 4(1)(b) of the Criminal Justice (Northern

Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conditional discharge in

Northern Ireland).

(7)   

A person guilty of an offence under subsection (3) shall be liable—

10

(a)   

on summary conviction in England and Wales, to imprisonment for a

term not exceeding 51 weeks or to a fine not exceeding level 5 on the

standard scale, or to both;

(b)   

on summary conviction in Scotland or Northern Ireland, to

imprisonment for a term not exceeding 6 months or to a fine not

15

exceeding level 5 on the standard scale, or to both.

(8)   

In relation to an offence committed before the commencement of section 281(5)

of the Criminal Justice Act 2003 (c. 44), the reference in subsection (7)(a) to 51

weeks is to be read as a reference to 6 months.

(9)   

In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (arrestable

20

offences), at the end insert—

“Prevention of Terrorism Act 2005

27A        

An offence under section 6(3) of the Prevention of Terrorism Act

2005.”

(10)   

In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order

25

1989 (S.I. 1989/1341 (N.I. 12)) (offences for which an arrest may be made

without a warrant in Northern Ireland), at the end insert—

“(o)   

An offence under section 6(3) of the Prevention of Terrorism Act

2005.”

Challenging and appealing against control orders

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7       

Appeals relating to non-derogating control orders

(1)   

Where—

(a)   

a non-derogating control order has been made or renewed, or

(b)   

an obligation imposed by such an order has been modified without the

consent of the controlled person,

35

   

the controlled person may appeal to the court against the making, renewal or

modification.

(2)   

In the case of an appeal against a renewal with modifications, the appeal may

include an appeal against some or all of the modifications.

(3)   

Where an application is made by the controlled person to the Secretary of State

40

for—

(a)   

the revocation of a non-derogating control order, or

(b)   

the modification of an obligation imposed by such an order,

 
 

Prevention of Terrorism Bill

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that person may appeal to the court against any decision by the Secretary of

State on the application.

(4)   

The function of the court on an appeal against the making of a non-derogating

control order is to determine whether any of the following decisions of the

Secretary of State was flawed—

5

(a)   

his decision that the requirements of section 1(1)(a) and (b) were

satisfied for the making of the order;

(b)   

his decisions on the imposition of each of the obligations imposed by

the order.

(5)   

The function of the court on an appeal against the renewal of a non-derogating

10

control order, or on an appeal against a decision not to revoke such an order,

is to determine whether either or both of the following decisions of the

Secretary of State was flawed—

(a)   

his decision that it is necessary, for purposes connected with protecting

members of the public from the risk of terrorism, for an order imposing

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obligations on the controlled person to continue in force;

(b)   

his decision that the obligations to be imposed by the renewed order, or

(as the case may be) the obligations imposed by the order to which the

application for revocation relates, are necessary for purposes connected

with preventing or restricting involvement by that person in terrorism-

20

related activity.

(6)   

The function of the court on an appeal against a modification of an obligation

imposed by a non-derogating control order (whether on a renewal or

otherwise), or on an appeal against a decision not to modify such an obligation,

is to determine whether the following decision of the Secretary of State was

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flawed—

(a)   

in the case of an appeal against a modification, his decision that the

modification is necessary for purposes connected with preventing or

restricting involvement by the controlled person in terrorism-related

activity; and

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(b)   

in the case of an appeal against a decision on an application for the

modification of an obligation, his decision that the obligation continues

to be necessary for that purpose.

(7)   

In determining the matters mentioned in subsections (4) to (6) the court must

apply the principles applicable on an application for judicial review.

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(8)   

If the court determines on an appeal under this section that a decision of the

Secretary of State was flawed, its only powers are—

(a)   

power to quash the order or its renewal;

(b)   

power to quash one or more obligations imposed by the order; and

(c)   

power to give directions to the Secretary of State for the revocation of

40

the order or for the modification of the obligations it imposes.

(9)   

In every other case, the court must dismiss the appeal.

8       

Appeals relating to derogating control orders

(1)   

Where an obligation imposed by a derogating control order has been modified

without the consent of the controlled person, that person may appeal to the

45

court against the modification.

 
 

Prevention of Terrorism Bill

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(2)   

Where an application is made by the controlled person to the Secretary of State

for—

(a)   

the revocation of a derogating control order, or

(b)   

the modification of an obligation imposed by such an order,

   

that person may appeal to the court against any decision by the Secretary of

5

State on the application.

(3)   

On an appeal under this section, the court must conduct its own hearing of

each of the matters that fell to be determined by the Secretary of State in

making his decision to modify or (as the case may be) his decision on the

application; and the court must make its own determination on each of those

10

matters.

(4)   

The powers of the court on an appeal under this section are confined to—

(a)   

power to confirm the Secretary of State’s decision;

(b)   

power to quash the order;

(c)   

power to quash one or more obligations imposed by the order;

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(d)   

power to give directions to the Secretary of State for the revocation of

the order or for the modification of the obligations it imposes.

9       

Jurisdiction and appeals in relation to control order decisions etc.

(1)   

Control order decisions and derogation matters are not to be questioned in any

legal proceedings other than—

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(a)   

proceedings in the court; or

(b)   

proceedings on appeal from such proceedings.

(2)   

The court is the appropriate tribunal for the purposes of section 7 of the Human

Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a

control order decision or derogation matter into question.

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(3)   

No appeal shall lie from any determination of the court in control order

proceedings, except on a question of law.

(4)   

No appeal by any person other than the Secretary of State shall lie from any

determination on a reference under section 2(2)(a).

(5)   

The Schedule to this Act (which makes provision relating to and for the

30

purposes of control order proceedings and proceedings on appeal from such

proceedings) has effect.

(6)   

In this Act “control order proceedings” means—

(a)   

proceedings on a reference under section 2(2)(a);

(b)   

proceedings on a hearing under section 2(4)(c);

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(c)   

proceedings on an appeal under section 7 or 8;

(d)   

proceedings in the court by virtue of subsection (2);

(e)   

any other proceedings in the court for questioning a control order

decision or derogation matter;

(f)   

proceedings on an application made by virtue of rules of court under

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paragraph 4(5) of the Schedule to this Act (application for order

requiring anonymity for the controlled person).

(7)   

In this section “control order decision” means—

 
 

Prevention of Terrorism Bill

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(a)   

a decision made by the Secretary of State in exercise of a power

conferred by any of sections 1 to 5 of this Act or for the purposes of or

in connection with the exercise of any such power;

(b)   

a decision by any other person to give a direction, consent or approval,

or to issue a demand, for the purposes of any obligation imposed by a

5

control order; or

(c)   

a decision by any person that is made for the purposes of or in

connection with the exercise of his power to give such a direction,

consent or approval or to issue such a demand.

(8)   

In this section “derogation matter” means—

10

(a)   

a derogation by the United Kingdom from the Human Rights

Convention which relates to infringement of a person’s right to liberty

under Article 5 in consequence of obligations imposed on him by a

control order; or

(b)   

the designation of such a derogation under section 14(1) of the Human

15

Rights Act 1998 (c. 42).

10      

Effect of court’s decisions on convictions

(1)   

This section applies where—

(a)   

a control order, a renewal of a control order or an obligation imposed

by a control order is quashed by the court in control order proceedings,

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or on an appeal from a determination in such proceedings; and

(b)   

before it was quashed a person had been convicted by virtue of section

6(1) or (2) of an offence of which he could not have been convicted had

the order, renewal or (as the case may be) obligation been quashed

before the proceedings for the offence were brought.

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(2)   

The person convicted may appeal against the conviction—

(a)   

in the case of a conviction on indictment in England and Wales or

Northern Ireland, to the Court of Appeal;

(b)   

in the case of a conviction on indictment or summary conviction in

Scotland, to the High Court of Justiciary;

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(c)   

in the case of a summary conviction in England and Wales, to the

Crown Court; and

(d)   

in the case of a summary conviction in Northern Ireland, to the county

court.

(3)   

On an appeal under this section to any court, that court must allow the appeal

35

and quash the conviction.

(4)   

An appeal under this section to the Court of Appeal against a conviction on

indictment—

(a)   

may be brought irrespective of whether the appellant has previously

appealed against his conviction;

40

(b)   

may not be brought more than 28 days after the date of the quashing of

the order, renewal or obligation; and

(c)   

is to be treated as an appeal under section 1 of the Criminal Appeal Act

1968 (c. 19) or, in Northern Ireland, under section 1 of the Criminal

Appeal (Northern Ireland) Act 1980 (c. 47), but does not require leave

45

in either case.

 
 

Prevention of Terrorism Bill

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(5)   

An appeal under this section to the High Court of Justiciary against a

conviction on indictment—

(a)   

may be brought irrespective of whether the appellant has previously

appealed against his conviction;

(b)   

may not be brought more than two weeks after the date of the quashing

5

of the order, renewal or obligation; and

(c)   

is to be treated as an appeal under section 106 of the Criminal

Procedure (Scotland) Act 1995 (c. 46), but does not require leave.

(6)   

An appeal under this section to the High Court of Justiciary against a summary

conviction —

10

(a)   

may be brought irrespective of whether the appellant pleaded guilty;

(b)   

may be brought irrespective of whether the appellant has previously

appealed against his conviction;

(c)   

may not be brought more than two weeks after the date of the quashing

of the order, renewal or obligation;

15

(d)   

is to be by note of appeal, which shall state the ground of appeal;

(e)   

does not require leave under any provision of Part 10 of the Criminal

Procedure (Scotland) Act 1995; and

(f)   

must be in accordance with such procedure as the High Court of

Justiciary may, by Act of Adjournal, determine.

20

(7)   

An appeal under this section to the Crown Court or to the county court in

Northern Ireland against a summary conviction—

(a)   

may be brought irrespective of whether the appellant pleaded guilty;

(b)   

may be brought irrespective of whether he has previously appealed

against his conviction or made an application in respect of the

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conviction under section 111 of the Magistrates’ Courts Act 1980 (c. 43)

or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981

(S.I. 1981/1675 (N.I. 26)) (case stated);

(c)   

may not be brought more than 21 days after the date of the quashing of

the order, renewal or obligation; and

30

(d)   

is to be treated as an appeal under section 108(1)(b) of that Act or, in

Northern Ireland, under Article 140(1)(b) of that Order.

(8)   

In section 133(5) of the Criminal Justice Act 1988 (c. 33) (compensation for

miscarriages of justice), at the end of paragraph (c) insert “or

(d)   

on an appeal under section 10 of the Prevention of Terrorism

35

Act 2005.”

Supplemental

11      

Reporting and review

(1)   

As soon as reasonably practicable after the end of every relevant 3 month

period, the Secretary of State must—

40

(a)   

prepare a report about his exercise of the control order powers during

that period; and

(b)   

lay a copy of that report before Parliament.

(2)   

The Secretary of State must also appoint a person to review the operation of

sections 1 to 6.

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Prevention of Terrorism Bill

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(3)   

As soon as reasonably practicable after the end of every relevant 12 month

period the person so appointed must carry out a review of the operation of

those sections during that period.

(4)   

The person who conducts a review under this section must send the Secretary

of State a report on its outcome as soon as reasonably practicable after

5

completing the review.

(5)   

On receiving a report under subsection (4), the Secretary of State must lay a

copy of it before Parliament.

(6)   

The Secretary of State may pay the expenses of a person appointed to carry out

a review and may also pay him such allowances as the Secretary of State

10

determines.

(7)   

In this section—

“control order powers” means the powers of the Secretary of State under

this Act to make, renew, modify and revoke control orders;

“relevant 3 month period” means—

15

(a)   

the period of 3 months beginning with the passing of this Act;

(b)   

a 3 month period which begins with the end of a previous

relevant 3 month period;

“relevant 12 month period” means—

(a)   

the period of 12 months beginning with the passing of this Act;

20

(b)   

a 12 month period which begins with the end of a previous

relevant 12 month period.

12      

General interpretation

(1)   

In this Act—

“act” and “conduct” include omissions and statements;

25

“act of terrorism” includes anything constituting an action taken for the

purposes of terrorism, within the meaning of the Terrorism Act 2000

(c. 11) (see section 1(5) of that Act);

“apparatus” includes any equipment, machinery or device and any wire

or cable, together with any software used with it;

30

“article” and “information” include documents and other records, and

software;

“contravene” includes fail to comply, and cognate expressions are to be

construed accordingly;

“control order proceedings” has the meaning given by section 9(6);

35

“the controlled person”, in relation to a control order, means the

individual on whom the order imposes obligations;

“the court”—

(a)   

in relation to proceedings relating to a control order in the case

of which the controlled person is a person whose principal place

40

of residence is in Scotland, means the Outer House of the Court

of Session;

(b)   

in relation to proceedings relating to a control order in the case

of which the controlled person is a person whose principal place

of residence is in Northern Ireland, means the High Court in

45

Northern Ireland; and

(c)   

in any other case, means the High Court in England and Wales;

 
 

Prevention of Terrorism Bill

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“derogating control order” means a control order imposing a derogating

obligation;

“derogating obligation” has the meaning given by section 2(8);

“designated derogation” has the meaning given by section 2(8);

“the Human Rights Convention” means the Convention within the

5

meaning of the Human Rights Act 1998 (c. 42) (see section 21(1) of that

Act);

“modification” includes omission, addition or alteration, and cognate

expressions are to be construed accordingly;

“non-derogating control order” means a control order that does not for

10

the time being impose a derogating obligation;

“passport” means—

(a)   

a United Kingdom passport (within the meaning of the

Immigration Act 1971 (c. 77));

(b)   

a passport issued by or on behalf of the authorities of a country

15

or territory outside the United Kingdom, or by or on behalf of

an international organisation;

(c)   

a document that can be used (in some or all circumstances)

instead of a passport;

“premises” includes any vehicle, vessel, aircraft or hovercraft;

20

“the public” means the public in the whole or a part of the United

Kingdom or the public in another country or territory, or any section of

the public;

“specified”, in relation to a control order, means specified in that order or

falling within a description so specified;

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“terrorism” has the same meaning as in the Terrorism Act 2000 (c. 11) (see

section 1(1) to (4) of that Act);

“terrorism-related activity” and, in relation to such activity,

“involvement” are to be construed in accordance with section 1(8).

(2)   

A power under this Act to quash a control order, the renewal of such an order

30

or an obligation imposed by such an order includes power—

(a)   

in England and Wales or Northern Ireland, to stay the quashing of the

order, renewal or obligation pending an appeal, or further appeal,

against the decision to quash; and

(b)   

in Scotland, to determine that the quashing is of no effect pending such

35

an appeal or further appeal.

(3)   

For the purposes of this Act a failure by the Secretary of State to consider an

application by the controlled person for—

(a)   

the revocation of a control order, or

(b)   

the modification of an obligation imposed by such an order,

40

   

is to be treated as a decision by the Secretary of State not to revoke or (as the

case may be) not to modify the order.

13      

Other supplemental provisions

(1)   

This Act may be cited as the Prevention of Terrorism Act 2005.

(2)   

The following provisions are repealed—

45

(a)   

sections 21 to 32 of the Anti-terrorism, Crime and Security Act 2001

(c. 24) (suspected international terrorists);

 
 

 
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