|
| |
|
10 | 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 |
| |
court against the modification. |
| |
(2) | Where an application is made by the controlled person to the Secretary of State |
| 5 |
| |
(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 |
| |
State on the application. |
| 10 |
(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 |
| |
| 15 |
(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; |
| |
(d) | power to give directions to the Secretary of State for the revocation of |
| 20 |
the order or for the modification of the obligations it imposes. |
| |
11 | 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— |
| |
(a) | proceedings in the court; or |
| 25 |
(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. |
| |
(3) | No appeal shall lie from any determination of the court in control order |
| 30 |
proceedings, except on a question of law. |
| |
(4) | The Schedule to this Act (which makes provision relating to and for the |
| |
purposes of control order proceedings and proceedings on appeal from such |
| |
| |
(5) | In this Act “control order proceedings” means— |
| 35 |
(a) | proceedings on an application to the court by any person for the |
| |
making, renewal, modification or revocation of a derogating control |
| |
| |
(b) | proceedings on an application to extend the detention of a person |
| |
| 40 |
(c) | proceedings at or in connection with a hearing to determine whether to |
| |
confirm a derogating control order (with or without modifications); |
| |
(d) | proceedings on an appeal under section 9; |
| |
(e) | proceedings in the court by virtue of subsection (2); |
| |
|
| |
|
| |
|
(f) | any other proceedings in the court for questioning a control order |
| |
decision, a derogation matter or the arrest or detention of a person |
| |
| |
(g) | proceedings on an application made by virtue of rules of court under |
| |
paragraph 4(5) of the Schedule to this Act (application for order |
| 5 |
requiring anonymity for the controlled person). |
| |
(6) | In this section “control order decision” means— |
| |
(a) | a decision made by the court in exercise of a power conferred by any of |
| |
sections 1 to 6 of this Act or for the purposes of or in connection with |
| |
the exercise of any such power; |
| 10 |
(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 |
| |
| |
(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, |
| 15 |
consent or approval or to issue such a demand. |
| |
(7) | In this section “derogation matter” means— |
| |
(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 |
| 20 |
control order or of his arrest or detention under section 4; or |
| |
(b) | the designation of such a derogation under section 14(1) of the Human |
| |
| |
12 | Effect of court’s decisions on convictions |
| |
(1) | This section applies where— |
| 25 |
(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, |
| |
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 |
| |
8(1) or (2) of an offence of which he could not have been convicted had |
| 30 |
the order, renewal or (as the case may be) obligation been quashed |
| |
before the proceedings for the offence were brought. |
| |
(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; |
| 35 |
(b) | in the case of a conviction on indictment or summary conviction in |
| |
Scotland, to the High Court of Justiciary; |
| |
(c) | in the case of a summary conviction in England and Wales, to the |
| |
| |
(d) | in the case of a summary conviction in Northern Ireland, to the county |
| 40 |
| |
(3) | On an appeal under this section to any court, that court must allow the appeal |
| |
and quash the conviction. |
| |
(4) | An appeal under this section to the Court of Appeal against a conviction on |
| |
| 45 |
(a) | may be brought irrespective of whether the appellant has previously |
| |
appealed against his conviction; |
| |
|
| |
|
| |
|
(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 |
| 5 |
| |
(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; |
| 10 |
(b) | may not be brought more than two weeks after the date of the quashing |
| |
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) for which leave has been granted. |
| |
(6) | An appeal under this section to the High Court of Justiciary against a summary |
| 15 |
| |
(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 |
| 20 |
of the order, renewal or obligation; |
| |
(d) | is to be by note of appeal, which shall state the ground of appeal; |
| |
(e) | is to be treated as an appeal for which leave has been granted under |
| |
Part 10 of the Criminal Procedure (Scotland) Act 1995; and |
| |
(f) | must be in accordance with such procedure as the High Court of |
| 25 |
Justiciary may, by Act of Adjournal, determine. |
| |
(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 |
| 30 |
against his conviction or made an application in respect of the |
| |
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 |
| 35 |
the order, renewal or obligation; and |
| |
(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 |
| 40 |
(d) | on an appeal under section 12 of the Prevention of Terrorism |
| |
| |
| |
| |
(1) | As soon as reasonably practicable after the end of every relevant 3 month |
| 45 |
period, the Secretary of State must— |
| |
|
| |
|
| |
|
(a) | prepare a report about his exercise of the control order powers during |
| |
| |
(b) | lay a copy of that report before Parliament. |
| |
(2) | The Secretary of State must also appoint a person to review the operation of |
| |
| 5 |
(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 |
| 10 |
| |
(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 |
| 15 |
| |
| |
“control order powers” means— |
| |
(a) | the powers of the Secretary of State under this Act to make an |
| |
application to the court for the making, renewing, modification |
| 20 |
and revoking of control orders; and |
| |
(b) | his powers to apply to the court for the making, renewal, |
| |
revocation or modification of derogating control orders; |
| |
“relevant 3 month period” means— |
| |
(a) | the period of 3 months beginning with the passing of this Act; |
| 25 |
(b) | a 3 month period which begins with the end of a previous |
| |
| |
“relevant 12 month period” means— |
| |
(a) | the period of 12 months beginning with the passing of this Act; |
| |
(b) | a 12 month period which begins with the end of a previous |
| 30 |
relevant 12 month period. |
| |
14 | General interpretation |
| |
| |
“act” and “conduct” include omissions and statements; |
| |
“act of terrorism” includes anything constituting an action taken for the |
| 35 |
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; |
| |
“article” and “information” include documents and other records, and |
| 40 |
| |
“contravene” includes fail to comply, and cognate expressions are to be |
| |
| |
“control order” has the meaning given by section 1(1); |
| |
“control order proceedings” has the meaning given by section 11(5); |
| 45 |
|
| |
|
| |
|
“the controlled person”, in relation to a control order, means the |
| |
individual on whom the order imposes obligations; |
| |
| |
(a) | in relation to proceedings relating to a control order in the case |
| |
of which the controlled person is a person whose principal place |
| 5 |
of residence is in Scotland, means the Outer House of the Court |
| |
| |
(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 |
| 10 |
| |
(c) | in any other case, means the High Court in England and Wales; |
| |
“derogating control order” means a control order imposing obligations |
| |
that are or include derogating obligations; |
| |
“derogating obligation”, “designated derogation” and “designation |
| 15 |
order” have the meanings given by section 1(10); |
| |
“the Human Rights Convention” means the Convention within the |
| |
meaning of the Human Rights Act 1998 (c. 42) (see section 21(1) of that |
| |
| |
“modification” includes omission, addition or alteration, and cognate |
| 20 |
expressions are to be construed accordingly; |
| |
“non-derogating control order” means a control order that does not for |
| |
the time being impose a derogating obligation; |
| |
| |
(a) | a United Kingdom passport (within the meaning of the |
| 25 |
Immigration Act 1971 (c. 77)); |
| |
(b) | a passport issued by or on behalf of the authorities of a country |
| |
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) |
| 30 |
| |
“premises” includes any vehicle, vessel, aircraft or hovercraft; |
| |
“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 |
| |
| 35 |
“specified”, in relation to a control order, means specified in that order or |
| |
falling within a description so specified; |
| |
“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, |
| 40 |
“involvement” are to be construed in accordance with section 1(9). |
| |
(2) | A power under this Act to quash a control order, the renewal of such an order |
| |
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, |
| 45 |
against the decision to quash; and |
| |
(b) | in Scotland, to determine that the quashing is of no effect pending such |
| |
an appeal or further appeal. |
| |
|
| |
|