|
| |
|
(2) | The power of the Secretary of State to make an order containing a declaration |
| |
for the purposes of subsection (1)(b)(ii) is exercisable by statutory instrument. |
| |
(3) | No order may be made by the Secretary of State containing such a declaration |
| |
unless a draft of it has been laid before Parliament and approved by a |
| |
resolution of each House. |
| 5 |
(4) | Subsection (3) does not apply to an order that contains a statement by the |
| |
Secretary of State that the order needs, by reason of urgency, to be made |
| |
without the approval required by that subsection. |
| |
(5) | An order under this section that contains such a statement— |
| |
(a) | must be laid before Parliament after being made; and |
| 10 |
(b) | if not approved by a resolution of each House before the end of 40 days |
| |
beginning with the day on which the order was made, ceases to have |
| |
effect at the end of that period. |
| |
(6) | Where an order ceases to have effect in accordance with subsection (5), that |
| |
| 15 |
(a) | affect anything previously done in reliance on the order; or |
| |
(b) | prevent the Secretary of State from exercising any power of his to make |
| |
a new order for the purposes of subsection (1)(b)(ii) to the same or |
| |
| |
| 20 |
“40 days” means 40 days computed as provided for in section 7(1) of the |
| |
Statutory Instruments Act 1946 (c. 36); |
| |
“the relevant derogation”, in relation to a derogating control order, means |
| |
the designated derogation by reference to which the derogating |
| |
obligations imposed by that order were imposed. |
| 25 |
6 | Modification, notification and proof of orders etc. |
| |
(1) | Where a revocation or modification of a control order is not to take effect |
| |
immediately, the instrument of revocation or modification must specify the |
| |
time from which it is to take effect. |
| |
(2) | The controlled person is bound by— |
| 30 |
| |
(b) | the renewal of a control order, or |
| |
(c) | a modification by virtue of subsection (2)(d), |
| |
| only if a notice setting out the terms of the order, renewal or modification has |
| |
been delivered to him in person. |
| 35 |
(3) | For the purpose of delivering a notice under subsection (2) to the controlled |
| |
person a constable or a person authorised for the purpose by the Secretary of |
| |
State may (if necessary by force)— |
| |
(a) | enter any premises where he has reasonable grounds for believing that |
| |
| 40 |
(b) | search those premises for him. |
| |
(4) | Where the court or the court revokes a control order or modifies it by virtue of |
| |
subsection (2)(b) or (c)— |
| |
(a) | he must give notice of the revocation or modification to the controlled |
| |
| 45 |
|
| |
|
| |
|
(b) | the notice must set out the time from which the revocation or |
| |
modification takes effect. |
| |
(5) | A control order, or the renewal, revocation or modification of such an order, |
| |
may be proved by the production of a document purporting to be certified by |
| |
the court or the court as a true copy of— |
| 5 |
| |
(b) | the instrument of renewal, revocation or modification; |
| |
| but this does not prevent the proof of a control order, or of the renewal, |
| |
revocation or modification of such an order, in other ways. |
| |
7 | Criminal investigations after making of control order |
| 10 |
(1) | This section applies where a control order has been made against an individual |
| |
if it appears to the Secretary of State— |
| |
(a) | that the involvement in terrorism-related activity of which that |
| |
individual is suspected may have involved the commission of an |
| |
offence relating to terrorism; and |
| 15 |
(b) | that the commission of that offence would fall to be investigated by a |
| |
| |
(2) | The Secretary of State must inform the chief officer of the police force that the |
| |
control order has been made and that this section applies. |
| |
(3) | It shall then be the duty of the chief officer to secure that the investigation of |
| 20 |
the individual’s conduct with a view to his prosecution for an offence relating |
| |
to terrorism is kept under review throughout the period during which the |
| |
control order has effect. |
| |
(4) | Where he considers it appropriate to do so in performing his duty under |
| |
subsection (3), the chief officer must consult the relevant prosecuting authority. |
| 25 |
| |
| |
(a) | in relation to a police force maintained for a police area in |
| |
England and Wales, means the chief officer of police of that |
| |
| 30 |
(b) | in relation to a police force maintained under the Police |
| |
(Scotland) Act 1967 (c. 77), means the chief constable of that |
| |
| |
(c) | in relation to the Police Service of Northern Ireland, means the |
| |
Chief Constable of that Service; |
| 35 |
(d) | in relation to the Serious Organised Crime Agency, means the |
| |
Director General of that Agency; and |
| |
(e) | in relation to the Scottish Drug Enforcement Agency, means the |
| |
| |
| 40 |
(a) | a police force maintained for a police area in England and |
| |
| |
(b) | a police force maintained under the Police (Scotland) Act 1967; |
| |
(c) | the Police Service of Northern Ireland; |
| |
(d) | the Serious Organised Crime Agency; or |
| 45 |
(e) | the Scottish Drug Enforcement Agency; |
| |
“relevant prosecuting authority”— |
| |
|
| |
|
| |
|
(a) | in relation to offences that would be likely to be prosecuted in |
| |
England and Wales, means the Director of Public Prosecutions; |
| |
(b) | in relation to offences that would be likely to be prosecuted in |
| |
Scotland, means the appropriate procurator fiscal; |
| |
(c) | in relation to offences that would be likely to be prosecuted in |
| 5 |
Northern Ireland, means the Director of Public Prosecutions for |
| |
| |
(6) | In relation to times before the Serious Organised Crime Agency begins to carry |
| |
out its functions, this section is to have effect as if— |
| |
(a) | the National Crime Squad were a police force; and |
| 10 |
(b) | references, in relation to that Squad, to its chief officer were references |
| |
| |
| |
“the Scottish Drug Enforcement Agency” means the organisation known |
| |
by that name and established under section 36(1)(a)(ii) of the Police |
| 15 |
(Scotland) Act 1967 (c. 77); and |
| |
“the Director” of that Agency means the person engaged on central |
| |
service (as defined by section 38(5) of that Act) and for the time being |
| |
appointed by the Scottish Ministers to exercise control in relation to the |
| |
activities carried out in the exercise of the Agency’s functions. |
| 20 |
| |
(1) | A person who, without reasonable excuse, contravenes an obligation imposed |
| |
on him by a control order is guilty of an offence. |
| |
(2) | A person is guilty of an offence if— |
| |
(a) | a control order by which he is bound at a time when he leaves the |
| 25 |
United Kingdom requires him, whenever he enters the United |
| |
Kingdom, to report to a specified person that he is or has been the |
| |
subject of such an order; |
| |
(b) | he re-enters the United Kingdom after the order has ceased to have |
| |
| 30 |
(c) | the occasion on which he re-enters the United Kingdom is the first |
| |
occasion on which he does so after leaving while the order was in force; |
| |
| |
(d) | on that occasion he fails, without reasonable excuse, to report to the |
| |
specified person in the manner that was required by the order. |
| 35 |
(3) | A person is guilty of an offence if he intentionally obstructs the exercise by any |
| |
person of a power conferred by section 6(3). |
| |
(4) | A person guilty of an offence under subsection (1) or (2) shall be liable— |
| |
(a) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
5 years or to a fine, or to both; |
| 40 |
(b) | on summary conviction in England and Wales, to imprisonment for a |
| |
term not exceeding 12 months or to a fine not exceeding the statutory |
| |
| |
(c) | on summary conviction in Scotland or Northern Ireland, to |
| |
imprisonment for a term not exceeding 6 months or to a fine not |
| 45 |
exceeding the statutory maximum, or to both. |
| |
|
| |
|
| |
|
(5) | In relation to an offence committed before the commencement of section 154(1) |
| |
of the Criminal Justice Act 2003 (c. 44), the reference in subsection (4)(b) to 12 |
| |
months is to be read as a reference to 6 months. |
| |
(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— |
| 5 |
(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 |
| |
(Scotland) Act 1995 (c. 46) (probation orders); or |
| |
(c) | to make an order under Article 4(1)(b) of the Criminal Justice (Northern |
| 10 |
Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conditional discharge in |
| |
| |
(7) | A person guilty of an offence under subsection (3) shall be liable— |
| |
(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 |
| 15 |
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 |
| |
exceeding level 5 on the standard scale, or to both. |
| |
(8) | In relation to an offence committed before the commencement of section 281(5) |
| 20 |
of the Criminal Justice Act 2003, 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 |
| |
offences), at the end insert— |
| |
“Prevention of Terrorism Act 2005 |
| 25 |
27A | An offence under section 8(3) of the Prevention of Terrorism Act |
| |
| |
(10) | In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order |
| |
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— |
| 30 |
“(o) | an offence under section 8(3) of the Prevention of Terrorism Act |
| |
| |
Appeals and other proceedings |
| |
9 | Appeals relating to non-derogating control orders |
| |
| 35 |
(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, |
| |
| the controlled person may appeal to the court against the making, renewal or |
| |
| 40 |
(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 |
| |
| |
(a) | the revocation of a non-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. |
| |
(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— |
| |
(a) | his decision that the requirements of section 2(1)(a) and (b) were |
| 10 |
satisfied for the making of the order; |
| |
(b) | his decisions on the imposition of each of the obligations imposed by |
| |
| |
(5) | The function of the court on an appeal against the renewal of a non-derogating |
| |
control order, or on an appeal against a decision not to revoke such an order, |
| 15 |
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 a risk of terrorism, for an order imposing |
| |
obligations on the controlled person to continue in force; |
| 20 |
(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- |
| |
| 25 |
(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 |
| |
| 30 |
(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 |
| |
| |
(b) | in the case of an appeal against a decision on an application for the |
| 35 |
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. |
| |
(8) | If the court determines on an appeal under this section that a decision of the |
| 40 |
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 |
| |
the order or for the modification of the obligations it imposes. |
| 45 |
(9) | In every other case, the court must dismiss the appeal. |
| |
|
| |
|