House of Commons - Explanatory Note
Anti-Terrorism, Crime And Security Bill - continued          House of Commons

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Clause 104 Arrangements for payments

282.     This clause allows for payment arrangements to be made in order to compensate communications providers for the costs of adhering to the provisions of the code of practice or any agreements. It is consistent with similar provisions in the Regulation of Investigatory Powers Act 2000 (sections 24 and 52 of that Act).

283.     Subsection (1) puts a duty on the Secretary of State to set up arrangements for paying an appropriate contribution of the costs incurred by communications providers acting in accordance with the code of practice or any agreements.

284.     Subsection (2) clarifies that the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.

Clause 105 Interpretation of Part 11

285.     This clause provides a definition of the terms used in the Part.

286.     Subsection (1) lists definitions of a number of terms. The terminology is consistent with that used in the Regulation of Investigatory Powers Act 2000.

287.     Subsection (2) specifies that the provisions of any code of practice, agreements or directions under this Part are applicable to all data obtained or held by the communications provider, including that which came into their possession before the code, agreements or directions took effect.

PART 12: BRIBERY AND CORRUPTION

Clause 106 Bribery and corruption: foreign officers etc

288.     Clauses 106 and 107 implement proposals contained in the Government White Paper "Raising Standards and Upholding Integrity: the Prevention of Corruption" (June 2000).

289.     Clause 106 ensures that the common law offence of bribery extends to persons holding public office outside the UK (subsection (1)). It also amends the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 to ensure that those Acts cover the bribery and corruption of foreign public officials, as well as those in the private sector, whether or not the offences are committed in the United Kingdom (subsections (2) - (4)).

Clause 107 Bribery and corruption committed outside the UK

290.     This clause gives the courts extra-territorial jurisdiction over bribery and corruption offences committed abroad by UK nationals and bodies incorporated under UK law. It enables the offences specified in subsection (3), when committed by UK nationals and bodies incorporated under UK law, to be prosecuted here, wherever those offences take place.

291.     "UK national" is defined in subsection (4) in the same way as in section 67 of the International Criminal Court Act 2001.

292.     As regards legal persons, the clause applies to any body incorporated under the law of any part of the UK (subsection (1)). It thus applies not only to companies but also, for example, to limited liability partnerships.

Clause 108 Presumption of corruption not to apply

293.     The purpose of this clause is to ensure that the existing presumption of corruption contained in the Prevention of Corruption Act 1916 does not apply any more widely as a result of the two previous clauses. Following a recommendation of the Law Commission ("Legislating the Criminal Code: Corruption (No. 248)), accepted by the Government in its White Paper on Corruption, the intention is to abolish the presumption in the longer term, as part of a wider reform of corruption law. This clause therefore allows it to continue to apply only in those cases where it applies at present.

PART 13: MISCELLANEOUS

Third Pillar of the European Union

Clause 109 Implementation of the third pillar

294.     This clause will allow measures adopted under Title VI of the Treaty on European Union (Police and Judicial Co-operation in Criminal Matters) to be implemented by secondary legislation. The European Union's objective in adopting measures under Title VI is to "provide citizens with a high level of safety within an area of freedom, security and justice" by "preventing and combating crime .. in particular terrorism, .. illicit drug trafficking and illicit arms trafficking" (Article 29 of Title VI).

295.     The drafting of the clause follows closely the drafting of section 2(2) of the European Communities Act 1972, which allows measures adopted under the Treaties establishing the European Communities and related treaties to be implemented by secondary legislation. Like the enabling power in section 2(2) of the 1972 Act, the clause enables such provision to be made as might be made by Act of Parliament but subject to a number of limitations. The power conferred by the clause does not include power to raise taxes, to legislate retrospectively, or to create further legislative powers. The power to create new criminal offences is also limited.

Clause 110 Third pillar: supplemental

296.     This clause sets out supplementary provisions concerning the exercise of the powers conferred by clause 109.

297.     The enabling power would be exercised by any Secretary of State, the Lord Chancellor, the Chancellor of the Exchequer or by the Devolved Administrations where the powers relate to devolved issues. The secondary legislation will be subject to the draft affirmative procedure.

Dangerous Substances

Clause 111 Use of noxious substances to cause harm

298.     Under this clause it will become an offence for a person to use or threaten to use a biological, chemical, radioactive or other noxious substance to cause various kinds of serious harm in a manner designed to influence the government or to intimidate the public. Offences under this clause carry a sentence of up to 14 years and a fine.

Clause 113 Hoaxes and threats involving noxious substances or things

299.     Section 51 of the Criminal Law Act 1977 (as amended by the Criminal Justice Act 1991) makes it an offence for someone to place or send any article intending to make another person believe that it is likely to explode or ignite and thereby cause personal injury or damage to property. It is also an offence for someone to communicate any information which he knows or believes to be false intending to make another person believe that a bomb is likely to explode or ignite. Section 63 of the act makes similar provision for Scotland. The Criminal Law (Amendment) Northern Ireland) Order 1977 created a similar offence in Northern Ireland.

300.     These offences relate only to hoax explosive devices. Other hoaxes, such as sending powders or liquids through the post and claiming that they are harmful, are not covered. This clause fills that gap

301.     Subsection (1) makes it an offence to place, send or communicate false information about any substance or article intending to make others believe that that it is likely to be or contain a noxious substance or thing which could endanger human life or health.

302.     Subsection (2) makes it an offence for a person to falsely communicate any information to another that a noxious substance or thing is or will be in a place and so likely to cause harm to endanger human life or health.

303.     Subsection (3) sets out the penalties for these offences. On summary conviction a person may be imprisoned for up to six months, or receive a fine up to the statutory maximum or both. On conviction on indictment a person may be imprisoned for up to seven years, or receive a fine or both.

Intelligence Services Act 1994

Clause 114 Amendments of the Intelligence Services Act 1994

304.      This amendment serves two purposes: it amends and extends to Government Communications Headquarters (GCHQ) the authorisation procedure which currently applies only to the Secret Intelligence Service (SIS) by adding their name to Section 7 of the Intelligence Services Act 1994 (Section 7); and it brings the definition of the prevention and detection of crime which applies to SIS into line with the definition used by the Security Service, as set out in the Regulation of Investigatory Powers Act 2000.

305.     Section 7 sets out the authorisation procedure for acts necessary for the proper discharge of the functions of the SIS which take place abroad. The amendment extends this authorisation to GCHQ, for the purpose of discharging its own functions, and allows both GCHQ and SIS to be authorised under section 7 to act in this country when the intention is for those actions to have an effect only on apparatus located abroad.

306.     Subsection (1) adds GCHQ to the agencies entitled to seek authorisation under Section 7 of the Intelligence Service Act and ensures that safeguards are in place concerning GCHQ's functions and disclosures in relation to its activities under this section.

307.     Subsection (2) makes an amendment to Section 7 which affects the location at which acts authorised under Section 7 may take place. Section 7, Subsection (1) provides that the acts to be authorised must take place abroad. This extra subsection (9) provides that the authorisation procedure in Section 7 may also apply to acts undertaken in this country, if they are intended only to have an effect on apparatus located outside the British Islands or on material originating from such apparatus.

308.     The definition of "apparatus" used here is the same as in the Regulation of Investigatory Powers Act 2000, i.e. any equipment, machinery or device, or any wire or cable.

309.     Subsection (3) provides for the meaning of the prevention and detection of crime as set out in Section 81(5) of the Regulation of Investigatory Powers Act 2000 for the purposes of the provisions of that Act not contained in Chapter 1 of Part 1 to be applied to the Secret Intelligence Service. The same definition will therefore apply to the Secret Intelligence Service as applies to the Security Service in the Security Service Act 1989. The effect is to clarify that the Secret Intelligence Service can support evidence gathering activities.

Terrorism Act 2000

Clause 115 Information about acts of terrorism

310.     This clause inserts a new section 38A in the Terrorism Act 2000 making the failure to disclosure information about acts of terrorism a criminal offence. The new offence is similar to that which was found in section 18 of the Prevention of Terrorism (Temporary Provisions) Act 1989 which was repealed by the Terrorism Act 2000. Section 18 was related only to acts of terrorism in Northern Ireland. The new offence has no such geographical limitation.

311.     Sub-section (1) of the new section 38A makes it an offence for a person, without reasonable excuse, to fail to disclose information which he either knows or believes might help prevent another person carrying out an act of terrorism or might help the police in bringing a terrorist to justice in the UK. The words "an act of terrorism" are defined by reference to the definition of terrorism found in section 1 of the Terrorism Act 2000 and include acts of terrorism anywhere in the world. Sub-section (2) identifies the people to whom disclosure should be made - in England and Wales to a constable, in Scotland to a constable or a procurator fiscal, or in Northern Ireland to a constable or a member of Her Majesty's forces. Sub-section (3) sets out the penalties for people found guilty of offences under this legislation: on conviction on indictment a person may be imprisoned for up to five years, or receive a fine or both; or on summary conviction a person may be imprisoned for up to six months or receive a fine not exceeding the statutory minimum or both. Subsection (4) makes it a defence for a person to prove a head a reasonable excuse for not making the disclosure. Subsection (5) allows proceedings for an offence to be taken, and for the offence to be regarded as having been committed in any place where the person to be charged is or has been since he first believed or knew about information that might be of assistance in the prevention of terrorism or bringing a terrorist to justice. This allows a person resident in the UK to be charged with the offence even if he was outside the United Kingdom at the time he became aware of the information.

312.     Subsection (3) inserts "or 38A" after "..to 21" in section 39(3) of the Terrorism Act 2000. The effect of this is to make it an offence for someone to disclose information to another person which would be likely to prejudice an investigation under section 38A or if he interferes with material that is likely to be relevant to an investigation under section 38A. The penalties for these offences are the same as those outlined above.

Clause 116 Port and Airport controls for domestic travel

313.     The clause extends the existing powers under paragraphs 2 - 8 of Schedule 7 to the Terrorism Act 2000 to stop, question, detain and search people to cover any person whose presence at a port an examining officer (a constable, immigration officer or customs officer) believes to be connected with their travelling on a flight within Great Britain or Northern Ireland or to a person on a ship or air craft that has arrived at any place in Great Britain or Northern Ireland whether from within or outside Great Britain or Northern Ireland.

314.     Similarly the clause extends the powers to search and detain goods (meaning property and containers in paragraphs 9 to 11) to cover flights within Great Britain or Northern Ireland.

315.     Subsection (2) amends paragraph 2(2)(b) to Schedule 7 to cover people whom an examining officer believes are in a port area for reasons connected with their travelling by air within Great Britain and Northern Ireland.

316.     Subsection(3) amends paragraph 2(3) to schedule 7 to cover passengers on ships and aircraft which have arrived at any place in Great Britain and Northern Ireland whether from within or outside Great Britain and Northern Ireland.

317.     Subsection (4) amends paragraph 9(2) to schedule 7 by applying the powers to examine goods to goods which have arrived in or are about to leave Great Britain or Northern Ireland on a ship or vehicle and goods which have arrived at or are about to leave any place in Great Britain or Northern Ireland on an aircraft whether the place they have come from or are going to is within or outside Great Britain or Northern Ireland.

Clause 117 Passenger information

318.     Under Paragraph 17 of Schedule 7 to the Terrorism Act 2000, if an examining officer (a constable or immigration officer or customs officer) makes a written request to the owners or agents of a ship or aircraft for information about passengers, crew or vehicles belonging to the passengers or crew the owners or agents must comply with the request as soon as is reasonably practicable. The provision only applies to the Common Travel Area (journeys between Great Britain, Northern Ireland, the Republic of Ireland and the Islands). The information to be collected must be specified by the Secretary of State.

319.     Schedule 14 of the Act allows for this information to be supplied to immigration for immigration purposes; to customs; to a constable, the National Criminal Intelligence Service (NCIS) or the National Crime Squad (NCS) or any other person specified by the Secretary of State. Information collected by a customs or immigration officer as part of their statutory duties can also be supplied to an examining officer.

320.     Sections 18-21 of the Immigration and Asylum Act 1999 provide similar powers for Immigration officers to collect information from carriers. The type of information that can be collected has been set out in the Passenger Information Order 2000. The Act also creates a gateway which allows the sharing of information between an immigration officer, the police, NCIC, NCS, customs or any other specified person. Information collected by a law enforcement agency can also be passed to the Secretary of State for immigration purposes.

321.     No similar powers exist for freight manifests.

Clause 118 Weapons training for terrorists

322.     Section 54 of the Terrorism Act 2000 makes it an offence to provide, receive or invite another person to receive instruction or training in the use of firearms, explosives or chemical, biological or nuclear weapons. A person guilty of an offence under this section may be imprisoned of up to ten years, receive a fine or both. It is a defence for the person to be able to show their involvement was wholly for a purpose other than terrorism.

323.     Section 55 of the Act defines a biological weapon as anything to which section 1(1) (b) of the Biological Weapons Act 1974 applies, a chemical weapon as anything to which section 1 of the Chemical Weapons Act 1996 applies; and a nuclear weapon as a weapon which contains nuclear material as set out in the schedule to the Nuclear Materials (Offences) Act 1983.

324.     Subsection (1) adds a new paragraph to sections 54 (1) and (2) of the Terrorism Act 2000 to cover training relating to radioactive material and weapons designed or adapted for the discharge of radioactive material.

325.     Subsection (2) amends section 55 of the Terrorism Act 2000. Paragraph (a) substitutes a new definition for a biological weapon to include any biological agent or toxin which is in a form that can be used for hostile purposes. Paragraph (b) inserts a definition of a radioactive material as one capable of endangering life or causing harm to health. Paragraph (c) deletes the definition of a nuclear weapon, which is now out of date.

Clause 119 Crown Court judges Northern Ireland

326.     This clause amends the Terrorism Act 2000 to substitute Crown Court judges for county court judges.

SCHEDULE 1 FORFEITURE OF TERRORIST CASH

Part 1 Introductory

327.     Sub-paragraph (1) of paragraph 1 provides that Schedule 1 applies to terrorist cash, that is cash which is intended to be used for the purposes of terrorism, consists of resources of a proscribed organisation or is earmarked as terrorist property. Part 5 of the Schedule explains what is meant by cash which is earmarked as terrorist property.

328.     Sub-paragraph (2) of paragraph 1 defines cash for the purposes of Schedule 1 and makes it clear that the definition applies wherever the cash is found in the United Kingdom. The definition of cash is intended to cover the most readily realisable monetary instruments used by terrorists; the order making power in sub-paragraph (3) enables the Secretary of State to prescribe by order (subject to the negative resolution procedure) monetary instruments as the need arises.

Part 2 Seizure and detention

329.     Sub-paragraph (1) of paragraph 2 enables an authorised officer (defined at paragraph 19 as a customs officer, immigration officer or constable) to seize cash if he has reasonable grounds for suspecting that it is terrorist cash as defined in sub-paragraph (1) of paragraph 1 of the Schedule. In normal circumstances, if the authorised officer only has reasonable grounds for suspecting that part of the cash in question is terrorist cash, then he may only seize that part. However, where the cash is in a non-divisible form (such as travellers' cheques), this will not be possible, and sub-paragraph (2) allows him in these circumstances to seize all of the cash including the non-terrorist part. Sub-paragraph 4(2) makes further provision as to what is to happen in such circumstances.

330.     The effect of paragraph 3 is that cash may not be detained for more than 48 hours except by order of a magistrates' court or justice of the peace (or a sheriff in Scotland). Under sub-paragraphs (6), (7) and (8), a magistrate may make an order for continued detention if satisfied that there are reasonable grounds for the officer's suspicion and that the continued detention is justified for the purposes of investigating its intended use, whether or not it consists of the resources of a proscribed organisations or its origin. The magistrate may also make an order for continued detention if consideration is being given to the bringing of criminal proceedings, or if such proceedings have been commenced and not concluded. Detention orders must be renewed every three months, but must not last for more than a total of two years from the date of the first order (sub-paragraph (2)). Paragraph 9 makes provision for any victim to intervene in the detention proceedings.

331.     Paragraph 4 provides that cash detained for more than 48 hours must be paid into an interest-bearing account unless it is required as evidence of an offence or evidence in proceedings under this Schedule. Sub-paragraph (2) provides that where part of the cash seized is not terrorist cash (as explained above, this may occur, for example, where the cash is in the form of a travellers' cheque), the non-terrorist part must be released at the time it is paid into the interest-bearing account.

332.     Paragraph 5 envisages two situations in which cash or any part of the cash may be released to the person from whom it was seized. Firstly, the magistrates' court (or a sheriff in Scotland) may do so in response to an application by the person from whom the cash was seized on the grounds that it no longer satisfies any of the conditions in paragraph 3 for its detention. Secondly, an authorised officer may release cash or any part of it after notifying the justice, magistrates' court or sheriff if satisfied that the detention can no longer be justified. Paragraph 9 makes provision for a victim who claims the terrorist cash to apply for it to be released to him.

Part 3 Forfeiture

333.     The effect of paragraph 6 is to enable the magistrates' court or sheriff to order the forfeiture of cash or any part of it if satisfied that the cash or part is terrorist cash.

334.     Where the cash belongs to joint tenants, one of whom did not obtain it through terrorism, the court will have the discretion not to forfeit cash that it thinks attributable to the "innocent" partner. An example of this might be the joint bank account into which terrorist proceeds has been paid by one signatory and clean money by the other. If the former withdraws all the cash and it is subsequently seized, the court then has the discretion to return to the "innocent" partner his share of the money.

335.     Appeals must be lodged within 30 days. A successful appeal would result in the cash being paid back, together with any accrued interest. Sub-paragraph (6) provides for the situation where an organisation is deproscribed following a successful appeal to the Proscribed Organisations Appeal Commission (POAC), and a forfeiture order has been made in reliance (in whole or in part) on the fact that the organisation is proscribed. In such cases, the person whose cash has been forfeited may appeal at any time before the end of the period of 30 days beginning with the date on which the deproscription order comes into force, but only where the cash was seized on or after the date of the initial refusal to deproscribe against which the appeal to POAC was brought.

Part 4 Miscellaneous

336.     Paragraph 9 provides for those who claim ownership of the cash or any part of it that is detained. The court may release the cash to the applicant if it is satisfied that he was a victim of criminal conduct (as defined in paragraph 19) and that the cash belongs to him. However, it may not release the cash to him if the property that the applicant was originally deprived of was itself property obtained through criminal conduct. So a thief who is deprived of the property that he has stolen cannot benefit from these provisions. The victim's application may be made at the time of a detention hearing under paragraph 3, a forfeiture hearing under paragraph 6 or any other time.

337.     Paragraph 10 provides that where no forfeiture order is made following the detention of cash the person from whom it was seized or the person to whom the cash belongs may apply to the court for compensation. If cash has not been held in an interest bearing account because it is needed as evidence, sub-paragraph (2) allows the court to pay an amount of compensation in respect of the interest lost. Sub-paragraph (4) also gives the court discretion to pay compensation where loss has occurred and the circumstances are exceptional. This applies whether or not interest has been paid. Where as a result of proceedings under paragraph 9, cash is returned to a victim, it is not thought appropriate that compensation should be payable and sub-paragraph (10) reflects this.

Part 5 Property earmarked as terrorist property

338.     Paragraphs 11 to 16 say what "property earmarked as terrorist property" means. It covers:

  • property obtained through terrorism, and

  • property which represents property obtained through terrorism.

339.     Paragraph 11 defines when property is obtained through terrorism. A person will obtain property through terrorism if he obtains it:

  • by or in return for acts of terrorism - for example by being paid to commit murder, or

  • by or in return for acts carried out for the purposes of terrorism - for example, stealing a car to perpetrate a terrorist act.

340.     The purpose of sub-paragraph (2)(a) is to ensure that property counts as having been obtained through terrorism regardless of any investment in that terrorism. So if a person buys guns with honestly come by money, and sells them at a profit, the whole of the proceeds of the sale will count as having been obtained through terrorism, and not just the profit.

341.     Sub-paragraph 2(b) provides that it is not necessary to show that property was obtained through a particular act of terrorism, so long as it can be shown to have been obtained through terrorism of one kind or another. So it will not matter, for example, if it cannot be established whether certain funds are attributable to gun smuggling, blackmail, extortion, or stealing from a bank, provided that it can be shown that they are attributable to an act of terrorism, or an act carried out for the purposes of terrorism.

342.     Paragraph 12 explains that property may be earmarked as terrorist property even if it is not in the hands of the person who originally obtained it. That is to say, property obtained through terrorism may be followed.

343.     Paragraphs 13 to 15 describe circumstances in which property is treated as representing property obtained through terrorism.

344.     Paragraph 13 provides that, if property obtained through terrorism is disposed of, the proceeds of the disposal represent the property disposed of. In other words, property obtained through terrorism may be traced into other property. For example, if a person obtains a car in return for carrying out an act of terrorism, and then sells it, the cash that he obtains in return will be property earmarked as terrorist property. The same principle will apply again when he spends the cash.

345.     Paragraph 14 provides that where property obtained through terrorism is mixed with other property, then the portion of the mixed property which is attributable the property obtained through terrorism will itself represent property obtained through terrorism. So, for example, if the car mentioned above is sold and the cash paid into a bank account which is in credit through deposits from honest sources, then a proportion of any cash withdrawn from that bank account will be property earmarked as terrorist property. Again, the same principle will apply if representative property is mixed with other property.

346.     Paragraph 15 provides that if profits accrue in respect of the property obtained through terrorism, or representative property, the profits are also to be treated as representative property. So, for example, if property obtained through terrorism is placed in a bank account and interest is credited to the account, any cash taken from the account may be seized.

 
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Prepared: 13 November 2001