House of Lords - Explanatory Note
Terrorism Bill - continued          House of Lords

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Clause 56: Directing terrorist organisation

53. This offence is based on that in section 29 of the EPA. The EPA offence applies only in Northern Ireland; the equivalent offence under the Bill is applicable throughout the UK. Although the EPA offence is not expressly restricted to Irish terrorist organisations, this is the practical effect of its being confined to Northern Ireland legislation; under the Bill the equivalent offence will apply to all forms of terrorism. The organisation need not be proscribed for this offence to be committed.

Clauses 57-58: Possession offences

54. These clauses are based respectively on sections 16A and 16B of the PTA, which were added to the PTA by the Criminal Justice and Public Order Act 1994 (c. 33). Sections 16A and 16B were in turn based on sections 30 and 31 of the Northern Ireland (Emergency Provisions) Act 1991 (c. 24). The compatibility of the section 16A offence with the ECHR was considered in the case of Kebilene, on which the House of Lords ruled on 28 October 1999.

Clauses 59-61: Inciting terrorism: England and Wales, Scotland, and Northern Ireland

55. The Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40) made it an offence to conspire in the United Kingdom to commit criminal acts abroad. These clauses similarly make it an offence for a person in the United Kingdom to incite terrorist acts abroad.

56. The offence of incitement to specific acts commonly associated with terrorism (such as hostage taking or hijacking aircraft) is already available, by virtue of the extra-territorial jurisdiction established over such offences in the past - and elsewhere in this Bill - in legislation implementing various international counter-terrorism Conventions. This provision will, therefore, fill in remaining gaps in the law.

Clauses 62-64: Terrorist bombing and finance offences

57. These clauses are included to enable the UK to ratify the UN Convention for the Suppression of Terrorist Bombings and the UN Convention for the Suppression of the Financing of Terrorism. They will enable the UK to meet its obligations under the "extradite or prosecute" provisions of these Conventions, which are common to earlier international counter-terrorism Conventions.

PART VII: NORTHERN IRELAND

Clause 65: Scheduled offence: interpretation

58. This clause and Schedule 9 define which offences qualify for special treatment because they are terrorist offences, or are offences related to the situation in Northern Ireland; it also provides for the concept "scheduled offence" and lists them; and gives the Attorney General discretion in certain cases to certify offences out of the list. The clause also enables the Secretary of State to add, or remove, by affirmative resolution procedure any offences from Part I or II or amend Part I or II.

Clause 66: Preliminary inquiry

59. This clause is concerned with committal proceedings in the Magistrates' Court. It allows the prosecutor to request a preliminary inquiry in relation to scheduled offences. The provision was introduced in 1975 following the Gardiner Report, as a means of dealing with the problem of non-recognition of the court system by many defendants. In ordinary law a preliminary inquiry may be held only if the prosecutor requests it and the accused does not object. The effect of this clause is that the alternative less expeditious preliminary investigation can be avoided. However, if the court considers that a preliminary investigation is in the interest of justice, it will not accede to the prosecution request for a preliminary inquiry. While committal proceedings remain part of the system, this clause provides a means of keeping delays to a minimum.

Clause 67: Limitation of power to grant bail

60. This clause provides that in the case of a scheduled offence bail applications must be dealt with by a High Court judge or a judge of the Court of Appeal. The provision owes its origin to the fact that prior to its introduction, when magistrates were dealing with bail applications in terrorist cases, the courts became crowded with persons who tried to intimidate the court and who created a threatening atmosphere. Under the ordinary law there is a presumption, as opposed to a discretion, that bail will be granted, subject to similar considerations.

Clause 68: Bail: legal aid

61. This provision is peculiar to scheduled offences as a consequence of the special arrangements provided for them. The arrangements are such that the defendant may make application for legal aid directly to the High Court which is hearing the bail application rather than through the High Court to the Law Society, which is the procedure for legal aid in ordinary criminal cases.

Clause 69: Maximum period of remand in custody

62. This clause provides that in the case of a scheduled offence, the maximum period of remand in custody will be 28 days. The justification for this dates back to Sir George Baker's report in 1984 (Cm 9222, paragraphs 84-88). He reported that to bring a person charged with a scheduled offence before a magistrate every seven days was meaningless, especially since the magistrates' court was precluded from granting bail in the majority of scheduled cases.

Clause 70-71: Young persons: custody on remand and directions

63. This clause applies to a young person (aged 14 to 16 inclusive) on remand for a scheduled offence. It provides that for security purposes a young person may be held in prison, or elsewhere, which is usually the (secure) Young Offenders Centre, at Hydebank Wood. Under ordinary law, a young person would be remanded to a training school or remand home, although if a young person is certified by the court to be unruly or depraved, he may be committed to a remand centre or the Young Offenders Centre. Given the gravity of scheduled offences, insecure accommodation would not be appropriate. The Secretary of State may give a direction for special arrangements to be made if necessary to prevent the escape or to ensure the safety of the young persons or others.

Clauses 72-73: Time limits for preliminary proceedings

64. This provides that time limits may be set for the stages of proceedings leading up to trial in scheduled cases. The provision is based on section 22 of the Prosecution of Offences Act 1985, which is in force in England and Wales and provides for custody time limits. The power has never been used, although an administrative time limit scheme has been operating since 1992.

Clause 74: Court for trial

65. The background to this provision is to be found in Sir George Baker's 1984 Report, which was written at the time of the accomplice evidence (supergrass) trials, when court accommodation in Northern Ireland was under severe pressure. He recommended that provision should be made to enable the Lord Chancellor, after consultation with the Lord Chief Justice, to direct that trial on indictment of a scheduled offence should be held at the Crown Court sitting elsewhere than in Belfast.

Clause 75: Mode of trial on indictment

66. This clause provides for the mode of trial on indictment of scheduled offences to be by a court sitting without a jury - a "Diplock trial" - but with all the powers, authorities and jurisdiction of a jury court. It also provides that where both scheduled and non-scheduled offences are charged, the case is to be conducted as if all the offences charged were scheduled. The Diplock Court system dates back to 1972 when the Diplock Commission found that the jury system as a means of trying terrorist crime was under strain and in danger of breaking down. It highlighted the danger of perverse acquittals and intimidation of jurors. There is an unfettered right of appeal from the decision of the trial judge.

Clause 76: Admission in trial on indictment

67. This clause provides for the admissibility in evidence, in trials on indictment, of confessions made by persons charged with scheduled offences. It imposes an obligation on the court to exclude or disregard any evidence which has been obtained by subjecting the accused to torture or other improper treatment, or, in such a case, to order a fresh trial to be heard before a differently constituted court. It also provides for confession evidence to be excluded on the grounds of fairness to the accused or otherwise in the interests of justice.

Clause 77: Possession: onus of proof

68. This clause makes provision for the onus of proof in trials on indictment for offences of possession of firearms and explosives. The provision dates back to the Diplock Commission and its intended effect is to make it incumbent on the accused to give an explanation where explosives or firearms are found in his possession. Previously, defendants had been acquitted by claiming no knowledge of such articles found in their possession.

Clause 79: Restricted remission

69. This clause provides that the remission granted in respect of a sentence of imprisonment of 5 years or more for a scheduled offence, shall not exceed one third of the term. This provision was introduced in 1989 as a response to the increased violence of the time. Its effect is mitigated by the Northern Ireland (Remission of Sentences) Act 1995. That Act provides for the release on licence of those prisoners at the half-way point of sentence. Whilst on licence, such prisoners may be recalled up until the two-thirds point if they are thought likely to commit further offences or if their continued liberty would pose a threat to the safety of the public. From the two-thirds point on they may be granted remission.

Clause 80: Conviction during remission

70. This clause applies to a person convicted of a scheduled offence committed during a period of remission for a previous conviction for which that person was sentenced to a custodial sentence of more than 1 year. In calculating the unexpired portion of a previous sentence it is important to note that time continues to run while a person is at large and so the actual effect of the clause will depend on the time when the later offence is committed. This means that a person released on remission after serving say 2 years of a four year sentence who re-offended after the full term (4 years) of the sentence was expired will not be affected by the clause, but a person who re-offended and was re-convicted after three years would be required to serve one year before starting his new sentence (the unexpired portion does not attract remission).

Clause 82: Constables' power of arrest and seizure

71. This clause confers on the police a general power of arrest on reasonable suspicion, but without a warrant, for scheduled offences and other offences under these provisions It also provides an associated power of entry and search and a general power to seize anything which a constable has reasonable grounds to suspect may be used in the commission of a scheduled offence or a non-scheduled offence under this Bill.

Clause 83: Armed forces' power of arrest and seizure

72. This clause confers on a member of the Armed Forces general powers of arrest, entry, search and seizure without a warrant when there is reasonable grounds for suspecting the person of committing an offence or of being a terrorist. There is no equivalent PACE power, since PACE does not apply to the Army. Subsection (6) provides that subsection (2) does not seek to legalise any act which would be unlawful under the Human Rights Act 1998.

Clause 84: Munitions and transmitters

73. See notes on Schedule 10 below.

Clause 85: Explosives inspectors

74. This power is primarily intended for use by those who provide security at Court premises, since the powers of an explosives inspector under the Explosives Act 1875 (c. 17) do not extend to public places. Some members of the Health and Safety Executive also have powers under that Act to enable them to conduct annual inspections of licensed explosives factories and magazines.

Clause 86: Unlawfully detained persons

75. This clause allows a police officer or soldier to enter any premises to search for persons who are believed to be unlawfully detained in circumstances where their life is in danger. No warrant is necessary.

Clauses 87-88: Examination of documents

76. These clauses allow the police and Army to examine any document or record found in the course of a search to ascertain whether it contains any information of a kind likely to be useful to terrorists. No warrant nor reasonable suspicion is required.

Clause 89: Power to stop and question

77. This clause empowers the police and Army to stop and question persons as to their identity, movements or knowledge of any recent incident endangering life.

Clauses 90-93: Power of entry; taking possession of land; road closure: permission

78. Clauses 90 and 91 allow the police or army to enter premises to preserve the peace or maintain order, and allow a person on the authorisation of the Secretary of State to take possession of land etc for the preservation of peace or the maintenance of order. The common law power of the police is to enter in order to save life or limb, to prevent serious damage to property and to deal with or prevent a breach of the peace.

79. Clause 92 allows for road closures. Powers to interfere with public highways are to be found under road traffic law (Road Traffic Act 1988). There are no other provisions to permit the police to interfere with highways etc, although they may take specific action such as denying access to highways to prevent public disorder or a potential breach of the peace under the Public Order Act 1986.

80. While Lord Lloyd recommended that these provisions should be removed once lasting peace is established, the powers are preserved in order to cover land requisitioned for both RUC stations and security force bases and to provide protection for residents at sectarian interfaces where the fear of attack by opposing community factions remains real.

Clause 94: Road closure: direction

81. This clause is used to make permanent road closures and to provide for town barriers. The condition is the preservation of the peace and the maintenance of order: reasonable suspicion is not required. Lord Lloyd recommends this provision be removed once lasting peace is established.

Clause 95: Supplementary

82. This clause makes supplementary provision including allowing for vehicles to be stopped and searched.

Clause 96: Preservation of the peace: regulations

83. This clause enables the Secretary of State to make regulations for the preservation of the peace and the maintenance of order. The Northern Ireland (Emergency Provisions) Regulations 1975 and 1991 were made under the equivalent section of the EPA. The power is wide-ranging but regulations made under it are subject to the affirmative resolution procedure by Parliament.

Clause 98: Independent Assessor of Military Complaints Procedures

84. The Office of the Independent Assessor of Military Complaints Procedures came into existence in its current form under the EPA 1996. Lord Colville of Culross had recommended it in his review of the 1978 and 1987 Acts and the appointment is discretionary, looking forward to a time when the Army will no longer patrol in support of the RUC. The Independent Assessor's role is to review procedures for the investigation of complaints about the army and to investigate any representations made to him about those procedures. While the Secretary of State has a power (rather than a duty) to appoint an Assessor, the Government has said that the position will remain while the Army is needed to act in support of the police in Northern Ireland. Further provision about the Assessor is made in Schedule 11, which this Clause activates.

Clauses 99-101: Police and army powers code of practice; video recording code of practice; codes of practice: supplementary

85. These clauses continue the power of the Secretary of State to prepare, publish, issue and revise codes of practice on the seizure and retention of property by the police and the powers of the police and army under this Part. It also provides for a silent video recording scheme in the Holding Centres.

Clause 103: Terrorist information

86. This clause makes it an offence to collect or possess information about specified persons which is likely to be useful to terrorists. Possessing such information is also an offence. Subsection (2) defines the persons relevant to this section. Subsection (5) provides that it is a defence to prove that a person had a reasonable excuse for the collection of such information.

Clause 104: Police powers: records

87. This clause places a requirement on the Chief Constable of the RUC to make arrangements for records to be kept when powers are exercised under this Part of the Act. It is envisaged that records will be kept unless there are reasons which make this impractical: for example following a major incident when the police by necessity would need to stop and question large numbers of people.

Clause 106: Private security services

88. See notes on Schedule 13 below.

Clause 107: Specified organisations: interpretation

89. This clause defines specified organisations for the purposes of the four following clauses. These provisions are based on sections 1, 2 and 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 which was introduced after the Omagh bomb.

Clause 108: Proscribed organisations: evidence

90. This clause provides that oral evidence from a police officer of at least the rank of superintendent to the effect that the accused is or was a member of a specified organisation shall be admissible as evidence of such membership. This is subject to subsection (3)(b), which provides that a suspect cannot be committed for trial, be found to have a case to answer, or be convicted, solely on the basis of the officer's statement.

Clause 109: Proscribed organisations: inference

91. This clause provides that the court may draw inferences from an accused's failure to mention a fact material to an offence which he could reasonably be expected to mention when questioned. The court may only draw such inferences where the accused was permitted to consult a solicitor before being questioned. The accused shall not be committed for trial, found to have a case to answer or be convicted solely on the basis of inferences under this clause.

Clause 110: Supplementary

92. This clause makes it clear that the preceding clauses do not prejudice the admissibility of other evidence, preclude the drawing of other inferences, or prejudice other legislation which states that certain evidence is inadmissible in proceedings.

Clause 111: Forfeiture orders

93. This clause makes provision for the court to order forfeiture of money or property. This applies where a person is convicted of an offence under Clause 11 or 12 and belonged to a specified organisation at the time the offence was committed. The court is able to order forfeiture of money or property if the individual had it in his possession when the offence was committed and if it had been used, or was likely to be used, in connection with the activities of the specified organisation. As with forfeiture provisions elsewhere in the Bill the court must give an opportunity to be heard to any other individual who has an interest in money or property which could be subject to a forfeiture order under this section.

SCHEDULE 1: NORTHERN IRELAND (EMERGENCY PROVISIONS) ACT 1996

94. Schedule 1 to the Bill retains in force the EPA from the date on which the Bill receives Royal Assent to the date the provisions are brought into force by order (Ministers have referred to this interim position as the "transitional EPA"). It is intended to do this as soon as substantive provisions of the Bill are fully implemented. This Schedule also makes some minor adjustments to the existing EPA provisions which mostly give effect to the United Kingdom's ECHR obligations. Those adjustments are set out at paragraphs 5 to 8 of the Schedule. Paragraph 9 also extends the life of Part V of the EPA on the provision of private security services with the addition of the new appeal mechanism set out in Schedule 12.

95. During debate in Commons Committee, the Government made it clear that it intends to bring the Bill into force early in 2001. The transitional EPA will therefore be short lived and we do not anticipate that it would be in force for a full year. However, paragraph 1 of Schedule 1 ensures that this mechanism would be available in relation to the transitional EPA should the commencement of the Bill be delayed.

SCHEDULE 2: PROSCRIBED ORGANISATIONS

96. See notes on Part II above.

SCHEDULE 3: THE PROSCRIBED ORGANISATIONS APPEAL COMMISSION

Paragraphs 1-3

97. These paragraphs provide that the officers of the Proscribed Organisations Appeal Commission ("POAC") will be appointed by the Lord Chancellor and that he will be responsible for their remuneration.

Paragraphs 4-5

98. These paragraphs set out the Commission's sitting arrangements and the areas in which the Lord Chancellor may make rules governing POAC's proceedings.

Paragraphs 6-7

99. These paragraphs set out arrangements for designating an individual with the locus to represent an organisation, and a person to represent the interests of the organisation, or other applicant who is appealing, for any parts of the proceedings from which they and their legal advisers are excluded by the Commission (by virtue of one of the rules made under paragraph 5).

Paragraph 8

100. This paragraph provides that section 9(1) of the Interception of Communications Act 1985, which bars intercept material evidence from being used in proceedings, will not apply for POAC proceedings. It goes on to stipulate that such material must not be disclosed to the organisation or other applicant, or their legal representatives.

SCHEDULE 4: FORFEITURE ORDERS

101. If a person is convicted of a terrorist property offence under Part III of the Bill, then property connected with the offence will be subject to forfeiture, under Clause 23. This kind of forfeiture is known as "criminal forfeiture" because it follows conviction for a criminal offence. It is to be distinguished from the "civil forfeiture" which applies under Clause 28 to terrorist cash seized at borders. Schedule 4, which corresponds to Schedule 4 of the PTA and has similar effect, sets out the procedure for criminal forfeiture under Clause 23.

102. The Schedule is in four Parts, subdivided as shown below:

  • Part I: England and Wales

    • Interpretation

    • Implementation of forfeiture orders

    • Restraint orders

    • Compensation

    • Proceedings for an offence: timing

    • Enforcement of orders made elsewhere in the British Islands

    • Enforcement of orders made in designated countries

  • Part II: Scotland

    • Implementation of forfeiture orders

    • Administrators

    • Restraint orders

    • Compensation

    • Proceedings for an offence: timing

    • Enforcement of orders made elsewhere in the British Islands

    • Enforcement of orders made in designated countries

  • Part III: Northern Ireland

    • Interpretation

    • Implementation of forfeiture orders

    • Restraint orders

    • Compensation

    • Proceedings for an offence: timing

    • Enforcement of orders made elsewhere in the British Islands

    • Enforcement of orders made in designated countries

  • Part IV: Insolvency: United Kingdom provisions

Paragraphs 2-4: Implementation of forfeiture orders

103. These paragraphs correspond to paragraphs 1-2 of Schedule 4 of the PTA and have the same effect. Sub-paragraph (2) of paragraph 2 allows for the fact that a forfeiture order could be made on conviction but set aside if the conviction is overturned on appeal: while such an outcome is still a possibility, the money or other property will not be handed over. The exception is an appeal "out of time": in other words, the possibility that a case may be looked at again years later in the light of new or newly-discovered evidence. Forfeiture orders can come into effect when this possibility still exists.

104. Section 140 of the Magistrates' Court Act 1980 provides as follows:

    Subject to any enactment relating to customs or excise, anything other than money forfeited on a conviction by a magistrates' court or the forfeiture of which may be enforced by a magistrates' court shall be sold or otherwise disposed of in such manner as the court may direct; and the proceeds shall be applied as if they were a fine imposed under the enactment on which proceedings for the forfeiture are founded.

It is disapplied by sub-paragraph (4) of paragraph 2 to ensure there is no overlap with sub-paragraph (1)(b)-(c).

Paragraphs 5-8: Restraint orders

105. These paragraphs correspond to paragraphs 3-6 of Schedule 4 of the PTA and have the same effect. The purpose of restraint orders is to prevent someone accused of a Part III offence from selling his property in order to avoid forfeiture. They can therefore be made at an early stage in the case: even (under sub-paragraph (2) of paragraph 5) before proceedings have been formally instituted. Although the restraint order is formally made by the High Court, the prosecution can apply without notice (that is, ex parte) to a judge in chambers (sub-paragraph (4)). This is because in some cases it is important to act as quickly as possible.

106. Paragraph 8 provides for restraint orders to be treated in the same manner as certain civil actions under the Land Charges Act 1972 and the Land Registration Act 1925 and enables the orders to be registered, so restricting dealing in the restrained property.

Paragraphs 9-10: Compensation

107. Paragraph 9 corresponds to paragraph 7 of Schedule 4 of the PTA and has similar effect. Whereas under the PTA, compensation could only be paid where proceedings had been instituted, under the Bill it will also be payable where a restraint order is made in relation to expected proceedings but the proceedings are not in the event instituted. Paragraph 10 comes into play when an organisation is deproscribed following a successful appeal to POAC. It enables a person with an interest in any property which has been subject to a forfeiture or restraint order under the Schedule to apply to the High Court for compensation.

Paragraph 11: Proceedings for an offence: timing

108. This paragraph corresponds to paragraphs 3(8)-(9) of Schedule 4 to the PTA and has the same effect.

Paragraphs 12-13: Enforcement of orders made elsewhere in the British Islands

109. These paragraphs correspond to paragraphs 8-9 of Schedule 4 of the PTA and have the same effect. They allow orders made in Scotland, Northern Ireland, the Isle of Man and the Channel Isles to be enforced in England and Wales. (There are similar provisions in the Scotland and Northern Ireland Parts of the Schedule.)

110. They provide that the order made in Scotland, Northern Ireland or the Islands must be registered with the High Court: under sub-paragraphs (3)-(4) of paragraph 13 it is for the High Court to make rules about how exactly such orders are to be initially registered and later cancelled or varied. Once the order is registered, the rest of paragraph 13 ensures that all the powers and functions of the originating court are transferred to the High Court.

Paragraph 14: Enforcement of orders made in designated countries

111. This paragraph corresponds to paragraph 10 of Schedule 4 of the PTA and has the same effect. It makes it possible for restraint and forfeiture orders made in other countries to be enforced in England and Wales in accordance with the procedures in an Order in Council designating that country.

 
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Prepared: 21 March 2000