Prevention of Terrorism Act 2005
2005 CHAPTER 2
An Act to provide for the making against individuals
involved in terrorism-related activity of orders imposing obligations on them
for purposes connected with preventing or restricting their further involvement
in such activity; to make provision about appeals and other proceedings relating
to such orders; and for connected purposes.
[11th March 2005]
Be it enacted by the Queen’s
most Excellent Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parliament assembled, and
by the authority of the same, as follows:—
Control orders
1 Power to
make control orders
(1) In
this Act “control order” means an order against an individual that imposes
obligations on him for purposes connected with protecting members of the public
from a risk of terrorism.
(2) The
power to make a control order against an individual shall be exercisable—
(a) except in the case of an order imposing
obligations that are incompatible with the individual’s right to liberty under
Article 5 of the Human Rights Convention, by the Secretary of State; and
(b) in
the case of an order imposing obligations that are or include derogating
obligations, by the court on an application by the Secretary of State.
(3) The
obligations that may be imposed by a control order made against an individual
are any obligations that the Secretary of State or (as the case may be) the
court considers necessary for purposes connected with preventing or restricting
involvement by that individual in terrorism-related activity.
(4) Those obligations may include, in
particular—
(a) a
prohibition or restriction on his possession or use of specified articles or
substances;
(b) a
prohibition or restriction on his use of specified services or specified
facilities, or on his carrying on specified activities;
(c) a
restriction in respect of his work or other occupation, or in respect of his
business;
(d) a
restriction on his association or communications with specified persons or with
other persons generally;
(e) a
restriction in respect of his place of residence or on the persons to whom he
gives access to his place of residence;
(f) a
prohibition on his being at specified places or within a specified area at
specified times or on specified days;
(g) a
prohibition or restriction on his movements to, from or within the United
Kingdom, a specified part of the United Kingdom or a specified place or area
within the United Kingdom;
(h) a
requirement on him to comply with such other prohibitions or restrictions on his
movements as may be imposed, for a period not exceeding 24 hours, by directions
given to him in the specified manner, by a specified person and for the purpose
of securing compliance with other obligations imposed by or under the
order;
(i) a
requirement on him to surrender his passport, or anything in his possession to
which a prohibition or restriction imposed by the order relates, to a specified
person for a period not exceeding the period for which the order remains in
force;
(j) a
requirement on him to give access to specified persons to his place of residence
or to other premises to which he has power to grant access;
(k) a
requirement on him to allow specified persons to search that place or any such
premises for the purpose of ascertaining whether obligations imposed by or under
the order have been, are being or are about to be contravened;
(l) a
requirement on him to allow specified persons, either for that purpose or for
the purpose of securing that the order is complied with, to remove anything
found in that place or on any such premises and to subject it to tests or to
retain it for a period not exceeding the period for which the order remains in
force;
(m) a
requirement on him to allow himself to be photographed;
(n) a
requirement on him to co-operate with specified arrangements for enabling his
movements, communications or other activities to be monitored by electronic or
other means;
(o) a
requirement on him to comply with a demand made in the specified manner to
provide information to a specified person in accordance with the demand;
(p) a
requirement on him to report to a specified person at specified times and
places.
(5) Power by or under a control order to prohibit or
restrict the controlled person’s movements includes, in particular, power to
impose a requirement on him to remain at or within a particular place or area
(whether for a particular period or at particular times or generally).
(6) The
reference in subsection (4)(n) to co-operating with specified arrangements for
monitoring includes a reference to each of the following—
(a) submitting to procedures required by the
arrangements;
(b) wearing or otherwise using apparatus approved by
or in accordance with the arrangements;
(c) maintaining such apparatus in the specified
manner;
(d) complying with directions given by persons
carrying out functions for the purposes of those arrangements.
(7) The
information that the controlled person may be required to provide under a
control order includes, in particular, advance information about his proposed
movements or other activities.
(8) A
control order may provide for a prohibition, restriction or requirement imposed
by or under the order to apply only where a specified person has not given his
consent or approval to what would otherwise contravene the prohibition,
restriction or requirement.
(9) For
the purposes of this Act involvement in terrorism-related activity is any one or
more of the following—
(a) the
commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission,
preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the
commission, preparation or instigation of such acts, or which is intended to do
so;
(d) conduct which gives support or assistance to
individuals who are known or believed to be involved in terrorism-related
activity;
and for the purposes of this subsection it is
immaterial whether the acts of terrorism in question are specific acts of
terrorism or acts of terrorism generally.
(10) In
this Act—
-
“derogating obligation” means an
obligation on an individual which—
(a)
is incompatible with his right to
liberty under Article 5 of the Human Rights Convention; but
(b)
is of a description of obligations
which, for the purposes of the designation of a designated derogation, is set
out in the designation order;
-
“designated derogation” has the same
meaning as in the Human Rights Act 1998 (c. 42) (see
section 14(1) of that Act);
-
“designation order”, in relation to a
designated derogation, means the order under section 14(1) of the Human Rights
Act 1998 by which the derogation is designated.
2 Making of
non-derogating control orders
(1) The
Secretary of State may make a control order against an individual if he—
(a) has
reasonable grounds for suspecting that the individual is or has been involved in
terrorism-related activity; and
(b) considers that it is necessary, for purposes
connected with protecting members of the public from a risk of terrorism, to
make a control order imposing obligations on that individual.
(2) The
Secretary of State may make a control order against an individual who is for the
time being bound by a control order made by the court only if he does so—
(a) after the court has determined that its order
should be revoked; but
(b) while the effect of the revocation has been
postponed for the purpose of giving the Secretary of State an opportunity to
decide whether to exercise his own powers to make a control order against the
individual.
(3) A
control order made by the Secretary of State is called a non-derogating control
order.
(4) A
non-derogating control order—
(a) has
effect for a period of 12 months beginning with the day on which it is made;
but
(b) may
be renewed on one or more occasions in accordance with this section.
(5) A
non-derogating control order must specify when the period for which it is to
have effect will end.
(6) The
Secretary of State may renew a non-derogating control order (with or without
modifications) for a period of 12 months if he—
(a) considers 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;
and
(b) considers that the obligations to be imposed by
the renewed order are necessary for purposes connected with preventing or
restricting involvement by that person in terrorism-related activity.
(7) Where the Secretary of State renews a
non-derogating control order, the 12 month period of the renewal begins to run
from whichever is the earlier of—
(a) the
time when the order would otherwise have ceased to have effect; or
(b) the
beginning of the seventh day after the date of renewal.
(8) The
instrument renewing a non-derogating control order must specify when the period
for which it is renewed will end.
(9) It
shall be immaterial, for the purposes of determining what obligations may be
imposed by a control order made by the Secretary of State, whether the
involvement in terrorism-related activity to be prevented or restricted by the
obligations is connected with matters to which the Secretary of State’s grounds
for suspicion relate.
3 Supervision
by court of making of non-derogating control orders
(1) The
Secretary of State must not make a non-derogating control order against an
individual except where—
(a) having decided that there are grounds to make
such an order against that individual, he has applied to the court for
permission to make the order and has been granted that permission;
(b) the
order contains a statement by the Secretary of State that, in his opinion, the
urgency of the case requires the order to be made without such permission;
or
(c) the
order is made before 14th March 2005 against an individual who, at the time it
is made, is an individual in respect of whom a certificate under section 21(1)
of the Anti-terrorism, Crime and Security Act 2001 (c. 24) is in
force.
(2) Where the Secretary of State makes an application
for permission to make a non-derogating control order against an individual, the
application must set out the order for which he seeks permission and—
(a) the
function of the court is to consider whether the Secretary of State’s decision
that there are grounds to make that order is obviously flawed;
(b) the
court may give that permission unless it determines that the decision is
obviously flawed; and
(c) if
it gives permission, the court must give directions for a hearing in relation to
the order as soon as reasonably practicable after it is made.
(3) Where the Secretary of State makes a
non-derogating control order against an individual without the permission of the
court—
(a) he
must immediately refer the order to the court; and
(b) the
function of the court on the reference is to consider whether the decision of
the Secretary of State to make the order he did was obviously flawed.
(4) The
court’s consideration on a reference under subsection (3)(a) must begin no more
than 7 days after the day on which the control order in question was
made.
(5) The
court may consider an application for permission under subsection (1)(a) or a
reference under subsection (3)(a)—
(a) in
the absence of the individual in question;
(b) without his having been notified of the
application or reference; and
(c) without his having been given an opportunity (if
he was aware of the application or reference) of making any representations to
the court;
but this subsection is not to be construed as
limiting the matters about which rules of court may be made in relation to the
consideration of such an application or reference.
(6) On
a reference under subsection (3)(a), the court—
(a) if
it determines that the decision of the Secretary of State to make a
non-derogating control order against the controlled person was obviously flawed,
must quash the order;
(b) if
it determines that that decision was not obviously flawed but that a decision of
the Secretary of State to impose a particular obligation by that order was
obviously flawed, must quash that obligation and (subject to that) confirm the
order and give directions for a hearing in relation to the confirmed order;
and
(c) in
any other case, must confirm the order and give directions for a hearing in
relation to the confirmed order.
(7) The
directions given under subsection (2)(c) or (6)(b) or (c) must include
arrangements for the individual in question to be given an opportunity within 7
days of the court’s giving permission or (as the case may be) making its
determination on the reference to make representations about—
(a) the
directions already given; and
(b) the
making of further directions.
(8) On
a reference under subsection (3)(a), the court may quash a certificate contained
in the order for the purposes of subsection (1)(b) if it determines that the
Secretary of State’s decision that the certificate should be contained in the
order was flawed.
(9) The
court must ensure that the controlled person is notified of its decision on a
reference under subsection (3)(a).
(10) On
a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c),
the function of the court 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 satisfied for the
making of the order; and
(b) his
decisions on the imposition of each of the obligations imposed by the
order.
(11) In
determining—
(a) what constitutes a flawed decision for the
purposes of subsection (2), (6) or (8), or
(b) the
matters mentioned in subsection (10),
the court must apply the principles applicable on an
application for judicial review.
(12) If
the court determines, on a hearing in pursuance of directions under subsection
(2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed,
its only powers are—
(a) power to quash the order;
(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.
(13) In
every other case the court must decide that the control order is to continue in
force.
(14) If
requested to do so by the controlled person, the court must discontinue any
hearing in pursuance of directions under subsection (2)(c) or (6)(b) or
(c).
4 Power of
court to make derogating control orders
(1) On
an application to the court by the Secretary of State for the making of a
control order against an individual, it shall be the duty of the court—
(a) to
hold an immediate preliminary hearing to determine whether to make a control
order imposing obligations that are or include derogating obligations (called a
“derogating control order”) against that individual; and
(b) if
it does make such an order against that individual, to give directions for the
holding of a full hearing to determine whether to confirm the order (with or
without modifications).
(2) The
preliminary hearing under subsection (1)(a) may be held—
(a) in
the absence of the individual in question;
(b) without his having had notice of the application
for the order; and
(c) without his having been given an opportunity (if
he was aware of the application) of making any representations to the
court;
but this subsection is not to be construed as
limiting the matters about which rules of court may be made in relation to that
hearing.
(3) At
the preliminary hearing, the court may make a control order against the
individual in question if it appears to the court—
(a) that there is material which (if not disproved)
is capable of being relied on by the court as establishing that the individual
is or has been involved in terrorism-related activity;
(b) that there are reasonable grounds for believing
that the imposition of obligations on that individual is necessary for purposes
connected with protecting members of the public from a risk of terrorism;
(c) that the risk arises out of, or is associated
with, a public emergency in respect of which there is a designated derogation
from the whole or a part of Article 5 of the Human Rights Convention; and
(d) that the obligations that there are reasonable
grounds for believing should be imposed on the individual are or include
derogating obligations of a description set out for the purposes of the
designated derogation in the designation order.
(4) The
obligations that may be imposed by a derogating control order in the period
between—
(a) the
time when the order is made, and
(b) the
time when a final determination is made by the court whether to confirm
it,
include any obligations which the court has
reasonable grounds for considering are necessary as mentioned in section
1(3).
(5) At
the full hearing under subsection (1)(b), the court may—
(a) confirm the control order made by the court;
or
(b) revoke the order;
and where the court revokes the order, it may (if it
thinks fit) direct that this Act is to have effect as if the order had been
quashed.
(6) In
confirming a control order, the court—
(a) may
modify the obligations imposed by the order; and
(b) where a modification made by the court removes an
obligation, may (if it thinks fit) direct that this Act is to have effect as if
the removed obligation had been quashed.
(7) At
the full hearing, the court may confirm the control order (with or without
modifications) only if—
(a) it
is satisfied, on the balance of probabilities, that the controlled person is an
individual who is or has been involved in terrorism-related activity;
(b) it
considers that the imposition of obligations on the controlled person is
necessary for purposes connected with protecting members of the public from a
risk of terrorism;
(c) it
appears to the court that the risk is one arising out of, or is associated with,
a public emergency in respect of which there is a designated derogation from the
whole or a part of Article 5 of the Human Rights Convention; and
(d) the
obligations to be imposed by the order or (as the case may be) by the order as
modified are or include derogating obligations of a description set out for the
purposes of the designated derogation in the designation order.
(8) A
derogating control order ceases to have effect at the end of the period of 6
months beginning with the day on which it is made unless—
(a) it
is previously revoked (whether at the hearing under subsection (1)(b) or
otherwise under this Act);
(b) it
ceases to have effect under section 6; or
(c) it
is renewed.
(9) The
court, on an application by the Secretary of State, may renew a derogating
control order (with or without modifications) for a period of 6 months from
whichever is the earlier of—
(a) the
time when the order would otherwise have ceased to have effect; and
(b) the
beginning of the seventh day after the date of renewal.
(10) The power of the court to renew a derogating
control order is exercisable on as many occasions as the court thinks fit; but,
on each occasion, it is exercisable only if—
(a) the
court considers that it is necessary, for purposes connected with protecting
members of the public from a risk of terrorism, for a derogating control order
to continue in force against the controlled person;
(b) it
appears to the court that the risk is one arising out of, or is associated with,
a public emergency in respect of which there is a designated derogation from the
whole or a part of Article 5 of the Human Rights Convention;
(c) the
derogating obligations that the court considers should continue in force are of
a description that continues to be set out for the purposes of the designated
derogation in the designation order; and
(d) the
court considers that the obligations to be imposed by the renewed order are
necessary for purposes connected with preventing or restricting involvement by
that person in terrorism-related activity.
(11) Where, on an application for the renewal of a
derogating control order, it appears to the court—
(a) that the proceedings on the application are
unlikely to be completed before the time when the order is due to cease to have
effect if not renewed, and
(b) that that is not attributable to an unreasonable
delay on the part of the Secretary of State in the making or conduct of the
application,
the court may (on one or more occasions) extend the
period for which the order is to remain in force for the purpose of keeping it
in force until the conclusion of the proceedings.
(12) Where the court exercises its power under
subsection (11) and subsequently renews the control order in question, the
period of any renewal still runs from the time when the order would have ceased
to have effect apart from that subsection.
(13) It
shall be immaterial, for the purposes of determining what obligations may be
imposed by a control order made by the court, whether the involvement in
terrorism-related activity to be prevented or restricted by the obligations is
connected with matters in relation to which the requirements of subsection
(3)(a) or (7)(a) were satisfied.
5 Arrest and
detention pending derogating control order
(1) A
constable may arrest and detain an individual if—
(a) the
Secretary of State has made an application to the court for a derogating control
order to be made against that individual; and
(b) the
constable considers that the individual’s arrest and detention is necessary to
ensure that he is available to be given notice of the order if it is
made.
(2) A
constable who has arrested an individual under this section must take him to the
designated place that the constable considers most appropriate as soon as
practicable after the arrest.
(3) An
individual taken to a designated place under this section may be detained there
until the end of 48 hours from the time of his arrest.
(4) If
the court considers that it is necessary to do so to ensure that the individual
in question is available to be given notice of any derogating control order that
is made against him, it may, during the 48 hours following his arrest, extend
the period for which the individual may be detained under this section by a
period of no more than 48 hours.
(5) An
individual may not be detained under this section at any time after—
(a) he
has become bound by a derogating control order made against him on the Secretary
of State’s application; or
(b) the
court has dismissed the application.
(6) A
person who has the powers of a constable in one part of the United Kingdom may
exercise the power of arrest under this section in that part of the United
Kingdom or in any other part of the United Kingdom.
(7) An
individual detained under this section—
(a) shall be deemed to be in legal custody throughout
the period of his detention; and
(b) after having been taken to a designated place
shall be deemed—
(i) in
England and Wales, to be in police detention for the purposes of the Police and
Criminal Evidence Act 1984 (c. 60); and
(ii) in
Northern Ireland, to be in police detention for the purposes of the Police and
Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.
12));
but paragraph (b) has effect subject to subsection
(8).
(8) Paragraphs 1(6), 2, 6 to 9 and 16 to 19 of
Schedule 8 to the Terrorism Act 2000 (c. 11)
(powers and safeguards in the case of persons detained under section 41 of that
Act) apply to an individual detained under this section as they apply to a
person detained under section 41 of that Act, but with the following
modifications—
(a) the
omission of paragraph 2(2)(b) to (d) (which confers powers on persons specified
by the Secretary of State, prison officers and examining officers);
(b) the
omission of paragraph 8(2), (5) and (5A) (which relates to the postponement of a
person’s rights in England and Wales or Northern Ireland); and
(c) the
omission of paragraphs 16(9) and 17(4) and (4A) (which make similar provision
for Scotland).
(9) The
power to detain an individual under this section includes power to detain him in
a manner that is incompatible with his right to liberty under Article 5 of the
Human Rights Convention if, and only if—
(a) there is a designated derogation in respect of
the detention of individuals under this section in connection with the making of
applications for derogating control orders; and
(b) that derogation and the designated derogation
relating to the power to make the orders applied for are designated in respect
of the same public emergency.
(10) In
this section “designated place” means any place which the Secretary of State has
designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000 (c. 11) as a
place at which persons may be detained under section 41 of that Act.
6 Duration of
derogating control orders
(1) A
derogating control order has effect at a time only if—
(a) the
relevant derogation remains in force at that time; and
(b) that time is not more than 12 months
after—
(i) the
making of the order under section 14(1) of the Human Rights Act 1998 (c. 42)
designating that derogation; or
(ii) the making by the Secretary of State of an order
declaring that it continues to be necessary for him to have power to impose
derogating obligations by reference to that derogation.
(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.
(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
(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 does not—
(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 similar effect.
(7) In
this section—
-
“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.
7 Modification,
notification and proof of orders etc.
(1) If
while a non-derogating control order is in force the controlled person considers
that there has been a change of circumstances affecting the order, he may make
an application to the Secretary of State for—
(a) the
revocation of the order; or
(b) the
modification of an obligation imposed by the order;
and it shall be the duty of the Secretary of State
to consider the application.
(2) The Secretary of State may, at any time (whether
or not in response to an application by the controlled person)—
(a) revoke a non-derogating control order;
(b) relax or remove an obligation imposed by such an
order;
(c) with the consent of the controlled person, modify
the obligations imposed by such an order; or
(d) make to the obligations imposed by such an order
any modifications which he considers necessary for purposes connected with
preventing or restricting involvement by the controlled person in
terrorism-related activity.
(3) The
Secretary of State may not make to the obligations imposed by a control order
any modification the effect of which is that a non-derogating control order
becomes an order imposing a derogating obligation.
(4) An
application may be made at any time to the court—
(a) by
the Secretary of State, or
(b) by
the controlled person,
for the revocation of a derogating control order or
for the modification of obligations imposed by such an order.
(5) On
such an application, the court may modify the obligations imposed by the
derogating control order only where—
(a) the
modification consists in the removal or relaxation of an obligation imposed by
the order;
(b) the
modification has been agreed to by both the controlled person and the Secretary
of State; or
(c) the
modification is one which the court considers necessary for purposes connected
with preventing or restricting involvement by the controlled person in
terrorism-related activity.
(6) The
court may not, by any modification of the obligations imposed by a derogating
control order, impose any derogating obligation unless—
(a) it
considers that the modification is necessary for purposes connected with
protecting members of the public from a risk of terrorism; and
(b) it
appears to the court that the risk is one arising out of, or is associated with,
the public emergency in respect of which the designated derogation in question
has effect.
(7) If
the court at any time determines that a derogating control order needs to be
modified so that it no longer imposes derogating obligations, it must revoke the
order.
(8) The
controlled person is bound by—
(a) a
control order,
(b) the
renewal of a control order, or
(c) a
modification by virtue of subsection (2)(d) or (5)(c),
only if a notice setting out the terms of the order,
renewal or modification has been delivered to him in person.
(9) For
the purpose of delivering a notice under subsection (8) 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 person to be; and
(b) search those premises for him.
(10) Where the Secretary of State 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 person;
and
(b) the
notice must set out the time from which the revocation or modification takes
effect.
(11) 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
Secretary of State or the court as a true copy of—
(a) the
order; or
(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.
8 Criminal
investigations after making of control order
(1) This section applies where it appears to the
Secretary of State—
(a) that the involvement in terrorism-related
activity of which an individual is suspected may have involved the commission of
an offence relating to terrorism; and
(b) that the commission of that offence is being or
would fall to be investigated by a police force.
(2) Before making, or applying for the making of, a
control order against the individual, the Secretary of State must consult the
chief officer of the police force about whether there is evidence available that
could realistically be used for the purposes of a prosecution of the individual
for an offence relating to terrorism.
(3) If
a control order is made against the individual the Secretary of State must
inform the chief officer of the police force that the control order has been
made and that subsection (4) applies.
(4) It
shall then be the duty of the chief officer to secure that the investigation of
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.
(5) In
carrying out his functions by virtue of this section the chief officer must
consult the relevant prosecuting authority, but only, in the case of the
performance of his duty under subsection (4), to the extent that he considers it
appropriate to do so.
(6) The
requirements of subsection (5) may be satisfied by consultation that took place
wholly or partly before the passing of this Act.
(7) In
this section—
(8) 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
(b) references, in relation to that Squad, to its
chief officer were references to its Director General.
(9) In
subsection (7)—
-
“the Scottish Drug Enforcement Agency”
means the organisation known by that name and established under section
36(1)(a)(ii) of the Police (Scotland) Act 1967; 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.
9 Offences
(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 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 effect;
(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; and
(d) on
that occasion he fails, without reasonable excuse, to report to the specified
person in the manner that was required by the order.
(3) A
person is guilty of an offence if he intentionally obstructs the exercise by any
person of a power conferred by section 7(9).
(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;
(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 maximum, or to
both;
(c) on
summary conviction in Scotland or Northern Ireland, to imprisonment for a term
not exceeding 6 months or to a fine not 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—
(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 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—
(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 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, 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
27A An offence under section 9(3) of the
Prevention of Terrorism Act 2005.”
(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—
“(o)
an offence under section 9(3) of the
Prevention of Terrorism Act 2005.”
Appeals
and other proceedings
10 Appeals
relating to non-derogating control orders
(1) Where—
(a) a
non-derogating control order has been 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 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 for—
(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 State on the application.
(4) 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,
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;
(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-related activity.
(5) 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
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
(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.
(6) In
determining the matters mentioned in subsections (4) and (5) the court must
apply the principles applicable on an application for judicial review.
(7) 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 renewal of the order;
(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.
(8) In
every other case, the court must dismiss the appeal.
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
(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
proceedings, except on a question of law.
(4) No
appeal by any person other than the Secretary of State shall lie from any
determination—
(a) on
an application for permission under section 3(1)(a); or
(b) on
a reference under section 3(3)(a).
(5) The
Schedule to this Act (which makes provision relating to and for the 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 an application for permission
under section 3(1)(a);
(b) proceedings on a reference under section
3(3)(a);
(c) proceedings on a hearing in pursuance of
directions under section 3(2)(c) or (6)(b) or (c);
(d) proceedings on an application to the court by any
person for the making, renewal, modification or revocation of a derogating
control order;
(e) proceedings on an application to extend the
detention of a person under section 5;
(f) proceedings at or in connection with a hearing to
determine whether to confirm a derogating control order (with or without
modifications);
(g) proceedings on an appeal under section 10;
(h) proceedings in the court by virtue of subsection
(2);
(i) any
other proceedings in the court for questioning a control order decision, a
derogation matter or the arrest or detention of a person under section 5;
(j) proceedings on an application made by virtue of
rules of court under paragraph 5(1) of the Schedule to this Act (application for
order requiring anonymity for the controlled person).
(7) In
this section “control order decision” means—
(a) a
decision made by the Secretary of State in exercise or performance of any power
or duty of his under any of sections 1 to 8 or for the purposes of or in
connection with the exercise or performance of any such power or duty;
(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 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—
(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 of his arrest or detention
under section 5; or
(b) the
designation of such a derogation under section 14(1) of the Human Rights Act 1998 (c.
42).
12 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, 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 9(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.
(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;
(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 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;
(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 in either case.
(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 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
conviction—
(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;
(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 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 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 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
(d) on an appeal under section 12 of the
Prevention of Terrorism Act 2005.”
Supplemental
13 Duration of sections 1 to 9
(1) Except so far as otherwise provided under this
section, sections 1 to 9 expire at the end of the period of 12 months beginning
with the day on which this Act is passed.
(2) The
Secretary of State may, by order made by statutory instrument—
(a) repeal sections 1 to 9;
(b) at
any time revive those sections for a period not exceeding one year; or
(c) provide that those sections—
(i) are
not to expire at the time when they would otherwise expire under subsection (1)
or in accordance with an order under this subsection; but
(ii) are to continue in force after that time for a
period not exceeding one year.
(3) Before making an order under this section the
Secretary of State must consult—
(a) the
person appointed for the purposes of section 14(2);
(b) the
Intelligence Services Commissioner; and
(c) the
Director-General of the Security Service.
(4) No
order may be made by the Secretary of State under this section unless a draft of
it has been laid before Parliament and approved by a resolution of each
House.
(5) Subsection (4) does not apply to an order that
contains a declaration by the Secretary of State that the order needs, by reason
of urgency, to be made without the approval required by that subsection.
(6) An
order under this section that contains such a declaration—
(a) must be laid before Parliament after being made;
and
(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.
(7) Where an order ceases to have effect in
accordance with subsection (6), that does not—
(a) affect anything previously done in reliance on
the order; or
(b) prevent the making of a new order to the same or
similar effect.
(8) Where sections 1 to 9 expire or are repealed at
any time by virtue of this section, that does not prevent or otherwise
affect—
(a) the
court’s consideration of a reference made before that time under subsection
(3)(a) of section 3;
(b) the
holding or continuation after that time of any hearing in pursuance of
directions under subsection (2)(c) or (6)(b) or (c) of that section;
(c) the
holding or continuation after that time of a hearing to determine whether to
confirm a derogating control order (with or without modifications); or
(d) the
bringing or continuation after that time of any appeal, or further appeal,
relating to a decision in any proceedings mentioned in paragraphs (a) to (c) of
this subsection;
but proceedings may be begun or continued by virtue
of this subsection so far only as they are for the purpose of determining
whether a certificate of the Secretary of State, a control order or an
obligation imposed by such an order should be quashed or treated as quashed.
(9) Nothing in this Act about the period for which a
control order is to have effect or is renewed enables such an order to continue
in force after the provision under which it was made or last renewed has expired
or been repealed by virtue of this section.
(10) In
subsection (6) “40 days” means 40 days computed as provided for in section 7(1)
of the Statutory Instruments Act 1946 (c. 36).
14 Reporting
and review
(1) As
soon as reasonably practicable after the end of every relevant 3 month period,
the Secretary of State must—
(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 this
Act.
(3) As
soon as reasonably practicable after the end of—
(a) the
period of 9 months beginning with the day on which this Act is passed,
and
(b) every 12 month period which ends with the first
or a subsequent anniversary of the end of the period mentioned in the preceding
paragraph and is a period during the whole or a part of which sections 1 to 9 of
this Act were in force,
the person so appointed must carry out a review of
the operation of this Act 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 completing the
review.
(5) That report must also contain the opinion of the
person making it on—
(a) the
implications for the operation of this Act of any proposal made by the Secretary
of State for the amendment of the law relating to terrorism; and
(b) the
extent (if any) to which the Secretary of State has made use of his power by
virtue of section 3(1)(b) to make non-derogating control orders in urgent cases
without the permission of the court.
(6) On
receiving a report under subsection (4), the Secretary of State must lay a copy
of it before Parliament.
(7) 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
determines.
(8) In
this section—
15 General
interpretation
(1) In
this Act—
-
“act” and “conduct” include omissions
and statements;
-
“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;
-
“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” has the meaning given
by section 1(1);
-
“control order proceedings” has the
meaning given by section 11(6);
-
“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 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
Northern Ireland; and
(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 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 Act);
-
“modification” includes omission,
addition or alteration, and cognate expressions are to be construed
accordingly;
-
“non-derogating control order” means a
control order made by the Secretary of State;
-
“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 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;
-
“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;
-
“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(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, 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.
(3) Every power of the Secretary of State or of the
court to revoke a control order or to modify the obligations imposed by such an
order—
(a) includes power to provide for the revocation or
modification to take effect from such time as the Secretary of State or (as the
case may be) the court may determine; and
(b) in
the case of a revocation by the court (including a revocation in pursuance of
section 7(7)) includes power to postpone the effect of the revocation either
pending an appeal or for the purpose of giving the Secretary of State an
opportunity to decide whether to exercise his own powers to make a control order
against the individual in question.
(4) 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,
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.
16 Other
supplemental provisions
(1) This Act may be cited as the Prevention of
Terrorism Act 2005.
(2) The
following provisions are repealed—
(a) sections 21 to 32 of the Anti-terrorism, Crime
and Security Act 2001 (c. 24) (suspected international terrorists);
(b) in
section 1(4) of the Special Immigration Appeals Commission Act 1997 (c. 68),
paragraph (b) (which refers to section 30 of the 2001 Act) and the word “or”
immediately preceding it;
(c) section 62(15) and (16) of the Nationality,
Immigration and Asylum Act 2002 (c. 41) and paragraph 30 of Schedule 7 to that Act (which
amended sections 23, 24 and 27 of the 2001 Act); and
(d) section 32 of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 (c. 19) (which amended sections 24 and 27 of the 2001
Act).
(3) Subsection (2) comes into force on 14th March
2005.
(4) The
repeals made by this Act do not prevent or otherwise affect—
(a) the
continuation of any appeal to the Special Immigration Appeals Commission under
section 25(1) of the Anti-terrorism, Crime and Security Act 2001 that has been
brought but not concluded before the commencement of those repeals;
(b) the
bringing or continuation of a further appeal relating to a decision of that
Commission on such an appeal or on any other appeal brought under section 25(1)
of that Act before the commencement of those repeals; or
(c) any
proceedings resulting from a decision on a further appeal from such a
decision;
but no other proceedings before that Commission
under Part 4 of that Act, nor any appeal or further appeal relating to any such
other proceedings, may be brought or continued at any time after the
commencement of the repeals.
(5) The
Secretary of State may enter into such contracts and other arrangements with
other persons as he considers appropriate for securing their assistance in
connection with any monitoring, by electronic or other means, that he considers
needs to be carried out in connection with obligations that have been or may be
imposed by or under control orders.
(6) There shall be paid out of money provided by
Parliament—
(a) any
expenditure incurred by the Secretary of State by virtue of this Act; and
(b) any
increase attributable to this Act in the sums payable out of such money under
any other Act.
(7) This Act extends to Northern Ireland.
(8) Her
Majesty may by Order in Council direct that this Act shall extend, with such
modifications as appear to Her Majesty to be appropriate, to any of the Channel
Islands or the Isle of Man.
Section 11
SCHEDULE Control order proceedings
etc.
Introductory
1 (1) In this
Schedule “the relevant powers” means the powers to make rules of court for
regulating the practice and procedure to be followed in proceedings in the
court, the Court of Appeal or the Inner House of the Court of Session, so far as
those powers are exercisable in relation to—
(a) control order proceedings; or
(b) relevant appeal proceedings.
(2) In
this Schedule “relevant appeal proceedings” means proceedings in the Court of
Appeal or Inner House of the Court of Session on an appeal relating to any
control order proceedings.
General duty applying to
exercise of the relevant powers
2 A person exercising the relevant powers must have
regard, in particular, to—
(a) the
need to secure that the making and renewal of control orders and the imposition
and modification of the obligations contained in such orders are properly
reviewed; and
(b) the
need to secure that disclosures of information are not made where they would be
contrary to the public interest.
Initial exercise of
relevant powers
3 (1) This
paragraph applies—
(a) on
the first occasion after the passing of this Act on which the relevant powers
are exercised in relation to control order proceedings and relevant appeal
proceedings in England and Wales; and
(b) on
the first occasion after the passing of this Act on which they are so exercised
in relation to control order proceedings and relevant appeal proceedings in
Northern Ireland.
(2) On
each of those occasions—
(a) the
relevant powers may be exercised by the Lord Chancellor, instead of by the
person by whom they are otherwise exercisable; and
(b) the
Lord Chancellor is not required, before exercising the powers, to undertake any
consultation that would be required in the case of rules made by that
person.
(3) The
Lord Chancellor must—
(a) consult the Lord Chief Justice of England and
Wales before making any rules under this paragraph in relation to England and
Wales; and
(b) consult the Lord Chief Justice of Northern
Ireland before making any rules under this paragraph in relation to Northern
Ireland.
(4) The
requirements of sub-paragraph (3) may be satisfied by consultation that took
place wholly or partly before the passing of this Act.
(5) Rules of court made by the Lord Chancellor by
virtue of this paragraph—
(a) must be laid before Parliament; and
(b) if
not approved by a resolution of each House before the end of 40 days beginning
with the day on which they were made, cease to have effect at the end of that
period.
(6) Where rules cease to have effect in accordance
with sub-paragraph (5)—
(a) that does not affect anything previously done in
reliance on the rules;
(b) the
Lord Chancellor is to have power again to exercise the relevant powers, in
relation to the proceedings in question, instead of the person by whom they are
otherwise exercisable;
(c) he
may exercise them on that occasion without undertaking any consultation that
would be required in the case of rules made by that person; and
(d) the
rules made by the Lord Chancellor on that occasion may include rules to the same
or similar effect.
(7) The
following provisions do not apply to rules made by the Lord Chancellor by virtue
of this paragraph—
(a) section 3(2) of the Civil Procedure Act 1997 (c. 12)
(negative resolution procedure);
(b) section 56 of the Judicature (Northern Ireland)
Act 1978 (c. 23) (statutory rules procedure).
(8) In
sub-paragraph (5) “40 days” means 40 days computed as provided for in section
7(1) of the Statutory Instruments Act 1946 (c. 36).
Special powers to make
rules of court
4 (1) Rules of
court made in exercise of the relevant powers may, in particular—
(a) make provision about the mode of proof in control
order proceedings and about evidence in such proceedings;
(b) enable or require such proceedings to be
determined without a hearing; and
(c) make provision about legal representation in such
proceedings.
(2) Rules of court made in exercise of the relevant
powers may also, in particular—
(a) make provision enabling control order proceedings
or relevant appeal proceedings to take place without full particulars of the
reasons for decisions to which the proceedings relate being given to a relevant
party to the proceedings or his legal representative (if he has one);
(b) make provision enabling the relevant court to
conduct proceedings in the absence of any person, including a relevant party to
the proceedings and his legal representative (if he has one);
(c) make provision about the functions in control
order proceedings and relevant appeal proceedings of persons appointed under
paragraph 7; and
(d) make provision enabling the relevant court to
give a relevant party to control order proceedings or relevant appeal
proceedings a summary of evidence taken in his absence.
(3) Rules of court made in exercise of the relevant
powers must secure—
(a) that in control order proceedings and relevant
appeal proceedings the Secretary of State is required (subject to rules made
under the following paragraphs) to disclose all relevant material;
(b) that the Secretary of State has the opportunity
to make an application to the relevant court for permission not to disclose
relevant material otherwise than to that court and persons appointed under
paragraph 7;
(c) that such an application is always considered in
the absence of every relevant party to the proceedings and of his legal
representative (if he has one);
(d) that the relevant court is required to give
permission for material not to be disclosed where it considers that the
disclosure of the material would be contrary to the public interest;
(e) that, where permission is given by the relevant
court not to disclose material, it must consider requiring the Secretary of
State to provide the relevant party and his legal representative (if he has one)
with a summary of the material;
(f) that the relevant court is required to ensure
that such a summary does not contain information or other material the
disclosure of which would be contrary to the public interest;
(g) that provision satisfying the requirements of
sub-paragraph (4) applies where the Secretary of State does not have the
relevant court’s permission to withhold relevant material from a relevant party
to the proceedings or his legal representative (if he has one), or is required
to provide a summary of such material to that party or his legal
representative.
(4) The
provision that satisfies the requirements of this sub-paragraph is provision
which, in a case where the Secretary of State elects not to disclose the
relevant material or (as the case may be) not to provide the summary, authorises
the relevant court—
(a) if
it considers that the relevant material or anything that is required to be
summarised might be of assistance to a relevant party in relation to a matter
under consideration by that court, to give directions for securing that the
matter is withdrawn from the consideration of that court; and
(b) in
any other case, to ensure that the Secretary of State does not rely in the
proceeding on the material or (as the case may be) on what is required to be
summarised.
(5) In
this paragraph “relevant material”, in relation to any proceedings,
means—
(a) any
information or other material that is available to the Secretary of State and
relevant to the matters under consideration in those proceedings; or
(b) the
reasons for decisions to which the proceedings relate.
Application for anonymity
for controlled person
5 (1) Rules of
court made in exercise of the relevant powers may provide for—
(a) the
making by the Secretary of State or the controlled person, at any time after a
control order has been made, of an application to the court for an order
requiring anonymity for that person; and
(b) the
making by the court, on such an application, of an order requiring such
anonymity;
and the provision made by the rules may allow the
application and the order to be made irrespective of whether any other control
order proceedings have been begun in the court.
(2) Rules of court may provide for the Court of
Appeal or the Inner House of the Court of Session to make an order in connection
with any relevant appeal proceedings requiring anonymity for the controlled
person.
(3) In
sub-paragraphs (1) and (2) the references, in relation to a court, to an order
requiring anonymity for the controlled person are references to an order by that
court which imposes such prohibition or restriction as it thinks fit on the
disclosure—
(a) by
such persons as the court specifies or describes, or
(b) by
persons generally,
of the identity of the controlled person or of any
information that would tend to identify him.
Use of advisers
6 (1) In any
control order proceedings the court may, if it thinks fit—
(a) call in aid one or more advisers appointed for
the purpose by the Lord Chancellor; and
(b) hear and dispose of the proceedings with the
assistance of the adviser or advisers.
(2) Rules of court may regulate the use of advisers
in accordance with the power conferred by this paragraph.
(3) The
Lord Chancellor may, out of money provided by Parliament, pay such remuneration,
expenses and allowances to advisers appointed for the purposes of this paragraph
as he may determine.
Special representation in
control order proceedings
7 (1) The
relevant law officer may appoint a person to represent the interests of a
relevant party to relevant proceedings in any of those proceedings from which
that party and his legal representative (if he has one) are excluded.
(2) In
sub-paragraph (1) “relevant proceedings” means—
(a) control order proceedings; or
(b) proceedings on an appeal or further appeal
relating to control order proceedings.
(3) A
person may be appointed under this paragraph—
(a) in
the case of an appointment by the Attorney General, only if he has a general
legal qualification for the purposes of section 71 of the Courts and Legal
Services Act 1990
(c. 41);
(b) in
the case of an appointment by the Advocate General for Scotland, only if he is a
person with appropriate rights of audience in Scotland; and
(c) in
the case of an appointment by the Advocate General for Northern Ireland, only if
he is a member of the Bar of Northern Ireland.
(4) In
sub-paragraph (3) “person with appropriate rights of audience in Scotland”
means—
(a) an
advocate; or
(b) a
solicitor with rights of audience by virtue of section 25A of the Solicitors
(Scotland) Act 1980 (c. 46) in the Court of Session or the High Court of
Justiciary.
(5) A
person appointed under this paragraph is not to be responsible to the person
whose interests he is appointed to represent.
(6) In
this paragraph “the relevant law officer” means—
(a) in
relation to control order proceedings in England and Wales or proceedings on an
appeal or further appeal relating to such proceedings, the Attorney
General;
(b) in
relation to proceedings in Scotland or proceedings on an appeal or further
appeal relating to such proceedings, the Advocate General for Scotland;
(c) in
relation to proceedings in Northern Ireland or proceedings on an appeal or
further appeal relating to such proceedings, the Advocate General for Northern
Ireland.
(7) In
relation to any time before the coming into force of section 27 of the Justice
(Northern Ireland) Act 2002 (c. 26), references in this paragraph to the Advocate
General for Northern Ireland are to have effect as references to the Attorney
General for Northern Ireland.
Effect of court
orders
8 (1) Where—
(a) a
control order,
(b) the
renewal of such an order, or
(c) an
obligation imposed by such an order,
is quashed, the order, renewal or (as the case may
be) obligation shall be treated for the purposes of section 9(1) and (2) as
never having been made or imposed.
(2) A
decision by the court or on appeal from the court—
(a) to
quash a control order, the renewal of a control order or an obligation imposed
by such an order, or
(b) to
give directions to the Secretary of State in relation to such an order,
does not prevent the Secretary of State from
exercising any power of his to make a new control order to the same or similar
effect or from relying, in whole or in part, on the same matters for the purpose
of making that new order.
Interception
evidence
9 (1) Section
18 of the Regulation of Investigatory Powers Act 2000 (c. 23)
(exceptions to exclusion of interception matters from legal proceedings) is
amended as follows.
(2) In
subsection (1), after paragraph (d) insert—
“(da) any control order proceedings (within the
meaning of the Prevention of Terrorism Act 2005) or any proceedings arising out
of such proceedings;”.
(3) In
subsection (2) (persons disclosures to whom continue to be prohibited despite
section 18), for “paragraph (e) or (f)” substitute “paragraphs (da) to
(f)”.
(4) In
that subsection, before paragraph (a) insert—
“(za) in the case of any proceedings falling
within paragraph (da) to—
(i) a person who, within the meaning of the
Schedule to the Prevention of Terrorism Act 2005, is or was a relevant party to
the control order proceedings; or
(ii) any person who for the purposes of any
proceedings so falling (but otherwise than by virtue of an appointment under
paragraph 7 of that Schedule) represents a person falling within sub-paragraph
(i);”.
Allocation to Queen’s
Bench Division
10 In paragraph 2 of Schedule 1 to the Supreme Court
Act 1981 (c. 54) (business allocated to Queen’s Bench Division), after
sub-paragraph (b) insert—
“(ba) all control order proceedings (within the
meaning of the Prevention of Terrorism Act 2005);”.
Interpretation of
Schedule
11 In this Schedule—
-
“legal representative”, in relation to
a relevant party to proceedings, does not include a person appointed under
paragraph 7 to represent that party’s interests;
-
“relevant appeal proceedings” has the
meaning given by paragraph 1(2);
-
“relevant court”—
(a)
in relation to control order
proceedings, means the court; and
(b)
in relation to relevant appeal
proceedings, means the Court of Appeal or the Inner House of the Court of
Session;
-
“relevant party”, in relation to
control order proceedings or relevant appeal proceedings, means any party to the
proceedings other than the Secretary of State;
-
“relevant powers” has the meaning given
by paragraph 1(1).
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