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PREVENTION OF TERRORISM BILL
after initial CONSIDERATION BY THE HOUSE OF LORDS
This shows the Bill as it was amended by the House of Lords.
Government amendments are shown in red.
Amendments inserted by Conservative Peers and Liberal Democrat Peers are shown in green.
Amendments inserted by Conservative Peers and Crossbench Peers are shown in orange.
* * * * * * *
Bill 61 53/4
Prevention of Terrorism Bill
CONTENTS
Control orders
1 Power to make control orders
2 Derogations from the right to liberty
3 Duration and renewal of non-derogating control orders
4 Duration of derogating control orders
5 Modification, notification and proof of orders etc.
6 Offences
Challenging and appealing against control orders
7 Appeals relating to non-derogating control orders
8 Appeals relating to derogating control orders
9 Jurisdiction and appeals in relation to control order decisions etc.
10 Effect of court’s decisions on convictions
Supplemental
11 Reporting and review
12 General interpretation
13 Other supplemental provisions
Schedule — Control order proceedings etc.
Bill 61 53/4
A
B I L L
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.
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 by the court on an application by the Secretary of State.
(3) The obligations specified in subsection (3) 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 are—
[This amendment was carried by 256 votes to 129.]
(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;
( ) a requirement to allow himself to be photographed;
(m) 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;
(n) 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;
(o) a requirement on him to report to a specified person at specified times and places.
(4) Every Power by or under a
control order to prohibit or restrict the controlled person’s movements—
(a) 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). and
(b) is subject (where they are applicable) to the
provisions of section 2.
(5) The reference in subsection (3)(m) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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.
Insert the following new Clause:
Control orders: supplementary
(1) If, as a consequence of the obligations imposed by a control order, a person becomes unemployed, arrangements shall be made for that person to receive any social security benefits or unemployment benefits to which he may be entitled.
(2) If a control order is made in respect of a person already in receipt of social security benefits or unemployment benefits, arrangements shall be made to ensure that the person shall continue to receive those benefits.
(3) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made, and his household, shall have access to, or shall continue to have access to, supplies of food, household and personal necessities.
(4) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made shall have access to such health care as may be necessary.
[This amendment was carried by 241 votes to 139.]
2 Derogations from the right to
liberty
(1) The Secretary of State may make a
control order imposing an obligation that is incompatible with the controlled
person’s right to liberty under Article 5 of the Human Rights Convention if, but
only if—
(a) he is satisfied, on the balance of
probabilities, that that person is an individual who is or has been involved in
terrorism-related activity;
(b) he considers that the imposition of the
obligation is necessary for purposes connected with protecting members of the
public from risks arising out of, or associated with, a particular public
emergency;
(c) there is for the time being a designated
derogation in respect of that emergency from the whole or a part of that
Article; and
(d) the obligation is of a description of
obligations which, for the purposes of that derogation, is set out in the
designation order.
(2) Where the Secretary of State makes a
control order imposing a derogating obligation—
(a) he must immediately refer the order to the
court and notify the controlled person that he has done so; and
(b) the court must consider whether the matters
relied on by the Secretary of State to justify the making of the order were
capable (if not disproved) of constituting reasonable grounds for him to make
the order he did.
(3) The court’s consideration on a
reference under subsection (2)(a) must begin no more than 7 days after the day
on which the control order in question was made.
(4) On a reference under subsection (2)(a),
the court—
(a) if not satisfied that the matters relied on
by the Secretary of State were capable of constituting reasonable grounds for
him to make a control order against the controlled person, must quash the order;
(b) if satisfied that they were capable of
constituting reasonable grounds for the making of a control order against that
person but not for the making of one imposing a derogating obligation, must
quash the derogating obligation imposed by the order; and
(c) in any other case, must give directions for
the carrying out of a hearing by the court relating to the order.
(5) On a hearing by the court under
subsection (4)(c), the court must conduct its own hearing of each of the matters
that fell to be determined by the Secretary of State—
(a) in making his decision to make the order;
and
(b) in making his decisions to impose the
obligations imposed by the order;
and the court must make its own
determination on each of those matters.
(6) The powers of the court in making the
determinations under subsection (5) are confined to—
(a) power to confirm the order as made;
(b) power to quash the order;
(c) power to quash one or more obligations
imposed by the order;
(d) power to give directions to the Secretary
of State for the revocation of the order or for the modification of the
obligations it imposes.
(7) If requested to do so by the controlled
person, the court must discontinue—
(a) a reference under subsection (2)(a); or
(b) a hearing under subsection (4)(c).
(8) In this Act—
“derogating obligation” means an
obligation of a description of obligations which, for the purposes of the
designation of a designated derogation, is set out in the designation order; and
“designated derogation” has the same
meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act).
(9) In this section “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.
Insert the following new Clause:
2 Making of control orders
(1) The court may make a control order against an individual if it— -
(a) is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity;
(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; and
(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.
(2) 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 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).
(3) 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.
(4) 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; and
c) that if 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, 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.
(5) The obligations that may be imposed by a 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).
(6) 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.
(7) 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.
(8) 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; and
(c) if 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, 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.
(9) 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 (4)(a) or (8)(a) were satisfied.
3 Duration and renewal of
non-derogating control orders
(1) 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.
(2) A non-derogating control order must
specify when the period for which it is to have effect will end.
(3) 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 the 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.
(4) 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.
(5) The instrument renewing a
non-derogating control order must specify when the period for which it is
renewed will end.
Insert the following new Clause:
3 Duration and renewal of control orders
1) 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.
(2) A non-derogating control order must specify when the period for which it is to have effect will end.
(3) The court may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—
(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.
(4) Where the court 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.
(5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.
(6) 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 5; or
(c) it is renewed.
(7) 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.
(8) 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.
Insert the following new Clause:
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."
4 Duration of derogating control orders
(1) A derogating control order—
(a) has effect (subject to subsection (3)) for a
period of 6 months beginning with the day on which it is made;
(b) must specify when that period will end; and
(c) may not be renewed.
(2) Subsection (1)(c) does not prevent the
Secretary of State, whenever a derogating control order ceases to have effect—
(a) from exercising any power of his to make a
new control order to the same or similar effect for a further 6 month period; or
(b) from relying, in whole or in part, on the
same matters for the purpose of making that new order.
(3) 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.
(4) The power of the Secretary of State to make an order containing a declaration for the purposes of subsection (3)(b)(ii) is exercisable by statutory instrument.
(5) 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.
(6) Subsection (5) 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.
(7) 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.
(8) Where an order ceases to have effect in accordance with subsection (7), 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 (3)(b)(ii) to the same or similar effect.
(9) 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.
5 Modification, notification and proof of orders etc.
(1) If while a 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 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 modification 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, by
virtue of subsection (2)(d), make any modification the effect of which is that a
non-derogating control order becomes an order imposing a derogating obligation;
but this does not prevent the Secretary of State—
(a) from exercising any power of his to make a
new control order imposing such an obligation on the same individual; or
(b) from relying, in whole or in part, on the
same matters for the purpose of making that new order.
(4) Where a revocation or modification of a control order is not to take effect immediately, the instrument of revocation or modification must specify the time from which it is to take effect.
(5) 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),
only if a notice setting out the terms of the order, renewal or modification has been delivered to him in person.
(6) For the purpose of delivering a notice under subsection (5) 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.
(7) Where the court revokes a control order or modifies it by virtue of subsection (2)(b) or (c),
(a) he must give notice of the revocation or modification to the controlled person. and
(b) the notice must set out the time from which the revocation or modification takes effect.
(8) A control order, or the renewal, revocation or modification of such an order, may be proved by the production of a document purporting to be certified by the court 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.
Insert the following new Clause:
Criminal investigations after making of control order
(1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—
(a) that the involvement in terrorism-related activity of which that individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence would fall to be investigated by a police force.
(2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.
(3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.
(4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.
(5) In this section—
“chief officer"—
(a) in relation to a police force maintained for a police area in England and Wales, means the chief officer of police of that force;
(b) in relation to a police force maintained under the Police (Scotland) Act 1967 (c. 77), means the chief constable of that force;
(c) in relation to the Police Service of Northern Ireland, means the Chief Constable of that Service;
(d) in relation to the Serious Organised Crime Agency, means the Director General of that Agency; and
(e) in relation to the Scottish Drug Enforcement Agency, means the Director of that Agency;
"police force" means—
(a) a police force maintained for a police area in England and Wales;
(b) a police force maintained under the Police (Scotland) Act 1967 (c. 77);
(c) the Police Service of Northern Ireland;
(d) the Serious Organised Crime Agency; or
(e) the Scottish Drug Enforcement Agency;
"relevant prosecuting authority"—
(a) in relation to offences that would be likely to be prosecuted in England and Wales, means the Director of Public Prosecutions;
(b) in relation to offences that would be likely to be prosecuted in Scotland, means the appropriate procurator fiscal;
(c) in relation to offences that would be likely to be prosecuted in Northern Ireland, means the Director of Public Prosecutions for Northern Ireland.
(6) In relation to times before the Serious Organised Crime Agency begins to carry out its functions, this section is to have effect as if—
(a) the National Crime Squad were a police force; and
(b) references, in relation to that Squad, to its chief officer were references to its Director General.
(7) In subsection (5)—
(a) "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 (c. 77); and
(b) "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.
6 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 5(6).
(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 (c. 44), 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 6(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 6(3) of the Prevention of Terrorism Act 2005.”
Challenging and appealing against control orders
7 Appeals relating to non-derogating control orders
(1) Where—
(a) a non-derogating control order has been made or renewed, or
(b) an obligation imposed by such an order has been modified without the consent of the controlled person,
the controlled person may appeal to the court against the making, renewal or 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 making of a non-derogating control order is to determine whether any of the following decisions of the Secretary of State was flawed—
(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order;
(b) his decisions on the imposition of each of the obligations imposed by the order.
(5) The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, 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 the 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.
(6) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise), or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was 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.
(7) In determining the matters mentioned in subsections (4) to (6) the court must apply the principles applicable on an application for judicial review.
(8) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are—
(a) power to quash the order or its renewal;
(b) power to quash one or more obligations imposed by the order; and
(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(9) In every other case, the court must dismiss the appeal.
8 Appeals relating to derogating control orders
(1) Where an obligation imposed by a derogating control order has been modified without the consent of the controlled person, that person may appeal to the court against the modification.
(2) Where an application is made by the controlled person to the Secretary of State for—
(a) the revocation of a derogating control order, or
(b) the modification of an obligation imposed by such an order,
that person may appeal to the court against any decision by the Secretary of State on the application.
(3) On an appeal under this section, the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State in making his decision to modify or (as the case may be) his decision on the application; and the court must make its own determination on each of those matters.
(4) The powers of the court on an appeal under this section are confined to—
(a) power to confirm the Secretary of State’s decision;
(b) power to quash the order;
(c) power to quash one or more obligations imposed by the order;
(d) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
9 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 on a reference under section 2(2)(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 a reference under section 2(2)(a);
(b) proceedings on a hearing under section 2(4)(c);
(c) proceedings on an appeal under section 7 or 8;
(d) proceedings in the court by virtue of subsection (2);
(e) any other proceedings in the court for questioning a control order decision or derogation matter;
(f) proceedings on an application made by virtue of rules of court under paragraph 4(5) 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 of a power conferred by any of sections 1 to 5 of this Act or for the purposes of or in connection with the exercise of any such power;
(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
(b) the designation of such a derogation under section 14(1) of the Human Rights Act 1998 (c. 42).
10 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 6(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), but does not require leave.
(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) does not require leave under any provision of 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 1981c (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 10 of the Prevention of Terrorism Act 2005.”
Supplemental
11 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 sections 1 to 6.
(3) As soon as reasonably practicable after the end of every relevant 12 month period the person so appointed must carry out a review of the operation of those sections during that period.
(4) The person who conducts a review under this section must send the Secretary of State a report on its outcome as soon as reasonably practicable after completing the review.
