Paragraphs 45-53: Insolvency: UK Provisions

113. These paragraphs allow for cases where a person subject to a forfeiture order is declared bankrupt. Under sub-paragraph (3) of paragraph 47, the forfeiture order is set aside; but under paragraph 48, the Secretary of State is taken to be a creditor, and has to be paid after the debts of all other creditors. If the bankruptcy order is annulled then under paragraph 49 the forfeiture order comes back into effect. Paragraphs 50-51 provide limited protection from liability for insolvency practitioners in respect of the exercise of their duties.

SCHEDULE 5: TERRORIST INVESTIGATIONS

114. This Schedule, which is activated by section 37, corresponds to Schedule 7 to the PTA and was discussed in Chapter 6 of the Government's consultation document. Part I deals with England, Wales and Northern Ireland; Part II makes corresponding provision for Scotland. Most of the Schedule replicates the provisions of the PTA with some modification as indicated below.

Paragraphs 1-3: Searches

115. These paragraphs correspond to paragraphs 2-2A of Schedule 7 to the PTA and have the same effect, bringing together the provisions for dwellings in paragraph 2 and non-residential premises in paragraph 2A. They deal with warrants permitting search for and seizure of ordinary material (as opposed to "excepted material" as defined in paragraph 4).

116. In the PTA, paragraph 2(1)(a) defined relevant material in relation to "the investigation" - that is, the investigation for which the warrant was issued. The equivalent provision in the Act, paragraph 1(3)(a), includes in the definition anything likely to be of substantial value to "a terrorist investigation", that is, any terrorist investigation. This is intended to enable a police officer to seize and retain not only material relevant to the investigation for which the warrant was issued but any material relevant to investigation of any of the matters specified in section 32 without having to go back to court for a further warrant. A similar change is made throughout the rest of the Schedule.

117. Sub-paragraph (5)(c) of paragraph 1 gives the judge discretion over the necessity for a warrant in the particular case. This sub-paragraph replaces the conditions in paragraph 2(2) of Schedule 7 to the PTA. The reasoning behind this is best illustrated by a hypothetical example. Suppose the police need to find, seize and retain certain material on certain premises. They successfully contact a person entitled to grant entry to the premises and access to the material. That person is content to grant them such entry and access, but is not content for the material to be seized and retained. The police therefore need a warrant to authorise seizing and retaining the material; but the conditions in paragraph 2(2) of Schedule 7 to the PTA are not met, so under the PTA the justice of the peace cannot issue a warrant. It is to cover this eventuality that, in replicating this provision, a more general test that "the issue of a warrant is likely to be necessary in the circumstances of the case" has been substituted.

Paragraph 4: Excepted material

118. The material in this paragraph is similar to that in the second half of paragraph 1 of Schedule 7 to the PTA. It defines the categories of material to which the different investigative powers in the Schedule can be applied.

Paragraphs 5-10: Excluded and special procedure material: production and access

119. These paragraphs correspond to paragraphs 3-4 of Schedule 7 to the PTA and have the same effect. They provide for "production orders".

Paragraphs 11-12: Excluded and special procedure material: search

120. These paragraphs correspond to paragraph 5 of Schedule 7 to the PTA and have the same effect. They provide similar warrants to those in paragraphs 1-3 but this time for excluded and special procedure material.

Paragraphs 13-14: Explanations

121. These paragraphs correspond to paragraph 6 of Schedule 7 to the PTA. There is one change in effect. A person's response to an explanation order represents information given under compulsion and cannot normally be used in evidence against him, as this would be a breach of the right against self-incrimination (or "right to silence"). The PTA provided two exceptions to this general principle.

• The first is if the criminal trial in question is for the offence of giving a false or misleading answer to the explanation order itself (at paragraph 6(3)(a) in the PTA).

• The second is in a trial for any other offence, if in that trial the person makes a statement inconsistent with his response to the explanation order (at paragraph 6(3)(b) in the PTA).

The first of these exceptions is replicated in the Act (at paragraph 13(4)) but the second has been dropped.

Paragraphs 15-16: Urgent cases

122. These paragraphs correspond to paragraph 7 of Schedule 7 to the PTA and have similar effect. They provide that in urgent cases a police superintendent may issue warrants and explanation orders, so long as he notifies the Secretary of State. The condition in paragraph 7(1) that the action must be "in the interests of the State" has been dropped. This is because the Act applies to all forms of terrorism: the power might therefore be used in a case where the terrorism was directed against another country.

Paragraphs 19-21: Secretary of State orders

123. Under paragraph 8 of Schedule 7 to the PTA, in Northern Ireland only, the Secretary of State may authorise the police to carry out searches for, or require the production of, material in connection with investigations into terrorist finance offences or in relation to the offence of directing a terrorist organisation. These paragraphs replicate those provisions, again for Northern Ireland only, in an updated form consistent with the other provisions in Schedule 5 to the Act. Section 112(5) ensures that the provisions are treated as if they were in Part VII of the Act. This will mean that, along with all the Northern Ireland specific measures, these provisions will be temporary and renewable.

SCHEDULE 6: FINANCIAL INFORMATION

124. This Schedule adds to the powers available to investigate terrorist finance a further investigative tool which has already proved its effectiveness in the investigation of the proceeds of crime in Northern Ireland. The purpose of an order under the Schedule is to enable a constable to identify accounts in relation to terrorist investigations. It is therefore intended for use at an earlier stage in an investigation than production and explanation orders under Schedule 5 to the Act.

125. This method of investigation is sometimes known as a "general bank circular" investigation.

126. The provisions are modelled on certain powers of "financial investigators" in Northern Ireland under Schedule 2 of the Proceeds of Crime (Northern Ireland) Order 1996 (SI 1996/1299). There are no "financial investigators" outside Northern Ireland. The power in the Schedule is therefore to be exercisable by a constable. The other main difference with the Northern Ireland model is that while the power in the 1996 Order is to investigate proceeds of crime, that in the new Schedule is to investigate terrorist finance. This is both a broader category (because it can include money or other property intended for use in terrorism as well as any proceeds of terrorist acts) and a narrower one (because it is focussed on terrorist as opposed to any other crime).

Paragraphs 1-5

127. These paragraphs allow a constable of at least the rank of superintendent to apply to a Circuit judge or equivalent for an order enabling the constable to require a financial insitution to provide customer information within a specified time and in a specified manner. It is an offence for an institution to fail to comply with the requirement.

Paragraph 6

128. The definition in this paragraph of "financial institution" is based on the definition of "relevant financial business" in Regulation 4 of the Money Laundering Regulations 1993 (SI 1993/1933).

Paragraph 7

129. This paragraph defines the customer information which the constable may require. The definition of a "business relationship" is based on that in Regulation 3 of the Money Laundering Regulations 1993.

Paragraph 8

130. This paragraph allows for the non-compliance offence in paragraph 1 to be committed by an officer of an institution as well as by the institution itself.

SCHEDULE 7: PORT AND BORDER CONTROLS

131. This Schedule makes similar provision to that at Schedule 5 to the PTA. The main differences are that:

• the maximum period that a person may be detained at a port for questioning, to determine whether he is someone who is, or has been, concerned in the commission, preparation or instigation of acts of terrorism, is 9 hours (paragraph 6);

• captains of aircraft carrying passengers other than for reward may allow their passengers to embark from, or disembark at, non-designated airports provided they give 12 hours' notice to a constable in the relevant area (paragraph 12);

• the "carding" provision, which allows an examining officer to require certain passengers leaving or entering Great Britain or Northern Ireland to complete cards, will be subject to the affirmative resolution procedure and may be lapsed or repealed (paragraph 16); and

• the kind of information relating to passengers, crews or their vehicles which examining officers will be able to request will be set out in a separate order subject to the affirmative resolution procedure on the first occasion when it is made, and to the negative resolution procedure thereafter (paragraph 17).

SCHEDULE 8: DETENTION

Part I: Treatment of persons detained under section 41 or examined under Schedule 7

132. Paragraph 1 is similar to the power of the Secretary of State under the PTA to direct the places at which persons detained under section 41 or Schedule 7 shall be detained. Paragraphs 2-20 make provision for those detained under the Act's arrest and detention procedures including that steps may be taken to identify them; that fingerprints, intimate samples (e.g. DNA) and non-intimate samples (e.g. hair) may be taken; and the limited circumstances in which a detainee may be kept incommunicado or without access to legal advice. Paragraph 3 provides that interviews at a police station must be audio recorded in compliance with a Code of Practice. It also provides an order-making power whereby similar provision may be made in respect of video recording.

Part II: Review of detention under section 41

133. Paragraphs 21-28 set out the arrangements for reviews of the continued detention by the police of a person arrested under section 41.

Part III: Extension of detention under section 41

Paragraph 29: Warrants of further detention

134. This paragraph provides that a police officer of at least the rank of superintendent may apply for a warrant of further detention in respect of an arrest under section 41. The application will be made to a judicial authority as defined by sub-paragraph (4). A warrant issued by the judicial authority will authorise the detention of a specific person for a specified period of time, with the maximum detention period being seven days from the time of arrest under section 41, or from the time when his examination under Schedule 7 began, whichever is earlier.

Paragraph 30: Time limit

135. This paragraph makes provision for an application to be made either within the 48-hour period specified in section 41(3) or within six hours of the end of that period. Where an application is made within this six-hour period the judicial authority will dismiss the application, if he thinks it could reasonably have been made before the 48-hour period expired.

Paragraph 31: Notice

136. This paragraph provides that an individual to whom an application for further detention applies must be notified that an application has been made, the time at which it is to be heard, and the grounds on which further detention is sought.

Paragraph 34: Information

137. This paragraph further provides that information about the application may be withheld from the individual or anyone representing him in certain circumstances.

SCHEDULE 9: SCHEDULED OFFENCES

138. This Schedule sets out those offences which are subject to the special provisions set out in Part VII of the Act for non-jury trials on account of being terrorist-related. In relation to a number of these offences, the Schedule enables the Attorney General for Northern Ireland to certify that particular cases are not to be treated as "scheduled".

SCHEDULE 10: MUNITIONS AND TRANSMITTERS: SEARCH AND SEIZURE

Paragraphs 2-7: Entering premises; stopping and searching persons; and seizure

139. These paragraphs contain the main powers used by the police and Army to enter premises and dwellinghouses for the purpose of searching for arms etc. Under PACE(NI), the police have general powers of entry and search of places to which the public has access. A search warrant is required to search dwellings other than for the purposes of making an arrest. PACE(NI) also provides entry and search powers upon or after arrest. Paragraph 4 adds to such powers: a power to restrict movement of persons present on premises which are in the course of being searched

140. PACE(NI) powers to stop and search in public places are exercisable on suspicion that a stolen item, offensive weapon, or an item intended for criminal use will be found. Entry and search of premises other than to make an arrest or prevent a breach of the peace, damage or injury must be under the authority of a warrant. By contrast paragraph 6 allows the police and Army to stop and search any person in a public place for unlawful munition or wireless apparatus and to search any person not in a public place on reasonable suspicion of having such items.

Paragraph 8-11 : Records and offence

141. This provision places a duty on the police and Army to make a written record of searches conducted under Schedule 10; and it makes it an offence to fail to comply with any requirement on the restriction of movement of persons during a search; to wilfully obstruct or seek to frustrate the object of such a search; and to fail to stop when required to do so.

SCHEDULE 11: INDEPENDENT ASSESSOR OF MILITARY COMPLAINTS PROCEDURES IN NORTHERN IRELAND

142. See notes on section 98 above.

SCHEDULE 12: COMPENSATION

143. This Schedule allows for compensation to be claimed from the Secretary of State where property is taken, occupied, destroyed or damaged, or any other private property rights interfered with as a consequence of action taken under Part VII of the Act. No compensation is payable, however, where the action taken is in connection with, or reveals evidence of, a scheduled offence or an offence under the Act for which the owner of the property is later convicted.

SCHEDULE 13: PRIVATE SECURITY SERVICES

Paragraphs 1-5: Security services interpretation; unlicensed services: offences

144. These paragraphs define security services and create offences of providing or offering security services for reward without being a holder or the agent of a holder of a licence from the Secretary of State, and of advertising the provision of security services by a non-holder of a licence. It is also an offence under this schedule to pay money for security services to someone who is not the holder of a valid licence; however, paragraph 4 allows for a defence of reasonable belief if a person is charged with such an offence.

Paragraph 6: Application for licence

145. This paragraph deals with applications for licences to the Secretary of State and specifies the kind of information that may be required. Under the paragraph it is an offence knowingly or recklessly to give false or misleading information in connection with an application.

Paragraphs 7-9: Issue, duration, and revocation of licence

146. These paragraphs are based on section 39 of the EPA and have similar effect subject to one substantive modification. Sub-paragraphs (2)-(6) of paragraph 7 confer a power on the Secretary of State to impose a condition when granting a licence for the provision of security services. The inclusion of this new power will permit a much more flexible and proportionate response to applications.

147. More generally the paragraphs make provision for the issue, duration and revocation of licences by the Secretary of State and allow him to refuse or revoke a licence if he is satisfied that a proscribed organisation, or an organisation closely associated with a proscribed organisation, would benefit from the issue of a licence; or where the applicant has persistently failed to comply with the requirements of this Schedule or a condition imposed with his licence.

Paragraphs 10-11: Appeal

148. These paragraphs provide a new route of appeal to the High Court against refusal, revocation or conditions imposed on a licence which is designed to fulfil our ECHR obligations under Article 6. If the Secretary of State wishes to rely on a certificate under paragraph 11(1) in order to protect any sensitive information on which he may have based his decision, the applicant may appeal against the certificate to the Northern Ireland Tribunal who will scrutinise the basis for it. In either case the merits of the Secretary of State's decision will be examined by a judicial body.

Paragraphs 12-15: Change of personnel

149. These paragraphs make it a requirement for applicants for and holders of licences to notify the Secretary of State of certain changes, or proposed changes, of personnel affecting their business. It also imposes time limits on when notifications must be made in advance of any changes being introduced.

SCHEDULE 14: EXERCISE OF OFFICERS' POWERS

150. Paragraph 4 allows information collected by immigration officers and customs officers to be supplied to police officers and vice versa thus facilitating increased co-operation between frontier control agencies. It also creates an order-making power to permit other organisations to be added to the list in future.

151. Paragraphs 5-7 make provision for the issuing of codes of practice for authorised and examining officers.

SCHEDULE 16: REPEALS

152. The Act repeals the PTA, EPA and sections 1 to 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998; transitional provision is made by section 129.

Exclusion orders

153. Part II of the PTA includes a power for the Secretary of State to make exclusion orders. These orders could prevent a person from entering Northern Ireland, or from entering Great Britain, or from entering the United Kingdom. This Part was lapsed by the Government in 1998 and is not replicated in the Act.

COMMENCEMENT

154. Section 128 provides for the Northern Ireland transitional provisions (section 2(1)(b) and (2) and Schedule 1, together with section 118, which applies to some provisions as they have effect by virtue of Schedule 1), general transitional provisions, and extent and short title provisions to come into force on Royal Assent. The other provisions will come into force on such dates as the Secretary of State appoints by order.

HANSARD REFERENCES

155. The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.

Stage	Date	Hansard reference
House of Commons
Introduction	2 December 1999	Vol 340 Col 443
Second Reading	14 December 1999	Vol 341 Cols 152-234
Committee	18 January, 20 January, 25 January, 27 January, 1 February, 3 February and 8 February 2000	Hansard Standing Committee D
Report and Third Reading	15 March 2000	Vol 345 Col 329 to Vol 346 Col 473
House of Lords
Introduction	20 March 2000	Vol 611 Col 9
Second Reading	6 April 2000	Vol 611 Cols 1427-1490
Committee	16 May 2000	Vol 613 Cols 214-278
	23 May 2000	Vol 613 Cols 641-664 and 674-762
	6 June 2000	Vol 613 Cols 1044-1066 and 1076-1103
Report	20 June 2000	Vol 614 Cols 159-224
Third Reading	4 July 2000	Vol 614 Cols 1442-1459
House of Commons
Commons consideration of Lords amendments	10 July 2000	Vol 353 Cols 627-665

  

Royal Assent	-	20 July 2000		House of Lords Hansard Vol 615 Col 1262
				House of Commons Hansard Vol 354 Col 608