Subsections (7), (8) and (10)

51.     Subsection (7) provides that an individual detained under section 5 will be deemed to be in 'police detention' under the Police and Criminal Evidence Act 1984 (c. 60) for England and Wales, and the Police and Criminal Evidence (Northern Ireland) Order 1989 (N. I. 12) for Northern Ireland. Subsection (8) applies certain provisions of Schedule 8 to the Terrorism Act 2000 (c. 11) to the individual with appropriate adjustments. Subsection (10) states that a 'designated place' is a place designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000.

Subsection (9)

52.     Subsection (9) states that detention under this section may be incompatible with the right to liberty under Article 5 ECHR if there is a designated derogation in connection with these powers, and the derogation in connection with these powers arises from the same public emergency as the derogation in connection with derogating control orders.

Section 6: Duration of derogating control orders

Subsection (1)

53.     Subsection (1) provides that a derogating control order has effect at a time only if the relevant derogation is still in force and that time is not more than 12 months after the making of the order designating the derogation, or after the making of an order by the Secretary of State declaring that it continues to be necessary for him to have the power to impose derogating obligations under that derogation.

Subsections (2) to (7)

54.     Subsections (2) to (7) set out the procedure for the Secretary of State to make order of the kind referred to in subsection (1) (ie declaring that it continues to be necessary for him to have the power to impose derogating obligations).

Section 7: Modification, notification and proof of orders etc.

Subsection (1)

55.     Subsection (1) provides that a controlled person can apply to the Secretary of State for the revocation or modification of a non-derogating control order if there has been a change of circumstances affecting the order, and the Secretary of State shall have a duty to consider the application.

Subsections (2) and (3)

56.     Subsection (2) allows the Secretary of State, at any time during the operation of a non-derogating control order, to revoke the order, or to relax or remove an obligation imposed by the order. The Secretary of State may make any modifications to the obligations imposed by the order that he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. Subsection (2) also allows for the modification of a non-derogating control order by mutual consent. Subsection (3) provides that the Secretary of State may not, however, make any modifications which turn a non-derogating control order into one which imposes a derogating obligation.

Subsections (3) to (7)

57.     Subsection (4) allows the Secretary of State and the controlled person to apply to the court for the revocation or modification of a derogating control order. Subsection (5) states that the court can modify obligations imposed by the derogating control order if the effect of the modification is to remove or relax an obligation, the modification is by mutual consent or the court considers the modification to be necessary for purposes connected with preventing or restricting the controlled person's involvement in terrorism-related activity. Subsection (6) says that modification of a derogating control order cannot involve imposing derogating obligations unless the court considers the modification to be necessary for purposes connected with protecting members of the public from a risk of terrorism, and it appears to the court that the risk arises out of, or is associated with, the public emergency in respect of which there is a designated derogation.

58.     Subsection (7) requires the court, if it considers that derogating obligations no longer need to be imposed as part of a derogating control order, to revoke the control order in its entirety.

Subsections (8) to (11)

59.     Subsection (8) requires notice of the imposition, renewal or modification of a control order (other than a relaxation or modification with consent) to be given to the controlled person in person if the imposition, renewal or modification is to have effect. Subsection (9) states that a constable or other person authorised by the Secretary of State may enter any premises where he has reasonable grounds to believe the subject of a control order to be, and to search those premises, in order to serve notice upon the individual. Subsection (10) requires the Secretary of State, if he revokes or modifies a control order under subsection (2)(b) or (c), to give notice to the controlled person of the revocation or modification and of the date from which the revocation or modification is effective. Subsection (11) explains how a control order, or the renewal, revocation or modification of an order, may be proved.

Section 8: Criminal investigations after making of control order

Subsections (1) to (6)

60.     Subsection (1) provides that this section applies where it appears to the Secretary of State that an individual's suspected involvement in terrorism-related activity may have involved the commission of an offence relating to terrorism, and that the commission of that offence is being or would fall to be investigated by a police force. Subsection (2) requires the Secretary of State to consult the chief police officer of that police force about the evidence relating to the individual before he makes a control order to see if there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism. Subsection (3) requires the Secretary of State to inform that chief police officer when he has made a control order. Subsection (4) requires the chief police officer to keep the investigation of the individual's conduct under review for the duration of the control order to see if prosecution for a terrorism-related offence becomes possible.

61.     Subsection (5) requires the chief police officer to consult the relevant prosecuting authority about the carrying out of his functions under the section, but only, when the control order has been made, to the extent that he considers it appropriate in the light of his review of the investigation into the individual's conduct. Subsection (6) provides that the chief police officer's duty to consult the relevant prosecuting authority may have been satisfied by consultation that took place wholly or partly before this Act was passed.

Subsections (7) to (9)

62.     Subsection (7) defines 'chief officer', 'police force' and 'relevant prosecuting authority'. Subsection (8) contains transitional provisions in relation to the Serious Organised Crime Agency (necessary since at the time of the passage of the Prevention of Terrorism Act, the Bill establishing the Serious Organised Crime Agency, which is intended to subsume the National Crime Squad, was still before Parliament). Subsection (9) clarifies references to 'the Scottish Drug Enforcement Agency' and 'the Director' of that agency in subsection (7).

Section 9: Offences

Subsections (1) to (3)

63.     Subsection (1) provides that an individual is guilty of an offence if he breaches, without reasonable excuse, an obligation imposed on him by a control order. Subsection (2) creates an offence in connection with a failure, without reasonable excuse, to report to a specified person when first returning to the UK as required by the terms of a control order, when the order has ceased to have effect. Subsection (3) provides that any individual is guilty of an offence if he intentionally obstructs a person delivering a notice setting out the terms of the control order in accordance with section 7(9).

Subsections (4) to (10)

64.     Subsection (4) provides that a person who is guilty of an offence under section 9(1) or 9(2) will be liable on conviction on indictment to a prison sentence of up to 5 years or a fine and (in England and Wales) on summary conviction to a prison sentence of up to 12 months or a fine. On summary conviction in Scotland and Northern Ireland a person is liable to a prison sentence of up to 6 months or a fine. Subsection (5) contains transitional provisions in relation to subsection (4) since pending the bringing into force of Section 154(1) of the Criminal Justice Act 2003 the maximum available sentence is 6 months.

65.     Subsection (6) provides that where an individual is convicted of an offence under section 9(1) or (2) it is not to be open to the court in England and Wales to make a conditional discharge order. It also makes similar provisions for the other jurisdictions.

66.     Subsection (7) provides that a person who is guilty of an offence under section 9(3) shall be liable upon summary conviction, in England and Wales, to a prison sentence of up to 51 weeks or a fine. In Scotland and Northern Ireland summary conviction will lead to a prison sentence of up to 6 months or a fine. Subsection (8) contains transitional provisions relating to subsection (7) since pending the bringing into force of section 281(5) of the Criminal Justice Act 2003, the maximum available sentence is 6 months.

67.     Subsections (9) and (10) provide that the new offence of obstructing the service of a control order is an arrestable offence (not requiring a warrant).

Section 10: Appeals relating to non-derogating control orders

Subsections (1) to (3)

68.     Subsection (1) provides that the controlled person may appeal against the renewal or non-consensual modification of a non-derogating control order. When a control order is renewed with modifications, subsection (2) makes it clear that the individual concerned may appeal against any or all of the modifications. Subsection (3) provides that if a person applies to the Secretary of State for the modification or revocation of a non-derogating control order, he may appeal against any decision by the Secretary of State on the application.

Subsections (4) to (6)

69.     Subsection (4) provides that when the court hears an appeal against the renewal of a non-derogating control order or against a decision not to revoke a non-derogating control order, it must determine whether either or both of the following decisions of the Secretary of State was flawed:

a)     his decision that it was necessary to renew or continue the control order for purposes connected with protecting members of the public from a risk of terrorism; and

b)     his decision that it was necessary to renew or continue each of the particular obligations in the control order in question for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

70.     Subsection (5) provides that when the court hears an appeal against the modification of a non-derogating control order (whether on renewal or otherwise), it must determine whether or not the Secretary of State's decision that the modification was necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity was flawed. When the court hears an appeal against a decision not to modify a non-derogating control order, it must determine whether or not the Secretary of State's decision that the obligation was still necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity was flawed.

71.     Subsection (6) provides that the court must apply the principles applicable on an application for judicial review when determining matters mentioned in subsections (4) and (5).

Subsections (7) and (8)

72.     Subsection (7) provides that if a court upholds an appeal against a decision of the Secretary of State in an appeal under this section, it can:

a)     quash the control order;

b)     quash one or more of the particular obligations in the control order;

c)     give directions to the Secretary of State to revoke the control order or modify the obligations it imposes.

73.     Subsection (8) states that in every other case, the court must dismiss the appeal.

Section 11: Jurisdiction and appeals in relation to control order decisions etc.

Subsections (1) to (3)

74.     Subsection (1) provides that control order decisions and derogation matters are not to be questioned in any legal proceedings other than proceedings in the court or on appeal from such proceedings. The court is defined in section 15(1) to mean the High Court or Court of Session as appropriate. By virtue of subsection (2) the relevant court will be able to consider matters alleged by the appellant to raise Human Rights issues in respect of control order procedures. Subsection (3) says that appeals from any determination of the court in control order proceedings can only be on a question of law.

Subsection (4)

75.     Subsection (4) states that only the Secretary of State can appeal against the judgment of the court on an application under section 3(1)(a) (when it gives permission for him to impose a non-derogating control order) or on a reference under sction 3(3)(a) (when it confirms a non-derogating control order made without its permission). (This is because the controlled person is able to challenge the decision in the full hearing that automatically takes place following directions by the court under section 3(2)(c) or 3(6)(b) or (c))

Subsections (5) to (8)

76.     Subsection (5) gives effect to the Schedule (which sets out further provision in relation to control order proceedings and relevant appeal proceedings). Subsections (6), (7) and (8) define the terms 'control order proceedings', 'control order decision' and 'derogation matter' respectively.

Section 12: Effect of court's decisions on convictions

Subsections (1) to (3)

77.     Subsections (1) and (2) provide that a person convicted of an offence under section 9(1) or (2) may appeal against their conviction if the control order or obligation which they breached is subsequently quashed in control order proceedings (or on appeal from such proceedings). Subsection (3) provides that when an appeal is brought under this section, the relevant court must allow the appeal and quash the conviction. These provisions need to be read in association with paragraph 8 of the Schedule.

Subsections (4) to (7)

78.     Subsections (4) to (7) make it clear that an appeal may be brought notwithstanding the fact that an earlier appeal may already have been brought and set out other matters in relation to such an appeal.

Subsection (8)

79.     Subsection (8) amends section 133 of the Criminal Justice Act 1988 (c. 33) (compensation for miscarriages of justice) to permit compensation to be awarded on an application under that section. This would allow an individual to claim compensation if, for example, he had been convicted for breaching the conditions of an order and subject to a penalty, and where the relevant Control Order in question was subsequently quashed by a court.

Section 13: Duration of sections 1 to 9

Subsections (1) to (3)

80.     Subsection (1) provides that sections 1 to 9 of this Act expire 12 months after the day on which this Act was passed (11 March 2005) but under subsection (2), they may be renewed for a period not exceeding one year by order made by statutory instrument. (Subsection (2) also includes provision for repeal and revival of sections 1 to 9). Subsection (3) states that, before making such an order, the Secretary of State must consult the independent reviewer appointed under section 14, the Intelligence Services Commissioner and the Director-General of the Security Service.

Subsections (4) to (7)

81.     Subsections (4) to (7) deal with the procedure for making an order under this section. Subsection (4) provides that a draft of any order under this section must be approved by both Houses of Parliament before the order can be made. However, subsections (5) and (6) allow the Secretary of State to make an order under this section without the prior approval of Parliament if the order contains a declaration that the order had to be made without prior approval because of the urgency involved in the situation. In such cases, the Secretary of State must refer the order to Parliament after making it. If Parliament does not then approve the order within 40 days, it will cease to have effect at the end of that period. However, as subsection (7) makes clear, if such an order does lapse after 40 days, this will not affect anything done previously on the basis of the order, nor will it prevent the Secretary of State making a new order to the same or similar effect as the one which has ceased to have effect.

Subsections (8) to (9)

82.     Subsection (8) states that the expiration or repeal of sections 1 to 9 does not prevent or affect:

a)     the court's consideration of a reference under section 3(3)(a) (to review a decision by the Secretary of State to impose a control order without the court's permission);

b)     the court's consideration of a hearing under section 3(2)(c), section 3(6)(b) or section 3(6)(c) (full hearings to review the making of a non-derogating control order);

c)     the court's consideration of a hearing to confirm the making of a derogating control order;

d)     the bringing or continuation of any appeal or further appeal relating to the proceedings mentioned in paragraphs (a) to (c).

83.     But proceedings may only be brought or continued by virtue of subsection (8) so far as they are for the purposes of determining if a certificate of the Secretary of State, a control order or an obligation imposed by such an order are to be quashed or treated as quashed.

84.     Subsection (9) confirms that the Act does not permit a control order to be effective when the provision under which it was made has expired or been repealed.

Section 14: Reporting and review

Subsection (1)

85.     Subsection (1) provides that the Secretary of State must report to Parliament on a 3 monthly basis on the exercise of his control order powers during that period. A copy of each report must be laid before Parliament.

Subsections (2) to (6)

86.     Subsection (2) states that the Secretary of State must appoint a person to review the operation of the Act. Under subsection (3), this reviewer must review the operation of the Act nine months after it came into effect, and every twelve months thereafter. Subsections (4) and (6) provide that the reviewer must send his report to the Secretary of State as soon as reasonably practicable after carrying out the review, and that the Secretary of State must lay a copy of the review before Parliament. Subsection (5) states that the reviewer must include in his report his opinions on:

a)     the implications for the operation of the Act of any amendments to the law relating to terrorism which the Secretary of State has proposed; and

b)     the extent (if any) to which the Secretary of State has used his power to make non-derogating control orders in urgent cases without the permission of the court.

Subsection (8)

87.     Subsection (8) defines the terms 'control order powers' and 'relevant 3 month period' for the purposes of this section.

Section 15: General interpretation

Subsection (1)

88.     Subsection (1) sets out definitions of a number of terms contained in the Act.

Subsections (3) and (4)

89.     Subsection (3) states that the Secretary of State or the court has the power to state when any revocation or modification of a control order which he or it has decided to make will take effect. It also confirms that the court can postpone the effect of any revocation of a derogating control order either pending an appeal or to allow the Secretary of State time to consider whether to make a non-derogating control order against the same person. Subsection (4) provides that a failure of the Secretary of State to consider an application for a revocation or modification of the order by an individual shall be treated as a decision not to modify or revoke the order.

Section 16: Other supplemental provisions

Subsections (2) and (3)

90.     Subsection (2) provides for repeals, including the repeal of certain sections in Part 4 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (ATCSA). Under subsection (3), subsection (2) came into force on 14 March 2005.

Subsection (4)

91.     Subsection (4) provides a transitional saving in relation to appeals under section 25 ATCSA. It enables outstanding appeals under section 25 ATCSA to be completed. It also enables outstanding appeals further to any decisions by the Special Immigration Appeals Commission (SIAC) on appeals under section 25 ATCSA to be completed. Any proceedings that result from appeals against determinations by SIAC under section 25 ATCSA can likewise be completed. However, no other proceedings before SIAC under Part 4 ATCSA can be commenced or continued after the time at which sections 21 to 32 ATCSA are repealed.

Schedule

92.     The Schedule makes provision relating to and for the purposes of control order proceedings in the High Court and Court of Session and proceedings on appeal from such proceedings.

Paragraph 1

93.     This paragraph provides a definition of 'relevant powers' and 'relevant appeal proceedings'.

94.     The relevant powers are the existing powers to make rules of court for the High Court, the Court of Appeal and the Court of Session, so far as those powers are exercisable in relation to control order proceedings and relevant appeal proceedings.

Paragraph 2

95.     This paragraph imposes a general duty on persons exercising the relevant powers to have regard to (a) the need to secure that control 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.

Paragraph 3

96.     This paragraph makes special provision for the initial exercise of the relevant powers in relation to England and Wales and Northern Ireland. The Lord Chancellor may exercise those relevant powers to make rules for control order proceedings and relevant appeal proceedings on the first occasion that those powers are exercised after the passing of the Act (instead of the Civil Procedure Rule Committee and the Northern Ireland Supreme Court Rules Committee).

97.          Sub-paragraph (3) provides that the Lord Chancellor must consult the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, before making any rules in relation to those jurisdictions.

     98.     Sub-paragraph (5) provides that the rules of court made by the Lord Chancellor must be laid before Parliament and if not approved by a resolution of each House within 40 days of their making, they cease to have effect.

     99.     Sub-paragraph (6) provides that if the rules cease to have effect in accordance with sub-paragraph (5), (a) that does not affect anything previously done in reliance on those rules; (b) the Lord Chancellor has the power to make new rules; and (c) the new rules may include rules to the same or similar effect as the rules that have ceased to have effect.

     Paragraph 4

     100.     This paragraph makes further provision for rules of court made in exercise of the relevant powers.

101.     Sub-paragraphs (1) and (2) set out the matters for which such rules may make provision. Rules may provide, for example, that proceedings are to be conducted in the absence of the controlled person, and his legal representative, when the court hears sensitive evidence in closed session. Rules may also allow the court to give the controlled person a summary of the evidence taken in his absence.

102.     Sub-paragraph (3) sets out the procedures that must be secured by such rules. Rules must make provision:

• To require the Secretary of State (subject to rules made under sub-paragraph (3)(b) to (g)) to disclose all 'relevant material', which is defined in sub-paragraph (5) as any information or other material that is available to the Secretary of State and relevant to the matters in the proceedings and the reasons for decisions to which the proceedings relate.

• To allow the Secretary of State an opportunity to apply to the court for permission not to disclose relevant material to anyone other than the court or persons appointed under paragraph 7 of the Schedule (the special advocates).

• To ensure that the court always considers such an application in the absence of the controlled person (or any other relevant party) and his legal representative.

• To ensure that the court must give permission for material to be withheld where the court considers that disclosure of that material would be contrary to the public interest.

• To ensure that where the court grants permission for material not to be disclosed the court considers requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material.

• To ensure that, where the Secretary of State elects not to disclose relevant material, or provide a summary, the court may prevent the Secretary of State from relying on that material, or matters required to be summarised. The court may also require the Secretary of State to withdraw any allegation or argument to which that material (or matters required to be summarised) relates.