Prevention Of Terrorism Act 2005

	Explanatory Notes to Prevention Of Terrorism Act 2005 2005 Chapter 2

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These notes refer to the Prevention of Terrorism Act 2005 (c. 2) which received Royal Assent on 11 March 2005 PREVENTION OF TERRORISM ACT 2005 EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Prevention of Terrorism Act 2005 which received Royal Assent on 11 March 2005. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require an explanation or comment, none is given. SUMMARY 3. The purpose of this Act is to provide for the making of 'control orders' imposing obligations on individuals suspected of being involved in terrorism-related activity. These are preventative orders which are designed to restrict or prevent the further involvement by individuals in such activity. 4. A control order may impose any obligations necessary for purposes connected with preventing or restricting an individual's further involvement in terrorism-related activity. The intention is that each order will be tailored to the particular risk posed by the individual concerned. Obligations that may be imposed include, for example, prohibitions on the possession or use of certain items, restrictions on movement to or within certain areas, restrictions on communications and associations, and requirements as to place of abode. It will be possible to make control orders against any individuals suspected of involvement in terrorism-related activity, irrespective of nationality, or terrorist cause. 5. Control orders that do not involve derogating from the European Convention on Human Rights (ECHR), called 'non-derogating control orders', will be made by the Secretary of State. The Secretary of State must seek permission from the court to make a non-derogating control order. However, in cases of urgency, the Secretary of State can make an order without first seeking the permission of the court but he must refer it immediately to the court for confirmation. Control orders that do involve derogating from the ECHR will be made by the court itself on application from the Secretary of State. Such control orders are called 'derogating control orders'. All control orders will be subject to full hearings by the High Court or Court of Session. There will be a right of appeal on a point of law from a decision of the High Court or Court of Session. 6. Breach of an obligation imposed by a control order, without reasonable excuse, will be a criminal offence punishable, following conviction on indictment, with a prison sentence of up to 5 years, or a fine, or both; or, following summary conviction, to a prison sentence of up to 12 months (or 6 months in Scotland or Northern Ireland), or a fine, or both. 7. Features of the new scheme will include: Supervision by the court of the making of non-derogating control orders; Power of the court to make derogating control orders on application from the Secretary of State; Control order proceedings involving the hearing of evidence in open and closed session with Special Advocates representing the interests of the individuals concerned in the latter; The application of a judicial review test in hearings relating to non-derogating control orders; the application of the civil standard of proof on the question of involvement in terrorism-related activity in hearings relating to derogating control orders; Independent review of the operation of the Act with the first review to be carried out after the Act has been in operation for nine months and subsequent reviews to be carried out annually; Reports by the Secretary of State to Parliament every three months on his exercise of the control order powers during that period; Where a derogation is in place which has been approved by Parliament, the need for further annual Parliamentary approval of the continuing need to rely on the derogation to make derogating control orders. OVERVIEW 8. The Act is arranged as follows: Control orders 9. Sections 1 - 9 relate to the circumstances in which control orders may be made, their duration and the obligations (including penalties) attached to them. 10. This part of the Act describes the tests which the Secretary of State or court must apply in determining whether a control order may be made against an individual, and the obligations which may be imposed by the order. The Act provides an illustrative list of the obligations to which an individual may be subject and specifies penalties for failing, without reasonable excuse, to observe any obligations so imposed and for intentionally obstructing a person delivering a notice setting out the terms of the order. 11. The Act provides that the Secretary of State must obtain permission from the court before making a non-derogating control order. However, if a non-derogating control order has to be imposed urgently, the Secretary of State can make the order straight away but must refer it to the court immediately for the court to consider whether to confirm it. When considering whether to grant permission for a non-derogating control order to be made, and when considering whether to confirm a non-derogating control order that was made urgently, the court may hold an ex parte hearing and must consider whether the Secretary of State's decision in each case was obviously flawed. If it finds that it was, the order cannot be made or must be quashed; if it finds that it was not, the court must refer the control order to a full inter partes hearing which will apply a judicial review test to the control order in order to decide if it, and the obligations it imposes, should continue in force. 12. At a full hearing of a non-derogating order, the Court must consider whether any of the following decisions of the Secretary of State were flawed: his decision that there are reasonable grounds for suspecting that the person was involved in terrorism-related activity; his decision that a control order is necessary for purposes connected with protecting members of the public from the risk of terrorism; and his decisions on the imposition of each of the obligations imposed by the order. 13. The Act provides that the Secretary of State will apply to the court to make a derogating control order. At a preliminary hearing (which may be ex parte), the court will decide if there is a prima facie case for the order to be imposed. If it finds that there is not, it will not make the order; if it finds that there is, it will make the order and give directions for a full inter partes hearing to be held. 14. The court will confirm a derogating control order at a full hearing if: it is satisfied, on the balance of probabilities, that the controlled person is or has been involved in terrorism-related activity; it considers that the obligations imposed as part of the control order are necessary for purposes connected with protecting members of the public from a risk of terrorism; it appears to the court that the risk arises out of or is associated with a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the ECHR; and the obligations imposed by the control order are in a list of derogating obligations set out in the designation order. 15. In full hearings on control orders, the court can quash the control order, modify the obligations which it imposes or, in the case of non-derogating control orders, give directions to the Secretary of State to revoke or modify the control order. 16. The Secretary of State or court (in the case of non-derogating and derogating control orders respectively) may revoke or modify an order at any time. 17. The Act lists the offences associated with breaching an order or obstructing those exercising statutory powers in relation to an order and the relevant penalties. Appeals and other proceedings 18. Sections 10-12 deal with appeals and other proceedings. A person subject to a non-derogating control order may appeal to the court against the following decisions of the Secretary of State: his decision to renew the control order; his decision to modify the control order; his decision not to revoke or modify the control order on an application from the controlled person. 19. These provisions set out the powers of the court on such appeals. 20. They also deal with the jurisdiction of the court in relation to control order decisions and derogation matters and the effect of the court's decisions on earlier convictions. Supplemental 21. This part of the Act makes provision for the general oversight of the operation of the Act including independent annual review and three monthly reporting to Parliament on the exercise of his control order powers by the Secretary of State and annual renewal of the provisions. 22. It also contains general provisions concerning interpretation, repeals, commencement, the title of the Act and extent. COMMENTARY Section 1: Power to make control orders Subsections (1) to (3) 23. Subsection (1) defines control orders. Subsection (2) explains that control orders may be made by the Secretary of State unless they involve obligations that are incompatible with Article 5 of the ECHR. If they involve such obligations, they can be made only by the court on an application by the Secretary of State. Subsection (3) states that the obligations that may be imposed as part of a control order must be those considered necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. Subsections (4) to (8) 24. Subsection (4) sets out an illustrative list of obligations that may be imposed as part of a control order. Subsection (5) confirms that a control order may restrict a person's movements by, for example, requiring him to stay in a particular place at particular times or generally. Subsection (6) explains that controlled persons may be required to cooperate with practical arrangements for monitoring control orders, such as wearing and maintaining apparatus as directed. Subsection (7) provides that information that the controlled person may be required to provide under a control order includes advance information about his proposed movements or other activities. Subsection (8) provides that a particular obligation imposed by an order may be expressed so that it can be waived (on a single or on multiple occasions) if the individual seeks and obtains prior permission for this from a specified person. 25. Subsection (9) defines 'involvement in terrorism-related activity' for the purposes of the Act as: a) the commission, preparation or instigation of acts of terrorism; b) conduct which facilitates or is intended to facilitate the commission, preparation or instigation of such acts; c) conduct which gives encouragement or is intended to give encouragement to the commission, preparation or instigation of such acts; d) conduct which gives support or assistance to those known or believed to be involved in terrorism-related activity; and applies regardless of whether these relate to specific acts or to terrorism in general. By virtue of section 15(1), "terrorism" has the same meaning as in the Terrorism Act 2000 (c. 11). 26. Subsection (10) defines the terms 'derogating obligation' (an obligation incompatible with Article 5 which is of a description set out in a designation order), 'designated derogation' (by reference to the Human Rights Act 1998) and 'designation order'(the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated). Section 2: Making of non-derogating control orders Subsections (1) and (2) 27. Subsection (1) provides that the Secretary of State may make a non-derogating control order if he - a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on the individual. 28. Subsection (2) explains that the Secretary of State can impose a control order on an individual already subject to a control order imposed by the court, only if the court has decided to revoke its control order but has postponed that revocation in order to allow the Secretary of State to decide whether to impose his own. Subsections (4) and (5) 29. Subsection (4) states that a non-derogating control order will last for 12 months and may be renewed. Subsection (5) says that a non-derogating control order must state when it will cease to have effect. Subsections (6) to (8) 30. Subsection (6) provides that a non-derogating control order may be renewed for 12 months where the Secretary of State considers that it is necessary for the order to continue in force, for purposes connected with protecting members of the public from a risk of terrorism, and that any obligations imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. Subsection (7) makes further provision about the time from which the 12 month renewal period will begin to run. Subsection (8) states that the instrument renewing a non-derogating order must specify the expiry date of the renewed order. Subsection (9) 31. Subsection (9) provides that obligations may be imposed as part of control orders in order to prevent involvement in any terrorism-related activity, not just the activity which gave rise to the grounds for the Secretary of State's suspicion that the controlled person was or had been involved in terrorism-related activity. Section 3: Supervision by court of making of non-derogating control orders Subsection (1) 32. Subsection (1) provides that the Secretary of State can only make a non-derogating control order if: a) he has been granted permission to do so by the court; b) he has made, and included in the control order, a statement saying that the urgency of the case required him to make the control order without permission from the court; or, c) the order is made before 14 March 2005 against an individual who, at the time it is made, is certified under section 21(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24). Subsections (2) to (4) 33. Subsection (2) provides that when the Secretary of State applies to the court for permission to make a non-derogating control order against an individual, the court must decide if the Secretary of State's decision that there are grounds to make the order is obviously flawed. If it determines that the decision is not obviously flawed it will give its permission for the order to be made, and give directions for a full hearing to take place to consider the order as soon as reasonably practicable after it is made. Subsection (3) says that if the Secretary of State makes a control order without permission from the court, he must refer it to the court immediately. Subsection (4) states that the court must begin considering such a reference not later than seven days after the day on which the control order was made. Subsections (5), (6) and (8) 34. Subsection (5) provides that the first hearings in connection with non-derogating control orders, in which the court will decide whether to grant permission for the order to be made or will consider the Secretary of State's decision to impose the order without the court's permission, may be ex parte and may take place without the knowledge of the person upon whom the control order will be made. Subsection (6) explains that, in initial hearings on control orders made without the court's permission, the court will consider if the Secretary of State's decision to impose the order was obviously flawed. If it determines that the decision was obviously flawed, the court will quash the order; if it determines that it was not, but that the decision to impose a particular obligation was obviously flawed, it must quash that obligation; in all other cases, it must confirm the order and give directions for a full hearing in relation to the control order to take place. Subsection (8) provides that, in initial hearings on control orders made without the court's permission, the court may quash the certificate which the Secretary of State included in the control order stating that the urgency of the case required that the order be made without first seeking permission from the court. Subsection (7) 35. Subsection (7) provides that when the court gives directions for a full hearing in connection with a non-derogating control order to take place, it must make arrangements for the individual in question to be given an opportunity to make representations about the directions already given or the making of further directions, within seven days of the court's decision. Subsections (10) and (11) 36. Subsection (10) explains that in a full hearing on a non-derogating control order, the court will determine whether any of the following decisions of the Secretary of State was flawed: a) his decision that he had reasonable grounds for suspecting that the controlled person was or had been involved in terrorism-related activity and his decision that the control order was necessary for purposes connected with protecting members of the public from a risk of terrorism; b) his decision to impose each of the obligations in the control order. 37. Subsection (11) states that in considering the matters coming before it in relation to non-derogating control orders, the court must apply the principles applicable on an application for judicial review. Subsections (12) to (14) 38. Subsections (12) and (13) explain that, in a full hearing on a non-derogating control order, if the court decides that a decision of the Secretary of State was flawed, it may: a) quash the control order; b) quash one or more of the obligations contained in the control order; c) give directions to the Secretary of State for him to revoke or modify the order; d) decide that the control order should continue in force. 39. Subsection (14) provides that the court must discontinue the full hearing on a non-derogating control order if requested to do so by the controlled person. Section 4: Power of the court to make derogating control orders Subsections (1) to (4) 40. Subsection (1) provides for the court to hold an immediate preliminary hearing on an application from the Secretary of State to decide whether to make a derogating control order against an individual. If it determines to make such an order, it is required to give directions for a full hearing to take place to determine whether to confirm the order, with or without modifications. 41. Subsection (2) states that the preliminary hearing may be ex parte and may take place without the knowledge of the person upon whom the control order will be made. 42. Subsection (3) sets out the tests which the court must consider when deciding if a derogating control order can be made. It must appear to the court that: a) 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) there are reasonable grounds for believing that the obligations in the control order are necessary for purposes connected with protecting members of the public from a risk of terrorism. c) the risk in question arises out of or is associated with a public emergency in respect of which there is a designated derogation from all or part of Article 5 of the ECHR. d) that the obligations in the control order are of a description set out in the designation order. 43. Subsection (4) provides that the obligations the court may impose between the time when the order is made and the time when the court makes its determination at the full hearing include any obligations which it has reasonable grounds for believing to be necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. Subsection (5) to (7) 44. Subsection (5) provides that, at a full hearing on a derogating control order, the court may confirm or revoke the control order. If it revokes the order, it may direct that the order be treated as having been quashed under the terms of this Act. Subsection (6) states that, when confirming a derogating control order, the court may modify the obligations imposed by the order and direct that the obligation be treated as having been quashed under the terms of this Act. 45. Subsection (7) explains the tests which the court must apply when considering whether to confirm a derogating control order at a full hearing. It can only confirm the order if: a) it is satisfied on the balance of probabilities that the person is or has been involved in terrorism-related activities; b) it considers that the imposition of a control order is necessary for purposes connected with protecting members of the public from a risk of terrorism; c) it appears to the court that the risk arises out of or is associated with a public emergency in respect of which there is a designated derogation from all or part of Article 5; and d) the obligation(s) are of a description set out in the designation order. Subsections (8) to (13) 46. Subsection (8) provides that a derogating control order will last six months, unless it ceases to have effect either because it is revoked or because it would otherwise continue beyond the period provided for in section 6 (ie there has been no order within the relevant period confirming that it continues to be necessary for the Secretary of State to have the power to impose derogating obligations) It can also continue for more than six months if the court renews it. The renewal procedure is described in subsection (9). 47. As subsection (10) explains, when the court is considering whether to renew a derogating control order on an application from the Secretary of State, it may only do so if: a) the court considers that it is necessary for the derogating control order to continue in force for purposes connected with protecting members of the public from a risk of terrorism; b) it appears to the court that the risk arises out of or is associated with a public emergency in respect of which there is a designated derogation from all or part of Article 5 ECHR; c) the obligations are of a description that continues to be set out in a designation order; and, d) the court considers that the obligations imposed in the renewed order are necessary for purposes connected with preventing or restricting the controlled person's involvement in terrorism-related activity. 48. Subsection (11) provides that the court may extend a control order in order to allow it to continue to operate while proceedings on an application for renewal take place. Subection (12) notes that if a control order is extended under subsection (11) the renewed control order will be valid for six months from the date at which the order would have ceased to have effect. 49. Subsection (13) states that obligations may be imposed as part of a control order in order to prevent involvement in any terrorism-related activity, not just the activity which led the court to conclude that the individual was or had been involved in terrorism-related activity. Section 5: Arrest and detention pending derogating control order Subsections (1) to (6) 50. Subsections (1) to (4) provide for the arrest and detention of an individual in respect of whom the Secretary of State is seeking a derogating control order. He may be arrested and detained for 48 hours in the first instance, with the possibility of the court extending the detention for a further 48 hours. A constable may arrest someone under this section if the Secretary of State has applied to the court for a derogating control order to be made and the constable considers that the individual's arrest and detention are necessary to ensure the individual is able to receive notice of the order when it is made. The constable must take the arrested individual to an appropriate "designated place" (as defined in Paragraph 1(1) of Schedule 8 to the Terrorism Act 2000). If it considers it necessary to ensure that the individual is available to receive any notice, the court may during the first 48 hours of such detention, extend the period of detention for up to a further 48 hours. Subsection (5) provides that the power of detention shall cease once a person becomes bound by a derogating control order (ie once it has been served) or once the court dismisses the application from the Secretary of State. Subsection (6) provides that an individual who has the powers of a constable in one part of the UK can exercise the power of arrest under this section in any part of the UK.




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PREVENTION OF TERRORISM ACT 2005

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