Subsection (2)

79.     Section 29(1) of the CPIA provides a power to order a preparatory hearing in cases of suitable complexity, seriousness or which are likely to have a long trial if holding a hearing for a particular purpose, such as assisting the judge in the management of the trial, would result in substantial benefit. Section 29(1A) provides a power to hold a preparatory hearing in a case in which the trial may proceed without a jury under section 45 of the Criminal Justice Act 2003 (this provision is yet to be commenced). Section 16 of the Act amends section 29 of the CPIA to place an obligation on the judge to order a preparatory hearing in two particular circumstances concerning terrorism. The first, set out in new subsection (1B), is where at least one person in the case is charged with a terrorism offence. The second, set out in new subsection (1C), is where at least one person in the case is charged with an offence that carries a penalty of a maximum of at least 10 years' imprisonment and it appears to the judge that the conduct in respect of that offence has a terrorist connection.

Subsections (3) to (5)

80.     Subsection (3) inserts a new subsection (3) into the CPIA that deals with when the respective provisions on preparatory hearings in the CPIA and the Criminal Justice Act 1987 should apply. It provides that in a case of serious or complex fraud a judge should first decide whether to order a preparatory hearing under the 1987 Act. If he decides not to he cannot order a preparatory hearing under the CPIA, unless a preparatory hearing would be mandatory under new subsections (1B) or (1C).

81.     Subsection (5) inserts new subsections into section 29 of the CPIA to define terms introduced by this section. The new subsection 29(6) of the CPIA defines 'terrorism offence'. The definition includes certain specified offences in the TACT and this Act, and the offences of conspiracy or attempting to carry out such an offence, or incitement to commit such an offence. New subsection 29(7) CPIA provides that an offence will be considered to carry a penalty of 10 years or more if the maximum penalty for conviction on indictment is 10 years or more or life imprisonment. New subsection 29(8) of the CPIA defines terrorist connection for the purposes of the new provisions and new subsection 29(9) of the CPIA provides that terrorism in the new provisions has the same meaning as in section 1 of the TACT.

Section 17 - Commission of offences abroad

82.     Subsections (1) to (4) of section 17 make provision in relation to extra-territorial jurisdiction for the UK courts for the new offences contained in sections 1, 6, and 8 to 11 of this Act, and two offences in the TACT. Sections 1 and 6 are only covered by this section in as much as they relate to Convention offences as opposed to acts of terrorism. The overall effect of the section is that if, for example, an individual were to commit one of these offences in a foreign country, they would be liable under UK law in the same way as if they had committed the offence in the UK.

83.     The extra-territorial jurisdiction in section 17 is needed in order to give effect to Article 14 of the Council of Europe Convention on the Prevention of Terrorism (as respects the offences in sections 1 and 6) and Article 9 of the International Convention for the Suppression of Acts of Nuclear Terrorism (as respects the offences in sections 9 to 11). Article 14.1 of the Council of Europe Convention on the Prevention of Terrorism requires State Parties to take jurisdiction in respect of offences committed anywhere by nationals of that State. In addition, Article 14.3 requires State Parties to take jurisdiction in respect of anyone present in their territory if they do not extradite that person to the state where the offence was committed. Paragraphs 1 and 4 of Article 9 of the Nuclear Convention set out the same requirements. Extra-territorial jurisdiction is appropriate for the offence in section 8 because the places at which terrorist training is taking place are more likely to be located abroad rather than in the UK.

Subsections (1) to (3)

84.     Subsection (2) provides that this section applies to a number of offences. Firstly, it applies to the offences created by sections 1 and 6 of this Act, so far as those offences are committed in relation to any statement, instruction or training in relation to which those sections have effect by reason of their relevance to the commission, preparation, or instigation of one or more Convention offences. Secondly, it applies to all the new offences outlined in sections 8 to 11 of this Act. Thirdly, it applies to an offence under section 11(1) of the TACT (membership of proscribed organisations) and section 54 of that Act (weapons training). Fourthly, it applies to offences of conspiracy, incitement and attempt in respect of the specific listed offences.

85.     Under subsection (1) if a person does anything outside the UK and, if he had acted in a part of the UK it would have been an offence listed in subsection (2) in that part of the UK, he is guilty of that offence, in that part of the UK. The jurisdiction in respect of offences committed abroad extends to all persons not just British citizens or companies incorporated in the UK (subsection (3)).

Subsection (4)

86.     Subsection (4) sets out that in the case of offences occurring wholly or partly abroad, proceedings may be brought in any place in the United Kingdom, and that for incidental purposes, the offence may be treated as having been committed in that place. This is to ensure that court and other criminal proceedings provisions can operate properly and effectively.

Subsections (5) and (6)

87.     Subsection (5) amends section 3 of the Explosive Substances Act 1883 (c. 3). Under section 3(1)(a) of that Act it is an offence to carry out certain acts preparatory to causing an explosion. The preparatory acts must take place in the UK or its dependencies, or, in the case of a citizen of the UK or colonies, anywhere in the world. At the moment in order for the offence to be committed the explosion must be intended to take place in the UK or the Republic of Ireland. This means that it is not an offence to do acts preparatory to an explosion in a country other than the UK or the Republic of Ireland. Subsection (5) amends section 3 so that the explosion can be planned to take place anywhere in the world. Subsection (6) provides that the amendment to the Explosive Substances Act 1883 only applies to Scotland so far as the act that may be considered an offence is an act of terrorism, an act for the purposes of terrorism, or that any possession or control of a substance is for the purposes of terrorism. The provision is so limited because section 3 of the Explosive Substances Act 1883 is only a reserved matter, within the meaning of the Scotland Act 1998, insofar as it relates to terrorism.

Section 18 - Liability of company directors etc.

88.     This section provides that offences under Part 1 of this Act that are committed by corporate bodies will also be committed by a senior officer of that body if the offence was committed by the corporate body with his consent or connivance. Of the offences in Part 1 a corporate body is most likely to be prosecuted for an offence under section 2 of disseminating terrorist publications. Both the senior officer (or officers, if consent or connivance can be proved against each) and the body corporate will be liable for the offence. Subsection (1) relates to bodies corporate and provides that a director, manager, secretary or other similar officer of the body can be held liable under this section on the stated grounds. Subsection (2) makes a similar provision in relation to Scottish firms. Subsection (3) provides that the term "director" includes members of a corporate body if that body is managed by its members rather than directors as such.

Section 19 - Consents to prosecutions

Subsection (1)

89.     Subsection (1) sets out that prosecutions for offences in Part 1 of this Act may only be carried out in England and Wales with the consent of the Director of Public Prosecutions or, in Northern Ireland, with the consent of the Director of Public Prosecutions for Northern Ireland. This is subject to a case falling into subsection (2).

Subsections (2) and (3)

90.     Subsection (2) provides that, in a case where it appears to the Director of Public Prosecutions, or Director of Public Prosecutions for Northern Ireland, that the offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, a prosecution may only be brought if the Attorney General, or, in the case of Northern Ireland, the Advocate General for Northern Ireland, agrees with the DPP's, or the DPP for Northern Ireland's, decision to give consent. Subsection (3) provides a transitional in relation to the time before the commencement of Section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26). Prior to that time the Advocate General for Northern Ireland will not be in existence and so the Attorney General for Northern Ireland must agree with the DPP for Northern Ireland's decision to consent instead.

Section 20 - Interpretation of Part 1

91.     Section 20 provides interpretation provisions and other definitions for Part 1 of the Act.

Subsection (1)

92.     Subsection (1) provides that definitions used in the TACT also apply to Part 1 of this Act. Such definitions that are generally relevant to the Act are discussed at paragraphs 16-19.

Subsection (2)

93.     Subsection (2) contains a number of definitions including the definition of Convention offence as set out in Schedule 1 to the Act.

Subsection (3)

94.     Subsection (3) clarifies references to the public. In particular it makes it clear that public can mean the public of a country other than the UK. It also makes it clear that, other than in section 9(4) (definition of radioactive material), it includes a meeting or other group of persons that the public can attend. A meeting or group will be included in the definition even if payment must be made or other conditions must be satisfied before a person will be admitted.

Subsections (4) and (6)

95.     Subsection (4) defines the term "publishing a statement", for the purposes of Part 1 of the Act. This definition covers references to publication in the offence of encouragement of terrorism in section 1. The definition does not include references to publication in section 2, due to the fact that publication for the purposes of section 2 is already defined in section 2(13). The definition in subsection (4) includes publishing a statement in any manner to the public, providing an electronic service by which means the public have access to the statement, or using an electronic service provided by another in relation to the material supplied by him so as to enable the public to have access to the statement. The second limb of the definition will include internet service providers. The third limb of the definition will include those who run websites that contain message boards and those that post messages on such message boards. Subsection (6) clarifies references to a statement, detailing that these are references to a communication of any description and are not limited to words. This means that images such as videos will be covered.

Subsections (9) to (11)

96.     Subsection (9) enables the Secretary of State to modify Schedule 1 (Convention offences) to add or remove offences, and make such supplemental, incidental, consequential and transitional provisions as are needed as a consequence of amendments to the list. Subsection (10) sets out that any such order may only add an offence in or as regards Scotland if the provision creating the offence would be outside the legislative competence of the Scottish Parliament. Subsection (11) sets out that such an order is subject to the affirmative resolution procedure.

Schedule 1 - Convention Offences

97.     The definition of Convention offence is set out in section 20(2) and it covers the offences listed in Schedule 1 and any offence equivalent to the listed offences under the law of a country or territory outside the UK. Schedule 1 defines Convention offences for the purposes of Part 1 of this Act. References to Convention offences can be found in sections 1 (encouragement of terrorism), 3 (application of sections 1 and 2 to internet activity, etc.), 6 (training for terrorism) and 8 (attendance at a place used for terrorist training). The new offences in sections 1 and 6 implement provisions of the Council of Europe Convention for the Prevention of Terrorism. The Convention offences are intended to cover the concept of terrorist offence in the Convention. Terrorist offence is defined in Article 1 of the Convention as all the offences covered by the treaties listed in the Appendix to the Convention. As those treaties have been implemented in UK law, Schedule 1 lists the offences in UK law.

98.     The following categories of offences are included: explosives offences, offences relating to biological weapons, offences against internationally protected persons, hostage taking, hijacking and other offences against aircraft, offences involving nuclear material, offences under the Aviation and Maritime Security Act 1990, offences involving chemical weapons, offences relating to terrorist funds, directing a terrorist organisation, offences involving nuclear weapons, and inchoate offences (such as conspiracy, incitement and attempting to commit an offence) relating to Convention offences. As well as being drafted in terms of Convention offences the provisions of the Act that refer to Convention offences are also drafted by reference to the wider concept of acts of terrorism.

Part 2

Section 21 - Grounds of proscription

99.     Section 3 of the TACT gives the Secretary of State power to add an organisation to the list of proscribed organisations in Schedule 2 of that Act if he believes that the organisation is concerned in terrorism. The term "concerned in terrorism" is defined in section 3(5), and includes that the organisation promotes or encourages terrorism (section 3(5)(c)). Organisation is defined in section 121 of the TACT as including any association or combination of persons. A number of the offences in the TACT are dependent on an organisation being proscribed, for example, the offences in section 11 (membership of a proscribed organisation) and section 12 (support for a proscribed organisation). Also some of the powers in the TACT can be exercised on the basis that an organisation is proscribed, for example, the resources of a proscribed organisation can be seized as terrorist cash under Part 3 of the TACT (see in particular section 25).

100.     Section 21 widens the grounds of proscription. It provides that a group may be considered to promote or encourage terrorism under section 3(5)(c) if its activities include the unlawful glorification of terrorism or its activities are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. Glorification of conduct is unlawful if persons who may become aware of it could reasonably be expected to infer that the conduct is glorified as conduct that should be emulated in existing circumstances. As in Part 1 of the Act conduct and conduct that is illustrative of a type of conduct are both covered. Glorification and statement are both defined in similar terms to Part 1 of the Act. Glorification is defined to include praise and celebration. Statement is defined to include a communication without words consisting of sounds, images or both.

Section 22 - Name changes by proscribed organisations

101.     Section 3 of the TACT defines a proscribed organisation for the purposes of the TACT as an organisation listed in Schedule 2 to that Act or an organisation that operates under the same name as a listed organisation. Various offences under the TACT depend on an organisation being proscribed. This section deals with the situation in which an organisation is the same as an organisation that appears in Schedule 2 to the TACT but it is operating under a name that is different to that listed in Schedule 2 and the situation in which an organisation listed in Schedule 2 is operating under several names not all of which appear in Schedule 2.

Subsection (2)

102.     Subsection (2) amends section 3 of the TACT. New subsection (6) of section 3 provides that, if the Secretary of State believes that an organisation that is listed in Schedule 2 is operating under a name that is not specified in Schedule 2, or that an organisation is operating under a different name but is the same as a listed organisation, he can make an order to the effect that the name that does not appear in Schedule 2, is another name for the listed organisation. The effect of such an order is that the organisation included in the order will be treated as if it were listed in Schedule 2 under both the name already specified for it in the Schedule and the other name given in the order (new subsection (7)). This effect continues while the order is in force and the organisation is listed in Schedule 2. The Secretary of State has the power to revoke the order in new subsection (8) of section 3.

103.     An order under these provisions is subject to the negative resolution procedure. This is in contrast to an order amending Schedule 2 which is subject to the affirmative resolution procedure.

Subsections (3) to (7)

104.     These subsections apply the existing provisions in the TACT for review of and appeal against proscription to an order that a name be treated as another name for a listed organisation. Section 4 of the TACT allows those who have an interest in an organisation being proscribed to apply to the Secretary of State to have an organisation de-proscribed. Subsections (3) and (4) of this section amend section 4 to allow similar applications in respect of an order that a name be treated as another name for a listed organisation. Subsection (5) includes orders to treat a name as another name for a listed organisation in section 5 of the TACT, which allows an appeal to the Proscribed Organisations Appeal Commission (POAC), if the Secretary of State refuses to revoke an order following an application under section 4. An appeal is also possible against POAC's decision under section 6 of the TACT although this does not require specific amendment by the section.

105.     If an appeal is successful under section 5 then the Secretary of State is obliged to revoke his order as provided for in new section 5(5A) of the TACT to be inserted by subsection (6) of the section. Subsection (7) includes the new orders into section 7 of the TACT. Section 7 sets out the effect of a successful appeal on a conviction that was dependent on an organisation being proscribed.

Subsections (8) to (11)

106.     Subsections (8) to (11) make a number of amendments to the TACT that are consequential on the creation of the new type of order and its inclusion in the appeal process.

Section 23 - Extension of period of detention of terrorist suspects

107.     This section contains amendments to Schedule 8 to the TACT, which deals, among other things, with extension of detention prior to charging of those arrested under section 41 of the TACT. The original maximum period of detention of seven days was extended to a maximum of 14 days by section 306 of the Criminal Justice Act 2003.

Subsections (2), (5) and (11)

108.     Subsection (2) widens the group of people who may apply for a warrant of further detention under paragraph 29 of Schedule 8 and for an extension of detention under paragraph 36 of Schedule 8. At the moment only a police officer of at least rank of superintendent may make those applications. As amended, in England and Wales a Crown Prosecutor, in Scotland a procurator fiscal or the Lord Advocate, in Northern Ireland the Director of Public Prosecutions for Northern Ireland, and anywhere in the UK a police officer of the rank of superintendent or above may apply for a warrant of further detention or for extension of the period of detention. As a consequence of this change Subsection (5) makes an amendment to paragraph 34(1) of Schedule 8 to the TACT. It substitutes the word "person" for "officer" in that provision, ensuring that all those listed in subsection (2) have the power to apply to the judge presiding over the extension of detention hearing to have information that forms part of that application withheld from a person to whom an application relates. Subsection (11) makes a further consequential change to substitute a new paragraph 37 into Schedule 8. Paragraph 37 provides that any detained person must be released if the grounds on which his continued detention was authorised are no longer met and there is no other reason for him to be held. The new paragraph 37 is expanded so that as well as referring to a police officer deciding if continued detention is justified it also refers to other people that may be in charge of the case.

Subsections (3) and (4)

109.     Subsection (3) amends paragraph 29(3) of Schedule 8 so that when a court agrees to an extension of the period of detention, the period of the extension will normally be seven days. This is subject to new sub-paragraph (3A). At the moment the extension can be for anything up to seven days. Subsection (4) inserts a new subparagraph (3A) into paragraph 29 that provides that the court may issue a warrant of further detention for less than seven days if either the application for the warrant specifies a shorter time period or the judicial authority is satisfied that there are circumstances that mean that an extension for as long as seven days is inappropriate.

Subsection (6)

110.     Subsection (6) amends, and inserts new sub-paragraphs (1A) and (1B) into paragraph 36 of Schedule 8, which deals with the extension of warrants of further detention. The new sub-paragraphs provide that, if an application is to extend detention beyond 14 days from the relevant time it must be made to a senior judge. If an application is to extend detention for no more than 14 days from the relevant time the application must be made to a judicial authority, unless an application has previously been made to a senior judge. At the moment all applications under paragraph 36 are made to a judicial authority. Subsection (10) inserts a definition of senior judge into paragraph 36. Senior judge is defined, in England, Wales and Northern Ireland as a judge of the High Court and, in Scotland as a judge of the High Court of Justiciary. A judicial authority is already defined in paragraph 29(4) of Schedule 8 as, in England and Wales, a District Judge (Magistrates' Courts) who is designated for the purposes of Part 3 of Schedule 8 by the Lord Chancellor, in Scotland, a sheriff and, in Northern Ireland, a county court judge or a resident magistrate designated for the purposes of Part 3 of Schedule 8 by the Lord Chancellor. The relevant time is defined in paragraph 36(3B) of Schedule 8 as either, the time of a person's arrest under section 41 of the TACT or, if he was detained under Schedule 7 to the TACT when he was arrested under section 41, the time his examination under that Schedule began.

Subsection (7)

111.     Subsection (7) further amends paragraph 36 of Schedule 8. The amendments have two effects. Firstly, each period of extension must be for seven days unless the application asks for a shorter period or the judicial authority (or senior judge) to which the application is made is satisfied that there are circumstances which mean that it would be inappropriate to detain the suspect for a further seven days. Secondly, the maximum period that a warrant of further detention can last in total is extended from 14 days to 28 days. In cases where detention for a further seven days would exceed the 28 day limit, the senior judge can only authorise continued detention up to the 28 day limit.

Subsections (8) and (9)

112.     Subsection (8) amends paragraph 36(4) of Schedule 8 to provide that paragraphs 30(3) and 31 to 34 of Schedule 8 (which deal with notice of applications, grounds for extension, representation and withholding of information) are to apply to applications to senior judges as they apply to applications to judicial authorities but references to judicial authority are to be read as references to senior judge. Subsection (9) makes a consequential amendment to paragraph 36(5).

Subsection (12)

113.     Subsection (12) sets out that the amendments made to the procedures for extension of detention under Schedule 8 of the TACT shall not apply if the arrest of the person under detention occurred before the commencement of this section of the Act, or if his examination under Schedule 7 to the TACT began before the commencement of this section of the Act.

Section 24 - Grounds for extending detention

114.     This section amends the grounds for authorising extended detention under Schedule 8 to the TACT, for review officers (during the first 48 hours of detention) and for the judicial authority or senior judge (thereafter).

Subsection (1)

115.     At the moment paragraph 23(1) of Schedule 8 lists a number of grounds on which a review officer can decide to continue to detain a person. Subsection (1) adds to that list. It sets out that a review officer may extend detention if he is satisfied that it is necessary pending the result of an examination or analysis of any relevant evidence or an examination or analysis of anything that may result in relevant evidence being obtained. An examination or analysis would include a DNA test.

Subsections (2) and (3)

116.     Subsections (2) and (3) make the same change to the grounds for issuing a warrant of further detention in paragraph 32 of Schedule 8. By virtue of paragraph 36(4) of Schedule 8 this new ground will also apply in relation to an application for extension of a warrant of further detention.

Subsection (6)

117.     Subsection (6) sets out that the amendments made to the grounds for extension of detention under Schedule 8 to the TACT shall not apply if the arrest of the person under detention occurred before the commencement of this section of the Act, or if his examination under Schedule 7 to the TACT began before the commencement of this section of the Act.