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Explanatory Notes

Counter-Terrorism Act 2008

2008 CHAPTER 28

Contents

  1. Introduction

  2. Summary

  3. Overview

  4. Territorial Extent and Application

  5. Commentary on Sections

    1. Part 1 – Powers to Gather and Share Information

      1. Power to remove documents for examination

        1. Section 1 – Power to remove documents for examination

        2. Section 2 – Offence of obstruction

        3. Section 3 – Items subject to legal privilege

        4. Section 4 – Record of removal

        5. Section 5 – Retention of documents

        6. Section 6 – Access to documents

        7. Section 7 – Photographing and copying of documents

        8. Section 8 – Return of documents

        9. Section 9 – Power to remove documents: supplementary provisions

      2. Power to take fingerprints and samples from person subject to control order

        1. Section 10 – Power to take fingerprints and samples: England and Wales

        2. Section 11 – Power to take fingerprints and samples: Scotland

        3. Section 12 – Power to take fingerprints and samples: Northern Ireland

        4. Section 13 – Power to take fingerprints and non-intimate samples: transitional provision

      3. Retention and use of fingerprints and samples

        1. Sections 14 to 18 – Retention and use of fingerprints and samples

        2. Section 14 – Material subject to the Police and Criminal Evidence Act 1984

        3. Section 15 – Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989

        4. Section 16 – Material subject to the Terrorism Act 2000: England, Wales and Northern Ireland

        5. Section 17 – Material subject to the Terrorism Act 2000: Scotland

        6. Section 18 – Material not subject to existing statutory restrictions

      4. Disclosure of information and the intelligence services

        1. Sections 19 to 21 – Disclosure of information and the intelligence services

        2. Schedule 1 – Disclosure and the Intelligence Services: Consequential Amendments

    2. Part 2 –Post-Charge Questioning of Terrorist Suspects

      1. Section 22 – Post-charge questioning: England and Wales

      2. Section 23 – Post-charge questioning: Scotland

      3. Section 24 – Post-charge questioning: Northern Ireland

      4. Section 25 – Recording of interviews

      5. Section 26 – Issue and revision of code of practice

      6. Section 27 – Post-charge questioning: meaning of “terrorism offence”

    3. Part 3 – Prosecution and Punishment of Terrorist Offences

      1. Jurisdiction

        1. Section 28 – Jurisdiction to try offences committed in the UK

      2. Consent to prosecution

        1. Section 29 – Consent to prosecution of offence committed outside UK

      3. Sentencing

        1. Section 30 – Sentences for offences with a terrorist connection: England and Wales

        2. Section 31 – Sentences for offences with a terrorist connection: Scotland

        3. Section 32 – Sentences for offences with a terrorist connection: armed forces

        4. Section 33 – Power to amend list of offences where terrorist connection to be considered

        5. Schedule 2 – Offences where terrorist connection to be considered

      4. Forfeiture

        1. Section 34 – Forfeiture: terrorist property offences

        2. Section 35 – Forfeiture: other terrorism offences and offences with a terrorist connection

        3. Section 36– Forfeiture: supplementary provisions

        4. Section 37 – Forfeiture: application of proceeds to compensate victims

        5. Section 38 – Forfeiture: other amendments

        6. Section 39 – Forfeiture: consequential amendments

        7. Schedule 3 – Forfeiture: consequential amendments

    4. Part 4 – Notification Requirements

      1. Section 40 – Scheme of this Part

      2. Offences to which this Part applies: terrorism offences

        1. Section 41 – Offences to which this Part applies: terrorism offences

        2. Section 42 – Offences to which this Part applies: offences having a terrorist connection

        3. Section 43 – Offences dealt with before commencement

      3. Persons to whom the notification requirements apply

        1. Section 44– Persons to whom the notification requirement s apply

        2. Section 45 – Sentences or orders triggering notification requirements

        3. Section 46 – Power to amend specified terms or periods of imprisonment or detention

      4. Notification requirements

        1. Section 47– Initial notification

        2. Section 48 – Notification of changes

        3. Section 49 – Periodic re-notification

        4. Section 50 – Method of notification and related matters

        5. Section 51 – Meaning of “local police area”

        6. Section 52 – Travel outside the United Kingdom

      5. Period for which notification requirements apply

        1. Section 53 – Period for which notification requirements apply

      6. Offences in relation to notification

        1. Section 54 – Offences relating to notification

        2. Section 55 – Effect of absence abroad

        3. Section 56 –Notification on return after absence from UK

      7. Supplementary provisions

        1. Section 57 –Notification orders

        2. Schedule 4 – Notification Orders

        3. Section 58 – Foreign travel restriction orders

        4. Schedule 5 – Foreign Travel Restriction Orders

        5. Section 59– Application of Part to service offences and related matters

        6. Schedule 6 – Notification Requirements: Application to Service Offences

        7. Section 60 – Minor definitions for Part 4

        8. Section 61 – References to a person being “dealt with” for an offence

    5. Part 5 – Terrorist Financing and Money Laundering

      1. Terrorist financing and money laundering

        1. Section 62 – Terrorist financing and money laundering

        2. Schedule 7 – Terrorist financing and money laundering

    6. Part 6 – Financial Restrictions Proceedings

      1. CHAPTER 1 – Application to set aside financial restrictions decision

      2. CHAPTER 2 – Financial restrictions proceedings

    7. Part 7 – Miscellaneous

      1. Inquiries

        1. Section 74 – Inquiries: intercept evidence

      2. Amendment of definition of “terrorism” etc

        1. Section 75 – Amendment of definition of “terrorism” etc

      3. Terrorist offences

        1. Section 76 – Offences relating to information about members of armed forces etc

        2. Schedule 8 – Offences relating to information about members of armed forces etc: supplementary provisions

        3. Section 77 – Terrorist property: disclosure of information about possible offences

      4. Control orders

        1. Section 78 – Control orders: powers of entry and search

        2. Section 79 – Control orders: meaning of involvement in terrorism-related activity

        3. Section 80 –Time allowed for representations by controlled persons

        4. Section 81 – Applications for anonymity for controlled persons

      5. Pre-charge detention of terrorist suspects

        1. Section 82 – Pre-charge detention: minor amendments

      6. Forfeiture of terrorist cash

        1. Section 83 – Forfeiture of terrorist cash: determination of period for which cash may be detained

        2. Section 84 – Forfeiture of terrorist cash: appeal against decision in forfeiture proceedings

      7. Costs of policing at gas facilities

        1. Section 85 – Policing at gas facilities: England and Wales

        2. Section 86 – Policing at gas facilities: Scotland

        3. Section 87 – Designated gas transporters

        4. Section 88 – Costs of policing at gas facilities: recovery of costs

        5. Section 89 – Costs of policing at gas facilities: supplementary provisions

        6. Section 90 – Application of provisions to costs incurred before commencement

      8. Appointment of special advocates in Northern Ireland

        1. Section 91 – Appointment of Special Advocates in Northern Ireland

    8. Part 8 – Supplementary Provisions

      1. General definitions

        1. Section 92 –Meaning of “terrorism”

        2. Section 93 – Meaning of offence having a “terrorist connection”

        3. Section 94 – Meaning of “ancillary offence”

        4. Section 95 – Meaning of “service court” and “service offence”

      2. Orders and regulations

        1. Section 96 – Orders and regulations

        2. Section 97 – Orders and regulations: affirmative and negative resolution procedure

      3. Financial provisions

        1. Section 98 - Financial provisions

      4. Final provisions

        1. Section 100 – Commencement

        2. Section 101 – Extent

  6. Hansard References

Introduction

1.These explanatory notes relate to the Counter-Terrorism Act which received Royal Assent on 26 November 2008. They have been prepared by the Home Office in order to assist the reader of the Act and to help inform debate on it. 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. Where a section or part of a section does not seem to require any explanation or comment, none is given.

Summary

3.The Act amends the law in relation to terrorism in a number of distinct ways. It includes provisions relating to: the gathering and sharing of information for counter-terrorism and other purposes, including the disclosure of information to and by the intelligence services; post-charge questioning of terrorism suspects; the prosecution of terrorism offences and punishment of convicted terrorists; notification requirements for persons convicted of terrorism-related offences; powers to act against terrorist financing, money laundering and certain other activities; reviews of certain Treasury decisions; inquiries dealing with sensitive information; and various other miscellaneous measures. New powers and offences will be created by the provisions of the Act and existing terrorism legislation will be amended and reformed.

Overview

4.The Act’s Parts and Schedules are as follows.

5.Part 1 (powers to gather and share information) contains provisions for new powers relating to the removal of documents for examination in the context of a search under existing terrorism legislation. It also provides a power for a constable to take fingerprints and samples from individuals subject to control orders and amends the law relating to the retention and use of fingerprints and DNA samples. It also contains provisions on the disclosure of information to and by the intelligence services and their use of such information.

6.Part 2 (post-charge questioning of terrorist suspects) provides that terrorist suspects may be questioned after they have been charged. The questioning will be authorised by a judge and adverse inferences from the silence of the suspect may be drawn by a court in England and Wales or Northern Ireland.

7.Part 3 (prosecution and punishment of offences) provides for specified terrorism offences committed anywhere in the UK to be tried in any part of the UK. It also requires the Attorney General’s or Advocate General for Northern Ireland’s consent for prosecution of certain terrorism offences committed outside the UK. This Part also deals with sentences for terrorism cases tried under the general criminal law: the court is to treat a terrorist connection as an aggravating factor when considering sentence. It also extends the forfeiture regime applicable in terrorist cases.

8.Part 4 (notification requirements) makes provision about the notification of information to the police by certain individuals convicted of terrorism or terrorism-related offences. When in the community, such individuals must provide the police with certain personal information, must notify any subsequent changes to this information and confirm its accuracy annually. And under Schedule 5, a court may, on application, impose a foreign travel restriction order on an individual subject to the notification requirements, restricting that person’s overseas travel.

9.Part 5 (terrorist financing and money laundering) confers powers on the Treasury to direct persons operating in the financial sector to take certain actions in respect of transactions or business with persons in a country of money laundering, terrorist financing or proliferation concern.

10.Part 6 (financial restrictions proceedings) creates a statutory basis for a person affected by certain kinds of Treasury decision to apply to have the decision set aside. The Treasury decisions to which this part relates are those made under (i) the UN Terrorism Orders, (ii) Part 2 of the Anti-terrorism, Crime and Security Act 2001, or (iii) Schedule 7 to this Act. It also provides for Rules of Court to make provision about such applications, in particular for the procedure which is to apply where the reason for the Treasury's decision (or part of it) cannot be disclosed to the applicant because disclosure would be contrary to the public interest (i.e. it involves "closed source material"). Closed source material relevant to the Treasury's decision would be considered at a closed hearing, for which a special advocate (who has been security-vetted) would represent the interests of the applicant, with the detailed procedure set out in Rules of Court made under this part.

11.Part 7 (miscellaneous) amends the Regulation of Investigatory Powers Act 2000 to allow intercept material to be disclosed in exceptional circumstances to counsel to an inquiry held under the Inquiries Act 2005 (in addition to the inquiry panel); it amends the definition of terrorism in section 1 of the Terrorism Act 2000 (“the 2000 Act”) (and various other pieces of terrorism legislation) by inserting a reference to a racial cause. This Part also creates an offence of eliciting, publishing or communicating information about members of the armed forces, members of the intelligence services or constables which is likely to be of use to terrorists, and amends the offence of failing to disclose information about a suspected terrorist finance offence. It also includes some amendments to the control order system under the Prevention of Terrorism Act 2005, minor amendments to the provisions on pre-charge detention of terrorist suspects under the 2000 Act, amendments to provisions on forfeiture of terrorist cash, a new scheme for the recovery of costs of policing at gas facilities and a provision on the appointment of special advocates in Northern Ireland.

12.Part 8 contains supplementary provisions.

Territorial Extent and Application

13.Most of the Act extends to the whole of the United Kingdom, although provisions amending or repealing other enactments have the same extent as the enactment being amended or repealed. In addition, a number of provisions apply in only one of the three jurisdictions. The provisions of the Act with a more limited territorial extent or application are as follows:

  • In Part 1, in the sections on taking and using fingerprints and samples from controlled persons, section 10 amends the Police and Criminal Evidence Act 1984 (“PACE”) and therefore extends only to England and Wales, section 11 only applies to persons subject to control orders in Scotland and section 12 amends the Police and Criminal Evidence (Northern Ireland) Order 1989 (“PACE NI”) and therefore extends only to Northern Ireland.

  • In the provisions in Part 1 on the retention and use of fingerprints and samples, section 14 amends PACE and extends only to England and Wales and section 15 amends PACE NI and extends only to Northern Ireland.

  • In Part 2, in the sections on post-charge questioning, section 22 applies only in England and Wales, section 23 in Scotland and section 24 in Northern Ireland.

  • In Part 3, section 30 (sentences for offences with a terrorist connection: England and Wales) applies to court proceedings in England and Wales and section 31 applies to court proceedings in Scotland. There is no corresponding provision for Northern Ireland.

  • In Part 7, there are separate sections applicable in England and Wales and in Scotland on the recovery of costs of policing at gas facilities (sections 85 and 86).

  • Section 91 (appointment of special advocates in Northern Ireland) substitutes references to the “Advocate General for Northern Ireland” for references to the “Attorney General for Northern Ireland” in various pieces of legislation; the primary application of this section will therefore be in Northern Ireland.

14.The Act only deals with reserved matters as respects Scotland and excepted matters as respect Northern Ireland. It does not confer any functions on the National Assembly for Wales, and in general applies to Wales in the same way as it applies to England.

Commentary on Sections

Part 1 – Powers to Gather and Share Information

Power to remove documents for examination

Section 1 – Power to remove documents for examination

15.Section 1 provides a new power for a constable to remove documents in the course of a terrorist-related search for the purpose of ascertaining whether they may be seized. Documents removed under section 1 may, subject to the time limits in section 5, be retained until the examination is complete. This power might be used, for example, to remove documents in a foreign language for translation.

16.Subsection (1) specifies the situations in which the new power may be used: it may only be used in the context of searches under the listed provisions of the Terrorism Act 2000 (the 2000 Act), the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006.

17.Subsection (3) makes provision in relation to documents stored in an electronic form.

18.Subsection (4) provides that where a document is removed under this power, a constable has the same powers of seizure (at common law and under statute) as if it had not been removed. This will include the general power of seizure under section 19 of PACE which allows a constable lawfully on premises to seize a document if the constable reasonably believes that it is evidence in relation to any offence and it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

Section 2 – Offence of obstruction

19.Section 2 creates the offence of wilfully obstructing a constable in the exercise of the power conferred by section 1. This is a summary offence, punishable by a maximum penalty of up to 51 weeks’ imprisonment in England and Wales (but before section 281(5) of the Criminal Justice Act 2003 comes into force, 6 months), 12 months’ imprisonment in Scotland and 6 months’ imprisonment in Northern Ireland.

Section 3 – Items subject to legal privilege

20.Section 3 deals with documents that are, or may be, legally privileged. Under subsection (1) a constable may not remove a document if he has reasonable cause to believe that it is an item subject to legal privilege or has such an item comprised in it (for example it is a document which includes correspondence with a lawyer in it but also includes other information). If it is discovered that a document that has been removed is an item subject to legal privilege, or has such an item comprised in it, it must be returned immediately (subsection (3)). However, a document which has an item subject to legal privilege comprised in it may be removed or retained if it is not reasonably practicable to separate the legally privileged part from the rest of the document without prejudicing the lawful use of the latter if it were to be seized (subsections (2) and (4)). This will be the case for example where tearing out legally privileged information from a larger document would also remove non-legally privileged information, which might comprise evidence of an offence, on the reverse of the page.

21.Subsection (5) provides that where parts of a document which are subject to legal privilege are removed or retained because it is not reasonably practicable to separate them from those parts which are not, the legally privileged parts must not be used in any other way but to facilitate the examination of the rest of the document.

22.Subsection (6) defines an “item subject to legal privilege” for the purpose of this section by reference to PACE for England and Wales, the Proceeds of Crime Act 2002 for Scotland and PACE NI for Northern Ireland.

Section 4 – Record of removal

23.Subsections (1) and (2) provide that a constable who removes a document using the new power of removal must make a written record of the removal as soon as is reasonably practicable and in any event within 24 hours of the removal.

24.Subsections (3), (4) and (5) set out the matters to be included in such record and subsection (10) makes specific provision as to how the reference to the address of the premises in subsection (3) is to be interpreted where the search is of a vehicle. Many of the listed search powers include searches of vehicles (for example, searches under Schedule 5 to the 2000 Act may be of “any premises”, and “premises” is defined in section 121 of that Act to include vehicles).

25.Subsections (7) and (8) provide that a constable must, within a reasonable time of receiving a request, supply a copy of the search record to a person with an interest in the document as defined.

26.Subsection (9) provides that if a document has been found during the course of a search under a warrant in England and Wales or Northern Ireland, the constable must endorse the warrant stating that the document was removed under the provisions of section 1 of this Act. This is so that the person or court which issued the warrant will be aware of the action that has been taken under it when the warrant is returned to them.

Section 5 – Retention of documents

27.Section 5 provides that documents removed under section 1 cannot be retained for more than 48 hours unless further retention – up to a maximum of 96 hours from the time of removal –­ is authorised by a constable of at least the rank of chief inspector. Such authorisation may only be given if that officer is satisfied of the matters contained in subsection (2).

Section 6 – Access to documents

28.Section 6 allows a person referred to in subsection (3), on request, to have supervised access to a document retained under the provisions of section 5 or to be given a copy of such a document (subsection (2)). This is subject however to the officer in charge of the investigation (defined in subsection (5)) being able to refuse such access or a copy on the grounds set out in subsection (4). The examination of a document under this power might not be part of an investigation into an offence (for example where the document was removed during the search of a terrorist suspect prior to arrest). This explains why the grounds in section 6(4)(a) are required. Subsection (4)(b) covers the investigation of an offence - for example the police may believe that providing access to or a copy of the document would tip off a person as to the documentation seized such that other evidence of the offence could be covered up. Subsection (4)(c) covers the prejudice of criminal proceedings. The ground in subsection (4)(d) is to cover for example a document which the officer has reasonable grounds to believe constitutes information useful to terrorists.

Section 7 – Photographing and copying of documents

29.Section 7 provides that a document removed under section 1 may not be photographed or copied except for the purposes of section 6 or to produce information stored in electronic form in a visible and legible form.

30.On return of the document, electronic copies must be destroyed and any hard copies made under subsection (1) must be returned at the same time (subsection (2)).

31.Subsections (3) and (4) provide that the persons referred to in subsection (3) can request a certificate to show that all copies have been so destroyed, made inaccessible or returned and such a certificate must be issued within three months of the request. The certificate is to be issued by the “relevant chief officer of police” as defined in subsection (5).

Section 8 – Return of documents

32.This section provides that a document that is to be returned (because the time limit for retention has expired or the document is not one that may be seized), and any copy, is to be returned to the person searched or the occupier of the premises on which it was found. However, where another person appears to have a better right to the document, the document must be returned instead to that person, and where different persons claim to be entitled to the document, it may be retained for as long as reasonably necessary to determine who has best claim to it.

Section 9 – Power to remove documents: supplementary provisions

33.Subsection (2) means that when a search is carried out under section 52(1) of the Anti-Terrorism, Crime and Security Act 2001, references in these provisions to a constable should be read as references to an authorised officer as defined in that section – as that search power is conferred on an authorised officer rather than a constable.

Power to take fingerprints and samples from person subject to control order

Section 10 – Power to take fingerprints and samples: England and Wales

34.Section 10 amends sections 61, 63, 63A, 64 and 65 of PACE, providing a constable with powers relating to the taking and use of fingerprints and non-intimate samples from an individual subject to a control order. (The control order regime is contained in the Prevention of Terrorism Act 2005.) Both “fingerprints” and “non-intimate samples” have the same meaning as that given in section 65 of PACE. That is, “fingerprints” include palm prints and “non-intimate samples” means a sample of hair other than pubic hair; a sample taken from a nail or from under a nail; a swab taken from any part of a person’s body including the mouth but not any other body orifice; saliva and a footprint or a similar impression of any part of a person’s body other than a part of his hand. These amendments will apply to all individuals subject to control orders that are in force from the time this section is commenced, regardless of when the control order was made, but the provisions will not apply to individuals whose control orders have already lapsed (see subsection (5) and section 13).

35.Subsections (1) and (2) provide a constable with the power to take fingerprints and non-intimate samples respectively without the appropriate consent of an individual subject to a control order. Appropriate consent is defined in section 65 of PACE as meaning: (a) in relation to a person who has attained the age of 17 years, the consent of that person; (b) in relation to a person who has not attained that age but has attained the age of 14 years, the consent of that person and his parent or guardian; and (c) in relation to a person who has not attained the age of 14 years, the consent of his parent or guardian. PACE Code D (Code of Practice for the Identification of Persons by Police Officers) provides that a constable can use reasonable force to ensure compliance with this provision where the appropriate consent is withheld.

36.Subsection (3)(a) provides a constable with the power to check the fingerprints and non-intimate samples of an individual subject to a control order against the same databases that other fingerprints etc. taken under PACE may be checked against (see PACE section 63A, as amended by section 14). So the fingerprints or samples may be checked against other such fingerprints or samples and/or information derived from other samples that are held by or on behalf of any relevant law enforcement authority or are held in connection with or as a result of an investigation of an offence or which are held by or on behalf of the Security Service or the Secret Intelligence Service. Relevant law enforcement authorities are defined in section 63A(1A) of PACE to include a police force and the Serious Organised Crime Agency. The definition also includes persons outside the territory of the United Kingdom whose functions correspond to those of a police force and any other public authority with functions in any part of the British Islands which consist of or include the investigation of crimes or the charging of offenders.

37.Subsection (3)(b) provides a constable with powers to require a controlled individual to attend a police station for the purposes of having their fingerprints and/or non-intimate samples taken. In the event that such a request is not complied with, the person may be arrested without a warrant (see the amendment to section 63A(7) made by subsection (6)).

38.Subsection (4) allows the retention of a controlled individual’s fingerprints and non-intimate samples taken under the new provisions, subject to the safeguards in section 64 of PACE (as amended by section 14). These safeguards ensure that any such samples retained are only used for purposes related to the interests of national security, the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased person or of the person from whom the material came.

39.Subsection (6) makes consequential amendments of PACE, many of which mean that fingerprints and non-intimate samples taken from a controlled person will be subject to the same provisions as fingerprints and non-intimate samples taken under current PACE powers. These include safeguards such as requiring a constable to inform the individual concerned of the reason for taking the fingerprints or non-intimate sample without consent (this will normally be simply that they are subject to a control order) before they are taken and informing them that the fingerprints and/or samples may be the subject of a “speculative search”. The matters of information must also be recorded as soon as it is practicable to do so. The term “speculative search” is defined at section 65 of PACE and it is taken to mean that the fingerprints and/or non-intimate samples can be randomly checked against other samples that have been taken under current PACE powers as mentioned in relation to subsection (3).

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