Office of Public Sector Information
40.Section 11 makes similar provision to section 10 for Scotland in relation to the taking of fingerprints and non-intimate samples from an individual subject to a control order. The section creates new free-standing powers rather than amending any existing legislation. The main area of difference between the powers in England and Wales and the powers in Scotland is that any samples that are obtained may be used only for the purposes of a terrorist investigation or in the interests of national security. This difference is necessary in order to avoid making provision in areas that are within devolved competence. In addition, in line with current procedures in Scotland, constables would need authorisation from an officer of the rank of inspector or above to take certain types of non-intimate samples (non-pubic hair or nail samples and external body fluid samples) from controlled individuals. (A constable does not require such authorisation to take fingerprints, palm prints, other external body prints and saliva samples.) In contrast, current procedures in England, Wales and Northern Ireland allow constables to take fingerprints and all non-intimate samples when individuals are arrested under PACE or PACE NI without such authorisation. The difference arises because the provisions in sections 10, 11 and 12 are intended to be in line with existing procedures in each country.
41.Section 12 makes corresponding provision to section 10 for Northern Ireland in relation to the taking of fingerprints and non-intimate samples from an individual subject to a control order. It amends PACE NI.
42.Section 13 makes transitional provision for the powers in sections 10, 11 and 12 and provides that the powers to take fingerprints and non-intimate samples from a person subject to a control order will have effect at the time the sections are commenced regardless of when the control order was made.
43.Sections 14 to18 (retention and use of fingerprints and samples) seek to ensure that fingerprints, DNA and footwear impressions (“samples”) can be effectively used for counter-terrorist purposes including by the security services by:
allowing the cross checking of security services material with ordinary crime (PACE) samples in England, Wales and Northern Ireland. (Scotland does not have PACE);
putting the retention and use of material not subject to existing restriction (mostly covertly acquired fingerprints and samples) on a statutory footing; and
standardising the purposes for which fingerprints and samples can be used as between the Terrorism Act 2000, PACE and material not subject to existing statutory restrictions (section 18 of this Act).
44.These sections amend the purposes for which samples obtained during criminal or terrorist investigations can be used. This includes adding that such samples can be used for the purposes of national security. National security is defined in section 1(2) of the Security Services Act 1989 and includes “threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”
45.Section 64(1A) of PACE currently allows samples to be retained and used for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or for the identification of dead people (the same uses are provided for in PACE NI). In contrast, paragraph 14 of Schedule 8 to the 2000 Act provides that samples taken under the provisions of that Act can only be used for terrorist investigations or for the purposes related to the prevention or detection of crime, the investigation of an offence of the conduct of prosecution.
46.These sections will standardise the purposes for which the samples can be used between the 2000 Act, PACE and PACE Northern Ireland. When the uses for the samples are different they cannot be stored on inter-connected databases.
47.Subsection (2) amends section 63A(1) of PACE to allow samples (fingerprints, impressions of footwear or DNA samples) taken under PACE to be checked against other samples held by or on behalf of the Security Service (MI5) or the Secret Intelligence Service (MI6 or SIS). The section adds a similar power to check information derived from other samples against that information derived from material held by the Security Services or the Secret Intelligence Service. Samples may be taken from a person under PACE if the person is suspected of being involved with a recordable offence, has been charged with a recordable offence or informed that he will be reported for such an offence, or, following the amendments made by section 10, if he is subject to a control order.
48.Subsection (3) amends section 63A(1ZA) of PACE similarly to allow the cross checking against material held by the Security Service or the Secret Intelligence Service of material taken from a person under section 61(6A), which allows a constable to take a person’s fingerprints etc. if the person’s name cannot be ascertained or if the constable believes the person has given a false name.
49.Subsection (5) inserts a new subsection (1AB) into section 64 of PACE that sets out the purposes for which samples can be used. The section expands the uses to permit samples to be used in the interest of national security as well as for the purposes already listed in section 64, which are purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for purposes relating to the identification of a deceased person or the person from whom the material came.
50.Section 15 amends PACE NI to make changes for Northern Ireland that have the same effect to those made above to PACE for England and Wales. These will permit samples and fingerprints to be checked against records held by or on behalf of the Security Service or the Secret Intelligence Service and for the use of such samples to be expanded to include when it is in the interests of national security.
51.Section 16 amends paragraph 14 of Schedule 8 to the 2000 Act. Schedule 8 to the 2000 Act governs the treatment of persons detained under that Act. Paragraph 14 applies to fingerprints and samples taken under Schedule 8. Paragraph 14 is amended so that the fingerprints or samples taken under Schedule 8 may be used in the interests of national security and in the identification of a deceased person or of the person from whom the material came, in addition to the uses already allowed for in paragraph 14 (in a terrorist investigation or in the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution). This ensures that the purposes cover all those for which fingerprints and samples taken under PACE and PACE NI may be used following the amendments made by sections 14 and 15. It also provides that samples taken under the 2000 Act in England, Wales and Northern Ireland may be cross checked against material held under section 18. Paragraph 14 already allows cross checking against material referred to in section 63A PACE (and PACE NI). Therefore the amendments to section 63A PACE (and PACE NI) made by this Act will enable the fingerprints and samples taken under Schedule 8 to be cross-checked against any samples held by or on behalf of the Security Service or the Secret Intelligence Service
52.Section 17 makes amendments to paragraph 20 of Schedule 8 to the 2000 Act (which applies in Scotland) the effect of which are similar to the amendments made by section 16 (which amends provisions applying in England and Wales). Paragraph 20 governs the use of fingerprints and samples of those detained under the 2000 Act in Scotland. Subsection (2) amends paragraph 20 so as to allow samples obtained in Scotland under the 2000 Act to be used for purposes of a terrorist investigation, in the interest of national security, for the purposes related to the prevention and detection of crime or the investigation of an offence or the conduct of a prosecution.
53.Subsection (3) adds a new paragraph 21 to Schedule 8 that applies, with modifications, section 20 of the Criminal Procedure (Scotland) Act 1995. The effect is that the 2000 Act samples may be cross checked against samples taken under the 1995 Act, samples referred to in section 63A of PACE and against material held under section 18.
54.Section 18 provides a statutory framework for the use and retention of DNA samples and fingerprints that are not held subject to other existing statutory restrictions.
55.Subsection (2) restricts the uses to which such samples and fingerprints held by a law enforcement authority in England, Wales or Northern Ireland may be put. They may only be used in the interest of national security, for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or for the purposes related to the identification of a deceased person or of the person from whom the material came.
56.Subsection (3) imposes a condition that must be met before the samples and fingerprints may be used for the purposes set out in subsection (2). The condition is that the material must have been either: (i) obtained by the authority pursuant to an authorisation under the Police Act 1997 or the Regulation of Investigatory Powers Act 2000; (ii) supplied to the authority by another law enforcement body (domestic or foreign); or (iii) otherwise lawfully obtained by the authority for one of the purposes in subsection (2).
57.Subsection (4) clarifies certain terms used in subsection (2): use of material includes allowing a check to be made against it and disclosing to another person. This phrase is used principally to allow samples to be exchanged with the security agencies who are not included in the definition of “law enforcement authority” and “police force” in section 18(5). The reference in subsection (2) to crime includes actions which constitute a criminal offence under law of any part of the UK or a territory outside the UK or actions which would have been a criminal offence had they been conducted in the UK; and the references to investigations and prosecutions are also given a wide meaning, so as to apply equally to investigations and prosecutions which are conducted outside the UK.
58.Subsection (5) defines terms used in this section.
59.Subsection (6) sets out “the existing statutory restrictions” which are referred to in subsection (1).
60.Section 19 provides that any person may give information to any of the intelligence services (defined in section 21 as the Security Service, the Secret Intelligence Service, and the Government Communications Headquarters) for the purpose of any of the functions of that service. The provisions that specify the functions of each of the intelligence services are listed in section 21(2). The person giving the information may do so regardless of any duty to keep the information confidential or of any other restriction on disclosure (subsection (6)). This is subject the Data Protection Act 1998 and Part 1 of the Regulation of Investigatory Powers Act 2000 (see section 20(2)).
61.Subsection (2) provides that information obtained by an intelligence service in connection with one of its functions may be used by it in connection with any of its other functions. Subsections (3) to (5) govern the disclosure of information obtained by the intelligence services for the purposes of any of its functions. Such information may be disclosed by the service for the purpose of the proper performance of any of its functions or for other the purposes specified in those subsections (which include for each organisation the purpose of any criminal proceedings). Again, such a disclosure will not breach any obligation of confidentiality or other restriction (subsection (6)), subject to compliance with the Data Protection Act and Part 1 of the Regulation of Investigatory Powers Act 2000 (section 20(2)).
62.Section 20 makes it clear that the information sharing provisions in section 19 do not affect the duties on the heads of the intelligence services (listed in subsection (1)) to ensure that arrangements are in place for securing that their service obtains and discloses information only in accordance with the purposes specified in the provisions listed in that subsection (which mirror the purposes listed in section 19(3) to (5)).
63.Paragraphs 1, 4 and 5 omit section 19(2)(a) of the Anti-terrorism, Crime and Security Act 2001, section 38 of the Immigration, Asylum and Nationality Act 2006 and section 67 and subsection 39(4(g) of the Statistics and Registration Service Act 2007 as there will be no need for the specific information-sharing gateways in these provisions once the new information-sharing gateway in section 19 is brought into force.
64.Paragraphs 2 and 3 make amendments to secondary legislation concerning the electoral register, removing restrictions in that legislation on onward disclosure by the intelligence and security agencies (as such disclosure will now be governed by section 19 of the Act), but preserving all rights conferred on the intelligence and security agencies to obtain information from the electoral register under the regulations.
65.Subsection (2) allows a judge of the Crown Court to authorise questioning of a person in England and Wales about an offence, for which they have been charged or after they have been officially informed that they may be prosecuted, where the offence was a terrorism offence (as defined in section 27) or where the judge considers the offence to have a terrorist connection (as defined in section 93).
66.Subsection (3) provides that the judge authorising post-charge questioning must specify the period during which questioning is authorised and may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.
67.Subsection (4) specifies that the time period for which questioning is authorised begins when questioning commences and runs continuously from that time irrespective of whether or not questioning stops. Subsection (4)(b) limits the period for which a judge can authorise questioning to a maximum of 48 hours before further authorisation must be sought.
68.Subsection (5) allows the judge to authorise the removal of a suspect to another place for the purposes of questioning. For example, this would allow a judge to authorise a suspect’s removal from a prison to a police station for questioning.
69.Subsection (6) provides that a judge can authorise post-charge questioning under this section only if satisfied that further questioning of the person is necessary in the interests of justice, that the police investigation related to the suspect is being conducted diligently and expeditiously, and that it would not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge. Undue interference might arise for example if authorisation for questioning is sought too near to the time of the trial.
70.Subsections (7) and (8) provide that codes of practice under section 66 of PACE must make provision about post-charge questioning.
71.Subsection (9) extends the application of section 34(1) of the Criminal Justice and Public Order Act 1994, which allows adverse inferences to be drawn from an accused person’s failure to mention facts when questioned, to cover post-charge questioning under this section.
72.Subsection (2) allows a sheriff to authorise questioning of a person in Scotland about an offence, for which they have been charged or when they have appeared on petition in respect of the offence, where the offence is a terrorism offence (as defined in section 27) or where it appears to the sheriff that the offence has a terrorist connection (as defined in section 93).
73.Subsection (3) provides that the sheriff authorising post-charge questioning must specify the period during which questioning is authorised and may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.
74.Subsection (4) specifies that the time period for which questioning is authorised begins when questioning commences and runs continuously from that time irrespective of whether or not questioning stops. Subsection (4)(b) limits the period for which a judge can authorise questioning to a maximum of 48 hours before further authorisation must be sought.
75.Subsection (5) allows the sheriff to authorise the removal of a suspect to another place for the purposes of questioning. For example, this would allow a judge to authorise a suspect’s removal from a prison to a police station for questioning.
Subsection (6) provides that a sheriff can authorise post-charge questioning under this section only if satisfied that further questioning of the person is necessary in the interests of justice, that the police investigation related to the suspect is being conducted diligently and expeditiously, and that it would not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.
76.Subsection (2) allows a district judge (magistrate’s court) to authorise questioning of a person in Northern Ireland about an offence, for which they have been charged or after they have been officially informed that they may be prosecuted, by a constable where the offence is a terrorism offence (as defined in section 27) or where it appears to the judge that the offence has a terrorist connection (as defined in section 93).
77.Subsections (3), (4), (5), and (6) set out the same requirements for the authorisation of post-charge questioning in Northern Ireland as for England and Wales under subsections (3), (4), (5), and (6) of section 22.
78.Subsections (7) and (8) provide that codes of practice under Article 65 of PACE NI must make provision about post-charge questioning.
79.Subsections (9) and (10) amend the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)) to allow adverse inferences to be drawn from an accused person’s failure to mention facts when questioned, to cover post-charge questioning under this section.
80.Section 25 requires post-charge questioning under sections 22 - 24 to be video-recorded with sound (subsection (2)).
81.Codes of practice must be issued for the video-recording of interviews which must be observed in post-charge questioning under sections 22 - 24 (subsections (3) & (4). Any codes made under this section can make different provision for different parts of the UK (subsection (5)).
82.Section 26 sets out the process for the issue and revision of a code of practice for the video-recording of post-charge questioning under section 25. The code of practice must first be published in draft and is brought into operation by an order; this order is subject to the affirmative resolution procedure.
83.Section 27 sets out the terrorism offences to which sections 22 to 24 apply: the list of terrorism offences in subsection (1) includes offences under the Terrorism Act 2000 and the Terrorism Act 2006. These provisions will also apply to the ancillary offences associated with the offences listed (subsection (2)). Subsections (3) and (4) allow the Secretary of State to amend this list of offences by order; this is subject to the affirmative resolution procedure.
84.Section 28 provides for UK-wide jurisdiction for specified terrorism offences, regardless of where in the UK the offence took place. The purpose of this section is to remove the need to have separate trials for connected terrorist offences which occur in different jurisdictions within the UK. The common law currently provides that a significant part of an offence must take place within the part of the UK in which the court trying the offence is located. Subsection (2) sets out the offences to which this provision is to apply. These are the offence under section 113 of the Anti-Terrorism, Crime and Security Act 2001 and all offences under the 2000 and 2006 Terrorism Acts (other than those with an extra-territorial element and those that do not have UK-wide extent). This provision will also apply to the ancillary offences associated with the offences listed in subsection (2) by virtue of the general law which provides that jurisdiction for an ancillary offence follows that for the substantive offence.
85.Subsections (3) and (4) allow the Secretary of State to amend the list of terrorism offences in subsection (2) by order (subject to the affirmative resolution procedure), and subsection (5) provides that an offence may only be added in this way if it appears to the Secretary of State necessary to do so for the purpose of dealing with terrorism. This means that where an offence under the general criminal law is added to this section by order, the jurisdiction provided by the section will only apply where such an offence is being used in a terrorism case. At report stage in the House of Commons the then Minister of State for policing, crime and security in the Home Office, Mr Tony McNulty, said that this section and any offences added under the order-making power will apply only in relation to offences committed on or after the coming into force of the relevant provision (Hansard, 10 June 2008: Column 226 – 227).
86.Subsection (6) inserts a new subsection (6A) into section 1 of the Justice and Security (Northern Ireland) Act 2007. Section 1 of that Act allows for a non-jury trial in Northern Ireland where certain conditions are met. This new subsection precludes the Director of Public Prosecutions for Northern Ireland from issuing a certificate for a non-jury trial where the proceedings are only taking place in Northern Ireland as a result of the jurisdiction provided by section 28 and the only condition which would enable a non-jury trial to take place is the fourth condition of section 1 of the 2007 Act. This means a prosecution in Northern Ireland arising from the jurisdiction provided by section 28 could only be by way of a non-jury trial where the offence had a connection to a proscribed terrorist organisation whose activities are connected with the affairs of Northern Ireland (in the ways set out in conditions 1 to 3 in section 1 of the 2007 Act) and the Director of Public Prosecutions for Northern Ireland was satisfied that in view of this there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
87.This section amends section 117(2A) of the Terrorism Act 2000 (the 2000 Act) and section 19(2) of the Terrorism Act 2006 so that the consent of the Attorney General or the Advocate General for Northern Ireland (or prior to the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002, the Attorney General for Northern Ireland) is required before the Director of Public Prosecutions or Director of Public Prosecutions for Northern Ireland may consent to the prosecution of the offences to which those provisions apply, if it appears to the latter that the offence was committed outside the UK. The offences which require such consent are any offence under the 2000 Act other than those listed in section 117(1) of the 2000 Act or any offence under Part 1 of the 2006 Act. This amendment is based on recommendation 15 of Lord Carlile’s January 2007 report on the definition of terrorism.
88.Section 30 is included in response to recommendation 8 of Lord Carlile’s January 2007 report on the definition of terrorism, that a terrorist connection should be considered to be an aggravating factor in sentencing. This is important where persons are convicted of offences other than those under the terrorism legislation but where the offence is connected with terrorism (for example an explosives-related offence).
89.Under subsections (1) to (3) a court in England and Wales considering a person’s sentence for an offence listed in Schedule 2 must, if it appears that there was or may have been a terrorist connection, make a determination (on the criminal standard of proof) as to whether there was such a connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing, that is the trial evidence or evidence heard at a Newton hearing (if necessary) following a guilty plea, and taking account of any representations by the prosecution or defence. A Newton hearing is where the judge hears evidence from both the prosecution and defence and comes to his or her own conclusion on the facts, applying the criminal standard of proof. If the court determines that there was a terrorist connection, it must treat that as an aggravating factor when sentencing the offender (subsection (4)). The meaning of an offence having a “terrorist connection” is defined in section 93 as being where the offence is or takes place in the course of an act of terrorism or is committed for the purposes of terrorism. Subsection (6) provides that this statutory aggravating factor in sentencing will apply only in relation to offences committed on or after commencement.
90.Section 31 provides that in Scotland the sentencing court must treat a terrorist connection (as defined in section 93), proved to the trial court, as an aggravating factor when sentencing for an offence specified in Schedule 2 to the Act (offences where terrorist connection to be considered). Subsection (3) requires a court imposing an aggravated sentence for an offence with a terrorist connection to state the extent and reasons for the difference between the sentence it imposed and that it would have imposed if the offence had not had a terrorist connection. Subsection (4) provides that evidence from a single source is sufficient to prove this aggravating factor – which is different from the usual position under the law in Scotland where corroboration is required. Subsection (5) provides that this new aggravating factor will only apply in relation to offences committed on or after commencement.
134.This section makes corresponding provision to that in section 30 for service courts considering for the purposes of sentence the seriousness of a service offence as respects which the corresponding civil offence is an offence specified in Schedule 2. Corresponding civil offence is defined in section 95(4).
91.This section provides the Secretary of State with a power to amend (by order subject to the affirmative resolution procedure) the list of offences in Schedule 2 in relation to which the court must consider whether there is a terrorist connection.
92.Schedule 2 sets out the list of offences under the general criminal law (as opposed to the terrorism legislation) in relation to which the court must consider whether there is a terrorist connection for the purposes of aggravated sentencing (sections 30 to 33). These are the offences most frequently used to prosecute terrorist cases or which are most likely to be used to prosecute such cases. The list of offences in Schedule 2 and determination of terrorist connection are also relevant to the forfeiture provisions in the Act (see section 35 which inserts new section 23A(4) into the 2000 Act) and the notification requirements of Part 4 of the Act (see section 42).
93.Section 34 replaces section 23 of the 2000 Act (forfeiture: terrorist property offences), which deals with the power of a court to order the forfeiture of money or other property from a person convicted of offences under sections 15 to 18 of that Act (“terrorist finance” offences). The principal change made to section 23 is that the court may make a forfeiture order in respect of money or other property which had been used for the purposes of terrorism. So, for example, the court could order the forfeiture of a flat which was used for making bombs.
94.Section 35 inserts a new section 23A into the 2000 Act. This allows the court which convicts a person of certain offences to order the forfeiture of money or other property in the possession or under the control of the convicted person at the time of the offence and which either had been used for the purposes of terrorism or was intended by that person to be used for those purposes, or which the court believes will be used for the purposes of terrorism unless forfeited. The offences in respect of which this power of forfeiture is available are certain offences under the 2000 Act and the Terrorism Act 2006 (but not the terrorist finance offences, which are covered by new section 23), and, in England and Wales and in Scotland (but not in Northern Ireland) offences falling within Schedule 2 which the court determines have a terrorist connection (as defined in section 93) under section 30 or 31.
95.Section 23A(5) allows the Secretary of State to amend the list of offences to which the provision applies by order, subject to affirmative resolution (see subsection (2) of section 35 which amends section 123 of the 2000 Act which specifies the instruments made under that Act which are subject to the affirmative resolution procedure).
96.Section 36 inserts a new section 23B into the 2000 Act which contains supplementary provisions in relation to the court’s power to make a forfeiture order under section 23 or 23A.
97.Section 23B(1) allows a person other than the convicted person who claims to have an interest in anything which can be forfeited to be given an opportunity to be heard by the court before it makes an order.
98.Section 23B(2) requires the court, before making an order, to have regard to the value of the property and the likely effect (financial or otherwise) a forfeiture order will have on the convicted person.
99.Section 23B(3) makes provisions for procedures in Scotland.
100.Section 23B(4) gives effect to Schedule 4 to the 2000 Act which makes further provision in relation to forfeiture orders made under sections 23 and 23A. Schedule 4 is consequentially amended by Schedule 3 to this Act.
101.Subsection (1) of section 37 inserts a new paragraph 4A into Part 1 of Schedule 4 to the 2000 Act. Paragraph 4A(1) allows a court making a forfeiture order in a case where the offender has been convicted of an offence which has resulted in another person suffering personal injury, loss or damage, or where any such offence is taken into consideration, to order that an amount is to be paid to that person out of the proceeds of the forfeiture. The court may specify a sum which the amount to be paid may not exceed.
102.Paragraph 4A(2) defines for this purpose the proceeds of forfeiture as being the aggregate amount of any forfeited money plus the proceeds of any sale or disposal of forfeited property, after deduction of the costs of the sale or disposal. This sum will then be reduced by the amount of any payment made under paragraph 2(1)(d) (to a person with an interest in the property) or 3(1) (to a receiver appointed to implement the forfeiture order) of Schedule 4 to the 2000 Act.
103.Paragraph 4A(3) provides that a court may only make an order under this paragraph if it is satisfied that it would have made an order under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 (which is the general power under which a court may make a compensation order on conviction) requiring the offender to pay compensation, if it had not been for the inadequacy of the offender’s means.
104.Subsection (2) inserts new paragraph 17A into Part 2 of Schedule 4 to the 2000 Act, making similar provision in Scotland; and subsection (3) inserts new paragraph 32A into Part 3 of Schedule 4, making similar provision for Northern Ireland.
105.Subsection (1) of section 38 substitutes a new section 120A into the 2000 Act.
106.New section 120A(1) sets out some specific items, connected to the offence, which may be forfeited in relation to specific offences in the 2000 Act. For sections 54 and 58, there is no change as to what may already be forfeited under the 2000 Act.
107.New section 120A(2) provides that the court must give an opportunity to be heard to any person other than the convicted person who claims to have an interest in anything which can be forfeited under this section. (This replicates provision to this effect which is currently in sections 54 and 58 of the 2000 Act.)
108.New section 120A(3) provides that a forfeiture order does not come into effect until all possibilities of it being varied or set aside on appeal have been exhausted. (Provision to this effect is currently in sections 54 and 58.)
109.New section 120A(4) allows the court to make any provision necessary to give effect to the forfeiture, including provisions relating to the retention, handling, disposal or destruction of what is forfeited. Destruction might be ordered for example in relation to articles seized whose continued existence are considered dangerous.
110.Subsection (3) of section 38 inserts a new section 11A into the Terrorism Act 2006. New section 11A(1) allows for the forfeiture on conviction for an offence under sections 9 or 10 of the Terrorism Act 2006 of any radioactive device or material, or any nuclear facility made or used in the commission of the offence. New section 11A(2) provides similar powers in relation to an offence committed under section 11 of the Terrorism Act 2006, allowing the forfeiture of certain nuclear materials which were the subject of demands or threats falling within subsections (1) and (3) of that section. There are similar supplementary provisions to those in the new section 120A.
111.Section 39 gives effect to Schedule 3 which makes amendments consequential upon the new provisions concerning forfeiture orders in section 34 - 39.
112.Schedule 3 contains amendments consequential on those made by sections 34 to 38. These are mainly to amend Schedule 4 to the 2000 Act, to take account of the extended forfeiture regime. Schedule 4 to the 2000 Act makes supplementary provision concerning forfeiture orders under section 23 of the 2000 Act, for example in relation to restraint orders and how forfeiture orders may be enforced.
113.This is an introductory section relating to the new notification scheme for convicted terrorists (aged 16 or over on the date of their being dealt with), given a relevant sentence (broadly, at least 12 months’ imprisonment), and the related orders.
114.This section specifies a number of terrorism offences, and their associated ancillary offences, to which this Part of the Act applies. It also provides the Secretary of State with an order-making power to amend this list of offences, subject to the affirmative resolution procedure and to transitional provisions.
115.This Part of the Act also applies to offences under the general law set out in Schedule 2 which have a terrorist connection (as defined in section 93).
116.Subsection (1) provides that the notification provisions apply when a court in England and Wales or in Scotland has determined that an offence has a terrorist connection in accordance with section 30 or 31 (sentences for offences with a terrorist connection). Since the Act does not contain corresponding provision for Northern Ireland on aggravated sentencing for offences with a terrorist connection, the notification provisions will apply in Northern Ireland only to terrorism offences falling within section 41.
117.Subsection (2) provides a right of appeal against a determination by a court in England and Wales that the offence has a terrorist connection. Such an appeal may also be made by way of the usual right of appeal against sentence, but this provision is to enable a person to appeal against the determination alone.
118.Subsection (3) provides that if such an appeal is successful, the notification requirements are treated as never having applied. This means that any breach of the requirements before the successful appeal would not be prosecuted.
Counter-terrorism Act 2008