2006 Chapter 11

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     These notes refer to the Terrorism Act 2006 (c.11) which received Royal Assent on 30 March 2006

TERRORISM ACT 2006

     EXPLANATORY NOTES

1.     These explanatory notes relate to the Terrorism Act 2006 which received Royal Assent on 30 March 2006. They have been prepared by the Home Office 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. So where a section or part of a section does not seem to require an explanation or comment, none is given.

SUMMARY

3.     The purpose of this Act is to reform and extend previous counter-terrorist legislation to ensure that the UK law enforcement agencies have the necessary powers to counter the threat to the UK posed by terrorism. A number of these changes are also required to implement different international Conventions, which the UK is a party to. The Act also amends previous legislation relating to investigatory powers and the intelligence services.

4.     The measures in the Act include both those that were already envisaged prior to the terrorist incidents in London on 7 July 2005 and 21 July 2005 and those that have been included following those incidents.

5.     Previous counter-terrorism legislation provided a range of measures designed to prevent terrorism and support the investigation of terrorist crime. These were placed on a permanent footing in the Terrorism Act 2000 (c.11) ("the TACT"). These include a power for the Secretary of State to proscribe terrorist organisations, backed up by a series of offences connected with such organisations; other specific offences connected with terrorism; and a range of police powers. Further additions to counter-terrorism legislation were made in the Anti-Terrorism, Crime and Security Act 2001 (c.24) ("the ATCSA") and the Prevention of Terrorism Act 2005 (c.2) ("The PTA").

6.     The Act creates a number of new offences. These new offences include the offence of encouragement of terrorism, an offence relating to bookshops and other disseminators of terrorist publications, an offence of the preparation of terrorist acts, and further terrorist training offences. The Act also creates a number of offences relating to radioactive material or devices, and nuclear facilities, and amends the penalty for certain offences relating to nuclear material.

7.     The Act alters the existing legislative framework by amending the TACT in a number of ways. Firstly, the Act makes some changes to terrorist offences (for example raising the penalty for the offence of possession for terrorist purposes). Secondly, it extends powers currently available to the Secretary of State relating to proscription, to allow for the proscription of groups which glorify terrorism or the activities of which associate it with acts that glorify terrorism, and to deal with proscribed organisations that change their names. The Act also extends police and investigatory powers in relation to terrorism (such as allowing the extension of detention of terrorist suspects with judicial approval for up to 28 days, and enabling all premises search warrants to be issued).

8.     With reference to the powers of the security and intelligence services, the Act also amends the Intelligence Services Act 1994 ("the ISA") (c.13) with respect to warrants to carry out acts both overseas and in the UK. It also amends the Regulation of Investigatory Powers Act 2000 ("the RIPA") (c.23) in a number of ways. Firstly, it increases the penalties for refusal to obey a notice to provide an encryption key, as set out in Part 3 of that Act. Secondly, it amends investigatory powers, extending the period that warrants for intercept (and related authorisations) under that Act are issued for, and further delegating the authority to modify warrant schedules.

9.     Finally, the Act amends the definition of terrorism as contained in the TACT.

OVERVIEW

10.     The Act's Parts and Schedules are as follows.

11.     Part 1 (Offences) provides for new offences, amendments to existing offences, and makes incidental provisions about terrorism offences. Part 1 creates offences relating to the encouragement of acts of terrorism, and to the dissemination of terrorist publications. Part 1 makes specific provision about how these two new offences are to apply to those providing and using the internet and other electronic services. It also creates offences relating to the preparation of terrorist acts and terrorist training; the making, possession or use of radioactive devices and materials; the making of terrorist threats relating to radioactive devices, materials, or nuclear facilities; and trespass on nuclear sites. The Act increases penalties for possession for terrorist purposes; offences relating to nuclear material; and offences relating to the contravention of a notice relating to encrypted information. Part 1 also sets out new procedures to be followed in the preparation of terrorist cases for trial. Schedule 1 sets out a list of "Convention offences" that are referred to in Part 1. These represent the parallel offences in UK law to those offences mentioned in the Council of Europe Convention on the Prevention of Terrorism.

12.     Part 2 (Miscellaneous provisions) includes an amendment to the grounds on which the Secretary of State is empowered to proscribe organisations, a process through which a proscribed organisation may be identified by another name, and amendments to police and investigatory powers. These changes affect:

• Powers to detain terrorist suspects under the TACT, and the grounds on which such detention may be authorised. The provisions extending the maximum length of time a person can be detained under Schedule 8 to the TACT from 14 to 28 days will have effect for one year after their commencement but they can be extended by order made by the Secretary of State for periods of up to a year each.

• Powers to search premises, and seize material under Schedule 5 to the TACT

• Powers to seize, and seek forfeiture of, terrorist publications

• Powers to search at ports under Schedule 7 to the TACT, and to issue authorisations to stop and search under Section 44 of the TACT

• Powers to issue authorisations or warrants to carry out acts under the ISA

• Powers to issue, and amend the schedules of intercept warrants

• Powers to seek disclosure notices under the Serious Organised Crime and Police Act 2005

• The definition of terrorism, as set out in the TACT

• The process under which terrorist cash-seizure hearings are heard under the TACT

13.     Schedule 2 sets out the method by which forfeiture proceedings should be carried out, following a seizure of terrorist publications.

14.     Part 3 (Supplemental provisions) provides for the oversight of the operation of Part 1 of the Act and the TACT through an independent annual review to Parliament. It also includes a number of consequential amendments and repeals.

TERRITORIAL EXTENT

15.     The Act extends to the whole of the UK except the provisions in section 17 relating to the use of explosives in a manner that does not relate to terrorism. These provisions do not extend to Scotland (since offences relating to the use of explosives other than in relation to terrorism is a devolved matter).

COMMENTARY

Definitions

16.     The Act relies on a number of definitions that appear in the TACT. The definition of terrorism appears in section 1 of the TACT. The definition covers the use or threat of action that meets the three elements set out in section 1(1). The first of the elements is that the action must fall into section 1(2). An action falls in section 1(2) if it involves serious violence against a person or serious damage to property; it endangers a person's life (but this does not include the life of the person committing the action); it creates a serious risk to the health and safety of the public or a section of the public; or it is designed to seriously interfere with or seriously to disrupt an electronic system. The second element is that the use or threat is either designed to influence the government or is designed to intimidate the public or a section of the public. Section 34 of the Act amends this element to include cases where the use or threat is designed to influence an international governmental organisation. The second element does not have to be satisfied if the use or threat falling into subsection (2) involves the use of firearms or explosives (section 1(3)). Explosives and firearms are defined in section 121 of the TACT. The third element is that the threat is made for the purpose of advancing a political, religious or ideological cause.

17.     Section 1(4) of the TACT makes it clear that the definition of terrorism is not limited to things taking place in the UK or related to things in the UK. Action is defined in section 1(4)(a) as including actions outside the UK. Section 1(4)(b) provides that a reference in the definition to a person or property means a person or property wherever he or it is situated. Section 1(4)(c) makes it clear that the public can be the public of a country other than the UK. Section 1(4)(d) provides that the reference to government is not limited to the central government of the UK but can also mean a government of part of the UK (such as of Scotland) and a foreign government.

18.     Property is defined in section 121 of the TACT as including property wherever situated and whether real or personal, heritable or moveable, and things in action and other intangible or incorporeal property.

19.     The Act also makes use of the term acts (or act) of terrorism. Act and action are both defined in section 121 of the TACT as including an omission. Section 1(5) makes it clear that, as well as including an act that falls under the definition in section 1, an act is also for the purposes of terrorism if it is taken for the benefit of a proscribed organisation. Section 20(2) of the Act makes it clear that acts (or act) of terrorism as used in the Act includes an act taken for the purposes of terrorism and so includes an act taken for the benefit of a proscribed organisation.

Section 1 - Encouragement of terrorism

20.     Section 1 creates an offence of encouragement of acts of terrorism or Convention offences. The offence has been introduced to implement the requirements of Article 5 of the Council of Europe Convention on the Prevention of Terrorism ("the Convention"). This requires State parties to have an offence of 'public provocation to commit a terrorist offence'. This new offence supplements the existing common law offence of incitement to commit an offence.

Subsection (1)

21.     The offence in section 1 is concerned with the publication of statements and subsection (1) sets out the type of statements to which it applies. These are statements that are likely to be understood by some or all of the members of the public to whom they are published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.

Subsection (2)

22.     Subsection (2) sets out the conduct and mental element of the offence. Article 5 of the Convention requires parties to have an offence of public provocation to commit a terrorist offence. Terrorist offence is defined in Article 1 of the Convention as any offence within the scope of, or defined in, one of the treaties listed in the Appendix to the Convention. The Appendix lists a number of treaties the offences from which have been translated into UK law through legislation, as a consequence the concept of terrorist offence in Article 5 (and Article 1) of the Convention becomes the concept of Convention offence in the Act. Convention offences are set out in Schedule 1 to the Act which consists of a list of the UK provisions implementing the treaties listed in the Appendix to the Convention.

23.     The new offence is committed if a person publishes a statement (as defined in subsection (1)) or causes another to publish such a statement and he has the necessary mens rea. The mens rea is that, at the time of publishing or causing to publish, he either intends members of the public to be directly or indirectly encouraged or otherwise induced, by the statement to commit, prepare or instigate acts of terrorism or Convention offences, or he is reckless as to whether members of the public will be so directly or indirectly encouraged by the statement. A number of definitions relating to this offence, including the definition of act of terrorism, publish, statement and public, are set out in section 20 of the Act. The effect of those definitions is set out in paragraphs 16-19 and 94 and 95 of these notes.

Subsection (3)

24.     Subsection (3) provides that indirect encouragement of terrorism includes a statement that glorifies the commission or preparation of acts of terrorism or Convention offences but only if members of the public could reasonably be expected to infer that what is being glorified in the statement is being glorified as conduct that should be emulated by them in existing circumstances. Glorification is defined in section 20(2) as including praise or celebration. Section 20(7) clarifies that references to conduct that should be emulated in existing circumstances includes references to conduct that is illustrative of a type of conduct that should be so emulated. For example, if it was reasonable to expect members of the public to infer from a statement glorifying the bomb attacks on the London Underground on 7 July 2005 that what should be emulated is action causing severe disruption to London's transport network, this will be caught.

Subsection (4)

25.     Subsection (4) specifically provides that when the questions of how a statement is likely to be understood, and what members of the public might reasonably infer from it, are determined, regard should be had to both the contents of the statement as a whole, and the circumstances and manner of its publication.

Subsection (5)

26.     Subsection (5) sets out that the statement, or how it is likely to be understood, need not relate to a specific act of terrorism or Convention offence. It also sets out that an offence is committed whether or not any person is actually encouraged or induced to commit, prepare or instigate an act of terrorism or Convention offence. It follows from this that it is not necessary in order for the offence to be committed for an act of terrorism or a Convention offence actually to take place.

Subsection (6)

27.     Subsection (6) sets out a defence to the offence created by this section. It is a defence for a person accused of the offence, where it has not been proved that he intended the statement to encourage or otherwise induce the commission, preparation, or instigation of acts of terrorism or Convention offences, to show that the statement published neither expressed his views, nor had his endorsement and that it was clear in all the circumstances of the statement's publication that it was not his view and did not have his endorsement. The defence is intended, for example, to cover news broadcasters. However, a person will not be able to take advantage of this defence if he is deemed to endorse a statement because he has failed to comply with a notice issued under section 3 (see paragraphs 39 to 45 of these notes).

Subsection (8)

28.     Subsection (8) provides a transitional provision in respect of the period before the commencement of section 154(1) of the Criminal Justice Act 2003 (c.44). At the moment a Magistrates' Court can only give a penalty of up to six months' imprisonment. Once section 154(1) is in force this will increase to 12 months' imprisonment. Subsection (7), which sets out the penalties for the offence, is drafted as if section 154 is in force but as it is not in force a provision is needed to make it clear that, until such time as it is in force, the Magistrates' Court only has its existing powers to give a penalty of imprisonment.

Section 2 - Dissemination of terrorist publications

29.      Section 2 creates offences relating to the sale and other dissemination of books and other publications, including material on the internet, that encourage people to engage in terrorism, or provide information that could be useful to terrorists.

Subsection (1)

30.     Subsection (1) focuses on the mental element of the offence. This is an offence which must be committed intentionally or recklessly. For an offence to be committed, it is necessary for an individual to carry out any of the actions set out in subsection (2), which outlines various methods of dissemination, and for him either to have an intention that an effect of his conduct will be a direct or indirect encouragement or other inducement to terrorism, an intention that an effect of his conduct will be the provision of assistance in the commission or preparation of acts of terrorism, or for him to be reckless as to whether his conduct has one of these two specified effects.

Subsection (2)

31.     Subsection (2) provides the conduct that will amount to an offence under section 2. The conduct is: distributing or circulating a terrorist publication; giving, selling, or lending a terrorist publication; offering a terrorist publication for sale or loan; providing a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of gift, sale, or loan; transmitting the contents of a terrorist publication electronically; and possessing a terrorist publication with a view to making it available in any of the ways listed. This means that the offence will cover not only bookshops but also those that sell books and publications over the internet whether the publication is in hard copy or electronic. It will also cover libraries and the distribution of leaflets and flyers.

Subsection (3)

32.     Subsection (3) sets out the definition of terrorist publication. A publication will be considered a terrorist publication if it meets one of two tests. The first test is if matter contained in it is likely to be understood by some or all of the persons to whom it is or may become available as a consequence of the conduct in subsection (2) as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism. The second test is if it contains any matter which is likely to be useful in the commission or preparation of such acts and it is likely to be understood by some or all of the persons to whom it is or may become available as being contained in the publication, or made available to them, wholly or mainly for the purposes of being so useful to them. The first reason for a book or other publication being a terrorist publication relates to the new offence under section 1. In either case, only a small part of a publication needs to satisfy the test for the publication to be a terrorist publication. As the whole publication will be a terrorist publication if a small part of it satisfies the test this means that the whole publication can be seized under the powers set out in section 28 and Schedule 2 (which provide for search, seizure and forfeiture of terrorist publications). However, in relation to the defence in subsection (9) of section 2, in order to establish part (a) of the defence, the defendant need only show that the part of a publication which satisfies the test did not express his views or have his endorsement.

Subsections (4) and (5)

33.     Subsection (4) sets out that, as in section 1, indirect encouragement of terrorism includes glorification of terrorism, so long as the person who understands the statement to be indirect encouragement could reasonably be expected to infer that the conduct that is glorified is glorified as conduct that should be emulated by him in existing circumstances. Subsection (5) provides that whether or not a publication is a terrorist publication must be determined at the time of the particular conduct in question, and having regard to the content of the publication as a whole and the circumstances in which the particular conduct occurred. This means that account can be taken of the nature of the bookseller or other disseminator of the publication.

Subsection (6)

34.     Subsection (6) sets out that references to an effect of a person's conduct in relation to a terrorist publication includes references to an effect of the publication on one or more of the persons to whom it is or may become available as a consequence of that conduct. This means that the effect of a person holding a publication intending to disseminate it (for example, by offering it for sale) will include the effect on the audience to whom it is intended it will be made available by a later act of dissemination (i.e. the sale itself). This is intended to cover the fact that if a person only, for example, holds a publication with the intention of disseminating it, the effect of that conduct is not to encourage terrorism or to be useful to terrorists, because only once the publication is disseminated can it have one of those effects.

Subsections (7) and (8)

35.     Subsection (7) provides that a terrorist publication need not encourage or induce, or be useful for, the commission, preparation, or instigation of a specific act of terrorism, but may instead be an encouragement or inducement for, or be useful for, acts of terrorism in general. Subsection (8) provides that whether or not an individual actually is encouraged or induced to commit, prepare, or instigate terrorist acts, or makes use of the publication in the commission or preparation of such acts, is irrelevant to the question of whether or not an offence has been committed.

Subsections (9) and (10)

36.     Subsection (9) provides a defence to the offence in section 2. The defence is only available if it has not been proved that the defendant engaged in conduct with the intention that his conduct would encourage terrorism and if the publications in question are terrorist publications by virtue of containing material that encourages terrorism, not ones that are useful for the purposes of terrorism (subsection (10)). The defendant can take advantage of the defence if he can show that the material that encourages terrorism did not express his views or have his endorsement and it was clear in all the circumstances that it did not express his views or have his endorsement. A defendant will not be able to rely on the defence in subsection (9) if he is deemed to have endorsed the terrorist material in a publication because he has failed to comply with a notice issued under section 3 (see paragraphs 39 to 45 of these notes).

Subsection (12)

37.     Subsection (12) provides a transitional provision in respect of the period before the commencement of section 154(1) of the Criminal Justice Act 2003. At the moment a Magistrates' Court can only give a penalty of up to six months' imprisonment. Once section 154(1) is in force this will increase to 12 months' imprisonment. Subsection (11), which sets out the penalties for the offence, is drafted as if section 154 is in force but as it is not in force a provision is needed to make it clear that, until such time as it is in force, the Magistrates' Court only has its existing powers to give a penalty of imprisonment.

Subsection (13)

38.     Subsection (13) defines publication for the purposes of section 2 as an article or record of any description which contains matter to be read, matter to be listened to, or matter to be looked at or watched. This means that as well as covering books the section will also cover, amongst other things, films and videos (with or without sound), cassette tapes, electronic books, material contained on CD-ROMs and photographs. This definition of publication is different from that provided for in section 20 of the Act. Article and record are defined in section 20(2) and (8). Article includes anything for storing data such as a CD-ROM. Record means anything that is not an article, including a temporary electronic record that only exists for the purpose of, and during the transmission of, its contents. Under section 20(8) if there is a reference to what is contained in an article or record this includes anything embodied or stored on or in it and anything that may be reproduced from it.

Section 3 - Application of sections 1 and 2 to internet activity etc.

39.     Under sections 1 and 2 a person has a defence to the offences in those sections if he can show amongst other things that a statement or publication did not express his views and did not have his endorsement (see sections 1(6) and 2(9)). The effect of section 3 is to deem a person providing or using an electronic service to have endorsed a statement if he has received a notice under section 3 and he has failed to comply with it. If the person is accused of an offence under section 1 or 2 then the effect of section 3 is that he cannot take advantage of the defence in sections 1(6), or 2(9) respectively.

40.     Section 3 contains a number of references to "publishing", "records", "article" and "statement", the definitions of which are contained in section 20 (Interpretation of Part 1).

Subsection (1)

41.     Subsection (1) applies the section to services provided electronically. Subsection (1)(a) relates to statements that are published under section 1. Subsection (1)(b) relates to conduct that amounts to an offence under section 2. In both cases the publishing or conduct that amounts to the offence must occur in the course of, or in connection with the provision or use of an electronic service.