Subsection (2)

42.     Subsection (2) provides that any statement or conduct in question is regarded as having the endorsement of a person if he has been given a notice under subsection (3), two working days or more have elapsed since the notice was given, and the relevant person has failed without a reasonable excuse to comply with the notice. The final part of this test specifically provides that if a person has a good reason for not complying with the notice he will not be caught by section 3.

Subsection (3)

43.     Subsection (3) relates to the form of a notice under section 3. A notice can only be given by a constable and that constable must have formed the opinion that the statement, article or record concerned is unlawfully terrorism-related. Those things are unlawfully terrorism-related if they are likely to be understood as a direct or indirect encouragement or other inducement to acts of terrorism, or Convention offences, by any one or more of the persons to whom it is or may become available; or if the article or record contains information that is likely to be useful to any one or more of those persons in the commission or preparation of acts of terrorism, and is in a form or context as may be likely to be understood by those persons as being wholly or mainly for such a purpose (subsection (7)). As in sections 1 and 2, subsection (8) provides that indirect encouragement of terrorism includes glorification of terrorism, but only if it can be understood as a suggestion that what is being glorified is glorified as conduct to be emulated in existing circumstances.

44.     A notice issued under this section must declare that the statement, article, or record in question is unlawfully terrorism-related in the opinion of the constable. The notice must require the relevant person (for example, a webmaster) to ensure that the statement, article or record is removed from public view or amended to ensure that it is no longer unlawfully terrorism-related. The notice must warn the person that he has two working days to comply with the notice, and that failure to do so will lead to that person being regarded as having endorsed the statement, article or record. Working day is defined in subsection (9) as any day that is not a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday within the meaning of the Banking and Financial Dealings Act 1971 (c. 80) in any part of the UK. This final part of the definition means that a bank holiday in any part of the UK will not be a working day for the purposes of the provisions in any part of the UK. The notice must also explain how the relevant person may be liable if the statement, article or record becomes available to the public again, following compliance with the notice. This final element relates to repeat statements which are covered in subsections (4) to (6).

Subsections (4) to (6)

45.     Subsections (4), (5) and (6) deal with the situation in which a person is given a notice, he takes down the offending statement and then another statement that is the same or very similar is posted again. These are referred to as repeat statements. In such a situation it may be difficult to tell if the statement is the statement to which the notice relates or a new one. A mechanism is needed to ensure that a person is only liable for statements that he knows about. Subsection (4) provides that the person against whom the notice was issued will be regarded as having endorsed repeat statements but this is subject to subsections (5) and (6). Subsections (5) and (6) provide that a person is not deemed to endorse a repeat statement if he has taken every reasonable step to prevent repeat statements becoming available to the public, and he has taken every reasonable step to ascertain if a repeat statement is available to the public; and he is not aware that the repeat statement had been published or he was aware that it had been published but he has taken every reasonable step to ensure it is removed or modified.

Section 4 - Giving of notices under s.3

46.     This section sets out the procedure for the giving of notices under section 3.

Subsection (1)

47.     Subsection (1) sets out that, other than in the cases dealt with by subsections (2) to (4) of section 4, a notice may be given to a person only by delivering it to him in person, or by sending it, by means of recorded delivery, to him at his last known address.

Subsections (2) to (4)

48.     Subsection (2) sets out the manner of giving a notice to a body corporate. Subsection (3) sets out the manner of giving a notice to a firm. Subsection (4) sets out the manner of giving a notice to an unincorporated body or association.

Subsection (7)

49.     Subsection (7) sets out that the time that a notice is given will be taken as the time of delivery of that notice, if given in person, or the time recorded as the time of delivery, if sent by post. This provides the time that is relevant for the purposes of section 3(2)(b).

Section 5 - Preparation of terrorist acts

50.     Section 5 creates an offence of the preparation of terrorist acts. This offence adds to existing common law offences of conspiracy to carry out terrorist acts, and attempting to carry out such acts. At the moment the law does not cover preparatory acts: the offence of attempt provides that the acts done must be more than merely preparatory and the offence of conspiracy provides that an agreement to commit an offence must have occurred. In addition both offences require that a specific offence is attempted or planned rather than just a general intention to carry out acts that amount to terrorism. Under the new offence created by this section acts of preparation with the relevant intention will be caught, for example if a person possesses items that could be used for terrorism even if not immediately and that person has the necessary intention he will be caught by the offence.

Subsections (1) and (2)

51.     Subsection (1) creates an offence of preparing to commit or assist others to commit one or more acts of terrorism with the intent of committing or assisting others to commit such acts. Subsection (2) states that this is an offence whether or not there are specific plans, or solely an intention to carry out such acts generally.

Section 6 - Training for terrorism

52.     This section implements Article 7 of the Convention. Article 7.2 requires parties to create an offence of training for terrorism. Training for terrorism is defined in Article 7.1. Article 7 is already partially implemented by section 54 of the TACT, this new offence covers matters that are not already dealt with by section 54. Section 54 relates to training in the use or making of firearms, explosives and chemical, biological and nuclear weapons. Convention offences as referred to in this section are set out in Schedule 1 to the Act.

Subsections (1) and (2)

53.     These subsections create a new offence of giving or receiving training in certain skills, as defined in subsection (3). Subsection (1) provides that in respect of giving training, an offence is committed if the person giving it knows that the person receiving training intends to use the skills he acquires for, or in connection with, the commission or preparation of acts of terrorism or Convention offences, or assisting others in the commission or preparation of such acts or offences. Subsection (2) provides that in respect of receiving training an offence is committed if a person receives instruction in one of a number of skills listed in subsection (3) and, at the time of the training, he intends to use the skills acquired for, or in connection with, the commission or preparation of acts of terrorism or Convention offences, or assisting others in the commission or preparation of such acts or offences.

Subsection (3)

54.     Subsection (3) defines the skills in which it is an offence to give or receive training under this section. The skills are split into three categories, the first is defined as the making, handling, or use of a hazardous or noxious substance. An example of this would be how to make a bomb to disperse a virus. The second is defined as the use of any method or technique for the doing of anything, other than things falling into the first category, that is capable of being done for the purposes of terrorism, or in connection with the commission or preparation of an act of terrorism or Convention offence, or with assisting the commission or preparation of such acts. An example of this would be a technique for causing a stampede in a crowd. The third is defined as the design or adaptation, for the purposes of terrorism, or in connection with the commission, preparation or instigation of an act of terrorism or Convention offence, of any method or technique for doing anything. An example of this third category would be giving instructions about the places where a bomb would cause maximum disruption.

Subsection (4)

55.     Subsection (4) provides that for the purposes of this section it does not matter how many people training is provided to. It also sets out that the person receiving training need not intend to commit specific acts of terrorism or Convention offences, rather than such acts or offences in general, and that he does not need to be intending to provide assistance to a specific person, rather than persons whose identities are not yet known, in the commission of any such act or offence.

Subsection (6)

56.     Subsection (6) 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 (5), 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 (7)

57.     Subsection (7) defines "noxious substance", and "substance", for the purpose of the offence of terrorist training. The definition of noxious substance includes the definition of dangerous substance in Part 7 of the ATCSA. The definition of dangerous substance is included in section 58 of that Act. Section 58 gives effect to Schedule 5 of the ATCSA, which lists a number of pathogens and toxins. A dangerous substance means anything which consists of or includes a substance listed in Schedule 5 or anything which is infected or otherwise carries any such substance.

Section 7 - Powers of forfeiture in respect of offences under s.6

58.     This section provides for powers of forfeiture in respect of items considered by the court to be connected with the carrying out of an offence under section 6. This could, for example, include various noxious substances and equipment designed for the handling, and production, of such substances. Subsection (1) gives a power to the court to order the forfeiture, on conviction of any individual for an offence under section 6, of any items the court considers to have been in the possession of the person convicted for purposes connected with the offence. Subsection (2) sets out that before such an order can be made, the court must give any person, in addition to the person convicted, a chance to be heard if they claim that they are the owner of the items. Subsection (3) ensures that an order of this kind can only come into force once there is no further possibility of the order being varied or set aside on appeal. Subsections (4) and (5) provide that the court may, in the case of an order for forfeiture being made under subsection (1), make any other provision it sees as necessary to give effect to the forfeiture, including provision about retention, handling, destruction and other disposal of what is forfeited.

Section 8 - Attendance at a place used for terrorist training

59.     Section 8 creates a new offence of attending a place used for terrorist training. This adds to offences relating to terrorist training contained in Section 54 of the TACT, and section 6 of this Act. The offence will apply whether the place is inside the United Kingdom, or abroad. Although section 8 refers to Convention offences (as defined in Schedule 1) it does not implement a provision in the Convention.

Subsections (1) to (3)

60.     Subsection (1) creates an offence of attending any place in the UK or abroad at which terrorist training is taking place. Terrorist training for these purposes is defined by reference to the kind of training that may be given under the offence in section 6(1) of this Act, and those offences in section 54(1) of the TACT (which relates to weapons training). For an offence to have been committed, all or part of the training in such a place would need to have been provided for purposes connected with terrorism or Convention offences. It is also an element of the offence that the offender either knows or believes that training for those purposes is taking place or that a person attending the place throughout the period of that person's attendance could not have reasonably failed to understand this (subsection (2)). Subsection (3) provides that the person concerned need not have received training himself in order for the offence to have been committed. It also sets out that the offence occurs whether the training is for a specific act of terrorism or Convention offence, or such acts or offences in general.

Subsection (5)

61.     Subsection (5) 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 (4), 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 9 - Making and possession of devices or materials

62.     The offences in section 9, section 10 and section 11 are needed in order for the UK to ratify the UN Convention for the Suppression of Acts of Nuclear Terrorism, which the UK signed in September 2005. The new offences which this section and sections 10 and 11 create relate in particular to the use, possession and making of radioactive devices, particularly radioactive material dispersal devices and radiation emitting devices, and use and possession, or the threat of use or possession, of radioactive materials or nuclear facilities for terrorist purposes.

Subsections (1) and (2)

63.     Subsection (1) of section 9 makes it an offence to make or possess a radioactive device or to possess radioactive material with the intention of using the device or material in the course of, or in connection with, the commission or preparation of an act of terrorism, or for the purposes of terrorism. It is also an offence if the intention is to make the device or material available to be used in such a way. Subsection (2) sets out that for the purposes of the offence being committed, it does not matter whether an intention relates to a specific act of terrorism, or acts of terrorism in general.

Subsections (4) and (5)

64.     The definitions in subsections (4) and (5) and other definitions in sections 10 and 11 are based on Article 1 of the UN Convention that these sections are intended to implement. "Radioactive device" is defined in subsection (4) as either a nuclear weapon or nuclear explosive device; a radioactive material dispersal device; or any other radiation emitting device. This definition can include (under "radioactive material dispersal device") a "dirty bomb" in which an explosive causes radioactive material to disperse, with the effect that the radiation causes danger.

65.     Subsection (4) defines "radioactive material" as nuclear material, or any other radioactive substance which contains nuclides that undergo spontaneous disintegration in a process accompanied by the emission of one or more types of ionising radiation and, due to its radiological or fissile properties, it is capable of causing serious bodily injury or damage to property, endangering life or creating a serious risk to public health and safety. Nuclear material is defined in subsection (5) as having the same meaning as in the Nuclear Material (Offences) Act 1983 (c.18). Section 6 of that Act defines such material as nuclear material, within the meaning of the Convention on Physical Protection of Nuclear Material, which is used for peaceful purposes. The definition of nuclear material in Article 1(A) and (B) of that Convention is set out in the Schedule to the 1983 Act. It covers particular types of plutonium and uranium, such as uranium-233 and any material containing such uranium or plutonium. "Device" is defined in subsection (5) to include machinery, equipment, appliances, tanks, containers, pipes and conduits, whether or not these are fixed to the land.

Section 10 - Misuse of devices or material and misuse and damage of facilities

Subsections (1) and (2)

66.     Subsection (1) creates an offence of using radioactive material or a radioactive device in the course of or in connection with the commission of an act of terrorism or for the purposes of terrorism. Subsection (2) creates a similar offence of using or damaging a nuclear facility in a manner that releases radioactive material or creates or increases the risk that such material will be released, in the course of or in connection with the commission of an act of terrorism or for the purposes of terrorism.

Subsections (4) and (5)

67.     Subsections (4) and (5) are definitions provisions. Nuclear facility means a nuclear reactor, including a reactor installed in or on a transportation device, or a plant or conveyance being used for the production, storage, processing or transport of radioactive material. Nuclear reactor and transportation device are both defined in subsection (5). Nuclear reactor is defined by reference to the Nuclear Installations Act 1965 (c.57). Section 26 of that Act provides that the term means any plant designed or adapted for the production of atomic energy by a fission process in which a controlled chain reaction can be maintained without an additional source of neutrons. Transportation device means any vehicle or any space object. Vehicle is defined in section 121 of the TACT as including aircraft, hovercraft, train or vessel. Space object is defined by reference to the Outer Space Act 1986 (c.38). The definition of space object appears in section 13(1) of that Act and is defined to include not only the object itself, but also its component parts, its launch vehicle and the component parts of that vehicle.

Section 11 - Terrorist threats relating to devices, materials or facilities

Subsection (1)

68.     Subsection (1) makes it an offence in the course of or in connection with the commission of an act of terrorism, or for the purposes of terrorism, to demand the supply of a radioactive device or of radioactive material, or that a nuclear facility or access to a nuclear facility is made available, if this demand is supported with a threat to take action if the demand is not met. The offence only takes place if the threat is credible, in that the circumstances and manner of the threat are such that it is reasonable for the person to whom it is made to assume there is a real risk of the threat being carried out if the demand is not met.

Subsection (2)

69.     Subsection (2) makes it an offence to make one of a number of threats, listed in subsection (3), in the course of or in connection with the commission of an act of terrorism, or for the purposes of terrorism. Again it is an element of the offence that the circumstances and manner of the threat are such that it is reasonable for the person to whom it is made to assume there is a real risk of the threat being carried out if the demand is not met.

Subsection (3)

70.     Subsection (3) provides those threats which it will be an offence to make under subsection (2). It will be an offence to make a threat to use radioactive material; to use a radioactive device; or to use or damage a nuclear facility in a manner that releases radioactive material, or creates or increases a risk that such material will be released.

Section 12 - Trespassing etc. on nuclear sites

71.     This section amends sections 128 and 129 of the Serious Organised Crime and Police Act 2005 ("the SOCAP") to extend those sections to include nuclear sites. Section 128 covers England, Wales and Northern Ireland and section 129 covers Scotland. They make it an offence to enter or to be on a designated site as a trespasser. The maximum penalty for the offence under these provisions is, in England and Wales, 51 weeks imprisonment, a fine up to level 5 on the standard scale, or both, in Scotland, 12 months imprisonment, a fine up to level 5 on the standard scale, or both and in Northern Ireland, 6 months imprisonment, a fine up to level 5 on the standard scale or both. The reference to 51 weeks in relation to England and Wales is subject to a transitional provision as set out in section 175(3) of the SOCAP, which provides that, in relation to offences committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference to 51 weeks is to be read as a reference to 6 months.

Subsection (2)

72.     Subsection (2) amends sections 128 and 129 of SOCAP to refer to protected site rather than designated site.

Subsection (3)

73.     Subsection (3) amends section 128 of the SOCAP so that it applies to protected sites. A protected site is either a designated site (the type of site that section 128 already applied to) or a nuclear site. A nuclear site is defined within section 128 (as amended) and as a consequence there is no need for the Secretary of State to make an order defining a nuclear site as there is with a designated site. A nuclear site is defined, in new subsection (1B) of section 128, as so much of any premises for which a nuclear site licence is in force as lies within the outer perimeter fence, wall or other obstacle securing the protection of the site, plus any other premises falling within this outer perimeter fence etc. This is to make clear that in cases where there are differences between the alignment of the outer perimeter fence etc. and the area of the licensed site, it is an offence to be inside the outer perimeter fence etc. Conversely, where there is land that is part of a licensed nuclear site, but which falls outside the outer perimeter fence etc., it is not an offence to be on this land. The powers of a constable to arrest a person suspected of committing the offence in section 130 of the SOCAP apply.

Subsection (4)

74.     Subsection (4) amends section 129 of the SOCAP in the same manner as section 128.

Section 13 - Maximum penalty for possessing for terrorist purposes

Subsections (1) and (2)

75.     Subsection (1) increases the maximum sentence for the existing offence of possessing an item in circumstances that may give rise to a reasonable suspicion that it is possessed for a purpose connected to the commission, preparation or instigation of an act of terrorism. This amends section 57(4)(a) of the TACT. The maximum penalty is increased from 10 to 15 years' imprisonment. Subsection (2) makes it clear that this is not a retrospective amendment, and that offences committed before this section comes into force will only attract the maximum penalty of 10 years' imprisonment.

Section 14 - Maximum penalty for certain offences relating to nuclear material

76.     Section 14 increases the maximum sentence for the existing offences involving preparatory acts and threats set out in Section 2 of the Nuclear Material (Offences) Act 1983. That section creates offences relating to receiving, holding or dealing with nuclear material, or making threats in relation to nuclear material, with intent to commit certain offences or enabling others to commit those offences. These include, among other offences, those of murder, manslaughter, culpable homicide, assault to injury, malicious mischief or causing injury, certain offences against the person, theft, or extortion. The previous maximum penalty was fourteen years' imprisonment, or (if lower) the maximum sentence for the carrying out of such acts. Subsection (1) sets out the new maximum penalty for these offences, which on conviction on indictment, will be imprisonment for life. Subsection (2) makes it clear that this is not a retrospective amendment, and that offences committed before this section comes into force will not invite the higher penalty.

Section 15 - Maximum penalty for contravening notice relating to encrypted information

77.     Section 15 amends section 53 of the Regulation of Investigatory Powers Act 2000. Part 3 of the Regulation of Investigatory Powers Act 2000 provides a power to enable properly authorised persons (such as members of the law enforcement, security and intelligence agencies) to serve notices on persons requiring the disclosure of protected (e.g. encrypted) information in an intelligible form. Section 53 sets out the penalties for failing to make the disclosure required by the notice. Subsection (1) increases the maximum penalty for conviction on indictment of contravening a notice issued on national security grounds from two to five years' imprisonment.

Section 16 - Preparatory hearings in terrorism cases

78.     Under section 29 of the Criminal Procedure and Investigations Act 1996 (c.25) ("the CPIA") a judge has power to order a preparatory hearing in cases of such seriousness or complexity that substantial benefits are likely to accrue from such a hearing. A similar power to order preparatory hearings in cases of serious or complex fraud is in section 7 of the Criminal Justice Act 1987. The purpose of a preparatory hearing is to identify the material issues, assist the jury's comprehension of those issues, expedite the proceedings before a jury, deal with questions of severance and joinder, and otherwise assist the trial judge's management of the case. Section 16 amends the CPIA to make preparatory hearings mandatory in terrorism cases.