Commentary on Sections
Section 1: Continuance in force of Part 7 of the Terrorism Act 2000
17.The majority of the Part 7 provisions came into force on 19th February 2001. Section 112(1) provides for Part 7 to cease to have effect at the end of a period of one year from that date. However, section 112(2) enables the Secretary of State to provide by order that any Part 7 provision currently in force is to continue in force for a further twelve months. Such an order is subject to either the affirmative resolution procedure (section 123(4)(f)) or the urgency procedure (section 123(5)). Section 112(4) provides that Part 7 shall cease to have effect at the end of a five year period from the date on which it came into force (i.e. at the end of 18th February 2006).
18.The majority of the provisions in Part 7 have been continued in force by the following annual orders:
The Terrorism Act 2000 (Continuance of Part VII) Order 2002 (S.I.2002/365);
The Terrorism Act 2000 (Continuance of Part VII) Order 2003 (S.I.2003/427);
The Terrorism Act 2000 (Continuance of Part VII) Order 2004 (S.I. 2004/431); and
The Terrorism Act 2000 (Continuance of Part VII) Order 2005 (S.I.2005/350).
The Terrorism Act 2000 (Continuance of Part VII) Order 2005 provided for the majority of the Part 7 provisions, with the exception of those set out below, to remain in force up to and including 18th February 2006. The following provisions of Part 7 are not currently in force:
Section 67(3) and (4);
Sections 70 and 71;
Section 76;
Section 97;
Section 100, which has never been brought into force;
Paragraph 36 of Schedule 4; and
Paragraphs 19 to 21 of Schedule 5.
19.Subsections (1) and (2) of section 1 provide that those Part 7 provisions which are in force on 18th February 2006 (excluding section 78) (the “extended provisions”) will continue in force after that date but will cease to have effect at the end of 31st July 2007. The Secretary of State may, before 31st July 2007, continue to bring the extended provisions in and out of force by order under section 112(2).
20.Subsection (3) enables the Secretary of State to provide by order for any of the extended provisions to continue in force for a specified period ending before 1st August 2008. Such an order is subject to the affirmative resolution procedure (subsection (8)). Without further primary legislation the extended provisions cannot be continued in force past that date.
21.Section 112(2)(c) of the 2000 Act enables the Secretary of State to provide by order for any provision of Part 7 which is not in force to come into force and remain in force for a period not exceeding twelve months. Subsection (4) amends section 112(2)(c) of the 2000 Act so that the life of an extended provision cannot be continued beyond 1st August 2007. Subsection (6)(a) makes specific provision to enable an order under subsection (3) to amend this date to 1st August 2008.
22.Section 11 of, and Schedule 2 to, the 2004 Act deal with the enforcement of bail granted under section 67 of the 2000 Act. These provisions ensure that those granted bail under section 67 are, as regards enforcement, in the same or a similar position to those who are granted bail for non-scheduled offences. Section 11 creates a duty to surrender to custody for those granted bail in scheduled cases under section 67 of the 2000 Act. The duty is either a duty to surrender to the custody of a court, or to surrender to the custody of the governor of a prison (the latter duty is to cover those released on compassionate bail).
23.Section 11(4) of the 2004 Act provides that Section 11 and Schedule 2 will cease to have effect on the same day as Part 7 of the 2000 Act or such earlier date as the Secretary of State may by order appoint.
24.Subsection (5) amends Section 11(4)(a) so that section 11 and Schedule 2 will cease to have effect as from the end of 31st July 2007 or such earlier date as the Secretary of State may by order appoint. Subsection (6)(a) makes specific provision to enable an order under subsection (3) to amend the 2004 Act provision so that these 2004 Act provisions cease to have effect as from the end of 31st July 2008.
25.Paragraph 37 of Schedule 4 to the 2000 Act, which makes it an offence to contravene a restraint order, is treated as a Part 7 provision (section 112(5)(a)). Subsection (9) preserves this position with effect that, in common with the other extended provisions, if paragraph 37 continues in force it will cease to have effect on 31st July 2007 (subject to an order under subsection (3)).
Section 2: Repeal of certain provisions
26.By virtue of section 1 those provisions of Part 7 which are in force on 18th February 2006, other than section 78, are preserved by this Act. Section 2 makes provision to ensure that those provisions which are not in force on 18th February 2006, together with section 78, are repealed since the Government no longer considers them necessary.
27.Subsection (1) ensures that the provisions to be repealed cannot be brought back into force by an order under section 112(2)(c) of the 2000 Act or continued in force by an order under section 1(3).
28.The provisions to be repealed are as follows:
Under section 67(3) a judge may, in his discretion, admit a person charged with a non-summary scheduled offence to bail unless satisfied that circumstances exist which are strong contra-indications to bail. Section 67(3) and (4) ceased to have effect on 19th February 2005 by virtue of the Terrorism Act 2000 (Continuance of Part VII Order) 2005. Lord Carlile, the Independent Reviewer of the 2000 Act, recommended that section 67(3) should cease to have effect in his 2003 and 2004 reports on the operation of the 2000 Act. Copies of these reports have been place in the libraries of both Houses. This was on the grounds that the exceptions to bail in section 67(3) are no wider than the exceptions to bail recognised by Article 5 of the European Convention on Human Rights and that there was no evidence that the provision affected the granting of bail since judges based their bail decisions on principles compatible with the European Convention on Human Rights. The lapse of section 67(4) was consequential on the lapse of section 67(3).
Sections 70 and 71 allow the Secretary of State to direct that young persons charged with scheduled offences are to be held in a prison or other place while on remand. This power derives from the time when remand homes were used for young persons. Since remand homes were not very secure, there was a high risk that a young person charged with a scheduled offence would escape, perhaps with the help of more experienced individuals. There was also a risk that children held in remand homes could be intimidated by paramilitary organisations with the aim of preventing the child from incriminating others at trial or during questioning. Developments in the youth justice system rendered sections 70 and 71 obsolete. In the rare event that a young person is charged with a scheduled offence they would now be accommodated at Hydebank Young Offenders Centre or the Juvenile Justice Centre which offer the level of security required. Sections 70 and 71 ceased to have effect on 19th February 2005 by virtue of the Terrorism Act 2000 (Continuance of Part VII Order) 2005.
Section 76 imposes an obligation on the court to exclude or disregard any confession evidence in scheduled cases which has been obtained by subjecting the accused to torture, inhuman or degrading treatment, violence or threat of violence, or in such a case to order a fresh trial to be heard before a differently constituted court before which the statement will be inadmissible. Section 76 ceased to have effect on 26th July 2002 by virtue of the Terrorism Act 2000 (Cessation of Effect of Section 76) Order 2002 (S.I. 2002/2141). The provisions of Article 74 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12)) now apply where previously section 76 would have applied.
Section 97(1) and (2) of the 2000 Act enables the Secretary of State to confer port and border control powers on the army by specifying them as “examining officers” under Schedule 7. This means that members of the armed forces can be designated to stand at airports and docks to examine people arriving in Northern Ireland in the same way as police and customs officials do at present. The power has been neither used nor sought on any occasion. Section 97(1) and (2) ceased to have effect on 19th February 2003 by virtue of the Terrorism 2000 Act (Continuation of Part VII) Order 2003.
Section 97(3) enables the Secretary of State to make provisions about entering or leaving Northern Ireland by land. This provision has never been used. Section 97(3) ceased to have effect on 19th February 2004 by virtue of the Terrorism 2000 Act (Continuation of Part VII) Order 2004. This was in response to Lord Carlile’s 2003 report in which he stated that it was difficult to foresee circumstances in which section 97(3) might be used and that the legislative provision was superfluous.
Section 100 of the 2000 Act makes provision for the Secretary of State to issue a Code of Practice relating to the video recording without sound of police interviews and an order requiring interviews to be conducted in accordance with this Code. This provision was never brought into force as a Code of Practice was made under paragraph 3(2) of Schedule 8 of the 2000 Act which required the recording of police interviews with sound.
Paragraph 36 of Schedule 4 to the 2000 Act, which enables the Secretary of State rather than the courts to make and enforce restraint orders, is treated as a Part 7 provision by virtue of section 112(5)(a). It ceased to have effect on 19th February 2003 by virtue of the Terrorism 2000 Act (Continuation of Part VII) Order 2003. This provision and its predecessor had not been used for many years. The police would now seek restraint orders through the courts in appropriate cases.
Paragraphs 19 to 21 of Schedule 5 to the 2000 Act enable the Secretary of State, in place of the courts, to authorise the search of premises in the investigation of terrorist finance or direction offences. The rationale for these powers was that they enabled the police to obtain a search warrant in certain cases without having to disclose sensitive intelligence or techniques to a court, a disclosure which might conceivably put someone’s life in danger or otherwise jeopardise the investigation. They ceased to have effect as of 19th February 2003 by virtue of the Terrorism 2000 Act (Continuation of Part VII) Order 2003. These powers have not been used since 1998. The police see no operational need for these powers and are content to seek warrants thought the courts.
29.Under Article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I.1998/1504 (N.I.9)) (“1998 Order”) a child who is convicted can be detained by an order of the court if the maximum sentence which can be imposed on an adult for the offence is fourteen years. Section 78 of the 2000 Act modifies the application of Article 45 to provide that if a child is convicted of a scheduled offence on indictment where the maximum sentence which can be imposed in the case of an adult is not less than five years the court can authorise the detention of a young person convicted of such an offence.
30.The origin of this provision lies partly in the historical lack of secure accommodation for juveniles serving custodial sentences in Northern Ireland. The court was empowered to order the detention of the child in such place and under such conditions as the Secretary of State may direct. This was intended to address the concern that remand homes were not secure places of detention and that a young person held there may be an escape risk or may be targeted by paramilitary organisations. This concern has been addressed by the provision of better juvenile accommodation in Northern Ireland and thus the provision is considered no longer necessary. Subsection (2)(d) of section 2 therefore makes provision for its repeal.
Section 3: Scheduled offences
31.Section 65 of, and Schedule 9 to, the 2000 Act define the "scheduled offences" which qualify for the special procedures and provisions set out in sections 66 to 80 because such offences are commonly committed by paramilitaries and terrorist organisations or are related to the situation in Northern Ireland.
32.Note 1 to Part 1 of the Schedule gives the Attorney General the power to certify that in particular cases certain offences listed in that Part are not to be treated as scheduled offences. This enables the Attorney General to ensure that an offence will not be subject to the special provisions if it is not related to the situation in Northern Ireland.
33.Currently the Attorney General only has a discretion to de-schedule an offence if it is listed in the Schedule as being subject to Note 1. A concern has arisen that certain offences, such as those in paragraph 22 of Schedule 9 (for example, offences relating to financing proscribed organisations and to weapons training), that may be committed in circumstances not connected with the emergency in Northern Ireland would nevertheless have to be tried through the Diplock court system because they are not subject to Note 1. Thus cases related to international terrorism but unconnected with the situation in Northern Ireland would be tried without a jury in Northern Ireland but with a jury in Great Britain. The effect of subsections (1) and (2) is that all scheduled offences will now be subject to Note 1 and the Attorney General will have the power deschedule all the offences listed in the Schedule.
34.The purpose of subsections (3) to (5) is to add certain offences set out in the section 9 of the 2005 Act to the list of offences in Schedule 9 to the 2000 Act. The 2005 Act provides for the making of control orders which impose obligations considered necessary for purposes connected with preventing or restricting an individual’s involvement with terrorism-related activity.
35.Section 9 of the 2005 Act creates three criminal offences in relation to control orders:
A person is guilty of an offence if, without reasonable excuse, he contravenes an obligation imposed on him by a control order (section 9(1));
A person is guilty of an offence if he fails, without reasonable excuse, to report to a specified person when first returning to the United Kingdom as required by the terms of the control order when the order has ceased to have effect (section 9(2));
A person is guilty of an offence if he intentionally obstructs a person delivering a notice setting out the terms of a control order under section 7(9) (section 9(3)).
36.The effect of subsections (4) and (5) is that an offence under the 2005 Act will only be treated as a scheduled offence if it is alleged to have been committed after the coming into force of the Act.
Section 4: Transitional provision in connection with the expiry of Part 7
37.Subsection (1) enables the Secretary of State by order to make transitional, saving and consequential provision as he considers appropriate in connection with the expiry of Part 7 provisions whether by virtue of section 112 of the 2000 Act or section 1 of this Act. Such an order would be subject to the affirmative resolution procedure (subsection (5)).
38.Subsection (2) sets out a number of provisions which may be included in such an order:
There are a number of provisions within Part 7 of the 2000 which allow for the seizure of property. An order may make provision for anything seized under a Part 7 provision to be retained after the expiry of the Part 7 provisions (subsection (2)(a)) and to be returned or disposed of at a later date (subsection (2)(b)).
Section 91 of the 2000 Act allows a person with the authority of the Secretary of State to take possession of land and interfere with certain property if it is necessary for the preservation of peace or the maintenance of order. Section 91 has been used in the past to provide land for army barracks and watch towers. An order may allow any interference begun under section 91 to continue after Part 7 ceases to have effect (subsection (2)(c)) and may preserve the provisions which make it an offence to interfere with such action (subsection (2)(d)).
Section 94 of the 2000 Act provides the Secretary of State with the power to direct the closure or diversion of a specified road where he considers it necessary for the preservation of peace or the maintenance of order. An order may make provision for such roads to remain closed or diverted after Part 7 ceases to have effect (subsection (2)(e)). Section 94 also creates a number of offences in relation to interfering with a road closure or diversion. An order may also provide for the offences under section 94 to continue after the expiry of Part 7 in relation to any road that remains closed or diverted as a result of the order.
Section 102 of, and Schedule 12 to, the 2000 Act provide for a scheme for the payment of compensation by the Secretary of State where property is taken, occupied, damaged, destroyed or private property rights are otherwise interfered with as a result of the exercise of powers conferred by Part 7. An order may preserve this scheme after the expiry of Part 7 (subsection (2)(f)). This would enable compensation to be payable after the expiry of Part 7 both in relation to things done before expiry and things done after it under provisions preserved by the order.
Section 113 of the 2000 Act makes transitional provision in relation to certain Part 7 provisions ceasing to have effect. Section 113 is itself a Part 7 provision. It was therefore necessary to make provision in subsection (2)(g) to enable the relevant transitional provisions in section 113 to have effect, with or without modification, notwithstanding the fact that Part 7 itself may have ceased to have effect.
