Control orders
Section 78 – Control orders: powers of entry and search
209.This section adds three new sections after section 7 of the Prevention of Terrorism Act 2005 (“PTA”). The new sections provide constables with the power to enter and search the premises of individuals subject to control orders who are reasonably suspected of absconding or of failing to grant access to premises when required to do so. They also allow a constable to apply to a justice of the peace (or, in the case of Scotland, a sheriff and, in the case of Northern Ireland, a lay magistrate) for a warrant to enter and search premises for the purpose of monitoring compliance with a control order. In the context of the PTA “premises” can include vehicles that are owned or controlled by the controlled person (see section 15 of that Act). The three new sections are added by subsection (1).
210.New section 7A (absconding) gives a constable the power to enter (if necessary by force) and search premises if the officer reasonably suspects that the controlled person has absconded. Once a constable has this initial “reasonable suspicion” the entry and search power can be exercised to determine whether the controlled person has in fact absconded and, if it appears that he has, to search for any material that may assist in apprehending him. However in circumstances where, prior to these powers being exercised a constable knows that a controlled person has absconded he can enter and search the property for any material that may assist in apprehending the controlled person without the purpose of this entry and search being to determine whether there has been an abscond.
211.The term “abscond” is not defined in the PTA and it is intended that it should have its ordinary meaning: “to leave hurriedly and secretly, flee from justice” and, in this particular context, to avoid the obligations of a control order. The premises to which new section 7A applies are:
the residence of an individual subject to a control order;
any other premises to which a controlled person is required to grant access in accordance with an obligation imposed by or under a control order; and
premises to which a controlled person has in the past but is no longer required to grant access in accordance with an obligation imposed by or under a control order and with which there is reason to believe that the controlled individual is or was recently connected.
212.New section 7B (failure to grant access to premises) gives a constable the power to enter (if necessary by force) and search premises where the constable reasonably suspects that the controlled person has failed to permit entry (as required by the control order) at a time when, by virtue of an obligation under the control order, the person is required to be in that person’s residence. The purpose of any such entry and search is to determine whether any of the obligations imposed by a control order have been contravened or, if it appears that there has been such a contravention, to search for any material that may assist in any subsequent investigation. The premises to which this new section applies are premises to which the controlled person is obliged to grant access under the person’s control order obligations.
213.New section 7C (monitoring compliance with a control order) allows a constable to apply to a justice of the peace (or, in Scotland, a sheriff and, in Northern Ireland, a lay magistrate) for a warrant to enter and search the premises of a controlled person to determine whether a controlled individual is complying with that person’s obligations. Such a warrant may only be granted if the justice of the peace (or sheriff or lay magistrate) is satisfied that it is necessary for the purposes of determining whether the controlled person is complying with the control order obligations. In order for the requirement of necessity to be met it is envisaged that such warrants will most often be applied for where the police have previously attempted to conduct unannounced visits that have failed due to the apparent absence of the individual. The premises to which this new section applies are the same as for new section 7A (see above).
214.Subsection (2) of section 78 provides that obstruction of a police officer acting under any of new sections 7A, 7B or 7C is an offence punishable, on summary conviction, by a fine not exceeding level 5 on the standard scale (currently £5000) and a prison sentence up to 51 weeks (in England and Wales) or six months (in Scotland and Northern Ireland). The powers of a magistrates’ court to impose a prison sentence of 51 weeks are provided by section 281(5) of the Criminal Justice Act 2003. This provision has not yet been commenced and until it is reference to the prison sentence of 51 weeks should be read as a reference to a prison sentence of 6 months (see section 9(8) of the PTA).
215.Subsection (3) provides that these amendments will apply regardless of when the control order was made.
Section 79 – Control orders: meaning of involvement in terrorism-related activity
216.Section 1(9) of the PTA defines involvement in terrorism-related activity as any one or more of the following:
the commission, preparation or instigation of acts of terrorism;
conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.
217.Subsection (1) of section 79 amends section 1(9)(d) so that it reads “conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c).”
218.This amendment removes an unintended ambiguity in the original definition, which could be read as capturing individuals who unknowingly provided support or assistance to individuals known or believed by the Secretary of State to be involved in terrorism-related activity. It also removes an unnecessary potential circularity in the definition. Currently, an individual (A) could have a control order imposed on him because he was supporting another individual (B) known or believed to be supporting a third person (C) involved in terrorism-related activity within paragraphs (a) to (c). There could in theory be any number of links in this chain: A knows or believes B who knows or believes C who knows or believes D, and so on before it leads to someone (Z) who is actually engaged in conduct referred to within paragraphs (a) to (c). At present all persons in this chain could have a control order imposed against them. The definition was not and is not intended to be this wide. This amendment ensures that only support for someone directly involved in terrorism-related activity (conduct falling within section 1(9)(a) to (c)) is captured so that in the example referred to above only the person directly giving support and assistance to Z would be caught by the definition.
219.Subsection (2) provides that the revised definition set out in subsection (1) is deemed to have had effect since the 2005 Act came into force. This is the way in which the provision has always been interpreted and reflects the fact that the “tightened” definition is the one that has always been applied. This subsection is also intended to ensure that the basis upon which previous or current control orders have been made or upheld by the courts is not called into question as a result of a change in the definition of terrorism-related activity.
Section 80 –Time allowed for representations by controlled persons
220.Section 3 of the PTA makes provision in relation to the supervision by the court of the making of non-derogating control orders. Once a non-derogating control order has been made, the Secretary of State’s decision to make the control order and impose the obligations in it are subject to mandatory review by the court. (In the case of a controlled person whose principal of residence is in Scotland the court is the Outer House of the Court of Session; in the case of a controlled person whose principle place of residence is in Northern Ireland the court is the High Court in Northern Ireland; and in any other case the court is the High Court in England and Wales (see section 15 of the PTA)). This review is a full hearing with the court applying judicial review principles to the decisions taken (this is commonly known as a “3(10) hearing” after the section in the PTA that provides for it). Section 3 requires the court to give an individual subject to a control order the opportunity to make representations to the court about directions for the 3(10) hearing in relation to that control order.
221.Subsections (2) and (3) of this section amend section 3 so that when a control order is made following permission from the court, the individual will be given an opportunity to make representations within seven days from the time that the order is served upon him and not, as currently, seven days from the time the court gives permission. There may for operational reasons be a gap – possibly longer than seven days – between the time a control order is made and the time it is served. The PTA as currently drafted potentially requires the court to give an individual the opportunity to make representations before the order is served – and thus before the individual is aware of the control order or bound by its obligations. This is impractical and operationally undesirable. This amendment will apply to control orders made after this section comes into force.
222.By virtue of new subsection (7A)(b), the amendment does not change the position regarding the timing of the opportunity for an individual to make representations in relation to urgent control orders made without the permission of the court. By definition, the individual in such cases is already aware of the control order and bound by its obligations.
Section 81 – Applications for anonymity for controlled persons
223.Subsections (1) to (3) of this section make a technical amendment to the anonymity provisions in paragraph 5 of the Schedule to the PTA. The intention of paragraph 5 is to ensure that the anonymity of individuals subject to a control order can be maintained throughout the process. Paragraph 5 states that anonymity orders can be applied for after a control order has been made. It is the Secretary of State that has the power to make a non-derogating control order. However (except in cases of urgency) before the power to make an order arises the Secretary of State must apply to the court for permission to make a control order (or in the case of derogating control orders, when the Secretary of State applies for the court to make such an order). The amendments in this section mean that the Secretary of State can make an application for an anonymity order to protect the identity of the controlled person at the stage when permission is being sought from the court to make the control order rather than when the control order is actually made.
224.Subsection (4) provides that this amendment will be deemed always to have had effect. This reflects the original policy intention and current practice followed by the courts, which the section does not seek to change. Moreover, subsection (4) ensures that all current anonymity orders made when permission for the control order was sought from the courts and before this section comes into force will be unaffected.
