Counter-Terrorism Act 2008

Counter-Terrorism Act 2008

2008 CHAPTER 28

Commentary on Sections

Part 7 – Miscellaneous

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:

a)

the residence of an individual subject to a control order;

b)

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

c)

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.