Terrorism Prevention and Investigation Measures Act 2011

Terrorism Prevention and Investigation Measures Act 2011

2011 CHAPTER 23

Commentary on Sections

Section 3: Conditions A to E

61. Subsections (1) to (5) of this section set out the conditions on which the power to impose measures on an individual is dependent. Condition A (subsection (1)) specifies that the Secretary of State must reasonably believe that the individual is or has been involved in terrorism-related activity. This is a higher test than that for making a control order under section 2(1)(a) of the 2005 Act, which required the Secretary of State to have “reasonable grounds for suspecting” involvement in terrorism-related activity.

62. Condition B (subsection (2)) requires that some or all of the relevant activity (on the basis of which the test in condition A is satisfied) must be new terrorism-related activity. Subsection (6) defines “new terrorism-related activity” in a number of ways depending on the circumstances of the case.

63. Condition B, when read together with subsection (6) and section 5 (which specifies that a TPIM notice may only be extended once – so that it lasts up to a maximum of two years), has the effect of ensuring that, if a person has already been subject to a TPIM notice for a total of two years, a further TPIM notice can be imposed on that person only if he or she has re-engaged in further terrorism-related activity since the TPIM notice that marked the start of that two year period. (The two year period is not necessarily consecutive – as the TPIM notice may for example have been revoked and then revived at a later date; time only counts towards the two year period if the individual is subject to measures imposed by the TPIM notice during that time. See section 5 and its interaction with sections 13 and 14, and below.)

64. Conditions C (subsection (3)) and D (subsection (4)) set out the two limbs of the necessity test for imposing measures on a person. The Secretary of State must reasonably consider it necessary for purposes connected with protecting the public from a risk of terrorism to impose measures on the individual. The Secretary of State must also consider it necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, to impose the specific measures contained in the TPIM notice on the individual.

65. Condition E (subsection (5)) requires the Secretary of State to have obtained the court’s permission under section 6 before imposing measures (subsection (5)(a)) or to reasonably consider that there is a need for measures to be imposed urgently, without first obtaining permission (subsection (5)(b)). In such a case of urgency, the Secretary of State must refer the case to the court immediately after imposing the measures – see section 7 and Schedule 2.