The Terrorism Act 2006
Broad subject: Terrorism and organised crime
Issue date: Tue Apr 11 00:00:00 BST 2006
Crime Reduction and Community Safety Group (CRCSG) - Counter Terrorism and Intelligence
Terrorism and Protection Unit (TPU)
No linked circulars
Copies sent to:
Association of Chief Police Officers in Scotland, Circuit Judges, Circuit Administrators, Clerks to the Justices, Clerks to the Police Authorities, Crown Court Judges, HM Inspector of Constabulary, The Chief Crown Prosecutor, The Court Administrator, Association of Chief Police Officers (England,Wales and Northern Ireland)
Sub category: Terrorism legislation
Implementation date: Thu Apr 13 00:00:00 BST 2006
For more info contact:
Ben Hale - 020 7035 3694
All Chief Officers of Police
Terrorism Act 2006
This circular has been drafted by the Home Office to assist the reader in understanding the Terrorism Act 2006, and the changes that this makes to the existing legislative framework. It should be read in conjunction with the Act itself, and the explanatory notes to the Act. Neither this circular nor the explanatory notes have any legal force.
The Terrorism Act 2006 uses the definition of terrorism contained in the Terrorism Act 2000. Section 34 amends that definition slightly, to include specific types of actions against international governmental organisations, such as the UN. The definition in the Terrorism Act 2000 (as amended) states:
- (1) In this Act “terrorism” means the use or threat of action where:
- the action falls within subsection (2)
- the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public
- the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it:
- involves serious violence against a person
- involves serious damage to property
- endangers a person’s life, other than that of the person committing the action
- creates a serious risk to the health or safety of the public or a section of the public
- is designed seriously to interfere with or seriously to disrupt an electronic system
Section 1(3) to (5) goes on to expand on the effect and extent of this definition.
At various points this Circular refers to “Convention Offences”. These are listed in Schedule 1 to the Act. They include a number of offences required to be created by international conventions, such as hi-jacking. The full details of the offences is contained on page 16 of this circular.
Sections 1-4 : Encouragement etc. of Terrorism
Encouragement of Terrorism
Section 1 of the Terrorism Act 2006 creates the offence of Encouragement of Terrorism. In order for a person to commit the offence a three element test must be met. Those three elements are as follows:
The defendant must publish a statement, or cause another to publish a statement
The statement must be likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement to them to commit, prepare or instigate acts of terrorism or Convention offences
- When publishing the statement, or causing it to be published, the defendant must have the necessary state of mind. This is an offence that can be committed intentionally or recklessly:
- The necessary intention is that the defendant must intend members of the public to be encouraged to commit, prepare or instigate acts of terrorism or Convention offences
- To be reckless the defendant must be reckless as to the possibility that the statement will have the effect of members of the public being encouraged to commit, prepare or instigate acts of terrorism or Convention offences. During the debates on the Bill it was made clear that the term ‘reckless’ would be interpreted in accordance with current case law on the meaning of recklessness. As the law currently stands in order to be reckless the defendant will need to be shown to have been aware of the risk that an effect of the statement would be to encourage terrorism or Convention offences, and in the circumstances known to him, it was unreasonable for him to take that risk
Glorifying statements: Subsection (3) provides an example of statements that may be understood as indirectly encouraging terrorism or Convention offences. It provides that:
- statements that glorify terrorism constitute an indirect encouragement to terrorism or Convention offences but only if
- the statements are of a type that the audience may reasonably infer that the conduct is being glorified as conduct that should be emulated in existing circumstances
Part (b) is a deliberate and important qualification of the concept of glorification. It has two limbs, firstly, the audience must reasonably understand that they should emulate the conduct, in other words, that they should do something similar. Secondly, the concept of “in existing circumstances” means that it must be possible for them to emulate the conduct glorified in this day and age. This means that the glorification of distant historical events is unlikely to be caught.
Interpretation of statements: Subsection (4) sets out that the question of how a statement is likely to be understood must be determined in relation to the contents of the statement as a whole, and the context of its publication. This is intended to ensure that context is relevant, for example, it recognises that there is a difference in how an academic thesis on an issue and a radical and inflammatory pamphlet are likely to be understood. It is irrelevant whether the terrorist acts encouraged are specific acts, or acts in general (subsection (5)). The term “statement” is defined in the interpretation section as communications of any description, including those without words consisting of sounds, images, or both.
Section 1 contains a defence to the offence under section 1. The defendant has a defence If:
- he did not intend to encourage terrorism or Convention offences (in other words, he committed the offence recklessly);
- he can show that the statement he published did not express his views or have his endorsement; and
- he can show that it was clear in all the circumstances of the case that the statement did not express his views or have his endorsement.
Dissemination of Terrorist Publications
Section 2 creates the offence of dissemination of terrorist publications. In order for a person to commit the offence a three element test must be met. Those three elements are as follows:
- The publication in question must be a terrorist publication. There are two ways in which a publication can be a terrorist publication:
- The first way is if, in relation to the conduct described in section 2(2), matter contained in it is likely to be understood by some or all of the persons to whom it is or may be disseminated as a direct or indirect encouragement or other inducement to commit, prepare or instigate acts of terrorism.
- The second way is if, matter contained in it is likely to be useful in the commission or preparation of terrorist acts and if it is likely to be understood by some or all of the persons to whom it is or may be disseminated as containing that information wholly or mainly for the purposes of being so useful to them.
- The publication in question must be subject to one of the types of conduct in Section 2(2), which sets out the conduct that will constitute the offence. The conduct is: distributing or circulating a terrorist publication; giving, selling, or lending a terrorist publication; offering a terrorist publication for sale or loan; providing a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of gift, sale, or loan; transmitting the contents of a terrorist publication electronically; and possessing a terrorist publication with a view to making it available in any of the ways listed.
- This list includes not only disseminating the publication but also doing acts preparatory to its dissemination and holding it with a view to its dissemination. It is also not limited to commercial transactions. Dissemination can be both in hard copy and electronically.
The defendant must have the necessary state of mind. Under subsection (1), the offence can either be committed intentionally or recklessly:
- For an offence to be committed intentionally the defendant must either:
- have an intention that an effect of his conduct will be a direct or indirect encouragement or other inducement to terrorism, or
- have an intention that an effect of his conduct will be the provision of assistance in the commission or preparation of acts of terrorism.
For the offence to be committed recklessly the defendant must be reckless as to whether his conduct has one of these effects set out in (A) and (B). The recklessness element will be interpreted in accordance with the current case law.
Publications that glorify terrorism: Subsection (4) sets out that matter contained in a publication that glorifies terrorism will be considered to amount to an indirect encouragement to terrorism where the person to whom it is made available could reasonably be expected to infer that the conduct that is being glorified is glorified as conduct that should be emulated in existing circumstances. As in section 1, glorification without this element is not enough to amount to indirect encouragement.
It is irrelevant whether the terrorist acts encouraged, or for which the information is useful, are specific acts, or acts in general. A publication can include matter to be read, listened to, or looked at or watched, and may include visual images without any accompanying text.
Section 2 contains a defence to the offence in Section 2. The defendant has a defence if:
- the terrorist publication that is the subject of the offence amounts to a direct or indirect encouragement to terrorism (in other words, the defence is not available if the publication is one that is useful in the commission or preparation of acts of terrorism)
- the defendant did not intend to encourage terrorism (in other words he commits the offence recklessly)
- he shows that the terrorist publication did not express his views and did not have his endorsement
- he shows that it was clear in all the circumstances that it did not express his views and did not have his endorsement.
Application to the Internet
The offences contained in Sections 1 and 2 include publication and dissemination on the internet and other electronic services. Section 3 contains additional provisions applying to the internet. Specifically, it allows for the service of a notice by a constable where he believes illegal terrorism related material is available on a website, on the person or persons responsible for that material. The notice requires that the terrorism related material be removed or modified within two working days.
The consequence of non compliance with such a notice is that the person on whom the notice is served will not be capable of using the statutory defence of non-endorsement contained in Sections 1 and 2, were a prosecution to ensue under those sections.
Separate guidance is being issued on the issue of notices under Section 3, including the question of when a notice should be issued, and the procedure for doing so. This guidance should be consulted before any notice is issued.
Sections 5-8: Preperation of terrorist acts and terrorist training
Preparation of Terrorist Acts
Section 5 creates the offence of preparation of terrorist acts. This is intended to cover the steps taken in preparation for the carrying out of a terrorist act, including planning or other forms of preparation, prior to an attempt being made.
A person commits an offence if a two element test is met. Those two elements are as follows:
- (a) the defendant engages in any conduct in preparation for giving effect to his intention (the intention is set out in part (b)); and
- (i) to commit an act of terrorism, or
- (ii) to assist another person to commit such an act
An offence is committed if the preparation or intention is for a terrorist act or acts in general. It is not required that a specific terrorist act or type of act is contemplated.
Section 6 creates a new offence of terrorist training. This complements the offences contained in Section 54 of the Terrorism Act 2000. The section creates two offences.
The first offence is set out in subsection (1), it has three elements, as follows:
- the defendant provides instruction or training
- the training provided is in any skills listed (see below)
- for or in connection with the commission or preparation of terrorist acts or Convention offences, or
- in assisting the commission or preparation of such acts by other people
The second offence is set out in subsection (2), it also has three elements, as follows:
- the defendant receives instruction or training
- the training provided is in any skills listed (see below)
- for or in connection with the commission or preparation of terrorist acts or Convention offences, or
- in assisting the commission or preparation of such acts by other people.
Subsection (3) lists the skills in which it is an offence to give or receive training, as referred to in part (b) of the explanation of the elements of each offence. The skills are split into three categories, as follows:
- 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.
- Section 7 provides for forfeiture powers on conviction in respect of any items which the court considers were in the offender’s possession for purposes connected with the offence under Section 6.
Attendance at a place of terrorist training
Section 8 creates a new offence of attendance at a place used for terrorist training. This complements the offences in Section 6 of this Act and Section 54 of the Terrorism Act 2000.
In order for a person to commit the offence a three element test must be met. Those three elements are as follows:
- the defendant attended a place and, whilst he was at that place, terrorist training as outlined in Section 6(1) of this Act or Section 54(1) of the Terrorism Act 2000 was provided. The place can be inside or outside the UK
- the training in question was provided wholly or partly for purposes connected with the preparation or commission of acts of terrorism or Convention offences
- the defendant knew or believed that training was provided for terrorist purposes (as described in the second element), or
- a person attending the place, throughout the period of the person’s attendance, could not reasonably have failed to understand that it was provided wholly or partly for those purposes.
It is immaterial for the purposes of the offence being committed who received the training, or whether it was for a particular act of terrorism, or acts of terrorism in general. A person does not need to receive training himself to commit the offence.
Sections 9-12: Offences involving radioactive devices and materials and nuclear facilities and sites
Section 9 creates an offence of making or possessing a radioactive device or possessing radioactive material with the intention of using it in the course of, or in connection with, the commission or preparation of an act of terrorism, or for the purposes of terrorism, or making it available to be so used. Radioactive device and material are both defined in the Act.
Section 10 creates offences of the misuse of a radioactive device, or material, and damage of nuclear facilities. Under subsection (1), a person commits an offence if he uses a radioactive device or material in the course of or in connection with the commission of an act of terrorism, or for the purposes of terrorism. Under subsection (2), a person commits an offence if in the course of or in connection with an act of terrorism or for the purposes of terrorism he uses or damages a nuclear facility in such a way that he causes a release of radioactive material or creates or increases a risk that such material will be released.
Section 11 creates offences to cover the making of threats by terrorists relating to radioactive devices, materials or nuclear facilities. Under subsection (1), a person commits an offence if in the course of, or in connection with, the commission of an act of terrorism or for the purposes of terrorism he makes certain demands supported with a threat to take action, where it is reasonable for the person to whom the threat is made to assume that if the demand is not fulfilled there is a real risk that the threat will be. The relevant demands are for the supply to himself or another of a radioactive device or material, for a nuclear facility to be made available to himself or another person, or for access to a nuclear facility for himself or another person. A person also commits an offence if, in the course of or in connection with the commission of an act of terrorism or for the purposes of terrorism, he makes a threat involving the use of radioactive material, radioactive devices, or use of, or damage to, a nuclear facility as set out in Subsection (3), and it is reasonable to assume that if the demand associated with the threat is not fulfilled there is a real risk that the threat will be.
Trespass on Nuclear Sites
Section 12 amends sections 128 and 129 of the Serious Organised Crime and Police Act 2005 to cover trespass on nuclear sites. These sections already create a criminal offence of trespass on designated sites.
Section 12 extends the offence of criminal trespass to include trespass on any premises in respect of which a nuclear site license is in effect (as stipulated in the Nuclear Installations Act 1965) plus any other premises lying with the outer perimeter fence. The offence will extend to trespass on any part of the premises lying within the outer perimeter of the protection provided for those premises.
The line of the outer perimeter is determined by the outermost protective fence, wall or other obstacle, on the assumption that every gate, door or other barrier across a way through a fence or other obstacle is closed. It will not be an offence to trespass on land that is covered by a nuclear site licence but is outside the outer perimeter fence.
Sections 13-15: Increases of penalties
Section 13, 14, and 15 increase penalties for certain offences.
Section 13 amends Section 57(4)(a) of the Terrorism Act 2000, increasing the maximum penalty for possessing for terrorist purposes to 15 years’ imprisonment, from 10 years’ imprisonment.
Section 14 increases the maximum penalty for an offence under Section 2 of the Nuclear Material (Offences) Act 1983. This 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. The maximum penalty is increased from up to fourteen years’ imprisonment, to imprisonment for life.
Section 15 increases the penalty for contravening a notice relating to encrypted information, issued under section 53 of the Regulation of Investigatory Powers Act 2000. Currently this section of the Regulation of Investigatory Powers Act has not been commenced. A consultation is being prepared on a code of practice. The section will be commenced following agreement of this code. The maximum penalty for failure to comply with a notice is increased in cases of notices issued on the grounds of national security, from two years’, to five years’ imprisonment.
Sections 16-19: Incidental provisions about offences
Section 16 provides for preparatory hearings in terrorism cases. It amends Section 29 of the Criminal Procedure and Investigations Act 1996 (power to order preparatory hearing). Its effect is that preparatory hearings will be mandatory in terrorism cases.
In a case where at least one individual is charged with a terrorism offence, an order that a preparatory hearing shall be held must be made by a judge of the Crown Court. It also provides that an order that a preparatory hearing shall be held must be made in a case in which at least one of the offences charged by the indictment against at least one of the persons charged carries a maximum of at least 10 years’ imprisonment, and it appears to the judge on the evidence on the indictment that the offence had a terrorist connection. Subsection (5) inserts a definition of the term “terrorism offence” into section 29. The power to order a preparatory hearing in a case of serious or complex fraud under the Criminal Justice Act 1987 is preserved.
Section 17 sets out that the UK Courts, in relation to certain specified offences have extra territorial jurisdiction. It specifically provides that if a person does an act outside the UK that, if it had been done in a part of the UK, would amount to one of the offences listed in subsection (2) of the section he shall be guilty of that offence in that part of the UK and can therefore be dealt with by the UK courts for it. The jurisdiction is not limited to British citizens or residents, it applies to all persons regardless of their nationality (or in the case of a company where they are incorporated). The listed offences are as follows:
- Encouragement of Terrorism (s. 1 of the Act), where such encouragement is in relation to a Convention Offence (listed in Schedule 1)
- Training offences (s.6 of the Act), where such training is provided or received with a view to committing a Convention Offence (listed in Schedule 1).
- Attendance at a place used for terrorist training (s.8 of the Act)
- Making and possession of radioactive devices or materials (s.9 of the Act)
- Misuse of radioactive devices or materials and misuse and damage of nuclear facilities (s.10 of the Act)
- Terrorist threats relating to radioactive devices and materials and nuclear facilities (s. 11 of the Act)
- Membership of proscribed organisation (s. 11(1) Terrorism Act 2000)
- Terrorist Training (weapons training) (s. 54 Terrorism Act 2000)
- Conspiracy to commit any offence listed above
- Incitement to commit any offence listed above
- Attempting to commit any offence listed above
Aiding, abetting, counselling, or procuring the commission of any offence listed above.
Section 17 also makes amendments to the offence under section 3 of the Explosive Substances Act 1883. The offence is widened so that it covers a plan in relation to an explosion to take place anywhere in the world, whereas before it only covered a plan in relation to an explosion to take place in the UK or the Republic of Ireland.
Section 18 provides that if any offence in Part 1 of the Terrorism Act 2006 is committed by a body corporate or a Scottish firm and it is proved that the offence was committed with the consent or connivance of a director, manager, secretary or other officer of that body or a partner of that firm, or a person purporting to act in any such capacity, that person, as well as the body or firm shall be guilty of the offence.
Section 19 provides that prosecutions for any offence contained within Part 1 of the Terrorism Act 2006 require the consent of the Director of Public Prosecutions (or, in Northern Ireland, the Director of Public Prosecutions for Northern Ireland).
- If it appears to the DPP or DPP for Northern Ireland that an offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, he may only give his consent with the permission of the Attorney General (or Advocate General in Northern Ireland). Prior to the commencement of Section 27(1) of the Justice (Northern Ireland) Act 2002, references to the Advocate General in Northern Ireland should be read as referring to the Attorney General for Northern Ireland.
Section 20: Interpretation
- Section 20 provides a guide to interpreting Part 1 of the Act. It defines, among other things, the terms “act of terrorism”, “glorification”, “publish” and “statement”. It also provides that expressions in Part 1 and the Terrorism Act 2000 are to have the same meaning in Part 1 as in the Terrorism Act 2000.
Sections 21-22: Proscription of terrorist organisations
Section 3 of the Terrorism Act 2000 provides for the proscription of terrorist organisations. Membership of such organisations constitutes an offence, and ancillary offences also exist (supporting a proscribed organisation etc). Section 21 of the Terrorism Act 2006 modifies the grounds for proscription. At the moment an organisation can be proscribed if it promotes or encourages terrorism, Section 21 expands on the meaning of promote or encourage terrorism so that it includes an organisation, the activities of which include the unlawful glorification of terrorism or its activities are carried out in a manner that ensures that it is associated with statements containing unlawful glorification of terrorism. Glorification of conduct is unlawful if there are persons who may become aware of it who could reasonably be expected to infer that what is glorified, is glorified as conduct that should be emulated in existing circumstances.
Section 22 of the Act amends the Terrorism Act 2000 to ensure that proscribed organisations cannot avoid the proscription regime simply by changing their names. Under the new procedure inserted into the Terrorism Act 2000 by this section, if the Secretary of State believes that an organisation that is listed in Schedule 2 (which lists the organisations that are proscribed) is operating under a name that is not specified in Schedule 2, or that an organisation is operating under a different name but is the same as a listed organisation, he can make an order to the effect that the name that does not appear in Schedule 2, is another name for the listed organisation.
The organisation will then be treated as the same as one listed as proscribed, and the proscription regime will apply. Membership of that organisation will constitute an offence, and other ancillary offences will also apply in the usual way. The section provides that an organisation or a person affected by its inclusion in an order can apply to the Secretary of State for a review of his decision to make an order and can subsequently appeal to the Proscribed Organisations Appeal Commission.
New section 3(9) makes it clear that the new procedure is without prejudice to the possibility that an organisation may be proved to be the same as an organisation listed in Schedule 2, even though it operates under a name that does not appear in Schedule 2 or in an order under the new procedure.
Sections 23-25: Detention of terrorist suspects
Sections 23-25 are not being brought into force at this time. These sections will be brought into force only when a Code of Practice governing pre-charge detention of those arrested under section 41 of the Terrorism Act 2000 has been put in place.
Section 23 amends Schedule 8 in the following four ways:
- (a) To allow for detention of terrorist suspects prior to charge for up to a maximum of 28 days. The previous maximum was 14 days
- (b) To provide that any application for extension of detention of a terrorist suspect beyond the current maximum of 14 days must be made to a High Court Judge (or the equivalent in Northern Ireland and Scotland) rather than a judicial authority
- (c) To provide that each extension period will be for seven days unless a shorter period is applied for or the judge considers that an extension for as long as seven days is inappropriate
- (i) a police officer of at least the rank of superintendent
- (ii) a crown prosecutor (in England and Wales)
- (iii) the Lord Advocate or a procurator fiscal (in Scotland), or
- (iv) the Director of Public Prosecutions for Northern Ireland (in Northern Ireland)
Schedule 8 to the Terrorism Act provides the relevant procedures used in the detention of terrorist suspects. In addition, at the moment terrorist suspects are detained in accordance with the Police and Criminal Evidence Act 1984 Code of Practice for the detention, treatment and questioning of persons by police officers (Code C). Following an agreement in Parliament during the passage of the Bill, a separate Code is currently being prepared, which will be brought into force prior to the commencement of Section 23 to the Terrorism Act 2006. Any detentions following the commencement of this section must therefore be carried out in accordance with this new Code of Practice (as well as Schedule 8).
Section 24 amends Schedule 8 to the Terrorism Act 2000 in relation to the grounds for extending detention of a terrorist suspect. Continued detention of a terrorist will be permitted if necessary:
- a. To obtain relevant evidence whether by questioning him or otherwise
- b. To preserve relevant evidence
- c. Pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be, or is being carried out with a view to obtaining relevant evidence.
The judge must also be satisfied that the investigation is being conducted diligently and expeditiously.
- Section 25 creates the requirement for the annual renewal by Parliament of the provisions of Section 23 which increase the maximum period of detention to 28 days. If those provisions are not renewed the maximum period of detention will revert to the current maximum of 14 days.
Sections 26-30: Searches etc.
Sections 26 and 27 of the Act provide for all-premises search warrants in England, Wales, and Northern Ireland (s. 26), and Scotland (s.27). These provisions bring Terrorism investigations into line with the investigation of offences more generally under the Police and Criminal Evidence Act 1984 (as amended by sections 113 and 114 of the Serious Organised Crime and Police Act 2005).
Under Paragraph 1 of Schedule 5 to the Terrorism Act 2000, a constable may apply to a justice of the peace for a warrant to enter and search premises for the purposes of a terrorist investigation. Under Paragraph 11 of that Schedule, a constable may apply to a Circuit judge for a warrant to enter and search premises for excluded and special procedure material. Once paragraph 9 of Schedule 4 to the Courts Act 2003 has been commenced this power will also be able to be exercised by a District judge (Magistrates’ Courts) and the amendments take account of this.
Section 26 amends Schedule 5 to provide that a constable may apply for a warrant to search all premises occupied or controlled by a person specified in the warrant (“an all-premises warrant”). Applications for all-premises warrants may now be made under Paragraph 1 of Schedule 5 to the Terrorism Act 2000 (as amended), and Paragraph 11 of Schedule 5 in the case of a search for excluded and special procedure material.
Excluded and Special Procedure material: Excluded and special procedure material should be understood in line with the meanings given in paragraph 4 of Schedule 5 to the Terrorism Act 2000, which cross-refers to those given in the Police and Criminal Evidence Act 1984. Excepted material means personal records that a person has acquired or created in the course of any trade, business, profession or other occupation, or for the purpose of any paid or unpaid office and which he holds in confidence; human tissue or tissue fluid that has been taken for medical diagnosis or treatment and which a person holds in confidence; and journalistic material which consists of documents, or records other than documents, and which a person holds in confidence.
Special procedure material means journalistic material that is not excluded material; and material acquired or created in the course of any trade, business, profession or other occupation, or for the purpose of any paid or unpaid office and which is held subject to an express undertaking of confidence or an obligation of confidence imposed by any enactment.
Grounds for issue of all-premises warrants
A justice of the peace may grant an application for an all premises warrant made under Paragraph 1 of Schedule 5 to the Terrorism Act 2000 if they are satisfied that:
- The warrant is sought for the purposes of a terrorist investigation
- There are reasonable grounds for believing that there is material on premises to which the application relates which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation and which does not consist of or include excepted material,
- That the issue of a warrant is likely to be necessary in the circumstances of the case, and
That it is not reasonably practicable to specify in the application all the premises which the person specified in the application occupies or controls and which might need to be searched.
A Circuit judge (or a District Judge (Magistrates’ Courts), once the Courts Act 2003 is in force) may grant an application for an all premises warrant in order to search for excluded or special procedure material, made under paragraph 11 of Schedule 5 to the Terrorism Act 2000, if one of two tests is met. The first is that the judge to whom the application is made is satisfied:
- that an order made under paragraph 5 of Schedule 5 has not been complied with, and
- the person specified in the application for a warrant is also speicfied in the order under paragraph 5.
The second test is that the judge is satisfied that there are reasonable grounds for believing that:
- there is material on premises to which the application relates which consists of or includes excluded material or special procedure material but does not include items subject to legal privilege; and
- the conditions in paragraph 12(3) and (4) of Schedule 5 are satisfied.
The condition in paragraph 12(3) is:
- that the warrant is sought for the purposes of a terrorist investigation; and
- the material is likely to be of substantial value, whether by itself or together with other material to a terrorist investigation.
The condition in paragraph 12(4) is that it is not appropriate to make an order under paragraph 5 of Schedule 5 in relation to the material because—
- it is not practicable to communicate with any person entitled to produce the material,
- it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on to which that application for the warrant relates, or
a terrorist investigation may be seriously prejudiced unless a constable can secure immediate access to the material.
Section 27 makes similar provision for Scotland. Under paragraph 28 of Schedule 5 to the Terrorism Act 2000, a procurator fiscal can apply to the sheriff for a warrant to enter and search premises for the purposes of a terrorist investigation. Section 27 amends paragraph 28 to allow for the procurator fiscal to apply for an “all premises warrant” as well as a specific premises warrant. The sheriff can grant an application for an all-premises warrant made under paragraph 28 of Schedule 5 if he is satisfied:
- that the warrant is sought for the purposes of a terrorist investigation
- that there are reasonable grounds for believing that there is material on the premises to which the application relates which is likely to be of substantial value to a terrorist investigation, and
- that one of the conditions in paragraph 29 of Schedule 5 is satisfied
The conditions in paragraph 29 relate to whether an order has been made under paragraph 22 of Schedule 5 which has not been complied with or whether it is not appropriate to make an order under paragraph 22 for one of a number of specified reasons.
Search, Seizure and Forfeiture of Terrorist Publications
Section 28 of the Act provides for the search and seizure of terrorist publications, and introduces Schedule 2, which provides for the forfeiture of publications seized. A constable may apply to a justice of the peace for a warrant to enter premises, search them, and seize articles that he believes to be terrorist publications to which section 28 applies as defined by part (b) below.
The justice of the peace may grant such a warrant:
- if he is satisfied that there are reasonable grounds for suspecting that terrorist publications are likely to be found on the premises to which the application relates, and
- it is likely to be subject to one of the types of conduct set out in section 2(2)(a) to (e) (broadly speaking this is the conduct of disseminating a terrorist publication), and
- the article would be treated as a terrorist publication within the meaning of section 2 (broadly speaking that it is an direct or indirect encouragement to terrorism or it is useful to terrorists)
As for forfeiture of items that are seized, articles that are seized may only be forfeited if a warrant has been issued on an information laid by or on behalf of the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland. If they are forfeited, they may be destroyed or otherwise disposed of by a constable as he sees fit. Schedule 2 sets out the procedure by which forfeiture proceedings must be carried out.
A person exercising the power conferred by a warrant may use such force as is reasonable in the circumstances for exercising the power. Nothing in the Police (Property) Act 1897 nor Section 31 of the Police (Northern Ireland) Act 1998, which provide for property seized in the investigation of an offence, shall apply to an article seized under the authority of a warrant issued under Section 28. The provisions on bulk seizures in the Criminal Justice and Police Act 2001 apply.
- In Scotland, applications under this section may be made by a procurator fiscal, to a sheriff. The requirement in subsection (5), that items may only be forfeited if they were seized under a warrant issued on an information laid by the DPP or DPP of Northern Ireland does not apply in Scotland.
Search Powers at Ports
Section 29 of the Act amends paragraph 8(1) of Schedule 7 to the Terrorism Act 2000 with respect to the powers of examining officers to search vehicles at ports. The amendments clarify the search powers.
It is now clear that an examining officer (as defined by Schedule 7 to the Terrorism Act 2000) has the power to search, at a port:
- Any vehicle on a ship or aircraft, or
- Any vehicle that the examining officer reasonably believes has been, or is about to be, on a ship or aircraft
for the purpose of determining whether a person the examining officer is questioning under paragraph 2 of Schedule 7 falls within section 40(1)(b) of the Terrorism Act 2000. A person falls with that provision if he is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Stop and search: internal waters
Section 30 of the Act amends stop and search powers as contained in Section 44 of the Terrorism Act 2000. This section extends the area in which a senior officer can authorise terrorism stop and search powers under Section 44 of that Act to include internal waters.
The purpose of the extension of the powers is to enable police to conduct anti-terrorist operations using section 44 stop and search powers in UK internal waters and to make waterside powers analogous with landside powers for the protection of vulnerable sites and potential targets.
Section 44(1) of the Terrorism Act 2000 provides that an authorisation may be given for a particular police area or part of a police area and under the authorisation a constable may stop a vehicle in the area and search the vehicle, the driver of the vehicle, a passenger in the vehicle and anything on or in the vehicle or carried by the driver or a passenger. Section 44(2) relates to the stop and search of pedestrians (and is not, therefore, relevant to the operation of the powers under section 44 in internal waters).
Section 30(2) adds a new subsection to section 44 to enable an authorisation under section 44 to include internal waters adjacent to any area or place specified under section 44(4) or part of such internal waters.
‘Internal waters’ are defined as waters in the United Kingdom that are not comprised in any police area.
A definition of a ‘police area’ is provided by Section 1 of, and Schedule 1 to, the Police Act 1996. Some waters within the UK, such as rivers and lakes, are covered within the definition of a police area provided by the Police Act.
‘Internal waters’ are defined by the United Nations Convention on the Law of the Sea (UNCLOS) as “waters on the landward side of the baseline of the territorial sea”. The baseline of the territorial sea is defined within UK legislation in the Territorial Waters Order in Council of 25 September 1964, as amended by S.I. 1998/2564. The Order in Council provides that the baseline is the low-water line along the coast of the UK, the Channel Islands and the Isle of Man, including the coast of all islands comprised in those territories. NB: The Order in Council makes special provision for determining the baseline adjacent to a bay (Article 4) and the baseline of the coast between Cape Wrath and the Mull of Kintyre (Article 3).
Section 44 powers are not available in territorial waters. Territorial waters refer to the part of the ocean immediately adjacent to the shores of a state and are subject to the laws of that state. UK territorial waters extend out 12 miles from the shoreline. Article 17 of UNCLOS safeguards the right to innocent passage through territorial waters and powers to stop and search a vessel in those waters are only available in accordance with that Convention.
Note: The boundaries of internal waters are subject to change. In instances where the boundaries are not clear, forces should consult with the Law of the Sea Division of the United Kingdom Hydrographic Office (UKHO) before applying for an authorisation that includes internal waters. UKHO Law of the Sea Division can be contacted on 01823 337900 or via email firstname.lastname@example.org.
The police can now use section 44 in authorised areas within internal waters to stop and search vessels for articles that could be used in connection with terrorism, whether or not they suspect the presence of such articles. Any constable is allowed to exercise the powers in the authorised area. The Act does not change the existing authorisation process outlined in Section 44 of the Terrorism Act 2000. Home Office circular 038/2004 provides guidance on the authorisation process for section 44 of the Terrorism Act 2000.
The powers should be used by a constable in uniform to search a vessel and any persons or items on it, for articles that could be used in connection with terrorism. An officer may detain a person or vessel near to where they were stopped, for a period of time as reasonably required to enable him to conduct the search under section 45. The officer may seize items that he suspects are intended to be used in connection with terrorism.
In instances where an authorisation relates to a stretch of water adjacent to more than one force area, authorisations are required from each of the forces whose area sit alongside that stretch of water.
Sections 31-33: Other investigatory powers
- Section 31 of the Act amends the Intelligence Services Act 1994, to streamline warrantry and provide for greater flexibility in counter-terrorism operations. It makes amendments to the Intelligence Services Act 1994 in relation to the powers of the security and intelligence services with respect to warrants to carry out acts both overseas and in the UK. Section 32 of the Act amends the provisions of the Regulation of Investigatory Powers Act 2000 concerning the duration and modification of, and safeguards attached to, interception warrants issued pursuant to Part 1 of that Act.
Disclosure Notices in Terrorism Investigations
Section 33 of the Act amends the Serious and Organised Crime and Police Act 2005. It extends the disclosure notice regime contained in that Act for use in terrorist investigations. Under Part 2, Chapter 1 of the Serious and Organised Crime and Police Act, powers are conferred on the Investigatory Authority to give disclosure notices in connection with the investigation of a number of different offences, including terrorist finance offences under the Terrorism Act 2000.
These notices may require the production of documentation or information about specified matters. To refuse to do so is an offence punishable by up to 51 weeks imprisonment. To provide misleading information is an offence punishable by up to 2 years imprisonment.
Section 33 extends the disclosure regime to include all terrorist investigations. These are defined in new section 60(7) of the Serious Organised Crime and Police Act 2005, as inserted by section 33(2) of the Terrorism Act 2006, as an investigation of:
- The commission, preparation or instigation of acts of terrorism,
- An act or omission which appears to have been done for the purposes of terrorism and which consists in or involves the commission, preparation or instigation of an offence
- The commission, preparation or instigation of an offence under the Terrorism Act 2000, or under Part 1 of the Terrorism Act 2006 other than an offence under section 1 or 2 of that Act
Note: Disclosure notices may not, therefore, be issued in investigations into an offence of encouragement of terrorism, or dissemination of terrorist publications.
Section 34: Definition of terrorism
- Section 34 of the Act amends the definition of terrorism as contained in Section 1 of the Terrorism Act 2000, to include action taken against international government organisations. The full definition, as amended, is set out in the introduction. It also amends section 113 of the Anti-terrorism, Crime and Security Act 2001. Action under the offence in section 113 must be designed to intimidate the public or to influence a government, this is extended to cover international governmental organisations.
Section 35: Applications for extended detention of seized cash
Section 35 of the Act amends provisions contained in the Anti-Terrorism Crime and Security Act 2001, relating to hearings to extend the detention of seized cash. Under paragraph 2 of Schedule 1 to the Anti-Terrorism Crime and Security Act 2001, an authorised officer may seize any cash if he has reasonable grounds for suspecting that it is terrorist cash.
Terrorist cash means cash that is intended to be used for terrorist purposes, cash which consists of resources of a proscribed organisation and property that is earmarked as terrorist property.
Once terrorist cash has been seized paragraph 3 of the Schedule governs the length of time it can be detained. Initially the cash can be detained for 48 hours after which the authorised officer must apply to a Magistrates’ Court (or in Scotland a sheriff) to extend the period of detention. The first application for extension can also be made, outside Scotland, to a justice of the peace (paragraph 3(3)).
This section adds a new subparagraph to paragraph 3. It provides that if the first application for extension of detention of terrorist cash is made to a justice of the peace (or the sheriff, in the case of Scotland) it can then be heard without notice being given to the person affected by the order or that person’s legal representative.
In these cases the application may also be heard in private in the absence of the affected person and his legal representative. The person affected will have the opportunity to challenge the making of the order at a later date because he will be served with a copy of it (paragraph 3(4)) and can apply for it to be discharged (paragraph 5).
Sections 38-39: Supplemental provisions
Section 36 provides for the review of the Act and the Terrorism Act 2000, which must be carried out at least annually. As a consequence of the inclusion of the Terrorism Act 2000 in section 36, section 126 of the Terrorism Act 2000 is repealed.
Section 37 contains a number of consequential amendments and repeals.
Section 38 deals with expenses arising from the Act
Section 39 deals with the Act’s short title, commencement and extent.
Schedule 1 – Convetion offences
Schedule 1 contains a list of “Convention offences”.
The following categories of offences are included:
- explosives offences,
- offences relating to biological weapons,
- offences against internationally protected persons,
- hostage taking,
- hijacking and other offences against aircraft,
- offences involving nuclear material,
- offences under the Aviation and Maritime Security Act 1990,
- offences involving chemical weapons,
- offences relating to terrorist funds,
- directing a terrorist organisation,
- offences involving nuclear weapons, and
- the inchoate offences of conspiracy, incitement, attempt, aiding, abetting, counselling and procuring relating to the offences listed in Schedule 1.
Schedule 2 – Seizure of foreiture of terrorist publications
Schedule 2 to the Act sets out the procedure for forfeiture of terrorist publications seized under section 28 of this Act. Schedule 2 is closely based on the forfeiture provisions in Schedule 3 to the Customs and Excise Management Act 1979 (c.2).
Paragraph 2 sets out that notice must be given by the constable responsible for the seizure to every person whom he believes to be the owner of any article seized. If there is no such person, or it is not reasonably practical for such notice to be given, it should be given to the person the constable believes is the occupier of the premises where the article was seized.
The notice must set out what has been seized, and the grounds for seizure. Only if a notice has been properly given under paragraph 1 or it was not reasonably practicable to comply with paragraph 1 can an article be forfeited. Sub-paragraphs (3), (4) and (6) further set out requirements about the manner in which the notice must be given.
A person claiming that any seized article is not liable to forfeiture may give notice of such a claim to a constable at any police station in the police area in which the seizure took place. Such a notice, which must be given in writing, must be given within one month of the notice of the seizure, or the seizure itself if no notice has been given.
Forfeiture is automatic if no claim is made within the time for making a claim under paragraphs 3 and 4 (one month), or if an attempt is made to make a claim but the requirements of paragraphs 3 and 4 to the Schedule, which set out how such a claim must be made, are not complied with.
When a notice claiming that an article seized is not liable to forfeiture has been received, the relevant constable must decide whether to take proceedings to ask the court to condemn the article as forfeited. This decision should be taken as soon as reasonably practicable following the notice of the claim.
For the court to order the condemnation of an article to forfeiture, it must be satisfied of two matters: firstly, that the item was liable for forfeiture when seized, and secondly, that its forfeiture would not be inappropriate.
If the court is not satisfied that these tests have been met, it must order the return of the item to the person it believes is entitled to it. If the constable decides not to take proceedings for condemnation, then the constable must return the article to the person who appears to be the owner of it as soon as reasonably practicable following the decision not to take proceedings for condemnation.
Proceedings for forfeiture in court will be civil proceedings. They may take place in England or Wales either in the High Court or a magistrates’ court, in Scotland either in the Court of Session or in the sheriff court, and in Northern Ireland, either in the High Court or a court of summary jurisdiction. Proceedings may only be instituted in a Magistrates’ court, a sheriff court or a court of summary jurisdication if it has jurisdiction in relation to the place where the article to which they relate was seized. For the duration of any appeal the seized items will remain in the possession of the constable who seized them.
If an article is condemned as forfeited by the court, it will be deemed to have been forfeited from the time of the seizure. If 12 months after a requirement to return property arises an article that should have been returned is still with a constable and it is not reasonably practicable for it to be returned the constable can dispose of it.
Paragraphs 14 and 15 set out provisions of proof, detailing that the fact, form and manner of seizure is to be assumed to have been by the process set out in this Act, unless the contrary is shown. They also detail how the condemnation of an article as forfeited may be proved.
Schedule 3: Repeals
- Schedule 3 lists those provisions that are repealed as a consequence of the Act.