The UK government has responded with a wealth of legislation (Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005) that has significantly altered the criminal law as it relates to police investigations, police powers and prosecutions in terrorist offences. Many new offences have been created, police powers have been expanded, and the relationship between the state and the individual has been in many cases fundamentally altered.

The new legislation particularly impacts on minority ethnic and religious groups, and raises many significant Human Rights issues relating to freedom of speech, freedom of association and the right to a fair trial.

Statistics on terrorism arrests and outcomes in Great Britain 11 September 2001 to 31 March 2008.

This section describes the most important recent changes to UK law in terrorist cases, and explains the new offences that have been created by three important recent Acts of Parliament:

Terrorism Act 2000 (TA 2000)

Anti-Terrorism, Crime & Security Act 2001 (ATCSA 2001)

Prevention of Terrorism Act 2005 (PTA 2005)

Terrorism Act 2006

Whilst, to an extent, previous anti-terrorist legislation (particularly those provisions designed to deal with paramilitary violence emanating from Northern Ireland) has been adopted in the new Acts, many new offences have been created. In addition, there has been a significant increase in police powers. The extent to which the police and prosecuting agencies can and do now operate has been widened, with a major impact on civil liberties.

The main provisions are:

Terrorism

Proscribed organisations

Weapons training

Directing terrorist organisations

Possession for terrorist purposes

Fund-raising

Disclosure of information

It is important to note:

That there are many other offences, for instance relating to money laundering and public order, that arise in a terrorist context. Some of these are new, but have not been included here. Some arise from the operation of increased police powers and are explained in the section on Police Powers. In addition, the Terrorism Act 2006, which has very recently come into force, again creates new offences. Because of the controversy surrounding this Act, its main provisions are dealt with separately.

Terrorism under Section 1 (TA 2005)

'Terrorism' is now defined as:

 “the use or threat of action where, the action involves serious violence against a person, serious damage to property, endangers a person’s life or creates a serious risk to the health or safety of the public.” The  “use or threat” must be “designed to influence the government or to intimidate the public…”

Section 2 (TA 2005) defines a “terrorist” as a person who has committed an offence under any of certain sections of the Act, or “is or has been concerned in the commission, preparation or instigation of terrorism” (including a person who has been concerned with the preparation etc of acts of terrorism within Section 1).

Proscribed Organisations, (TA 2000, Part II)

Schedule 2 to Part II of the Act listed certain proscribed organisations. The list has been added to by the Home Secretary, and now includes Al-Qa’ida and Egyptian Islamic Jihad among several others, and the Home secretary retains the power to remove or amend names on the schedule. Organisations that unlawfully “glorify” acts of terrorism can now be proscribed (Section 21, Terrorism Act 2006). The procedure for appealing against proscription is set out in Sections 5 – 6.  Membership (or professing membership) of a proscribed organisation is an offence carrying a maximum penalty of 10 years imprisonment. It is a defence for a person to show that the organisation was not proscribed when he last joined, and that he has not taken part in any of its activities while it has been proscribed.

It is an offence for a person to invite support for a proscribed organisation (s12(1)); to arrange a meeting which he knows is to support a proscribed organisation (or to further its activities or to be addressed by a member of a proscribed organisation) (s12(2)); and  to address a meeting with the purpose of encouraging support for a proscribed organisation (s12 (3)). There are statutory defences. The maximum penalty for these offences is also 10 years imprisonment.

It is also an offence for a person to wear, in a public place, an item of clothing (or wear or display an article) in such away as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation (s13). The maximum sentence for this offence is 6 months imprisonment.

Weapons Training (TA 2000, s 54 - s 55)

It is an offence for a person to provide instruction or training in the making or use of firearms, explosives or chemical or biological weapons. Receiving instruction or training or inviting another to do so are also offences (in the latter case, even if the instruction or training is outside the UK). It is a defence, in relation to instruction or training, to prove that the action or involvement was wholly for a purpose other than assisting, preparing or participating in terrorism. The maximum penalty for these offences is 10 years imprisonment.

Directing Terrorist Organisations (TA 2000, s 56)

It is an offence for a person to direct, at any level, the activities of an organisation that is concerned in the commission of terrorist acts. The maximum penalty is life imprisonment.

Possession for Terrorist Purposes (TA 2000, s 57 & s 58)

Under s 57, it is an offence for a person to possess an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of terrorist acts. It is a defence to prove that the possession was not for such a purpose. A court may assume possession if the article is found at premises at the same time as the person is present, or on premises that he controls (unless he proves he did not know of its presence or that he had no control over it). The maximum sentence for this offence is now 15 years imprisonment.

Under s 58, it is an offence to collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or to possess a document or record containing information of that kind.

Recent Cases

R-v-(1)Zafar(2)Butt(3)Iqbal(4)Raja(5)Malik [2008]EWCA Crim 184

R-v-K [2008] EWCA Crim 185

R-v-Samina Malik [2008]EWCA Crim 1450

Fund Raising (TA 2000, s 15)

It is an offence to invite a person to provide money or other property, intending that it should be used (or having reasonable cause to suspect it may be used) for the purposes of terrorism. Receiving money or property intending it should be used (or having reasonable cause to suspect it may be used) for terrorist purposes is also an offence, as is providing money or property knowing (or having reasonable cause to suspect) that it will or may be used for the purposes of terrorism. “Providing” money or property means giving, lending or otherwise making available whether or not this is in return for something else (s 15).

If a person uses money or property for the purposes of terrorism, this is also an offence, and it is also an offence to possess money or property intending that it should be used (or having reasonable cause to suspect it may be used) for the purposes of terrorism (s 16).

There are further offences that relate to situations where a person becomes involved in an arrangement where money or property is made available for the purposes of terrorism (s 17); and where a person engages in money laundering connected with terrorism (s 18).

Where a person believes or suspects that another person has committed an offence under sections 15 to 18, and that belief is based on information that comes to him in the course of his trade, profession, business or employment, it can be an offence not to disclose this information to the police soon as reasonably practicable (s 19).

All of the offences in sections 15 to 18 carry a maximum penalty of 10 years imprisonment. In addition, the Court has wide powers of forfeiture following any conviction.

Disclosure of Information (TA 2000 s 38-s 39; ATCSA 2001 s 117)

Where a person has information which he knows or believes might be of “material assistance” in preventing the commission of an act of terrorism, or in securing the apprehension, prosecution or conviction of a person (in the UK) for an offence involving an act of terrorism, it is an offence not to disclose the information as soon as reasonably practicable. Disclosure should be made to a police officer.

A person charged with this offence has a defence if he can show that he had a reasonable excuse for not disclosing the information. The offence is punishable by five years imprisonment.

It is important to note:

That there are many other offences, for instance relating to money laundering and public order, that arise in a terrorist context. Some of these are new, but have not been included here. Some arise from the operation of increased police powers and are explained in the section on Police Powers. In addition, the Terrorism Act 2006, which has very recently come into force, again creates new offences. Because of the controversy surrounding this Act, its main provisions are dealt with separately.

New offences under the Terrorism Act 2006

Terrorism remains high on the political and media agenda. The legislative developments since 2000 have reflected this, and the Government’s much anticipated Terrorism Bill 2005 (which has very recently come into force as the Terrorism Act 2006) contains several further proposed measures which significantly change the law in this area still further.

The Bill underwent considerable amendment in Parliament and its passage through both Houses was accompanied by strongly contested divisions at several stages, and attracted intense media coverage.

In its final form the Act contains creates several new “Terrorist” offences, some of which are highly novel and have attracted considerable controversy. The measures contained within the Act give rise to fundamental civil liberties concerns, particularly as they affect minority ethnic and religious groups.

The Terrorism Act also significantly extends police powers in terrorist investigations, and these provisions are described in the Police Powers section.

Because of the controversy surrounding the Act, particularly over the Government’s proposal to create an offence of “glorifying terrorism” and the original provision for police detention of suspects prior to charge for 90 days, the key sections in the Act are here listed and explained separately.

Encouragement of terrorism (section 1)

Dissemination of terrorist publications (section 2)

Preparation of terrorist acts (section 5)

Training for terrorism (section 6)

Attendance at a place used for terrorist training (section 8)

Detention of terrorist suspects (section 23) and Search and seizure (sections 26 & 28)

It is important to note that under s17 of the Act, certain offences created by the Act can now be prosecuted even if they are committed outside the UK.

Encouragement of terrorism (section 1)

The Bill originally contained a separate (and highly controversial) offence of “Glorifying Terrorism.” This has now been included in the wider offence of “Encouragement.”

The offence is committed if a person makes a statement that is likely to be understood by some or all members of the public to whom it is published as “a direct or indirect encouragement or other inducement to them” to commit, prepare or instigate acts of terrorism. The person must publish the statement intending members of public to be directly or indirectly induced by it to commit or prepare such acts. Alternatively, the person making the statement must be reckless as to whether members of the public will be directly or indirectly encouraged etc.

Statements “likely to encourage” will include a statement that “glorifies” the commission or preparation of terrorist offences, where the public could reasonably be expected to infer that the conduct being glorified should be emulated by them.

Where a person is charged with this offence, and it is not proved that he intended to encourage or induce acts of terrorism, it is a defence to show that it is was clear that the statement did not express his views, and was not endorsed by him.

Encouragement of terrorism carries a maximum sentence of 7 years imprisonment.

Dissemination of terrorist publications (section 2)

This offence is committed where a person distributes, circulates, gives, sells or lends a terrorist publication; offers a publication for sale or loan or provides a service enabling others to obtain or look at such a publication. The section provides a definition of a “terrorist publication” as a publication likely to be understood as an encouragement or inducement to commit terrorist acts, or to be useful in the commission of such acts.

The person who distributes etc the publication must intend to encourage the commission of acts of terrorism, intend his act to provide assistance in doing so, or be reckless as to either.

A matter likely to be understood as indirectly encouraging acts of terrorism will include anything which “glorifies the commission or preparation” of terrorist acts.

There are separate provisions that deal specifically with publications on the internet.

The offence carries a maximum sentence of 7 years imprisonment.

Recent case

R-v-(1)Abdul Rahman(2)Bilal Mohammed (2008) [2008]EWCA Crim 1465

Preparation of terrorist acts (section 5)

It is an offence for a person who intends to commit or assist an act of terrorism, to engage in any conduct in preparation in order to give effect to his intention.

The maximum sentence for this offence is life imprisonment.

Training for terrorism (section 6)

It is an offence to provide instruction or training in certain specified skills – these include making or handling “noxious substances,” and any “method or technique” for doing anything else capable of being done for terrorist purposes. It is also an offence to receive instruction or training in these skills.

The maximum sentence is 10 years imprisonment and on conviction a court may order forfeiture of anything it considers to have been in a person’s possession and connected with an offence under this section.

Attendance at a place used for terrorist training (section 8)

It is an offence for a person to attend any place (in or outside the UK) where training is provided while he is there which is wholly or partly for purposes connected with terrorist acts. The person must know or believe that instruction or training is being provided there for such purposes, or a person attending could not reasonably have failed to understand that such training was being provided. It is irrelevant whether the person charged actually receives instruction or training himself.

The offence carries a maximum sentence of 10 years imprisonment.

Detention of terrorist suspects (section 23) and Search and seizure (sections 26 & 28)

A terrorist suspect may now be held in police custody prior to charge for a maximum of 28 days. Police powers of search and seizure have also been widened. These provisions are referred to fully under Police Powers.

Police powers in terrorist investigations

The powers available to the Police and other investigating agencies in cases where terrorist offences are suspected have, for several decades, been subject to close scrutiny and in many cases controversy.

Broadly, since the legislation of the mid-1970’s in the light of Irish paramilitary activity, the police have enjoyed much wider and more intrusive powers of investigation in terrorist cases, particularly in the area of detention of suspects for questioning.

Since the Terrorism Act 2000, and especially since September 11th the legislative trend has been towards extending these powers still. As a result, police officers investigating terrorist offences can draw on a wider range of powers than previously. In many cases these powers hugely exceed those that apply in other criminal investigations. There has been widespread concern that the advance of police powers in this area has significantly altered the balance between the need to investigate serious crime, and the civil liberties of individuals.

This page provides an overview of the most important of the police investigative powers in terrorist cases. Some relate specifically to investigations proper, while some arise in the context of public order and pre-emption eg stop and search.

Terrorist investigation

Seizure of terrorist cash

Cordoned areas

Powers of arrest and search

Stop and search in designated areas

Detention

Demonstrations in designated areas

Freezing orders

Anybody who is arrested and detained by the police in relation to a terrorist investigation will be reminded of the right to legal advice by consulting a solicitor. It is invariably essential to obtain legal advice, preferably from a specialist in terrorist cases.

Terrorist investigation

Under Section 32 TA 2000, a “terrorist investigation” means an investigation of:

a)      the commission, preparation or instigation of acts of terrorism;

b)      an act which appears to have been done for the purposes of terrorism;

c)      the resources of a proscribed organisation;

d)      the possibility of an order under s 3(3) (proscription of an organisation); or

e)      the commission, preparation or instigation of an offence under [the 2000] Act.

Seizure of terrorist cash (Part 1 & Schedule 1 ATCSA 2001)

An authorised officer may seize cash if he has reasonable grounds for suspecting that it is “terrorist cash.” Cash seized may be retained for 48 hours, and this period may be extended by a Magistrates’ Court initially up to three months to a maximum of two years. The cash may only be detained in this way if the court finds that there are reasonable grounds for suspecting that the cash may be used for the purposes of terrorism and that its detention is justified either by an on-going investigation, or by on-going court proceedings. Alternatively, the cash may be detained if there are reasonable grounds for suspecting that it consists of resources of a proscribed organisation, or that it is “earmarked” as terrorist property and that its detention is justified by an on-going investigation or court proceedings. A Magistrates’ Court may order forfeiture of the cash. There is a procedure for appealing forfeiture.

Cordoned areas (Part IV TA 2000)

Part IV of the 2000 Act gives the police the power designate “cordoned” areas for the purposes of terrorist investigations. The power to designate lies with a police officer of at least the rank of Superintendent (although officers of lesser rank may designate if urgent). Any designated area must be demarked as soon as reasonably practicable, and any verbal designation must be confirmed in writing as soon as reasonable practicable.

A designation may be for a maximum initial period of 14 days but may be extended to 28 days.

A police officer in uniform may order a person to leave a cordoned area immediately, or order a person immediately to leave premises which are wholly or partly in or adjacent to a cordoned area (s 36 (1)). He may also order vehicles to be moved. It is an offence to fail to comply with an order or prohibition or restriction imposed under s 36 (1) without reasonable excuse, punishable with 3 months imprisonment and/or a fine.

Powers of arrest and search ( Part V, TA 2000)

A police officer may arrest any person he suspects of being a terrorist without a warrant. In addition, s 110 Serious Organised Crime and Police Act 2005 now gives the police very wide powers to arrest without a warrant in cases where there are reasonable grounds to suspect that any offence is being, is about to be or has been committed, and an arrest is necessary to establish the suspect’s name, address or to ensure the prompt investigation of the offence, or to ensure that an investigation is not hindered by the suspect’s disappearance.

A Justice of the Peace may, on the application of a police officer, issue a search warrant in respect of specified premises if he is satisfied that are reasonable grounds to suspect that a person whom the officer reasonably suspects to be a terrorist is to be found there. The warrant authorises any police officer to enter and search the premises for the purpose of arresting the terrorist (s 42).

Under Schedule 5 Part I TA 2000 (amended by s 26 Terrorism Act 2006) a Justice may issue a search warrant to enter and search specified premises (or any premises controlled or occupied by a specified person) and to seize and retain material that the searching officer has reasonable grounds to believe may be of “substantial value” to a terrorist organisation. The search must be part of a terrorist investigation, and the issuing Justice must have reasonable grounds for believing that there is material on the premises likely to be of substantial value to a terrorist investigation.

There is a further power for a senior police officer to authorise the search of specified premises within a “cordoned” area. In addition, a Justice may issue a search warrant to enter premises to search for and seize “terrorist publications” (s 28 Terrorism Act 2006).

Under s 43 TA 2000, a police officer may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist. Any person arrested under suspicion of being a terrorist may also be searched. Searches must be conducted by an officer of the same sex as the suspect, and items which the officer reasonably suspects may constitute evidence that the person is a terrorist may be seized.

Stop and search in designated areas (S44 to S47, TA 2000)

Under s 44 TA 2000 a senior police officer may designate specified areas or places in which an officer in uniform may stop and search vehicles, drivers or pedestrians. An authorisation may only be given if the senior officer “considers in expedient for the prevention of acts of terrorism.”

The power under s 44 may only be exercised for the purpose of searching for articles of a kind which could be used in connection with terrorism, but there is no need for the officer who conducts the search to have grounds to suspect the presence of such articles.  Articles the officer reasonably believes are intended to be used in connection with terrorism may be seized and retained.

Where an officer carries out a search under s 44 he may only require the suspect to remove his outer coat, jacket, gloves, headgear or footwear. He may seize and retain any item he reasonably suspects is intended to be used in connection with terrorism. The suspect or vehicle may be detained for as long as reasonably required for the search to be carried out near to the place he has been stopped.

If a senior police officer grants an authorisation under s 44, the Home Secretary must be notified. Any authorisation may be for a maximum period of 28 days (or 48 hours, if the Home Secretary’s confirmation is not granted).

It is an offence to fail to stop (or to stop a vehicle) when required to by an officer under s 44. This offence carries a maximum penalty of 6 months' imprisonment.

Detention (Schedule 8, TA 2000)

A person arrested under s 41 TA 2000 (ie on suspicion of being a terrorist) may be held initially by the police without charge for 48 hours, and the provisions in Schedule 8 of the Act (as amended by the Criminal Justice Act 2003 and Terrorist Act 2006)  will govern his treatment while in custody and the procedure for reviewing and extending his detention. In practice, most terrorist suspects are held at Paddington Green Police Station.

The period of time that a terrorist suspect can be held in police custody prior to charge is now governed by the Terrorism Act 2006 which has amended the provisions of the 2000 Act. Suspects may be held initially for 48 hours, with reviews every 12 hours. After that, detention can be extended by a High Court Judge, at intervals of 7 days, to a maximum of 28 days. After 28 days, a suspect must be released either unconditionally or on police bail or charged.

Schedule 8, together with associated provisions, sets out in detail the powers available to the police regarding the taking of photographs, fingerprints and samples.

Demonstrations in designated areas (S132 Serious Organised Crime & Police Act 2005)

This recent provision has effectively banned demonstrations from being held in Parliament Square without police authorisation.

Under s 132 it is an offence to organise, take part in or carry on a demonstration in a “public place” in a “designated area” unless, when that demonstration starts, authorisation has been given under s 134 (2). It is a defence for the demonstrator to show that he reasonably believed that authorisation had been given.

An application for authorisation must be in the form of a written notice to the Metropolitan Police Commissioner, and the Act sets out the way in which applications must be made and the timescale for doing so. If the notice is given in the correct way, authorisation must be given for the demonstration, but the police may attach conditions. It is an offence to fail, when taking part or organising, to fail to comply with a condition, or to do so knowing that the demonstration is being carried on otherwise than in accordance with the terms of the notice.

Organising a demonstration without notice carries a maximum sentence of 51 weeks imprisonment and/or a fine. Taking part or carrying on a demonstration carries a fine. Failing to comply with conditions in the capacity of an organiser also carries a 51 week prison sentence and/or a fine. Failing to comply with conditions as a participant is punishable by a fine.

Freezing orders (Part II, ATCSA 2001)

Part II of the 2001 Act contains provisions for the making of freezing orders in suspected terrorist cases.

Orders are made by the Treasury. One of two conditions must be satisfied. The Treasury must believe either that action to the detriment of the UK economy has been or is likely to be taken by individuals, or that action constituting a threat to the life or property of one or more UK nationals or residents has been or is likely be taken. The freezing order can only be made in respect of foreign governments or a person(s) who resides outside the UK.

A freezing order prohibits funds being made available to the person (s) named in the order. Orders are made by the Treasury, and not by any court. They may remain in force for a maximum of two years.

Anybody who is arrested and detained by the police in relation to a terrorist investigation will be reminded of the right to legal advice by consulting a solicitor. It is invariably essential to obtain legal advice, preferably from a specialist in terrorist cases.

Detention without trial and control orders

One of the most contentious aspects of the Government’s “War on Terrorism” programme has been the ongoing legislation dealing with the detention of terrorist “suspects” where there is no criminal prosecution, but where the suspect is alleged to pose a terrorist threat. In these cases, suspects have been detained in prison, or subjected to intense restrictions on their liberty in the community, without ever having been charged with an offence, or given the opportunity to fully respond to the evidence that forms the basis of the allegations against them.

Indefinite detention under the 2001 Act

Control Orders under the 2005 Act

Indefinite detention under the 2001 Act

Following the September 11th attacks, and in response to them, the Government introduced an entirely new regime for the indefinite detention of terrorist “suspects” without trial. The new provisions were governed by Part IV Anti-Terrorism Crime & Security Act 2001 (ATCSA) – specifically s 23. The legislation amounted, in effect, to the first internment regime in the UK since the 1970’s and as such was from the outset highly controversial.

Section 23 allowed a suspected “international terrorist” to be detained where that suspect’s removal from the UK was prevented by either a matter of law arising from an international agreement or a “practical” consideration – in practice where deportation would result in the torture or other inhumane treatment of the suspect in any receiving state. The actual detention of the suspect was sanctioned by Schedules 2 and 3 to the Immigration Act 1971, but s 23 allowed detention, in essence, to be indefinite while laying down  review and appeal procedures to be followed in the Special Immigration Appeals Commission (SIAC).

Indefinite detention under the 2001 Act was criticised heavily from the start and the procedure adopted by SIAC questioned even by special advocates instructed to appear before it. In 2005 the powers were scrutinised by the House of Lords in A-v-Secretary of State for the Home Department.

The Court considered, in particular, the breaches of Article 5 European Convention on Human Rights (ECHR) that detention under s 23 entailed – the Government had accepted that the powers amounted to a derogation from the Convention but justified this on the basis that that the terrorist threat to the country amounted a “public emergency.” The Court did not seek to challenge that assertion but, crucially, noted that indefinite detention could not be applied to UK citizens. In addition, there was nothing to prevent a foreign terrorist “suspect” being released to any country where he or she would not be at risk of torture. The House of Lords concluded that the powers were therefore discriminatory and made a Declaration of Incompatibility.

Control Orders under the 2005 Act

In the light of the decision in A-v-Secretary of State for the Home Department Part IV of the 2001 Act was repealed. New and different powers – “Control Orders” - were then introduced with the Prevention of Terrorism Act 2005 (PTA 2005).

Under the 2005 Act the Home Secretary has the power to make Control Orders,that is “an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” (s 1 PTA 2005).

The Act distinguishes two types of order:

Non-Derogating Control Orders

Those that impose obligations which are not incompatible with the individual’s right to liberty under Article 5 ECHR

Derogating Control Orders

Those that impose obligations that are incompatible.

Non-Derogating Control Orders

Section 1 PTA allows the Home Secretary to impose any obligation that he, or a Court, “considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism related activity.” The section gives examples of permissible obligations eg prohibiting/restricting the use of specified articles, the use of specified services, restrictions on types of work, association etc. In practice the restrictions can be almost unlimited and allow for house arrest in all but name.

The Home Secretary can make an order if he has i) reasonable grounds for suspecting that the individual has been involved in terrorism related activity and ii) he considers it necessary to make an order imposing the stated obligations [writer’s italics].

The criteria to be satisfied are therefore very wide. “Involvement” in terrorist activity is defined very loosely and includes “conduct which gives encouragement to the commission, preparation or instigation of such acts [of terrorism] or is intended to do so…”

Non-derogating Control Orders last for a maximum of 12 months but may be renewed, the test for renewal effectively mirroring that for imposition in the first place. Orders require permission from the High Court except where the Home Secretary certifies that circumstances of urgency require an order to made without permission. All non-derogating orders are subject to the Court’s strictly defined and limited duty of review, and in certain circumstances the power to quash them.

Since its inception, the Control Order regime under the Prevention of Terrorism Act 2005 has received considerable judicial scrutiny. The case law has addressed, in particular, the manner in which orders are made (importantly, regarding the admission of “closed” evidence), and the actual restrictions imposed in individual cases.

The following summarises some of the recent key cases:

Secretary of State for the Home Department –v-(1) MB (2) AF [2007] UKHL 46

In conjoined appeals, the House of Lords considered an appeal of a Court of Appeal judgement (in MB) that the procedures under s3 terrorism Act were not incompatible with Art.6 ECHR. The Court of Appeal had also set aside a declaration of incompatibility made by the High Court. In both cases, open assertions supported by closed evidence (ie not disclosed to the controlled person) were relied on by the secretary of State.  

Secretary of State for the Home Department-v-JJ & Ors [2007] UKHL 45

Non-derogating Control Orders that involved 18 hour curfews, restrictions on movements outside those hours, visits to the controlled persons by Home Office approval only, electronic tagging and a restriction on any electronic communication except by one telephone line in each controlled person’s flat did amount to deprivation of liberty under Art.5 ECHR. The High Court had acted lawfully in declining to modify the orders and quashing them.Secretary of State for the Home Department-v-(1) E (2)  S [2007]  EWCA Civ 459

The case involved an appeal by the Secretary of State against a decision of the High Court quashing a non-derogating control order made against E. The terms of the order included a curfew from 7pm to 7am with electronic tagging and daily reporting to the tagging company. There were also restrictions on who could visit his home, and how he could communicate with others. He was permitted one fixed line telephone and computer, without internet access. The Court below had found that these restrictions amounted to a violation of E’s Art. 5 rights, and that the secretary of state’s failure to properly consider a criminal prosecution against E made the continuance of the order could not be justifies.

Secretary of State for the Home Department-v-Abu Rideh [2008] EWHC  1993 (admin)

The Court again considered the question of closed evidence. The Secretary of State argued that disclosure of material requested by R would risk national security.

The court considered and reviewed the judgement in Secretary of State for the Home Department-v-MB , and other recent judgements that have addressed the issues of closed evidence, the role of special advocates and the procedural safeguards necessary to ensure that the controlled person received a fair hearing.

Derogating Control Orders

The procedure for imposing orders that do entail a breach of the individual’s Article 5 rights is significantly different.

On an application by the Home Secretary, the High Court holds a preliminary hearing to determine whether to make an order (s 41 (1) PTA). This hearing may take place in the absence of the subject of the order. If an order is made, directions will be made for a full hearing. The Court may make an order if i) there is material which (if not disproved) is capable of being relied on by the Court as establishing that the individual is or has been involved in terrorism related activity and ii) there are reasonable grounds to believe that the imposition of obligations are necessary to protect the public from risk of terrorism. Section 4 (7) PTA sets out the tests to applied by the Court at a full hearing before imposing an order.

Derogating orders have a duration of 6 months and may be renewed. However, any actual derogation that gives legitimacy to each order will only have force for 12 months.

The procedure for applying to modify or appeal against derogating orders is governed by s 7 PTA.

There will be cases where the subject of a Control Order might also be the subject of a criminal investigation or proceedings. Under s 8 PTA the Home Secretary has an obligation to consult with the police before making (or applying for) a Control Order as to whether there is evidence available that could realistically be used for the purposes of a criminal prosecution for a terrorist-related  offence. There is no obligation to bring criminal proceedings instead of imposing a Control Order, although if an order is made the police must review the question of bringing a prosecution during the duration of the order itself.

Breach of an obligation contained within a Control Order is a criminal offence triable either way and the maximum sentence is 5 years imprisonment.

The procedures relating to the supervision by the Courts of non-derogating orders have now been considered by the Administrative Court in Re MB. The Home Secretary had made a Control Order against an individual, believing that he intended to travel to Iraq to fight against UK and US forces there. The Court found that the regime for supervision of non-derogating orders (under s 3 PTA) breached the individual’s Article 6 ECHR right to a fair trial. The court dismissed s 3 as providing no more than a “thin veneer” of legality to the review and imposition procedure. The way in which the Court reviewed the lawfulness of the decision under s 3 was also held to be unfair. The Court found that the actual imposition of an order is made by the Executive and that the individual has no opportunity to make representations – and that the Court’s very limited power to review and supervise did not remedy this unfairness. In that case, the order remained in force, but the procedural framework for Control Orders in general has now received forthright judicial criticism.

The first statistical bulletin published shows statistics on those arrested for terrorism in Great Britain and the outcome of these arrests. The statistics are produced from the administrative data collected by the National Co-ordinator of Terrorism Investigations,  the Prison Service and the Home Office‘s Office of Security and Terrorism.

The report shows

·         There have been 1,471 arrests since 11 September 2001.  Since 2002/3 on average there have been 227 terrorism arrests per year.

·         Over one third of arrests result in a charge for a criminal offence (broadly similar to the rate for all indictable offences) with a further 9% where some alternative action is taken, for example, transfer to immigration authorities.

·         23% of those arrested are charged with a terrorism related offence and 11% with a non-terrorism offence.  Non-terrorism related charges include firearms offences and forgery & counterfeiting.  The total of those arrested who were charged is similar to that for other criminal offences.

·         Two thirds of arrestees are released quickly with 66% of those arrested under section 41 of the Terrorism Act 2000 detained for under two days and 46% under one day.  The majority (80%) of those released without charge are detained for less than two days.  6 suspects were detained for 28 days of which 3 were charged.

·         Around 60% of those charged following a terrorist arrests have been convicted of a terrorism related offence by 31 March 2008.  However many trials for very serious offences have not been completed. 

·         54% of suspects in terrorist trials in 2007/8 pleaded guilty.

·         There were 10 life sentences in 2007/8 including 4 related to the ‘fertiliser bomb plot’ in March 2004.  43% of custodial sentences in terrorist trials were 10 years or over.

·         125 prisoners at 31 March 2008 were classified as terrorists including 8 imprisoned before 11 September 2001.  One third of terrorist prisoners were on remand.  62% of terrorist prisoners were UK nationals.