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Police Law 11th Edition

33. Terrorism Generally

Chapter 33

TERRORISM p 973

The Counter-Terrorism Act 2008 (C-TA 2008), s 22 prospectively permits a judge of the Crown Court to authorise questioning of a person in England and Wales concerning an offence with which he has been charged or informed that he may be prosecuted, or after he has been sent for trial for the offence, where that offence is a terrorism offence, or where it appears to the judge that the offence has a terrorist connection. The meaning of the term 'terrorism offences' is defined by C-TA 2008, s 27 and includes specified offences against the TA 2000 and TA 2006. An offence has a 'terrorist connection' if the offence is, or takes place in the course of, an act of terrorism, or is committed for the purpose of terrorism: C-TA 2008 s 93.

Section 22 of the 2008 Act also extends the application of the Criminal Justice and Public Order Act 1994, s 34(1), which allows adverse inferences to be drawn from an accused person's failure to mention facts when questioned, to cover post-charge questioning under s 22. Interviews must be video recorded with sound.

Meaning of ‘terrorism’ in the Terrorism Act 2000 p 973

Substitute (c) below for (c) in the text under this heading:

‘(c) is made for the purpose of advancing a political, religious, racial or ideological cause.’ [Counter Terrorism Act 2008, s 75] The reference to ‘racial’ is new.

Proscribed organisations p 974

The Proscribed Organisations (Name Changes) Order 2006, SI 2006/1919, provides that Kongra Gele Kurdistan, and KADEK, are to be treated as other names for Kurdistan Workers’ Party (Partiya Karkeren Kurdistan) (PKK).

The Proscribed Organisations (Name Change) Order 2009, SI 2009/578 provides that Jama’at ud Da’wa is to treated as another name for Lashkar e Tayyaba.

The Proscribed Organisations (Name Changes) Order 2010, SI 2010/34, provides that:

1. Al Muhajiroun (ALM),
2. Call to Submission,
3. Islam4UK,
4. Islamic Path, and
5. London School of Sharia,

are to be treated as another name for both Al-Ghurabaa and the Saved Sect.

Search of persons p 978

The Counter-Terrorism Act 2008, s 1 empowers a constable, for the purpose of ascertaining whether a document is one that may be seized, under TA 2000, s 43, to remove a document to another place for examination and to retain it there until the examination is complete. By s 2, it is an offence wilfully to obstruct a constable in the exercise of his powers under s 1. Section 1 does not authorise the removal of a document which the constable has reasonable cause to be, or to contain, an item subject to legal privilege. A record must be made of removals. The period of retention, access to, and the photographing and copying of documents which have been removed are controlled by ss 5 to 7 respectively.

Rights p 979

Substitute for the third sentence in the second paragraph under this heading:

‘A direction may be given by an assistant chief constable (commander) only if he has reasonable grounds for believing-

1. that, unless the direction is given, the exercise of the right of the detained person will have any of the consequences specified in (a)-(g) on p 980; or
2. that the detained person has benefited from his criminal conduct and that, unless the direction is given, the exercise of the right by the detained person will hinder the recovery of the value of the property constituting the benefit.’ [C-TA 2008, s 82]

Fingerprinting; non-intimate and intimate samples p 980

Add to the list of offences in the penultimate paragraph: s 58A (see p 985 below).

Unlawful collection, recording or possession of information p 985

In para 3 the reference to 'three' cases decided by the Court of Appeal should read 'two'. The third case referred to has now been overtaken by the decision of the House of Lords which reverses the decision of the Court of Appeal to the effect stated in the text. [R v G [2009] UKHL 13, [2009] 2 WLR 724]

Insert at the end of the first paragraph under this heading:

‘If the accused adduces such evidence of something which would be a reasonable excuse the defence succeeds unless the prosecution disproves that thing beyond reasonable doubt. If it does disprove that thing, the defence fails and the accused is guilty under s 58. The prosecution does not have to prove that the accused did not have a reasonable excuse at all. [R v G; R v J [2009] UKHL 13]

In order for an accused to be convicted of an offence of possession contrary to TA 2000, s 58, the prosecution must prove beyond reasonable doubt that (1) he had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism; (2) he knew he had the record; (3) he knew the kind of information which it contained. If those elements are established, the defendant falls to be convicted unless he establishes a defence of reasonable excuse. [R v G; R v J [2009] UKHL 13]. While s 57 (see p 984 of the text) focuses on the circumstances of the accused’s possession of the article, s 58 focuses on the nature of the information which the accused collected, recorded or possessed in a document or record. There is nothing in s 58 which requires the prosecution to show that the accused had a terrorist purpose for doing what he did. Unless it amounts to a reasonable excuse, the accused’s purpose in doing what he did is irrelevant. There is an overlap between the two sections. The possession of a document can, in an appropriate case, fall within ss 57 and 58.’ [R v G; R v J [2009] UKHL 13]

In the third paragraph under the above heading the reference to ‘three’ cases decided by the Court of Appeal should read ‘two’. The first case referred to has now been overtaken by the decision of the House of Lords which reverses the decision of the Court of Appeal to the effect stated in the text. [R v G; R v J [2009] UKHL 13] Replace the second sentence in that paragraph with the following text:

‘First, the House of Lords has held that "reasonable excuse" means an objectively reasonable excuse; possessing a document for purposes of carrying out a bank raid is a purpose not connected with terrorism, but it is not a reasonable excuse. [R v G; R v J [2009] UKHL 13]

Eliciting, publishing or communicating information about members of the armed forces, etc. p 985

The above heading and the following text should be inserted before the last paragraph on p 985.

‘A person commits an offence under TA 2000 s 58A who:

1. elicits or attempts to elicit information about an individual who is or has been (i) a member of Her Majesty’s forces, (ii) a member of any of the intelligence services, or (iii) a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism; or
2. publishes or communicates any such information.

It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action. If the accused adduces evidence sufficient to raise an issue with respect to the defence it is assumed that the defence is satisfied, unless the prosecution prove beyond reasonable doubt that it is not.’

TA 2000, s 58A was added by C-T A 2008, s 76.

The C-TA 2008 also adds TA 2000, Sch 8A which concerns the application of the s 58A offence with regard to internet service providers, in order to comply with the E-Commerce Directive.

GENERAL p 990

Add to the end of the text under this heading:

‘Where an offence appears to have been committed outside the UK for a purpose wholly or partly connected with the affairs of a country other than the UK, the DPP’s consent may only be given with the consent of the Attorney General.’ [C-TA 2009, s 29].

NOTIFICATION REQUIREMENTS p 990

Add the above heading and the following text before the last heading on p 990.

‘The Counter-Terrorism Act 2008, Pt 4 and associated schedules:

1. sets out a system of notification requirements (initial notification; notification of change; periodic re-notification, and notification of return after absence from UK) for persons convicted of a terrorism offence or of a non-terrorism offence with a terrorist connection;
2. makes provision to apply notification requirements to persons convicted of equivalent offences outside the UK; and
3. makes provision for the making of foreign travel restriction orders against persons subject to the above notification requirements.’

SUSPECTED INTERNATIONAL TERRORISTS: SPECIAL MEASURES p 990

Add at the end of the second paragraph on p 991:

‘Those "obligations" do not include a requirement to submit to searches of the person, whether on the demand of anyone authorised by the Secretary of State or of a police officer.’ [Secretary of State for the Home Department v GG [2009] EWCA Civ 786]

Replace (d) in the penultimate paragraph under the above heading with

‘(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within (a) to (c).’ [C-TA 2008, s 79]

Arrest and detention pending derogating control order p 992

In respect of the last sentence on p 993, note that the Prevention of Terrorism Act 2005 (Continuance in force of Sections 1 to 9) Order 2009, SI 2009/554 continues in force for a period of one year beginning with 11 March 2009, ss 1 to 9 of the Act, which would otherwise expire on 10 March 2009.

Control orders: powers of entry and search

(This heading follows that above).

C-TA 2008, s 78 added ss 7A, 7B and 7C to the PTA 2005. Section 7A provides a constable with the power to enter and search the premises from which he reasonably suspects that an individual subject to a control order has absconded in order to determine whether a breach of the order has occurred. Section 7B grants a power of entry and search where a constable reasonably suspects an individual subject to a control order of failing to grant entry to premises when required to do so. Section 7C allows a constable to apply to a justice of the peace for a warrant to enter and search premises for the purpose of monitoring compliance with a control order. The term premises includes vehicles, vessels, aircraft or hovercraft: PTA 2005, s 15.