This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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IN THE SIX OCCUPIED COUNTIES

The procedure is the same with very few exceptions – one is a solicitor can be present while a person is being questioned in the 6 Counties.

Also, under the general law there is no power to stop and question. The police must make an arrest before there is any requirement on a person to answer questions.

They can stop you for the purpose of searching but only if specific conditions apply, i.e. public order offences (a list of most commonly used we will publish later).

Remember that under the Terrorism Act 2005 / The Offences Against the State Act (on both sides of the border while much of the above applies, a different set of ‘rules’ apply and will be covered in part of next months issue).

It is also worth remembering that if the PSNI, British Army or Customs stop you within one mile of the ‘Border’ they can require anyone entering or leaving the 6 Occupied Counties to furnish: any details he / she requests and any documents you possesses.

Part a) could arguably be a breach of your right to silence (you right not to incriminate yourself) but it has been tested in the courts.

This applies to ports and airports also.

Relevant Law:

Public Order (NI) Order 1987 – covers most public order offences.

Criminal Evidence (NI) Order 1988 – right to silence.

Police and Criminal Evidence Order (NI) 1989 – regulates powers of the police.

Terrorism Act 2000 – replaces old emergency legislation (PTA & EPA)

Anti-Terrorism Crime and Security Act 2001 – extends periods of detention available and introduced detention without trial for non-EU nationals.

Prevention of Terrorism Act 2005 – introduces control orders.

Freedom of Assembly / Association and Public Orders Offences.

Freedom of Association, Assembly, Expression, Religion, Privacy are all protected by the European Convention of Human Rights and the Human Rights Act. However, all these rights can be curtailed in a wide range of circumstances.

Private Meetings – Freedom of Association not protected by English law. However, freedom of association is not illegal unless it can be considered to be:

• A conspiracy
• Membership of proscribed organisation
• A breach of Public Order (Amendment) Act (NI) 1970 – quasi military organisation
• Unlawful assembly – causing disturbance or reasonable apprehension of breach of the peace
• Breach of an Exclusion or control orders
• Public meetings – again no right under English law
• Public Order (NI) Order 1987 prohibits the following at a public meeting
• Threatening, abusive, insulting words or behaviour
• Provoke a breach of the peace
• Wearing a uniform signifying an association with any political organisation or with the promotion of any political object. CC/SoS can permit exceptions
• Open air meetings – can be banned/restricted

PUBLIC ORDER OFFENCES

• Bands – subject to Parades Commission rulings – enforced by police
• Riot – three or more people use force or violence which alarms or terrifies at least one person of reasonable firmness, with intent to assist one another
• Affray – unlawful fighting or display of force in a manner likely to terrify a person of reasonable firmness
• Riotous/Disorderly Behaviour – behaviour which infringes the values of orderly conduct held by right-thinking people
• Breach of council bylaws
• Possession of offensive weapons
• Trespass in public buildings – trespass or interfere with the carrying on of any lawful activity in any public building
• Obstructing a police officer – CAA 1968 – includes traffic wardens
• Intimidation – if a person unlawfully causes another in any way whatsoever to do or refrain from doing any act
• Breach of the peace – not a criminal act but power of arrest to prevent this
• Unlawful drilling
• Obstructive sitting in a public places
• Sits, stands, kneels, lies down or otherwise conducts himself or herself in a public place so as wilfully to obstruct traffic or to hinder any lawful activity
• Obstruction of Highway – without lawful authority or reasonable excuse, in any way intentionally or negligently obstructs the free passage along a road

POWERS OF POLICE

Under the general law, there is no general law to stop and question. The RUC/PSNI must make an arrest before there is any requirement to answer questions.

They can stop someone for the purpose of searching, but only if specific conditions apply.EMERGENCY LAWS

• S89 TA – stop and question any person for as long as is necessary in order to put questions to ascertain
• Identity and movements
• What he knows about recent explosion or related incident
• What he knows about a person killed or injured in explosion/incident
• There is a duty to provide information to best of one’s ability. The locality you visited would have to be disclosed, but not the names of persons visited. There is no obligation to answer questions relating to one’s occupation, family or friends.

ENTERING/LEAVING THE SIX COUNTIES

• Officer (i.e., police, army, customs) can require anyone entering/leaving O6C to give the following information
• Any details he requests
• Any document he possesses
• A person is considered to be leaving/entering GB/O6C if they are on a boat, train or plane in either direction. This also applies to people at ports and to people within one mile of the border

POWER OF ARREST

All of the above public order offences have the power of arrest.

Article 27 covers service of summons not practicable – doubtful address/name given if danger to property/life/safety.

No statutory power of arrest for breach of the peace, but case law creates the power in certain circumstances if police officer witnesses the breach or believes it will happen again.

Power of arrest if warrant issued by Justice of the Peace.

Police must give reason for the arrest. You should ask under what power and why you are being arrested.

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Contact phone numbers if you are arrested:

Belfast Office: 04890 329646; mobile 0044 79219 73328

Dublin Office: 07 4533477; after hours 01 4901884

This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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ARREST AND DETENTION FOR QUESTIONING IN TH 26 COUNTIES

IF you are detained for questioning (without charge) or to take samples from you or search you in connection with the investigation of an offence.

For this to happen you must be arrested and detained under one of the specific powers that allows this type of detention.

The most commonly used powers of arrest and detention without charge are:

Section 4, Criminal Justice Act 1984

Under Section 4 of the Criminal Justice Act 1984 you can be detained initially for six hours, a Superintendent can extend this by another six hours. Between 12 midnight and 8 am you are entitled to a rest period and this is not counted as your detention time. So you can be detained for up to 20 hours before you are either charged or released. A person over 18 can be arrested under this Act if the gardaí ‘has reasonable suspicion that you committed an offence serious enough to be punished by five years imprisonment’.

Section 2, Criminal Justice (Drug Trafficking) Acts 1996

Under Section 2 of the Criminal Justice (Drug Trafficking) Acts 1996, you can be detained for up to seven days in total. Initially you can be held for 6 hours, extended to 18 hours and then another 24 hours on order of a Super. After that the gardaí apply to the district court, at which you must be present, and a judge can extend the detention time by 72 hours and a further 48 hours (you must be in court for this extension also).

Section 30, Offences Against the State Act 1939 (and updated amendments)

The Offences Against the State Act was initially brought in to hear political cases (it was a military tribunal to sentence IRA men). The Special non jury Court sits in Green Street in Dublin. However over the last few years this has changed insofar as it now hears non-political cases also. Under Section 30 you can be detained for 24 hours initially. A Chief superintendent can extend this for another 24 hours. The gardaí can then apply to a district court judge for an extension of 72 hours, then another 48 hours. You must be brought before a judge and your solicitor can make submissions on your behalf.

Misuse of Drugs Acts 1977 and 1984

Under the Misuse of Drugs Acts 1977 and 1984 you can be held for as long as it takes to carry out a search authorised by the Act.

The Drugs Acts are constantly being updated and new offences being created on an ongoing basis.

Road Traffic Acts 1961-1994

Under the Road Traffic Acts, 1961-1994 you can be held for as long as it takes to take a sample, which can be taken under the Act, or for six hours.

Before the gardaí start to question you, they have to caution you – "you have the right to remain silent but anything you do say will be taken down and used in evidence". You can ask for your interviews to be recorded. If something comes up during questioning that you are not sure of, either a) ask for a break to consult your solicitor, or b) say that you would need to ask your solicitor for advice. Generally you will be questioned by two gardaí at a time. They usually question in relays, every four hours or so. You must have a break every four hours. They will use many different techniques. Some will come across as pleasant and caring; other will be aggressive and very ‘in your face’. Don’t be fooled or frightened. Stay calm and don’t engage in any ‘chit-chat’. This can give them an insight into your character.

You will be told things like:

We have your Mother/Father/Partner in the other room and they are telling us everything;

Make it easy on yourself, if you tell us what you know the judge will go easy on you;

Your friend is busy writing a statement and saving their own skin, why don’t you do the same;

We will tell your friends you are a rat;

We will make sure you do not see daylight for a long time;

Your body will never be found.

These are but a few samples – we could fill a book with them.

Remember better seven days in a barracks than seven years in a prison cell.

You do not have to take place in an identification parade – it is recommended that you do not despite the fact that the gardaí can have an informal one without your knowledge, the results of which can be used in court. If however, you do decide to take part make sure your solicitor is present and that you do not look ‘distinctively’ different.

Taking of samples

The taking of samples such as fingerprints, blood samples etc, with or without your consent, is a contentious area and depends on the section that you are being held under. Here again it is imperative to have a solicitor’s advice.

Under Section 3 of the Criminal Justice (Drug Trafficking) Act 1996 the gardaí can take the following samples without your consent:

Fingerprints, footprints or other similar impressions,

Hair – other than pubic, Nails or material found under nails,

A swab from anywhere other than a body orifice or the genital region.

They have to get your consent for the following:

Blood,

Pubic Hair,

Urine,

Saliva,

A Swab from a body orifice or genital region,

A dental impression.

Under Section 30 Offences Against the State Act 1939 (amended) and Section 4 Criminal Justice Act 1984, the gardaí may ask you to voluntarily give your fingerprints and hair samples (from your head) and a scraping from under your fingernails. Do not give your consent to the taking of these samples. However the gardaí will take those by force if necessary but do not sign for them. They will also take a photograph of you. They will ask for blood and saliva samples. You will be asked to sign for all these. Again neither consent nor sign for them.

Under the Road Traffic Acts, 1961-1994 you are required to give a sample of blood, urine or breath. The gardaí can require you to accompany them to the station to take such samples even if you are not under arrest. They can also take such samples if you have been taken to hospital following an accident.

Right to silence

It is difficult to keep up with all the new legislation being enacted. While the right to silence remains, it can be conditional, but you can say you are exercising your right to silence until you consult with your solicitor.

You may be told that if you refuse to answer certain questions you will be committing an offence or that inference will be drawn from your refusal to answer questions. This means that if a case goes to court, the judge may direct the jury to draw inference from your refusal and may say that you refused to answer questions because you had something to hide. In the case of the Special non-jury Court in the Six Counties and Dublin the ‘normal’ rule of law do not apply but the three judges constantly draw inference, often in the face of irrefutable evidence.

Under the Offences Against the State Act you are obliged to account for your movements at specified times. Failure to do so carries a term of imprisonment. However the European Court of Human Rights found that this section is in breach of the European Convention of Human Rights and is therefore open to question.

Under the new ‘Anti-Terror’ laws, failure to answer questions regarding membership of an illegal organisation can allow the judge to draw the inference that if you did not deny membership, then you must be guilty.

Under the Criminal Justice Act 1984 you are obliged to account for certain things in your possession or your presence in a certain place.

Under the Criminal Justice (Drug Trafficking) Act 1996 you are obliged to answer certain questions.

Under the Road Traffic Act 1961 you are obliged to provide certain information about a vehicle.

However, don’t say anything unless you have the advice of your solicitor, and you can at any time say that you wish to ask your solicitors advice.

List of most common ‘offences’ in the 26 Counties

Intoxication (which also covers drugs) in a public place – Fine €127. Section 4.

Disorderly conduct in public place – Fine €635. Section5.

Threatening abusive or insulting behaviour in public place – Fine €635 and/or 3 months. Section 6.

Distribution or display threatening, abusive, insulting or obscene material – Fine €635 and/or 3 months. Section 7.

Failure to comply with a direction of An Garda Siochána – Fine €254. (Reason to believe that the safety of person/property might be in danger). Section 8.

Wilful obstruction – Fine €254. (Intentionally prevent/obstruct person/vehicle in public place). Section 9.

Entering a building with intent to commit an offence – Fine €1,270 and/or 6 months. Section 11.

Trespass on a building – Fine €1,270 and/or 12 months (May cause fear in another person). Section 13.

Riot – The offence of riot is committed if 12 or more persons, who are present together in any place, public or private, use or threaten to use violence to put others in fear of their safety. Unlimited fine and/or 10 years. Section 14.

Violent disorder, similar to riot except it involves 3 or more people. Same penalty. Section 15.

Affray, similar to riot, but not as serious, involves 2 or more people. Section 16.

Blackmail extortion and demanding money with menace. Section 1.

Assault with intent to cause bodily harm. Section 18.

Assault or abstruction of a peace officer (meaning Gardaí, Free Staters and screws). Section 19.

The gardaí can arrest, without warrant, anyone found committing an offence under section 4-8, 11, 13-19. If you refuse to give your name or address, or one that the gardaí think is false, you can be arrested without warrant.

This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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Section 30, Offences Against the State Act 1939 (and updated amendments) in the 26 Counties.

The Offences Against the State Act (OAS) was initially enacted to hear political cases (it was a military tribunal to sentence IRA men to death) and the court that deals with that in the Free State is the special non-jury court in Green Street in Dublin. It should be noted that in the use of Section 30 and the special non-jury court is no longer confined to just political cases, it now deals with criminal cases also.

There have been many amendments to the OAS Act – some within the past few years which are ever more draconian. (All of the amendments passed in recent time may not appear in this section). Also some of the previous information may be repeated, this is to ensure understanding of the Act.

Section 30 of the OAS Act, 1939 confers a very wide power to the gardaí but bear in mind that you cannot be arrested for the purpose of gathering evidence or ‘helping the Gardaí with their enquires’ but you can be taken to a garda station solely for interrogation purposes. If you are arrested under Section 30 of the OAS Act, you do not have to be told exactly why you are being arrested; you need only be told you are being arrested under that section.

If you go voluntarily to a Garda station to assist the Gardaí with their enquires [which is not recommended] and are subjected to questioning or interrogation, you must be told and it must be made clear to you that you are free to leave the station at any time unless you are arrested. Often an arrest is on foot of a warrant. However, a warrant is not always necessary.

Under Section 30, a garda is allowed, without a warrant to:

• ‘stop, search, interrogate and arrest any person…whom he suspects of having committed or being about to commit any offence under any section…of this Act or an offence which is for the time being a scheduled [listed] offence for the purposes of…this Act or whom he suspects of carrying a document relating to the commission or intended commission of any offence…or whom he suspects of being in possession of information relating to the commission of any such offence…’ and ‘stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant’.

A person detained under this section will be asked for his/her name and address; will be searched; photographed and fingerprinted and hair samples will be taken with or without your permission.

Under Section 30 you can be detained for 72 hours in total. Initially for 24 hours, then a Chief superintendent can extend this for another 24 hours. The gardaí can then apply to a district court judge for an extension. For this extension you must be brought before a judge and your solicitor can make submissions on your behalf.

Before the gardaí start questioning you, they should caution you. A caution is a statement whereby they tell you that you have a right to remain silent and that anything you say can be taken down and given in evidence.

You should give your name and address if asked. You do not have to, and you should not, give your date of birth, place of work, family information etc. All questions should relate to their reason for arresting you.

While the right to silence remains, it can be conditional, but you can say you are exercising your right to silence until you consult with your solicitor.

Under the OAS Act you are obliged to account for your movements at specified times. Failure to do so carries a term of imprisonment of six months. However the European Court of Human Rights has found that this section is in breach of the European Convention of Human Rights and is therefore open to question. If you do not want to give a general account (you do not have to be specific) exercise you right to silence until you see a solicitor.

You may be told that if you refuse to answer certain questions you will be committing an offence or that inference will be drawn from your refusal to answer questions. This means that if a case goes to court, the judge may direct the jury to draw inference from your refusal to answer questions. For example if you are asked if you are a member of an illegal organisation and you do not deny this, then inference may be drawn that you are a member of an illegal organisation. In the case of the special non-jury courts in the Occupied Six Counties and Dublin the ‘normal’ rules of law do not apply and the judges constantly draw inference – often in the face of irrefutable evidence to the contrary.

It is accepted by Republicans that a person does not give any information when arrested. The most valuable time for the gardaí is just after arrest when you are in the car/van alone with them and they try to intimidate you into answering their questions. Anything you say at that time will be recorded and used against you. Keep your mouth shut until you see a solicitor.

Neither should you sign for your fingerprints, photographs etc., if you have not willingly given them. If you account for your movements do not sign for that either, your signature may be used to incriminate you.

This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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WITHIN THE SIX OCCUPIED COUNTIES

 

Several new Acts have passed into law in the last few years in what is called ‘the war on terrorism’. In some cases the existing Acts had additions made to them, in other cases complete new Acts were passed. The threat of ‘terrorism’ has been used by Governments to pass ever increasing draconian legislation and anyone complaining about such laws are classed as unpatriotic (at least) and terrorists and are subjected to surveillance, harassment and possible arrest.

 

Civil liberties are being eroded daily. Judges can order tagging or curfews on individuals and can ban people from entering streets, areas etc while on bail and even while serving sentences in the community. Unsubstantiated charges can keep individuals in prison for many months and in some cases years.

 

Information is being collected on individuals and stored in a central ‘bank’. This information is being made available to all agencies within a state. On an ever increasing level it is also being made available to outside agencies, again under the ‘war on terror’ agenda.

 

Several examples are available including: the co-operation/collusion between the gardai and the RUC/PSNI (right down to very basic level; swaps between forces are taking place at the moment) and between the US and Britain. Co-operation between states within the EU also includes the passing of information on individuals/groups. The passing of legislation in the EU can supersede national legislation and is daily affecting our rights and freedoms. Several meetings between police forces from around the world have taken place recently in Dublin and Belfast and conferences are held regularly to keep information updated.

 

Hard case still makes bad law so we need to be vocal in our opposition (despite the consequences) to the ever increasing control that governments have over our lives. What is left of our civil and legal rights must be protected so don’t be intimidated into silence and compliance.

 

The Terrorism Act 2000

 

The Terrorism Act 2000 replaced the previous [temporary] anti-terrorism legislation that dealt primarily with the Six Occupied Counties. The new Act made it illegal for certain groups to operate in England, Scotland, Wales and the Six Occupied Counties. Proscribed Irish groups are: Continuity Army Council, Cumin na mBan, Na Fianna Éireann, Irish National Liberation Army, Irish People’s Liberation Organisation, Irish Republican Army, Loyalist Volunteer Force, Orange Volunteers, Red Hand Commando, Red Hand Defenders, Saor Eire, Ulster Defence Association, Ulster Freedom Fighters, Ulster Volunteer Force. (In all the British Government has proscribed over 40 groups.)

 

The Act gave police greater powers including:

 

(a)     wider stop and search powers

(b)     the power to detain suspects after arrest for up to seven days (though periods of more than two days must be approved by a magistrate).

 

It also created a number of new offences allowing police to arrest individuals suspected of:

(a)     inciting terrorist acts

(b)     seeking or providing training for terrorist purposes at home or overseas

(c)     providing instruction or training in the use of firearms, explosives or chemical, biological or nuclear weapons.

 

Anti-Terrorism, Crime and Security Act 2001

 

According to the British Government the Anti-Terrorism, Crime and Security Act 2001 was introduced in order to provide stronger powers to allow the police to investigate and prevent terrorist activity and other serious crime.

 

The measures intend [among others] to:

·         Cut off terrorist funding

·         Ensure that government departments and agencies can collect and share information required for countering the terrorist threat.

·         Extend police powers available to relevant forces.

·         Ensure that Britain meets its European obligations in the area of police and judicial co-operation.

 

Some of the Acts mentioned here will have been updated and extra provisions added. For example the British Government repealed the Part 4 powers under the Anti-Terrorism, Crime and Security Act 2001 and replaced them with a system of control orders under the Prevention of Terrorism Act 2005. The Prevention of Terrorism Act allows for control orders to be made against any suspected terrorist, whether a UK national or a non-UK national, or whether the terrorist activity is international or domestic.

 

Control Orders (a summary)

 

A control Order means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.

 

Here are a list of [relevant] obligations (it is not a full list):

 

(a)     a prohibition or restriction on his possession or use of specified articles or substances or use of specified articles or substances;

(b)      

(c)     a restriction in respect of his work or other occupation, or in respect of his business;

(d)     a restriction on his association or communications with specified persons or with other persons generally;

(e)     a restriction in respect of his place of residence or on the persons whom he gives access to his place of residence;

(f)      a prohibition on his being at specified places or within a specified area at specified times or on specified days;

(g)     a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom;

(h)      

(i)       a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force;

(j)       a requirement on him to give access to specified persons to his place of residence or to other     premises to which he has power to grant access;

(k)     a requirement on him to allow specified persons to search that place or any such premises for the purposes of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;

(l)        

(m)    a requirement on him to allow himself to be photographed;

(n)     a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;

(o)     a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand;

(p)     a requirement on him to report to a specified person at specified times and places;

 

(5) Power by or under a control order to prohibit or restrict the controlled person’s movements includes, in particular, power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times generally).

 

(6) The reference in sub-section (4) (n) to co-operating with specified arrangements for monitoring includes a reference to each of the following:

 

(a)     submitting to procedures required by the arrangements;

(b)     wearing or otherwise using apparatus approved by or in accordance with the arrangements;

(c)     maintaining such apparatus in the specified manner;

(d)     complying with directions given by persons carrying out functions for the purposes of those arrangements.

 

(7) The information that the controlled person may be required to provide under a control order includes, in particular, advance information about his proposed movements or other activities.

 

(8) A control order may provide for a prohibition, restriction or requirement imposed by or under the order to apply only where a specified person has not given his consent or approval to what would otherwise contravene the prohibition, restriction or requirement.

 

(9) For the purposes of this Act involvement in terrorism-related activity is any one or more of the following:

 

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

(b)     conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c)     conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d)     conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this sub-section it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.

 

(10) In this Act – “derogating obligation” means an obligation on an individual which –

 

(a)     is incompatible with his right to liberty under article 5 of the Human Rights Convention; but

(b)     is of a description which, for the purposes of the designation of a designated derogation, isset out in the designation order; “derogating obligation” has the same meaning as in the Human Rights act 1998 (c. 42) (see section14(1) of that Act); “designation order”, in relation to a designated derogation, means the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated.

 

The PTA 2005 is a long convoluted piece of legislation written in ‘legalspeck’ and hard to summarise! The web sites listed below are an immense help. Not everyone has access to a computer but to fully understand the full extent of the powers contained in the PTA 2005 one would need to read them in full.

 

Web sites that give relevant information are:

www.homeoffice.gov.uk and www.opsi.gov.uk/acts and www.hmso.gov.uk

This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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2. Making of non-derogation control orders.

 

(1) The Secretary of State may make a control order against an individual if he –

 

(a)     has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b)     considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

 

(2) The Secretary of State may make a control order against an individual who is for the time being bound by a control order made by the court only if he does so –

 

(a)     after the court has determined that its order should be revoked; but

(b)     while the effect of the revocation has been postponed for the purpose of giving the Secretary of State an opportunity to decide whether to exercise his own powers to make a control order against the individual.

 

(3) A control order made by the Secretary of State is called a non-derogating control order.

 

(4) A non-derogating control order –

 

(a)     has effect for a period of 12 months beginning with the day on which it is made; but

(b)     may be renewed on one or more occasions in accordance with this section.

 

(5) A non-derogation order must specify when the period for which it is to have effect will end.

 

(6) The Secretary of State may renew a non-derogating control order (with or without modifications) for a period of 12 months if he –

 

(a)     considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

(b)     considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

 

(7) Where the Secretary of State renews a non-derogating control order, the 12 month period of the renewal begins to run from whichever is the earlier of –

 

(a)     the time when the order would otherwise have ceased to have effect; or

(b)     the beginning of the seventh day after the date of renewal.

 

(8) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.

 

(9) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State’s grounds for suspicion relate.

 

(3) Supervision by court of making of non-derogating control orders.

 

(1) The Secretary of State must not make a non-derogating control order against an individual except where –

 

(a)     having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order has been granted that permission;

(b)     the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission; or

(c)     the order is made before 14^th March 2005 against an individual who, at the time it is made, is an individual in respect of whom a certificate under section 21(1) of the Anti-terrorism Crime and Security Act 2001 (c.24) is in force.

 

(2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and –

 

(a)     the function of the court is to consider whether the Secretary of State’s decision that there are grounds to make that order is obviously flawed;

(b)     the court may give that permission unless it determines that the decision is obviously flawed; and

(c)     if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.

 

(3) Where the Secretary of State makes a non-derogating control order against an individual without the permission of the court –

 

(a)     he must immediately refer the order to the court; and

(b)     the function of the court on the reference is to consider the decision of the Secretary of State to make the order he did was obviously flawed.

 

(4) The court’s consideration on a reference under subsection (3)(a) must begin no more than 7 days after the day on which the control order in question was made.

 

(5) The court may consider an application for permission under subsection (1)(a) or a reference under subsection (3)(a) –

 

(a)     in the absence of the individual in question;

(b)     without his having been notified of the application or reference; and

(c)     without his having been given an opportunity (if he was aware of the application or reference) of making any representations to the court;

 

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.

 

(6) On a reference under subsection (3)(a), the court –

 

(a)     if it determines that the decision of the Secretary of State to make a non-derogating control order against the controlled person was obviously flawed, must quash the order;

(b)     if it determines that the decision was not obviously flawed but that a decision of the Secretary of State to impose a particular obligation by that order was obviously flawed, must quash that obligation and (subject to that) confirm the order and give directions for a hearing in relation to the confirmed order; and

(c)     in any other case, must confirm the order and give directions for a hearing in relation to the confirmed order.

 

(7) The directions given under subsection (2)(c) or (6)(b) or (c) must include arrangements for the individual in question to be given an opportunity within 7 days of the court’s giving permission or (as the case may be) making its determination on the reference to make representations about –

 

(a)     the directions already given; and

(b)     the making of further directions.

 

(8) On a reference under subsection (3)(a), the court may quash a certificate contained in the order for the purposes of subsection (1)(b) if it determines that the Secretary of State’s decision that the certificate should be contained in the order was flawed.

 

(9) The court must ensure that controlled person is notified of its decision on a reference under subsection (3)(a).

 

(10) On a hearing in pursuance of directions subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –

 

(a)     his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b)     his decisions on the imposition of each of the obligations imposed by the order.

 

(11) In determining –

 

(a)     what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or

(b)     the matters mentioned in subsection (10), the court must apply the principles applicable on an application for judicial review.

 

(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are –

 

(a)     power to quash the order;

(b)     power to quash one or more obligations imposed by the order; and

(c)     power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

 

(13) In every other case the court must decide that the control order is to continue in force.

 

(14) If requested to do so by the controlled person, the court must discontinue any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c).

This article is reproduced here with the permission of SAOIRSE – Irish Freedom – The Voice of the Republican Movement.

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POWER OF COURT TO MAKE DEROGATING CONTROL ORDERS

 

On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court to hold an immediate preliminary hearing to determine whether to make a control order imposing obligations that are or include derogating obligations (called a “derogating control order”) against that individual; and if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

 

The preliminary hearing under subsection (1)(a) may be held

 

(a)     in the absence of the individual in question;

(b)     without his having had notice of the application for the order; and

(c)     without his having been given an opportunity (if he was aware of the application) of making any representations to the court; but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.

 

At the preliminary hearing. The court may make a control order against an individual in question if it appears to the court:

 

(a)     that there is material (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;

(b)     that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)     that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of article 5 of the Human Rights Convention; and

(d)     that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

 

4) The obligations that may be imposed by a derogating control order in the period between:

 

(a)     the time when the order is made, and

(b)     the time when the final determination is made by the court whether to confirm it, include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(3).

 

At the full hearing under subsection (1)(b), the court may

 

(a)     confirm the control order made by the court; or

(b)     revoke the order; and where the court revokes the order, it may (if it thinks fit) direct that this Act is to have effect as if the order had been quashed.

 

In confirming a control order, the court

 

(a)     may modify the obligations imposed by the order; and where a modification made by the court removes an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.

 

At the full hearing, the court may confirm the control order (with or without modifications) only if

 

(a)     it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;

(b)     it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)     it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d)     the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

 

A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless – it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);

 

(a)     it ceases to have effect under section 6; or

(b)     it is renewed.

 

The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of six months from whichever is the earlier of –

 

(a)     the time when the order would otherwise have ceased to have effect; and

(b)     the beginning of the seventh day after the date of renewal.

 

(10) The power of the court to renew a derogation control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if –

 

(a)     the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person;

(b)     it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect which there is a designated derogation from the whole or a part of article 5 of the Human Rights Convention;

(c)     the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and

(d)     the court considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

 

(11) Where, on an application for the renewal of a derogating control order, it appears to the court

 

(a)     that the proceedings on the application are unlikely to be completed before the time when the order is due to cease to have effect if not renewed, and

(b)     that that is not attributable to an unreasonable delay on the part of the Secretary of State in the making or conduct of the application, the court may (on one or more occasions) extend the period for which the order is to remain in force for purpose of keeping it in force until the conclusion of the proceedings.

 

(12) Where the court exercises its power under subsection (11) and subsequently renews the control order in question, the period of any renewal still runs from the time when the order would have ceased to have effect apart from that subsection.

 

(13) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3(a or (7(a were satisfied.

 

ARREST AND DETENTION PENDING DEROGATING CONTROL ORDER

 

A constable may arrest and detain an individual if

 

(a)     the Secretary of State has made an application to the court for a derogating control order to be made against that individual; and

(b)     the constable considers that the individual’s arrest and detention is necessary to ensure that he is available to be given notice of the order if it is made.

(c)     A constable who has arrested an individual under this section must take him to the designated place that the constable considers most appropriate as soon as practicable after the arrest.

(d)     An individual taken to a designated place under this section may be detained there until the end of 48 hours from the time of his arrest.

(e)     If the court considers that it is necessary to do so to ensure that the individual in question is available to be given notice of any derogating control order that is made against him, it may, during the 48 hours following his arrest, extend the period for which the individual may be detained under this section by a period of no more than 48 hours.

 

An individual may not be detained under this section at any time after

 

(a)     he has become bound by a derogating control order made against him on the Secretary of State’s application; or

(b)     the court has dismissed the application.

 

A person who has the powers of constable in one part of the United Kingdom may exercise the power of arrest under this section in that part of the United Kingdom or in any other part of the United Kingdom.

 

An individual detained under this section –

 

(a)     shall be deemed to be in legal custody throughout the period of his detention; and

(b)     after having been taken to a designated place shall be deemed

 

(i)                   in England and Wales, to be in police detention for the purposes of the Police and Criminal Evidence Act 1984 (c. 60); and

(ii)                 in Northern Ireland, to be in police detention for the purposes of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)); but paragraph (b) has effect subject to subsection (8).

 

Paragraphs 1(6), 2, 6 to 9 and 16 to 19 of Schedule 8 to the Terrorism Act 2000 (c. 11) (powers and safeguards in the case of persons detained under section 41 of that Act) apply to an individual detained under this section as they apply to a person under section 41 of that Act, but with the following modifications –