New Anti-Terrorism Powers

The Counter-Terrorism and Border Security Act 2019 has completed its parliamentary journey and will, in the main, come in to effect over the next few months.

The Home Secretary Sajid Javid claims that the Act:

‘…ensures sentencing for certain terrorism offences can properly reflect the severity of the crimes, as well as preventing re-offending and disrupting terrorist activity more rapidly.’

What are the key changes?

A new power to stop, question, search and detain an individual at a port or border area to determine whether they are, or have been, involved in hostile state activity.

A new offence of entering or remaining in an area outside the United Kingdom that has been designated by the Home Secretary if it is necessary for protecting the public from terrorism.

Updating the offence of obtaining information likely to be useful to a terrorist to cover material that is only viewed or streamed, rather than downloaded to form a permanent record.

Extending the offence of inviting support for a proscribed organisation.

A requirement for terrorist offenders to provide additional information to the police in line with what registered sex offenders must provide.

Sentencing changes

Section 38B TA 2000 – a new maximum sentence of 10 years imprisonment (previously 5 years)

Section 58 TA 2000 – a new maximum sentence of 15 years imprisonment (previously 10 years)

Section 58A TA 2000 – a new maximum sentence of 15 years imprisonment (previously 10 years)

Section 1 TA 2006 – a new maximum sentence of 15 years imprisonment (previously 7 years)

Section 2 TA 2006 – a new maximum sentence of 15 years imprisonment (previously 7 years)

Overseas Production Orders

In addition to the new Terrorism Act, where a relevant international agreement is in place, the new Crime (Overseas Production Orders) Act 2019 will allow police and prosecutors quicker access to electronic data held outside of the UK, supporting investigations into crimes such as child sexual exploitation and terrorism.

The act gives law enforcement agencies and prosecutors the power to obtain electronic data directly from an overseas communications service provider (CSP). There is already a similar process for UK law enforcement to obtain information from UK companies.

The UK is currently in the process of negotiating a data access agreement with the United States, where the world’s largest CSPs are based.

Currently, when law enforcement agencies want access to data held by a CSP overseas, mutual legal assistance channels are used which can take anywhere from six months to two years, resulting in delayed or sometimes abandoned investigations or prosecutions.

The act gives law enforcement agencies the ability to apply to a UK judge for an overseas production order which, if granted, will require the specified CSP to provide, or allow access to, stored electronic data for investigating and prosecuting serious crimes.

The overseas production order would give the police and prosecutors the ability to seek access to the required electronic data, such as messages, files and pictures, directly from the overseas CSP, reducing the time it takes to days or weeks.

The process will remain subject to robust judicial oversight and protections for legally privileged material and journalistic data have been written into law.

The legislation also requires the government to seek  assurances that the death penalty will not be used in any relevant international agreement.