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Stephen Wood QC considers recent authority dealing with compatibility of terrorist post conviction restraint orders and the Human Rights Act

Fri 19th Feb 2021

Stephen Wood QC[1] considers this important recent case concerning the notification requirements imposed upon Defendants, following conviction for terrorism offences.

Following his conviction of two offences under the Terrorism Act 2000, the Appellant was, subject to notification requirements for a period of 15 years after his release from custody as a ‘registered terrorist’.

After that release, the Appellant registered himself onto the books of an employment agency to work as an HGV driver and in due course, he accepted work with a company involving the driving of refuse lorries for a local authority.

The system was that he was allocated the vehicle or vehicles he was to drive at the beginning of each shift and he was entitled to drive only the allocated vehicle(s) during working hours and for the purposes of his work.

There were more than 20 vehicles in the company’s fleet.

The notification requirements in force at the time under the Counter Terrorism Act 2008 included a requirement to notify the police of relevant information concerning motor-vehicles:- “of which the person is the registered keeper of, or acquires a right to use (whether routinely or on specific occasions or for specific purposes) on the date on which notification is made

The Appellant failed to declare his use of these vehicles and was charged with nine counts of failure to comply with notification requirements in relation to the use of refuse vehicles during his employment contrary to section 54(1) and (4) of the 2008 Act.

At a preparatory hearing the Appellant argued that the notification requirement in respect of motor vehicles did not apply in relation to the vehicles he drove as part of his work; alternatively, that the application of the legislation to his case was not in accordance with the law or violated the principle of ‘legality’ in that it interfered with his lawful right to obtain work.

The judge declined to make that ruling and the Appellant appealed to the Court of Appeal.

The Court of Appeal dismissed the Appellant’s arguments.

They pointed out that the purpose of the provisions was to strengthen the powers for managing terrorist offenders following their release from custody and to strengthen the powers of the police to prevent terrorism and investigate terrorist offences.

The Court went on to say that words used in the Statute were clear and unambiguous. In the circumstances of regulating the activities of convicted terrorists, there was no public policy reason to depart from the ordinary principles of statutory construction, which required the court to adopt the plain meaning rule, in the absence of any ambiguity in the relevant statutory terms.

The phrase “a right to use” was the trigger for the notification requirements, and not the other way around.

The Court held that it was no answer that by reference to scenarios that might undermine a person’s ability to work as an agency driver, the clear intent, and the clear and unambiguous words used in the statutory text, were to be ignored. The words “a right to use” denoted the control, management, or operation of the vehicle in question.

In the circumstances of the present case the Appellant’s ability to meet the notification requirements was not rendered impossible before the defendant commenced to use a vehicle. The timing of the acquisition of “a right to use” a motor vehicle, which determined the appropriate notification period, was a question of fact which had to be established by the prosecution as a relevant ingredient of the offence, and it would fix the time frame for compliance, subject to “reasonable excuse” and would be within the person’s knowledge.

In any event, any inherent difficulties of the necessary notification procedure as might become obvious upon analysis of evidence in the present case, did not render the clear words of the statute “absurd” as the Court of Appeal accepted the proposition that a person might, depending on the particular circumstances of the case, be able to establish a reasonable excuse for failure to comply with notification requirements.

The proposition that, while the statutory words were not general and ambiguous, their operation was so demonstrably impractical or misunderstood in application, that parliament could not have foreseen the consequences that would ensue, and it should therefore be presumed that it “passed unnoticed in the democratic process” was to be rejected.

The relevant notification requirements which were imposed upon a registered terrorist offender were predicated upon previous conviction(s) of specified terrorist offences and the interference by a public authority with the exercise of an individual’s right to respect for family or private life was justified as “in accordance with the law and … necessary in a democratic society in the interests of national security, public safety…the prevention of disorder or crime, …or for the protection of the rights and freedoms of others” (Schedule 1, article 8(2) of the Human Rights Act 1998).

In conclusion the Court of Appeal held that even if the notification requirements prevented a person from pursuing a line of employment of their choice, the inability of a registered terrorist offender to drive HGVs without prior notification to the relevant authorities was a proportionate aim in the interests of national security.

[1] Head of Broadway House Chambers Criminal Team. Prior to taking silk in 2020 Stephen was engaged as a ‘Special Advocate’ by HM Attorney General in relation to cases involving matters of national security and was subject to the full developed vetting procedure.

 

-Stephen Wood QC
19th February 2021

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