Commentary on Sections Schedule 4 – Notification Orders
152.Schedule 4 makes provision for notification orders. A notification order might be sought in respect of a national of the United Kingdom who has been convicted of a foreign terrorism offence and who is deported to the United Kingdom on release from prison abroad. It might also be sought in respect of a foreign national with such a conviction who is in or is coming to the United Kingdom.
153.Paragraph 2 defines “corresponding foreign offence” (those offences a conviction for which may trigger an application being made for a notification order). These are acts which constitute an offence in the jurisdiction in which they are committed and which “correspond to an offence to which this Part applies”. This means that it would have been an offence under section 41 if committed in the United Kingdom (terrorism offences which, subject to the sentence threshold, automatically trigger the application of the notification requirements) or an offence with a terrorist connection.
154.Paragraph 2(4) provides that, on an application for a notification order, it will be deemed that an act corresponds to an offence to which Part 4 applies unless the person serves a notice disputing this and requiring the applicant to prove it or if the court allows the person to require such proof without the serving of a notice.
155.Paragraph 3 sets out the three conditions for making a notification order. First, an individual must have been convicted of a corresponding foreign offence or been subject to a finding equivalent to one of insanity or disability and given a sentence or hospital order equivalent to that required for the notification requirements to apply where the conviction or relevant finding was in the UK (as set out in section 45). However, this condition is not met if the court is satisfied on the balance of probabilities that the foreign conviction, which is the basis for the application, was obtained as a result of a flagrant denial of the person’s right to a fair trial (paragraph 3(3)). The concept of a “flagrant” denial of the right to a fair trial derives from case law of the European Court of Human Rights, which has also been adopted in the domestic courts. The term is to be read as having the same meaning which it is given by that jurisprudence, rather than having its dictionary meaning (see for example the case of EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64).
156.The second condition, specified in paragraph 3(4), is that the sentence must either have been imposed after the commencement of Part 4, or when the Part was commenced the individual was imprisoned or detained as a result of that sentence, or would have been but for being unlawfully at large or otherwise temporarily out of custody or was on licence or equivalent. The third condition is that the period for which a person would be subject to the notification requirements under section 53 has not expired (paragraph 3(5)).
157.A court must make a notification order if these three conditions are met (paragraph 3(6)).
158.Paragraph 4 sets out the circumstances in which the police may apply for a notification order and the procedure to be followed in England and Wales. The application must be made by the chief officer of police for the area where the individual resides, or where the officer believes the person is or intends to come. This would enable, for example, the chief officer of Kent Police to make an application in respect of a person who is currently in France but who is believed (by the chief officer) to have plans to arrive in Dover within the next few days. The application is to be made to the High Court.
159.Paragraphs 5 and 6 make corresponding provision for Scotland and Northern Ireland. In Scotland, the application is to be made to the Court of Session.
160.Paragraph 8 sets out the modifications to the notification provisions necessary to ensure they apply correctly in relation to a case where they apply by virtue of a notification order. In particular, section 47 (initial notification) is modified so that the requirement is for initial notification to be made within 3 days of the order being served.