Counter-Terrorism Act 2008

Counter-Terrorism Act 2008[a]
Act of Parliament
coat of arms
Parliament of the United Kingdom
Long titleAn Act to confer further powers to gather and share information for counter-terrorism and other purposes; to make further provision about the detention and questioning of terrorist suspects and the prosecution and punishment of terrorist offences; to impose notification requirements on persons convicted of such offences; to confer further powers to act against terrorist financing, money laundering and certain other activities; to provide for review of certain Treasury decisions and about evidence in, and other matters connected with, review proceedings; to amend the law relating to inquiries; to amend the definition of "terrorism"; to amend the enactments relating to terrorist offences, control orders and the forfeiture of terrorist cash; to provide for recovering the costs of policing at certain gas facilities; to amend provisions about the appointment of special advocates in Northern Ireland; and for connected purposes.
Citation2008 c. 28
Territorial extent United Kingdom[b]
Dates
Royal assent26 November 2008
Commencementvarious[c]
Other legislation
Amends
Amended by
Status: Amended
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended
Text of the Counter-Terrorism Act 2008 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Counter-Terrorism Act 2008 (c. 28) is an act of the Parliament of the United Kingdom which increased police powers for the stated purpose of countering terrorism. The first reading of the bill was held in January 2008, and it received royal assent on 26 November 2008 following an episode of Parliamentary ping-pong on some of its most controversial issues.[1]

Provisions

The act as passed contains various notable provisions:[2]

  • Removal of the prohibition on post-charge questioning.
  • Longer terrorism sentences.
  • A register and monitoring for those convicted of terrorism related offences, similar to the Violent and Sex Offender Register.
  • Changes to some of the rules surrounding the use of "intercept evidence".
  • Powers to seize the assets of convicted terrorists.
  • Police will be able to remove documents from a property search to decide whether or not they need to be legally seized as part of an investigation.
  • Greater use of DNA samples, and powers to allow the police to take fingerprints or DNA from those subject to a control order.

Repealed enactments

Section 99 of the act repealed 7 enactments and revoked 6 instruments, listed in schedule 9 to the act.[3]

Part 1 – Retention and use of fingerprints and samples
Citation Short title Extent of repeal
2000 c. 11 Terrorism Act 2000 In Schedule 8, paragraph 14(3).
Part 2 – Disclosure of information and the intelligence services
Citation Short title Extent of repeal or revocation
2001 c. 24 Anti-terrorism, Crime and Security Act 2001 Section 19(2)(a).
SI 2001/341 Representation of the People (England and Wales) Regulations 2001 Regulation 45E(3) and (4).
In Regulation 109—

(a) paragraph (1)(g) to (i); (b) in paragraph (4)(a), the words preceding paragraph (i); (c) paragraph (4)(b) and the word "and" immediately preceding it.

In Regulation 115(2), "45E(3),".
SI 2001/497 Representation of the People (Scotland) Regulations 2001 Regulation 45D(3) and (4).
In Regulation 108—

(a) paragraph (1)(g) to (i); (b) in paragraph (4)(a), the words preceding paragraph (i); (c) paragraph (4)(b) and the word "and" immediately preceding it.

In Regulation 115(2), "45D(3),".
2006 c. 13 Immigration, Asylum and Nationality Act 2006 Section 38.
2007 c. 18 Statistics and Registration Service Act 2007 Section 39(4)(g).
In section 67, the definition of "Intelligence Service".
Part 3 – Forfeiture
Citation Short title Extent of repeal
2000 c. 11 Terrorism Act 2000 Section 54(7) to (9).
Section 58(5) to (7).
Part 4 – Financial restrictions proceedings
Citation Title Extent of revocation
SI 2001/3365 Terrorism (United Nations Measures) Order 2001 Article 4(7) and (8).
SI 2002/111 Al-Qa'ida and Taliban (United Nations Measures) Order 2002 Article 8(7) and (8).
SI 2006/2657 Terrorism (United Nations Measures) Order 2006 Article 5(4) and (5).
SI 2006/2952 Al-Qaida and Taliban (United Nations Measures) Order 2006 Article 5(4) and (5).

These revocations do not affect an application made before the commencement of section 63 of the act.

Part 5 – Control orders
Citation Short title Extent of repeal
2005 c. 2 Prevention of Terrorism Act 2005 In section 3—

(a) subsection (1)(c); (b) in subsection (7) the words "within 7 days of the court's giving permission or (as the case may be) making its determination on the reference".

Section 8(8).
In the Schedule, in paragraph 5(1)(a) the words ", at any time after a control order has been made,".
Part 6 – Pre-charge detention
Citation Short title Extent of repeal
2000 c. 11 Terrorism Act 2000 In Schedule 8, in paragraph 29(4)(a) and (c), the words "after consulting the Lord Chancellor".

Photographs of police officers in public places

Section 76 (Offences relating to information about members of armed forces etc.) came into force on 15 February 2009[4] making it an offence to elicit, attempt to elicit, or publish information "of a kind likely to be useful to a person committing or preparing an act of terrorism" about:[5]

Any person found guilty faces up to 10 years imprisonment and an unlimited fine.[5] It is a defence for a person charged with this offence to prove that they had a reasonable excuse for their action (for example, a newspaper feature on police brutality or corruption).[5]

There are exemptions for communications service providers, web caches and web hosting services.[6]

The protest outside New Scotland Yard, February 2009

Journalists who feared that this law would be abused by the police to threaten the taking of photographs of their activities[7][8][9] staged a mass protest outside Scotland Yard in February 2009.[10] Gordon Brown reaffirmed that the police have a legal right to restrict photography in public places, and stated "the law applies to photographers as it does to anybody else in a public place".[7] The act however does not lay out restrictions for the photography of Community Support Officers as they do not hold the office of Constable.

The parliamentary debate on this law was limited because in earlier versions of the bill the offence of eliciting or publishing information "likely to be useful to a person committing or preparing an act of terrorism" only applied to people who were or had been members of Her Majesty's Forces, and not to the police.[11] This was also the case throughout the debate in the Standing Committee.[12]

An opposition amendment changing the phrase "of a kind likely to be useful to a person committing or preparing an act of terrorism" with the words "with the intention that it is useful..." was withdrawn after the Minister explained that the clause merely restated earlier laws applying to the armed forces on which there was already case law[13] that made it more reasonable than it appeared.[12]

The law against eliciting or publishing information "likely to be useful to a person committing or preparing an act of terrorism" was extended to encompass police constables in a raft of unscrutinized amendments[14] that passed into the Bill at the end of the debate when the Parliamentary timetable (which had been voted on earlier in the day)[15] expired.

When this clause was scrutinized in the House of Lords,[16] and in all subsequent debates, no reference was made to the extension of the law to include police constables.

A parliamentary written question about the policy regarding police preventing members of the public from taking photographs in public places hasn't been answered.[17] But the Home Office issued a circular to the police in 2009 which reminds them that 'Legitimate journalistic activity (such as covering a demonstration for a newspaper) is likely to constitute such an excuse. Similarly an innocent tourist or other sight-seer taking a photograph of a police officer is likely to have a reasonable excuse.'[18]

Post-charge questioning

A number of measures were linked to the debate about extending the detention period for those arrested under the Terrorism Act 2000.[19] One of them was the introduction of questioning after charge under ss. 22 to 27. Such questioning was already exceptionally allowed under PACE Code C para.16[20] in order: to prevent or minimise harm or loss to some other person, or the public; to clear up an ambiguity in a previous answer or statement; in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted. But post-charge questioning rarely happens in practice. However, in order to give the police and prosecutors confidence that they do not have to wait until the end of the detention period to make a charge, the 2008 Act allows them to resume questioning after charge. This idea may be especially important if a charge is made under the Threshold Test under the Code for Crown Prosecutors, 2010, para.5.[21] These measures are not likely to have much impact since they involve dire problems of admissibility, given the circumstances of a pending trial which is meant to be controlled by a judge rather than the police. More likely, the police will seek adverse inferences from silence rather than responses to lengthy questioning.[22]

Terrorism Connection

The concept of a "terrorism connection" was first introduced in section 30 of the Act, under which a court sentencing an offender for certain offences must consider whether the offence had a "terrorism connection".[23][24]

A terrorism connection may be found where the offence was, or took place in the course of, an act of terrorism, or was committed for the purposes of terrorism. The test therefore relies on the definition of terrorism in section 1 of the Terrorism Act 2000, including action involving serious violence, serious damage to property, serious risk to public safety, or serious interference with an electronic system, where the remaining statutory elements are satisfied.[25]

A finding of terrorism connection is treated as a statutory aggravating factor and may also trigger terrorism-related ancillary consequences, including notification requirements.[26]

Subsequent to the Act being passed, Section 30 was invoked in sentencing on a number of occasions when the offences themselves were not covered by the Terrorism Act 2000, but where a "terrorism connection" was applied in cases of violent crimes where the perpetrators were motivated by ideological causes:

Section 69 of the Sentencing Act 2020 updated the "terrorism connection" criteria and the following year the Counter-Terrorism and Sentencing Act 2021 expanded the sentencing regime by requiring courts to consider terrorist connection findings for a wider range of non-terrorism offences punishable by more than two years' imprisonment, unless expressly excluded.[39]

Public scrutiny of Section 69 increased during 2026 following its application in sentencing three of the defendants in the Filton protest case, who had been convicted of one count of criminal damage.[40][41]

Scrutiny further increased in July 2026 when the judge in a case involving five defendants accused of breaking windows and throwing red paint over a branch of Barclays Bank in Lancashire announced that he too would be considering a "terrorism connection" in sentencing.[42] Human rights lawyers denounced the step as "unfair" given that none of the defendants had been prosecuted on the basis of their being a "terrorism connection", and the announcement was only made by the judge after a guilty verdict had been returned.[43]

Abandoned provisions

42 day terrorist detention without charge

The highest profile provision in the Counter-Terrorism Bill was a measure to allow terrorist suspects to be detained by police in England and Wales for up to 42 days before being charged (formally told what law they were accused of breaking). This was a re-run of 90-day terrorist detention without charge debate that occurred in 2006 that was narrowly lost by a vote in Parliament.

The crunch vote[44] on the issue occurred on 11 June 2008 with a 36 Labour MP rebellion that would have defeated the government had the Democratic Unionist Party block, who normally vote with the Conservative Party, not voted for it.[45] Allegations of a political bribe for these votes[46] were denied.[47]

The day after the vote, the Conservative front bench Home Affairs spokesman, David Davis suddenly resigned from Parliament in protest and won re-election to his seat in by-election in which none of the other main parties stood a candidate.

On 13 October 2008 this measure was dropped from the Bill by a vote in the House of Lords.[48][49]

Rather than reverse this defeat with another difficult vote in the House of Commons, the Government drafted a Counter-Terrorism (Temporary Provisions) Bill that would stand "ready to be introduced if and when the need arises."[50]

Secret coroner's inquests

A provision in the Bill to give the Government powers to certify that a coroner's inquest should be held in secret without a jury in the interests of national security or foreign relations[51] raised enough opposition outside of Parliament[52] that the measure was also dropped.[53] These measures, however, reappeared in the Coroners and Justice Act 2009.[54]

See also

Notes

  1. ↑ Section 102.
  2. ↑ Section 101.
  3. ↑ Section 100.

References

  1. ↑ "Counter-Terrorism Bill 2007-08". House of Commons.
  2. ↑ "Terror bill: What's left". BBC News. 14 October 2008. Retrieved 30 April 2010.
  3. ↑ "Counter-Terrorism Act 2008", legislation.gov.uk, The National Archives, 2008 c. 28
  4. ↑ "The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009".
  5. 1 2 3 "Counter-Terrorism Act 2008". opsi.gov.uk. Retrieved 10 December 2010.
  6. ↑ "Counter-Terrorism Act 2008". opsi.gov.uk. Retrieved 10 December 2010.
  7. 1 2 Laurent, Olivier (28 January 2009). "Jail for photographing police?". British Journal of Photography. Archived from the original on 27 March 2010. Retrieved 10 December 2010.
  8. ↑ Adetunji, Jo (12 February 2009). "Photographers fear they are target of new terror law". The Guardian. London. Retrieved 30 April 2010.
  9. ↑ Vallee, Marc (12 February 2009). "Documenting dissent is under attack". The Guardian. London. Retrieved 30 April 2010.
  10. ↑ "Is it a crime to take pictures?". BBC News. 16 February 2009. Retrieved 2 January 2010.
  11. ↑ "Clause 69 - Offences relating to information about members of armed forces - Counter-Terrorism Bill". 24 January 2009.
  12. 1 2 "Public Bill Committee - Counter-Terrorism Bill - 13th Sitting". 15 May 2008.
  13. ↑ "R v K [2008] EWCA Crim 185; [2008] WLR (D) 47 (Appeal Court)". 13 February 2008. Archived from the original on 5 April 2009.
  14. ↑ "Clause 71 - offences relating to information about members of armed forces". 10 June 2008.
  15. ↑ "Counter-Terrorism Bill - Timetable". The Public Whip. 10 June 2008.
  16. ↑ Baroness Falkner of Margravine (21 October 2008). "Counter-Terrorism Bill - Committee 4th sitting".
  17. ↑ Bob Spink MP (26 November 2008). "Photography: Public Places".
  18. ↑ "Home Office circular 012 / 2009". homeoffice.gov.uk. Archived from the original on 29 March 2010. Retrieved 10 December 2010.
  19. ↑ "Evidence from Professor Clive Walker to the Joint Committee on Human Rights".
  20. ↑ "Police" (PDF). police.homeoffice.gov.uk. Archived from the original (PDF) on 11 December 2009. Retrieved 10 December 2010.
  21. ↑ "The Code for Crown Prosecutors" (PDF). cps.gov.uk. Retrieved 10 December 2010.
  22. ↑ See also Walker, C., 'Post-charge questioning of suspects' [2008] Criminal Law Review 509-524
  23. ↑ "Sentencing Act 2020, section 69". legislation.gov.uk. Retrieved 24 June 2026.
  24. ↑ Siddique, Haroon (10 June 2026). "Sentencing Palestine Action protesters as terrorists would be 'constitutional threat', says lawyer". The Guardian. Retrieved 28 July 2016.
  25. ↑ "Offences with a terrorist connection: guidance". Sentencing Council. Retrieved 24 June 2026.
  26. ↑ "Counter-Terrorism and Sentencing Act 2021". legislation.gov.uk. Retrieved 24 June 2026.
  27. ↑ "R. v Ahmad Hassan" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  28. ↑ "Reading stabbings: Khairi Saadallah jailed for park murders". BBC. Retrieved 1 August 2026.
  29. ↑ "Reading terror attacker Khairi Saadallah given whole-life prison sentence for murdering three victims". The Independent. 11 January 2021. Retrieved 1 August 2026.
  30. ↑ "R. v Ali Harbi Ali" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  31. ↑ "R. v Mohammad Sohail Farooq" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  32. ↑ "Man who planned hospital terror attack jailed". BBC. Retrieved 1 August 2026.
  33. ↑ "Extremist Ahmed Alid guilty of Hartlepool knife murder". BBC. Retrieved 1 August 2026.
  34. ↑ "R. v Ahmed Ali Alid" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  35. ↑ "White supremacist jailed for asylum seeker attack". BBC. Retrieved 1 August 2026.
  36. ↑ "R. v Callum Parslow" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  37. ↑ "Men jailed over arson attack for Russia on Ukrainian business in London". BBC. Retrieved 1 August 2026.
  38. ↑ "R. v Dylan Earl and others" (PDF). www.judiciary.uk. Retrieved 1 August 2026.
  39. ↑ "Counter-Terrorism and Sentencing Bill: Explanatory Notes". UK Parliament. Retrieved 24 June 2026.
  40. ↑ "Pro-Palestine activists sentenced as terrorists over damage at Israeli arms factory in UK". The Guardian. Retrieved 28 July 2026.
  41. ↑ "Palestine Action activists jailed over factory raid". BBC. Retrieved 28 July 2026.
  42. ↑ "Palestine Action activists face being sentenced as terrorists over bank damage". The Guardian. Retrieved 1 August 2026.
  43. ↑ "Terror sentencing for activists unfair, lawyer says". BBC. Retrieved 1 August 2026.
  44. ↑ "Brown wins crunch vote on 42 days". BBC. 11 June 2008. Retrieved 2 January 2010.
  45. ↑ "Counter-Terrorism Bill - Extension of period of detention to 42 days - Process". The Public Whip. 11 June 2008.
  46. ↑ Leppard, David (1 June 2008). "Gordon Brown 'bribes' Unionists to back 42-day terror vote". The Times. London. Archived from the original on 7 September 2008. Retrieved 30 April 2010.
  47. ↑ "No deals on 42 days, says Brown". BBC. 12 June 2008. Retrieved 2 January 2010.
  48. ↑ "Peers throw out 42-day detention". BBC. 13 October 2008. Retrieved 2 January 2010.
  49. ↑ "Counter-Terrorism Bill - No extension of period of detention beyond 28 days". 13 October 2008.
  50. ↑ Jaqui Smith MP (13 October 2008). "Counter-Terrorism Bill".
  51. ↑ "Clause 64 - Certificate requiring inquest to be held without a jury - Counter Terrorism Bill". 24 January 2008.
  52. ↑ Gibb, Frances; Coates, Sam (12 August 2008). "Uproar at plan to hold inquests in secret". The Times. London. Archived from the original on 9 October 2009. Retrieved 30 April 2010.
  53. ↑ Watt, Nicholas (15 October 2008). "Government abandons secret inquests in terror bill". London: The Guardian. Retrieved 30 April 2010.
  54. ↑ "Secret inquest plans brought back". BBC. 14 January 2009. Retrieved 2 January 2010.
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