Terrorism (Community Protection) Act 2003

If a special counsel is appointed under section 32(1) or (2A)—

before the hearing of the protection application the applicant must serve on the special counsel—

a summary of the grounds on which the protection application is made; and

if the protection application is made in respect of a substantive application, the grounds on which that application is made; and

the evidence on which the applicant seeks to rely to the extent possible without revealing any relevant information; and

after the special counsel has had an opportunity to communicate with the subject of the substantive application or hearing, or a representative of the subject, under paragraph (b)—a copy of the protection application, any affidavit required to be given to the Supreme Court in support of the protection application and the relevant information; and

at any time before the special counsel obtains any relevant information, the special counsel may communicate with the subject of the substantive application or hearing, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the protection application or the substantive application or hearing; and

at any time after the special counsel obtains any relevant information, the special counsel must not communicate with the subject of the substantive application or hearing or a representative of the subject.

If a special counsel is appointed under section 32(3) or (4)—

before the hearing of the relevant part of the proceeding on the substantive application or hearing the applicant must serve on the special counsel—

a summary of the grounds on which the protection application was made; and

if the protection application was made in respect of a substantive application or hearing, the grounds on which that application was made; and

the evidence on which reliance will be sought on the substantive application or hearing to the extent possible without revealing any protected counter terrorism intelligence; and

after the special counsel has had an opportunity to communicate with the subject of the substantive application or hearing, or a representative of the subject, under paragraph (b)—a copy of the protected counter-terrorism intelligence; and

at any time before the special counsel obtains any protected counter‑terrorism intelligence, the special counsel may communicate with the subject of the substantive application or hearing, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the substantive application or hearing; and

at any time after the special counsel obtains any protected counter‑terrorism intelligence, the special counsel must not communicate with the subject of the substantive application or hearing or a representative of the subject.

A special counsel appointed under section 32—

must not perform the role of special counsel in a manner that compromises the confidentiality of all or any part of the relevant information or the protected counter-terrorism intelligence (as the case requires); and

does not incur any liability to the subject of the substantive application or hearing in respect of anything done or omitted to be done by the special counsel in performing the role of special counsel.

Legal professional privilege or client legal privilege applies to a communication between a special counsel appointed under section 32 and the subject of the substantive application or hearing or a representative of the subject in the same way as it would apply to a communication between a lawyer acting for the subject and the subject.

The relevant court may direct that a special counsel appointed under section 32 may be present as an observer at any hearing of the substantive application or hearing other than the hearing of the relevant part.

The applicant for a counter-terrorism intelligence protection order must fully disclose to a special counsel appointed under section 32(1) all matters of which the applicant is aware that are adverse to the protection application.

The applicant for a counter-terrorism intelligence protection order must not knowingly or recklessly fail to comply with subsection (6).

In this section—