For information note: operating within counter-terrorism legislation, counter-terrorism sanctions and export control
Updated 11 October 2021
This “for information note” has been prepared primarily for International Non-Government Organisations (INGOs) but it may apply to other sectors, particularly the financial sector. It provides information on counter-terrorism legislation including the counter-terrorism elements of sanctions and export control that may be of relevance to INGOs delivering development and humanitarian assistance in high-risk jurisdictions. There are FAQs at the end of this document. Her Majesty’s Government (HMG) has actively consulted with UK-based INGOs through the Home Office chaired Tri-Sector Working Group.
HMG is committed to ensuring that counter-terrorism legislation, including counter-terrorism sanctions and export control legislation is applied in a clear and effective manner that is proportionate to risk. This information note is intended to support compliance with the legislative framework, without compromising other HMG priorities or unnecessarily impeding legitimate humanitarian activities overseas.
In this updated “for information note” a number of changes have been made to provide for new requirements and updated policies. This includes revisions to the sanctions and export control sections of the document, following the introduction of the UK’s new sanctions framework under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA). This document now also includes a section on the ‘Designated Area Offence’ following the introduction of the offence in the Counter-Terrorism and Border Security Act 2019.
Implementation and enforcement of counter-terrorism, sanctions and export control legislation, is owned and managed by a variety of Government and public agencies:
- The Home Office is responsible for most counter-terrorism legislation and policy. Ownership includes Acts such as the Terrorism Act 2000 (TACT 2000), which contains the majority of terrorism offences, including those relating to proscription and terrorist financing.
- The Foreign Commonwealth and Development Office (FCDO) is responsible for the UK’s sanctions policy and efforts to counter terrorism globally. The FCDO is also responsible for administering and managing international humanitarian and development assistance and is the policy holder for the no concessions policy (Kidnap for Ransom).
- Her Majesty’s Treasury (HMT), through its Office of Financial Sanctions Implementation (OFSI), is responsible for the implementation and enforcement of financial sanctions in the UK as well as domestic counter-terrorism sanctions legislation. This includes the assessment of financial sanctions licence applications and suspected breach report forms.
- The Department for International Trade (DIT) is responsible for the UK’s trade policy. This includes ownership of export controls, export licensing and implementation of trade sanctions.
- The Charity Commission for England and Wales (CCEW) is an independent, non-ministerial Government department that regulates charities in England and Wales and maintains the public Register of Charities. It supports charities, including those that operate in high-risk jurisdictions, by providing guidance on legal requirements, emerging risks and good practice with the aim of supporting charities to protect against abuse, including terrorism. The CCEW has a range of enforcement powers to address abuse in charities.
- Operational partners such as the police and the National Crime Agency (NCA) are responsible for investigating suspected offences under counter-terrorism legislation. The UK Financial Intelligence Unit (UKFIU) within the NCA is responsible for receiving and disseminating suspicious activity reports (SARs), including those relating to Defence Against Terrorist Finance and the Proceeds of Crime Act 2002. UKFIU does not have an investigative function, any investigations are carried out by the police and are independent of the Government.
- The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales, in accordance with the Code for Crown Prosecutors. The CPS makes its decisions independently of the police and the Government.
Further information on the individual remits of departments and agencies, including contact information, can be found throughout this note and on GOV.UK.
Sanctions measures include financial sanctions (such as asset freezes), immigration sanctions (travel bans), trade sanctions (including arms embargoes and dual-use goods restrictions), as well as aircraft and shipping sanctions (including de-registration requirements and controls on the movement of aircraft and ships). Sanctions are an important foreign policy and national security tool.
The UK generally uses sanctions to:
i) coerce designated individuals or entities, or a regime, into changing their behaviour (or aspects of it) by increasing the cost on them to such an extent that they decide to cease the offending behaviour;
ii) constrain a target by denying them access to key resources needed to continue their offending behaviour, including the financing of terrorism or nuclear proliferation; and/or
iii) signal disapproval, stigmatising and potentially isolating a regime or individual, or as a way of sending broader political messages nationally or internationally.
The Sanctions and Anti-Money Laundering Act 2018 (SAMLA) provides the legal framework for the UK to impose, update and lift sanctions. Following the end of the EU Exit Transition Period, the UK is pursuing an independent sanctions policy driven by our foreign policy and national security objectives.
At the end of the EU Exit Transition Period, EU sanctions regulations ceased to apply in the UK. The UK sanctions regimes that went live on 31 December 2020 under SAMLA have substantially the same policy effect as the EU regimes that were in force at the end of the Transition Period. The vast majority of designations under EU regimes were replicated under UK law. All designations made under SAMLA are contained in the UK Sanctions List.
The UK Sanctions List is a comprehensive list maintained by the FCDO of individuals, entities, or ships designated under SAMLA regulations. The restrictions applied to such persons contained in this list include financial, immigration, trade or transport sanctions. The FCDO’s UK Sanctions List only contains those designated under the SAMLA and does not include other sources, such as the Anti-Terrorism, Crime and Security Act 2001 (ATCSA).
OFSI’s Consolidated List of Financial Sanctions reflects only financial sanctions designations made in the UK, both under SAMLA and ATCSA. It does not contain designations made under trade, transport or immigration legislation.
The UK’s main domestic asset-freezing legislation, the Terrorist Asset-Freezing etc Act 2010, was repealed by SAMLA. It was replaced by a domestic counter-terrorism regime through the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019, which is managed by HMT; and by an international counter-terrorism regime through the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019.
For more information on the UK’s domestic counter-terrorism regime visit UK sanctions relating to domestic counter-terrorism.
For more information on the UK’s international counter-terrorism sanctions regime visit UK sanctions relating to international counter-terrorism.
The ISIL (Da’esh) and Al-Qaida sanctions regime is intended to give effect to the UK’s obligations under UN Security Council resolution 2368 by imposing measures against those named on the UN’s ISIL (Da’esh) and Al-Qaida Sanctions List. It is put in place through the ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019, which replaced, with substantially the same effect, relevant existing EU legislation and related UK legislation at the end of the Transition Period.
For more information on the ISIL (Da’esh) and Al-Qaida sanctions regime visit UK sanctions relating to ISIL (Da’esh) and Al-Qaida.
Is there guidance as to what forms of transactions are prohibited under financial sanctions and how these apply to INGOs?
A. OFSI has produced general guidance on financial sanctions, as well as guidance for charities, INGOs and others, which is especially relevant to those operating in high-risk jurisdictions and areas where financial sanctions are in force. OFSI’s guidance products are available at Financial sanctions: guidance.
- OFSI’s general guidance outlines how to effectively implement financial sanctions and licensing and compliance requirements
- OFSI’s charity sector guidance answers questions relevant to charities and INGOs operating in areas where sanctions are in force
Where can I find out more information about compliance with sanction regimes and licensing requirements under these regimes?
A. There is guidance available on how to comply with sanctions regimes and licensing requirements at:
- UK Sanctions overview
- UK Sanctions Regimes guidance
- OFSI’s licensing application page
- OFSI’s suspected breach reporting page
- Charities and Terrorism, Chapter 1 of the CCEW’s Compliance Toolkit
- Financial Crime Thematic Reviews – Financial Conduct Authority (FCA) Handbook Chapter 8 “Financial Services Firms approach to UK financial sanctions”
- GOV.UK outlining the licensing policy which applies to designated persons under the counter-terrorism sanctions regimes in force in the UK: Counter-Terrorism Licensing Policy
- Guidance on specific sanctions regimes: UK sanctions regimes
Designated Entities (Financial Sanctions)
What is a designated entity?
A. A designated entity is an individual or organisation designated under one of the UK’s sanctions regimes. For example, a group may be designated under one of the three counter-terrorism sanctions regimes: the domestic regime (the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019), the international counter-terrorism regime (the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019), and those persons on the UN’s ISIL (Da’esh) and Al-Qaida List (implemented through the ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019). Designated terrorist groups, individuals and entities can be found in other sanctions regimes (for example the Al Shabaab terrorist group and individuals associated with this group are designated under the UN Somalia sanctions regime). Full details on UK sanctions regimes are available at GOV.UK: UK sanctions regimes
An organisation’s status as a designated entity is separate to its status as a proscribed organisation, this means that a terrorist organisation can be both proscribed and subject to a sanctions designation or have only one of these statuses.
Can I check that I am dealing with a designated entity? And, how do I find out what sanctions’ regimes are in force?
A. OFSI produces a consolidated list of designated entities subject to an asset freeze in the UK. This includes all the individuals and entities designated under financial sanctions and the domestic counter-terrorism sanctions regimes. Please be aware that sanctions are imposed for a number of reasons, and you may encounter individuals and entities designated under regimes that are not related to counter-terrorism. You should always conduct risk assessments for the entirety of the payment chain/activity being carried out, including entities you are directly or indirectly dealing with, prior to initiating a payment.
- OFSI’s consolidated list is available at: Who is subject to financial sanctions in the UK?
- The list of current financial sanctions regimes in force in the UK in which individuals and entities are designated under is available at: Financial sanctions targets by regime
Are all entities designated under United Nations and European Union sanctions regimes automatically listed by the UK?
A. SAMLA provides the legal framework for the UK to impose, update and lift sanctions autonomously and to implement UN sanctions in line with our international obligations.
Following the UK’s exit from the European Union (EU), listings under EU regimes are not automatically designated by the UK. EU designations continue to apply within the territory of any EU Member State; to EU nationals in any location; to companies incorporated under the law of a Member State – including branches of EU companies based in third countries including the UK – and on-board aircraft or vessels under Member States’ jurisdiction.
The UK sanctions list provides a comprehensive list of individuals and entities designated under UK autonomous and UN sanctions.
There are licensing requirements for the export of strategic items from the UK. These strategic items include: military items, dual-use items (which can have both civil and military purposes), firearms (their component parts, accessories and/or ammunition and related software and technology), and goods that can be used for: torture, capital punishment or cruel and inhuman or degrading treatment or punishment. The Export Control Order 2008 controls the export and trade of these items.
You can assess your goods, software and technology against the UK Strategic Export Control Lists to determine whether they are controlled: UK Strategic Export Control Lists.
The Goods Checker Tools (OGEL and Goods Checker Tools) can be used to:
- check if the items are controlled; and
- identify the appropriate control entry
If your items are not listed on the UK Strategic Export Control Lists, you may still need a licence under End-User controls. End-use controls can be applied to any non-controlled items or activities, if potentially connected to a WMD programme or if the items are or may be intended for military end-use.
Regulations made under SAMLA may also apply to activities involving military or dual-use items and other items such as those relating to internal repression, interception and monitoring of communications, energy-related goods or petroleum products. Items that are prohibited are defined in individual SAMLA Regulations.
There are prohibitions on the supply or delivery and acquisition of crude oil and petroleum products in Syria or the provision of related financial services or funds. These prohibitions are set out in The Syria (Sanctions) (EU Exit) Regulations 2019. There are exceptions to these prohibitions which apply in certain defined circumstances, which are set out within the Syria (Sanctions) (EU Exit) Regulations 2019. An exception applies automatically and does not require you to obtain a licence in accordance with the Regulations. There are specific circumstances in which a licence may be granted for certain activities that would otherwise be prohibited by the Regulations. These are set out at: Syria sanctions: guidance.
- The UK imposes trade controls on trafficking and brokering of certain controlled goods, such as military goods, from one overseas country to another. These are contained in Part 4 of the Export Control Order 2008.
- Goods which are subject to trade controls are specified in category A, category B and category C, of Schedule 1 to The Export Control Order 2008 (legislation.gov.uk).
- Article 20 of the Export Control Order 2008 sets out what trade controls apply in respect of embargoed destinations. A prohibition under Article 20 does not apply where there is the same prohibition in a regulation made under SAMLA.
- Certain goods transiting the UK are regarded as being exported when they leave the country and are subject to control. Article 17 of the Export Control Order 2008, includes a transit and transhipment exception, meaning that in many situations a licence is not required.
- This exception does not apply to certain goods destined for countries listed in Schedule 4 of the Export Control Order 2008, meaning that a licence is required to transit goods through the UK or tranship them in the UK with a view to re-exportation to these countries.
- The Export Control Order 2008 includes a list of the countries which are subject to transit controls for military goods (Schedule 2), and a list of countries which are subject to transit controls for Category B goods. Category B of the controls comprises small arms and light weapons, unmanned aerial vehicles (UAVs), long-range missiles and man-portable air-defence systems.
- Transit controls apply to Category A goods for all countries.
Can I export or trade overseas in military goods, sensitive ‘dual-use’ items and other goods and services subject to trade sanctions?
A. The export and trade in these items is controlled and subject to licensing requirements. The Export Control Joint Unit (ECJU) in the Department for International Trade (DIT) operates the licensing regime for exports of, and overseas trade in, military goods, sensitive “dual-use” items (i.e. civilian items which also have military applications), and for goods and services subject to trade sanctions. The licensing regime seeks to ensure that such items are not transferred where they may, for example, provoke or prolong conflict, be used for internal repression, pose a threat to national security, or be in breach of any of the UK’s international obligations or commitments. The list of controlled goods can be found at: Exporting controlled goods
How do I apply for an export licence?
A. Licence applications should be submitted to the ECJU through the SPIRE online licensing system. Applicants must provide a full and clear description of the items to be exported, details of the consignee and end-user of the items, and a description of the intended end-use of the item(s). Applicants must also attach the correct end-user documentation when submitting an application.
The ECJU aims to process 70% of Standard individual export licences (SIELs) and Standard individual trade control licence (SITCLs) applications within 20-working days and 60% of Open individual export licence (OIEL) applications within 60-working days. These targets may be exceeded where the destination country is subject to sanctions or is suffering conflict or instability.
Items and activities prohibited under SAMLA Regulations are subject to exceptions and licensing requirements. For example, certain sanctions regulations provide exceptions for certain activities carried out solely for humanitarian purposes (e.g. fuel payments in the Syria regime). Exceptions are set out in the Regulations and does not require you to obtain a licence. There are specific circumstances in which a licence may be granted for certain activities that would otherwise be prohibited by the Regulations. These are set out in the statutory guidance published for individual sanctions regimes. See information on UK sanctions regimes currently in force: UK sanctions regimes.
If you have specific queries surrounding certain trade prohibitions under any sanctions regimes, please direct them to email@example.com.
Where can I find out more about export licences?
A. Further information about the controls, including the lists of goods for which a licence is required and guidance on the licence application process, is available from: Export Control Joint Unit.
For further information, see:
The FCDO is responsible for the UK’s sanctions policy, including all international sanctions regimes and designations. For general information on sanctions, contact FCDO’s Sanctions Unit on firstname.lastname@example.org.
HM Treasury, through the Office of Financial Sanctions Implementation (OFSI), is the UK competent authority for the implementation and enforcement of UK financial sanctions. If you have any further queries on financial sanctions, please contact OFSI at: email@example.com or by calling the general enquiries line: +44 (0) 20 7270 5454.
For general guidance on export controls and trade sanctions, contact the Export Control Joint Unit (ECJU) in the Department for International Trade: Email: firstname.lastname@example.org Helpline: +44 (0)20 7215 4594
To receive updates about arms embargoes and changes to strategic export control legislation, subscribe to the Export Control Joint Unit’s Notices to Exporters.
For general guidance on import controls and import sanctions, contact: email@example.com
You can also find more information on arms embargo and trade control at: Trade sanctions, arms embargoes, and other trade restrictions.
Under Section 3 of the Terrorism Act (TACT) 2000, the Home Secretary may proscribe an organisation if they believe it is concerned in terrorism, and it is proportionate to do so. The Home Secretary only exercises the power to proscribe after thoroughly reviewing the available evidence on an organisation. This includes information taken from both open sources and sensitive intelligence, as well as advice that reflects consultation across Government, including with the intelligence and law enforcement agencies.
There are several criminal offences associated with proscription, which are set out in sections 11 to 13 of TACT 2000. It is a criminal offence for a person in the UK to:
- belong to a proscribed organisation;
- invite support for a proscribed organisation;
- recklessly express support for a proscribed organisation;
- arrange a meeting in support of a proscribed organisation;
- wear clothing or carry articles in public which arouse reasonable suspicion that an individual is a member or supporter of a proscribed organisation; or
- publish an image of an article such as a flag or logo in the same circumstances.
The penalties for proscription offences can be a maximum of 14 years in prison and/or an unlimited fine. The investigation and prosecution of offences relating to proscribed organisations is a matter for the police and the Crown Prosecution Service.
What is a proscribed organisation?
A. A proscribed organisation is one that is included in the list of proscribed organisations in Schedule 2 of TACT 2000, or which has been specified as an alternative name for a listed organisation by an Order made under section 3(6) of TACT 2000. The Home Secretary can proscribe an organisation if they believe that it is concerned in terrorism as defined by section 3(5) of TACT 2000. The organisation is added to the list of proscribed organisations by way of an Order that must be agreed by both Houses of Parliament.
Where can I find the list of proscribed organisations?
A. The list of proscribed organisations under TACT 2000 can be found at: Proscribed terrorist groups or organisations
What are the offences relating to a proscribed organisation?
A. Section 11 of TACT 2000 makes it an offence to be a member of a proscribed organisation. Section 12 of TACT 2000 makes it an offence to invite support for a proscribed organisation; express an opinion or belief that is supportive of a proscribed organisation and in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation; or to arrange, manage or assist in arranging or managing a meeting in support of a proscribed organisation. Section 13 of TACT 2000 makes it an offence to wear clothing, carry or display articles in public in such circumstances as to arouse reasonable suspicion that an individual is a member or supporter of a proscribed organisation; or to publish an image of an item of clothing or other article, such as a flag or logo in the same circumstances.
Do the offences relating to a proscribed organisation apply overseas?
A. Yes. The section 11 offence of membership of a proscribed organisation has had extra-territorial jurisdiction since 2006. From 12 April 2019, section 12 and 13 offences of inviting or recklessly expressing support for a proscribed organisation, and the offences of displaying or publishing articles, also have extra-territorial jurisdiction for British nationals and UK residents. The offences do not prevent INGOs interacting with proscribed organisations overseas although the Government encourages compliance with the CCEW’s guidance on conduct etc. For more information, please see Chapter 1 of the Charity Commission’s Compliance Toolkit.
Is it an offence to arrange or manage a meeting with a proscribed organisation?
A. Section 12(2) of TACT 2000 provides that it is an offence to arrange or manage (or assist in the arrangement or management of) a meeting in the knowledge that it is to support a proscribed organisation, to further the activities of a proscribed organisation, or is to be addressed by a person who belongs or professes to belong to a proscribed organisation. However, section 12(4) provides a defence, in the case of a private meeting addressed by a member of a proscribed organisation, if a person can prove that they had no reasonable cause to believe that being addressed by a person who belongs or professes to belong to a proscribed organisation would support the proscribed organisation or advance its terrorist activities.
Further, the explanatory notes to TACT 2000 explain that the defence in section 12(4) is intended to permit the arrangement of ‘genuinely benign’ meetings. While the explanatory notes do not have direct legal effect, they are helpful in clarifying the intended effect of legislation and can be taken into account by the prosecuting authorities when considering whether prosecution is in the public interest, and by the courts in interpreting Parliament’s intentions. A ‘genuinely benign’ meeting is described by the notes as a meeting at which the terrorist activities of the group are not promoted or encouraged; for example, a meeting designed to encourage a proscribed organisation to engage in a peace process or facilitate delivery of humanitarian aid where this does not involve knowingly transferring assets to a proscribed organisation. It is also an offence under section 12(3) to address a meeting if the purpose of the address is to encourage support for a proscribed organisation or to further its activities.
Is it an offence to make actual or suspected payments to a proscribed group?
A. Yes. Sections 15-18 of TACT 2000 provide for a number of offences related to the financing of terrorism. It is a criminal offence to provide, invite another to provide, use or possess funds or property where an individual intends or has reasonable cause to suspect that such funds/property will be used for the purposes of terrorism. It is also an offence to enter into an arrangement whereby money or property is made available, if you know or have reasonable cause to suspect that it may be used for the purposes of terrorism as a result of that arrangement.
It is an offence to make funds, property or economic resources available to a designated person or entity or to deal with frozen funds or economic resources under financial sanctions. This would include any attempt to pay or facilitate payment of ransom payments to groups or persons designated under financial sanctions.
Section 19 of TACT 2000 creates a requirement to disclose a belief or suspicion that a terrorist finance offence has occurred based on information that comes to a person’s attention during the course of their employment, trade, profession or business. A disclosure of a belief or suspicion of a terrorist offence can be made to the NCA by submitting a Suspicious Activity Report (SAR), or to a police officer. Terrorist finance offences have extra-territorial effect, so an action committed overseas can result in prosecution in the UK.
NCA guidance on submitting Suspicious Activity Reports
CCEW’s guidance on the UK’s counter terrorism legislation, including legislation relating to the financing of terrorism
Do the proscription offences apply to all entities designated under financial sanctions and proscribed organisations?
A. No. The proscription offences set out in sections 11 to 13 of TACT 2000 apply in relation to proscribed organisations i.e. those specified in Schedule 2 to TACT 2000 or those which are referred to in an Order made under section 3(6) of the Act, specifying an alternative name for a group listed in Schedule 2. These offences do not apply in relation to individuals or entities subject to sanctions under SAMLA, unless that designated entity is also proscribed in the UK.
Why doesn’t the Government produce a single list covering persons and entities subject to an asset freeze and proscribed organisations?
A. The asset freezing regimes and proscription regime are different statutory regimes which impose different restrictions upon persons and entities and those who interact with them. It is not appropriate to combine the lists.
Why don’t the lists of persons and entities subject to sanctions or the list of proscribed organisations include persons and organisations designated by other countries?
A. It is only appropriate for HMG to issue lists of persons and entities subject to restrictions in the UK.
Extra-Territorial Jurisdiction and Prosecution
How does UK counter-terrorism legislation apply to offences committed overseas?
A. TACT 2000 provides for extra-territorial jurisdiction (ETJ) in relation to a number of terrorism offences. Those considered most likely to be connected to INGO activities include:
- Receiving, providing, or inviting another to receive or provide, money or other property, knowing or having reasonable cause to suspect that it will or may be used for the purposes of terrorism (section 15).
- Possessing money or other property intended, or having reasonable cause for suspecting that it may be used, for the purposes of terrorism (section 16).
- Entering into or otherwise becoming concerned in an arrangement as a result of which money or other property is made available to another in circumstances where an individual knows or has reasonable cause to suspect that it may be used for the purposes of terrorism (section 17).
- Entering into or becoming concerned in an arrangement which facilitates the retention or control by or on behalf of another person of terrorist property; including by concealment, removal from the jurisdiction, transfer, or otherwise (section 18).
- A person that does anything outside of the UK, which had it been done in the UK would have constituted the commission of an offence under any of sections 15 to 18, shall be liable to prosecution as if it had been done in the UK (section 63).
Section 17 of the Terrorism Act (TACT) 2006 also provides for ETJ in relation to several terrorism offences in TACT 2000 and TACT 2006. Those considered most likely to be connected to INGO activities include:
- expressing an opinion or belief supportive of a proscribed organisation, being reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation (section 12(1A) of TACT 2000).
- arranging, managing or assisting in arranging or managing, a meeting which is to support, further the activities of, or be addressed by, a person who belongs or professes to belong to a proscribed organisation (section 12(2) of TACT 2000).
- addressing a meeting and the purpose of the address is to encourage support for, or further the activities of, a proscribed organisation (section 12(3) of TACT 2000).
- wearing, carrying, displaying or publishing an image of any article in such a way to arouse a reasonable suspicion that they are a member or supporter of a proscribed organisation (section 13 of TACT 2000).
- aiding, abetting, counselling or procuring the commission of any of the above offences (section 17(2)(h) of TACT 2006).
ETJ means that a person may be prosecuted in the UK for conduct that took place outside the UK, which would have been unlawful had it taken place in the UK.
Does extra-territorial jurisdiction only apply to British citizens?
A. ETJ may apply to non-British citizens, but this will vary depending on the nature of the offence. However, in the case of an offence under section 12(1) or (1A) of TACT 2000 (inviting support for, or recklessly expressing support for, a proscribed organisation) or under section 13 of that Act (wearing or displaying in a public place, or publishing an image of, an article etc associated with a proscribed organisation), ETJ only applies if at the time of committing the offence the person is a UK national or UK resident.
Does UK counter-terrorism legislation prevent organisations from operating overseas?
A. No. Counter-terrorism terrorism legislation does not prevent organisations, including INGOs, from operating overseas, including in areas where terrorist groups operate. There is an inherent risk for any organisation operating in high risk areas overseas, but it remains the responsibility of the organisations to ensure that where they undertake programmes, their activity complies with UK law (and the law of the country they are operating in) and to take reasonable steps to reduce the risk of non-compliance.
Will I be prosecuted in the UK because of my involvement in legitimate humanitarian or conflict resolution work?
A. The Code for Crown Prosecutors explains how prosecutors determine whether a person should be prosecuted for a suspected offence. In broad terms, prosecutors must only start or continue a prosecution when the case has passed the Full Code Test. The Full Code Test has two stages: (i) the evidential stage; and (ii) the public interest stage. A decision to prosecute is taken independently by the Crown Prosecution Service (CPS) when the Full Code Test is met. Where case specific factors are relevant, they will be taken into consideration when deciding whether a decision to prosecute is in the public interest. Sanctions and counter-terrorism legislation is not intended to prevent humanitarian or conflict resolution work, and it is recognised that such work can take place within a backdrop of instability and fluid governance arrangements which create testing conditions for aid agencies. However, a body of persons, corporate or unincorporated, have an individual responsibility to comply with the relevant counter-terrorism, sanctions and export control legislation. If in any doubt, relevant guidance should be consulted, and we recommend taking independent legal advice.
CPS guidance in relation to the prosecution of individuals involved in terrorism overseas requires prosecutors to consider public interest factors, including the seriousness of the offence, the culpability of the alleged offender, the circumstances of the offence and the harm caused, and whether a prosecution is a proportionate response, when considering the public interest.
As set out under section 117 of TACT 2000 and section 19 of TACT 2006, prosecution of all of the offences listed in this document may only be instituted with the consent of the Director of Public Prosecutions (DPP) (such consent can be delegated to Crown Prosecutors). In addition, where offences are committed for a purpose connected with the affairs of a country other than the UK, the consent of the Attorney General is required before a prosecution can be instituted. The circumstances of any particular case are taken into consideration and the Attorney General will scrutinise the sufficiency of evidence and the public interest factors in each individual case when deciding whether to grant their permission.
Who makes the decision to prosecute and how is a decision made?
A. Prosecution decisions are taken by the CPS independently of Government and will be made on a case-by-case basis depending on the particular facts and circumstances of a case. More generally, it is important to recognise that any potential prosecution will go through a number of stages before a decision to prosecute can be made:
- Law enforcement, other regulatory or official body identifying that an offence may have been committed;
- Law enforcement will always investigate when there is an allegation of a terrorism offence;
- Law enforcement investigate and, if they consider that there is sufficient evidence, refer the case to the CPS for a charging decision;
- CPS consider whether there is sufficient evidence to prosecute;
- CPS consider whether a prosecution is required in the public interest (in accordance with the Code for Crown Prosecutors);
- If the offence requires the consent of the Attorney General (as many offences under counter-terrorism legislation which concern the affairs of another country do), the CPS refer the case to the Attorney General; and
- The Attorney General decides whether the prosecution should proceed, considering the sufficiency of evidence and the public interest in bringing proceedings.
Has anyone from an INGO involved in legitimate humanitarian or conflict resolution work been prosecuted for a terrorism offence?
A. To date, no individual from an INGO or body corporate has been prosecuted for terrorism offences relating to legitimate humanitarian or conflict resolution work. However, all allegations or offences of terrorist financing will be investigated. If there is sufficient evidence the matter will be referred to the CPS for a charging decision.
Separate from criminal or other civil proceedings, a failure on the part of a charity in England and Wales, its trustees and/or employees to comply with counter-terrorism legislation or otherwise with charity law and regulation, may result in regulatory action by the Charity Commission for England and Wales (CCEW). CCEW is a risk-led regulator and its approach is set out in its Regulatory and Risk Framework. It will intervene in serious cases where it is concerned that trustees are not fulfilling their legal duties towards their charity. Where it does act, CCEW will use its powers proportionately, according to the nature and level of the risk and its potential impact. CCEW has a range of regulatory powers to intervene and act to protect charity property and assets – these are set out in the Charities Act 2011. As a civil regulator, CCEW operates to the civil burden of proof.
Why doesn’t the Government make staff of INGOs exempt from prosecution for terrorism or sanctions offences, if the activity takes place in the course of their humanitarian or conflict resolution work as in some other countries’ legislation?
A. The Government has no intention of introducing an exemption for humanitarian staff; this is a long-standing policy held by successive governments. The Government considers that introducing a specific exemption could create a loophole that could be exploited by unscrupulous individuals and leave INGOs vulnerable to abuse.
The Government recognises the work of charities in providing vital services, as well as the difficulties faced in providing that assistance, and has incorporated mechanisms into its legislative framework to ensure the smooth delivery of aid in high-risk jurisdictions overseas.
This includes section 21ZA of TACT 2000, which allows organisations to seek a defence to carry out a transaction that would otherwise be a terrorist financing offence by seeking prior consent from the NCA, and section 58B(5)(a) of TACT 2000, which allows access to an area as designated by the Designated Area Offence if it is for the purposes of providing aid of a humanitarian nature.
UK sanctions are carefully targeted to achieve their goals, while minimising any potential unintended consequences. UN and UK sanctions provide for a range of humanitarian exceptions and licensing grounds. INGOs should consult the relevant sanctions regulations to check they are compliant. In relation to financial sanctions, please see OFSI’s charity sector guidance for further information.
Who is liable for prosecution when an offence has been committed?
A. Both natural and artificial persons, such as companies and other legal entities, are capable of being liable for prosecution under counter-terrorism legislation, with liability for prosecutions assessed on a case-by-case basis. There are also civil penalties for breaching financial sanctions, which are imposed by OFSI and can be applied to both a body of any type, or an individual.
How can INGOs reduce the risk of prosecution?
A. Guidance for INGOs on managing the risks of operating overseas is available from a range of sources. One of the best practices for managing risk is for INGOs to have in place clear policies and procedures for how they will identify, assess, mitigate and monitor for risk relating to terrorist financing, sanctions and export controls. Owing to the critical nature of these risks, such policies could be approved by the INGO’s board and be owned at an appropriately senior position within the organisation.
Risk management tools are widely available, and some examples include, but are not limited to:
- Proscribed Organisations
- Guidance in relation to the prosecution of individuals involved in terrorism overseas
- Requirements under UK counter terrorism and charity law and compliance toolkit
- OFSI’s general guidance on how to effectively comply and implement financial sanctions and licensing requirements
- OFSI’s charity sector guidance for charities and INGOs operating in areas where sanctions are in force
Designated Area Offence
What is the Designated Area Offence?
A. Because of the danger of UK nationals or residents learning terrorist skills or engaging in terrorism while overseas in places where terrorist groups are active, the Counter-Terrorism and Border Security Act 2019 amended TACT 2000 to create a new power: the Designated Area Offence (DAO). This power creates an offence of entering, or remaining in, an area outside of the UK that has been designated in regulations made by the Home Secretary.
The test for designating an area is that the Home Secretary is satisfied that it is necessary, for the purpose of protecting members of the public from a risk of terrorism, to restrict UK nationals and residents from entering, or remaining in, the area. The public means either the public in the UK or elsewhere. The offence carries a maximum penalty of 10 years’ imprisonment, or a fine, or both.
Will there be a reasonable excuse for travelling to a designated area?
A. The Act contains a number of exempted purposes for travelling to a designated area. These are: providing aid of a humanitarian nature; carrying out work as a journalist; satisfying an obligation to attend court; carrying out work for the UN or an agency of the UN; carrying out work for the government of a country other than the UK; attending the funeral of a relative or visiting a terminally ill relative; or providing care for a relative who is unable to care for themselves without assistance.
It also provides a defence for individuals who have a reasonable excuse falling outside of these exemptions for example, individuals engaged in peacebuilding. The offence would not apply to a person who is in the service of, or acting on behalf of, the Crown (for example, as a member of the armed forces). Once an area has been designated, there will be a grace period of one month to allow a person within the area to leave before the offence takes effect.
How will I know if a geographical area I am in or to which I wish to travel, has been designated?
A. The regulations that designate a particular area must be approved by Parliament and will be published after they are made and in advance of the designation taking effect. The designation would be on GOV.UK and the Government would ensure that it is communicated widely so that those looking to travel would be aware of the designation.
Can I travel to or remain in a Designated Area once it has been designated?
A. Once an area has been designated an offence will have been committed if a person travels to the area and is not covered by one of the exemptions detailed in section 58B of TACT 2000. In circumstances where a person is in a Designated Area when the designation takes place, or is already travelling to the area, there will be a grace period of one month to depart the area before an offence has been committed.
Do I have to, or is it recommended to, register my intention to travel to or remain in a Designated Area with UK Government authorities or security services? If so, which office or department?
A. There is no ability to register an intention to travel in advance.
Kidnap for Ransom for Terrorism
Is it permissible to make ransom payments from a private account or an organisation’s funds?
A. No, it is an offence to make actual or suspected payments to a proscribed group. However, in limited circumstances, institutions may seek a legal defence from the NCA before becoming concerned in activity which could breach sections 15-18 of TACT 2000 e.g. a request for a criminal defence to carry out a proposed transaction.
Is it permissible for a ransom payment to be reimbursed through an insurance policy?
A. No. TACT 2000 explicitly provides that an insurer commits an offence if they make a payment under an insurance contract for money or property handed over in response to a demand made wholly or partly for the purposes of terrorism, when the insurer knows or has reasonable cause to suspect that money or property has been handed over for that purpose. This provision has extra-territorial application and therefore applies to insurance payments made outside of the UK.
Withdrawal of Financial Services
Is the Government aware of the risk of financial services being withheld or withdrawn from INGOs and others?
A. HMG is aware that a number of individuals and organisations, including INGOs, have concerns that financial services providers have withdrawn or restricted their banking services. This appears to be more common for INGOs operating in areas where terrorist groups operate. The FCA has publicly issued a statement to clarify any regulatory uncertainty on the part of banks which inhibit the provision of banking services to the sector: De-risking: managing money-laundering risk.
Why doesn’t the Government make banks and other financial institutions provide financial services to INGOs?
A. The Government acknowledges the negative impact that account closures or the restriction of services can have on the work that many INGOs seek to do. In individual cases neither the Government nor regulators can compel banks or other financial institutions to undertake a specific transaction or offer an account to a particular customer. Commercial decisions taken by banks are separate from the Government and taken in accordance with their risk appetite and compliance with legal and regulatory requirements.
What action is being taken to ensure financial services remain available to INGOs and others?
A. HMG is working together with INGOs and financial institutions to better understand the risks and risk mitigation to ensure there is appropriate guidance for the sector. The Financial Action Task Force has also produced a number of useful reports including:
- A report on the risks of terrorist abuse in non-profit organisations;
- A best practice paper on combatting the abuse of non-profit organisations in 2015 and;
- A report on Anti-Money Laundering and Terrorist Financing Measures and Financial Inclusion, With a Supplement on Customer Due Diligence.
What should anyone facing difficulty in processing payments or maintaining their bank services do?
A. The individual or organisation should engage proactively with their bank at the earliest possible stage and provide information about their desired transactions, including how the ultimate use of the funds will be monitored. It may also be helpful for INGOs to demonstrate their existing due diligence processes as the bank may be unaware of these.