Counter-Terrorism and Sentencing Bill (Fifth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Thursday 2nd July 2020 Public Bill Committees

[The Chair]

Members are free to remove their jackets, if they so wish, but must turn their electronic devices to silent. Mr Speaker does not allow tea or coffee to be consumed during sittings. Social distancing is still recommended here; we have been asked to suspend the sitting if there are any problems. Finally, will Members please give their speaking notes to the Hansard reporters? That would be very helpful. We will begin with clause 11.

Clause 11

Minimum term order for serious terrorism offenders: England and Wales

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 39, in clause 11, page 12, line 42, at end insert—

“(7) Before this section comes into force, the Government must publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences.

(8) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Government to publish an analysis of the impact of the minimum terms on sentencing for related offences.

It is good to see you in the Chair again, Mr McCabe. The Labour party is not in principle against a minimum 14-year sentence for those convicted of serious terrorist offences. We are aware that it is a particularly small cohort who have been found guilty of some absolutely heinous crimes in order to find themselves in this category of offender. Indeed, the Ministry of Justice’s own impact assessment sets out that as few as 50 offenders could fall into this category, although, as I have said time and again, the Ministry of Justice can provide no evidence to back up that figure. None the less, as I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence, and the amendment would do just that.

The amendment would require the Government to publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences, and to lay a copy of the analysis before Parliament prior to this section coming into force. The impact assessment estimates that the potential impact of measures increasing minimum terms for terrorist offenders given life sentences

“may result in fewer than 50 additional prisoners…annually”.

I am not entirely convinced by that assessment and ask that the Government conduct an analysis of the measures on wider sentencing practice.

In Tuesday’s sitting, the Minister was at pains to stress the figure of 50 additional prisoners caught up by his new proposals, with only a handful of them being under the age of 21, and said he would provide the rationale behind the numbers. Nothing arrived in my inbox yesterday, so I assume it is still a work in progress for the Minister. I would have thought it perfectly easy for him to support his numbers with evidence before now, but perhaps he will provide that full explanation in his response.

I have outlined in previous sittings my concern about the impact of the creation of new offences with a terrorist connection. We all need to be satisfied that the Government have got the numbers right, because if they have not the ramifications will be considerable.

As I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence. We need to know whether minimum terms are working effectively. Have they made our country safer? Are they really a valuable tool in working with offenders? As I have spoken about at length, our justice system does not treat everyone fairly, even if it is our intention to do so. Given that it does not treat everyone fairly, we must consider the impact of our decisions on all groups, particularly those with protected characteristics. We as lawmakers need to obtain and understand evidence that increasing the length of time that individuals spend in custody leads to significant gains in public protection beyond delaying the possibility of an offence being committed.

In its written evidence, the Prison Reform Trust stated that increasing the length of the custodial period could undermine public protection by eroding protective factors. A key example is family contact associated with a reduced risk of reoffending on release. Perhaps the Minister can answer that challenge from the Prison Reform Trust. It is of course only right that the Minister talks about the number of offenders who will be caught up in his proposed new laws, because it is important to understand how many will be subject to additional impediments to their attempts to live anywhere near a normal life when they are released on a licence of up to 25 years.

The Government’s own impact assessment specifically sets out that the MOJ is aware that separating offenders, especially younger ones, from their families will negatively impact on their rehabilitation. We need answers from the Minister on that point. Yet we face a situation where the MOJ does not know the total number of offenders who will be caught up in this cohort. In addition, the MOJ does not know how many of those offenders will be young adults or under-18s, and it cannot provide any evidence-based reason for introducing the minimum sentence. The only thing that the MOJ seems sure of is that removing protective factors can impact on rehabilitation. It is important that the Minister gets those numbers right, because they have a major impact on how offenders are managed within the system and on whether or not the system will be properly equipped to deal with them.

I believe that the Government have said that the cost of these new measures will be around £60 million a year, but how has that figure been arrived at? The Minister holds tight to his figure of £50 million a year, but even if he is right, that is £50 million every single year and the number will build up to around 700 terrorist offenders in the prison system, all of them needing particular management in an already stretched service, which so many people tell us is under-resourced, lacks the expertise it needs and has rehabilitation programmes for terrorist offenders that, at best, need considerable improvement.

The need for analysis is probably even more important for us to understand the effects on young people and the potential impact of the determinate sentences. When he spoke on Tuesday against our amendment to have specific pre-sentencing reports that take age into consideration, the Minister made much of the fact that only a very small number of young people will be caught by his new measures. I do not want to repeat myself too often, but we still await an explanation as to where the Minister gets his estimates from, even if it is a very small number of people who will be affected.

For the sake of argument, let us say that the Minister is right, and for the sake of illustration, let us assume that it is eight young people a year who will be affected. Before a young person sentenced under the Minister’s new law is released, there are likely to be more than 100 people in the prison system who have been convicted of an offence with a terrorist connection. We really need to understand what that means for the offenders, for the Prison Service and for society.

[Julie Marson (Hertford and Stortford) (Con)]

Does the hon. Gentleman agree that we can be assured that the Bill will have a disproportionate impact on a certain sector of people—namely, those convicted of plotting or executing mass maiming and murder?

[Alex Cunningham]

The hon. Lady is right up to a point, but some of the people under discussion will not have been responsible for killing people. A lot of them are covered by the charge of plotting, and there is the new range of terrorist offences. The crimes to which she refers are already covered by legislation. People who commit such terrible crimes are already subject to a life sentence, so in this particular situation we are talking about a different category of people.

I was saying that we need to understand what these changes mean for offenders, the Prison Service and society. For example, does the necessary amount of specialist prison provision required to incarcerate these offenders actually exist? That is not just about the number of prison places; it is about having the expertise available to manage and engage these offenders. We heard a lot of evidence from Mark Fairhurst about the need for proper provision and the fact that, at the moment, we have only one centre to deal with these particular terrorists. We are supposed to have three such centres, but we do not yet know when the Government will come forward and tell us when the new centres will be up and running.

What are the Minister’s proposals for housing younger offenders? Again, we need the prison places, but we also need the support services. Do they already exist, or is he proposing to develop more of them? If he is going to develop more of them, when will they be available? Even in the next two or three years, based on the Minister’s numbers, perhaps 20 or 30 young people will need specialist accommodation. They need specialist support services. Where are those services coming from? They do not exist at the moment, as I hope that the Minister will acknowledge, so will he ensure that they will in future so that we can for and deal with these people appropriately? We must not have a situation in which younger offenders—albeit among the most serious ones, as described by the hon. Lady—end up in the adult prison system because there is nowhere else for them to go.

I would welcome a specific comment on the issue when the Minister responds. I know that he has some tidying-up amendments for later in the development of the Bill, but I want to understand specifically what will happen with younger offenders and whether it is possible that some of them will end up in the adult estate.

It should be clear to the Minister why he should not be shy about commissioning analysis better to understand the issues that we face. Everyone talks about the importance of data and making decisions based on evidence. The amendment provides the Minister with an opportunity to do just that, and the Opposition are pleased to offer the Minister our assistance.

Also, if the Minister had the analysis, it would be easy for him to demonstrate to the House that he had got his decisions right. When he faced challenges from the Opposition on the success or failure of his new measures, he would have the analysis at his fingertips. I know that, financially, the Justice Department is skint. It has suffered heavy cuts disproportionate to those for other Departments during the past 10 years or so, and we have seen the results of that. The latest figures show that the number of criminal cases yet to reach the courts has now exceeded half a million, with hundreds of thousands more tribunal cases also outstanding. Perhaps it is the lack of resources that has meant that the Lord Chancellor cannot crack on and plan Nightingale courts to go alongside the Nightingale hospitals—the money to do so simply is not available. He did write to me yesterday, telling me that some additional money will be available. But it is a very small amount of money compared with the challenge that the system faces. This Minister’s accepting the amendment might result in the use of some resources, but the right action in this respect could save considerable sums in the longer term, and as I have made clear, the Justice Department really needs the resources.

Our ask is simple. We believe that there are real benefits for the Government in carrying out the analysis described in the amendment. Let us have in Parliament the evidence suggesting that these measures are a necessity and actually keep the public safe. I hope that the Minister will take these points and accept that longer sentences do not necessarily reduce the risk of reoffending. Several of our witnesses made that clear and even suggested that minimum sentences may in fact be counterproductive. The Minister might be reluctant to adopt the amendment—I will be surprised if he is not—but I look to him to come up with answers to the real issues that it covers.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

Good morning. It is good to see you in the Chair again, Mr McCabe. Let me start by responding specifically to the amendment, and then I will try to pick up one or two of the more general points that the shadow Minister, the hon. Member for Stockton North, raised in his speech.

Amendment 39 does not propose any very wide form of analysis, aspects of which the hon. Gentleman referred to. It in fact proposes a very specific form of analysis, which is an impact assessment on the effect of these minimum term orders on other offences. It asks us to do an analysis that says, “If we introduce a minimum 14-year term to be served by those with life sentences, what effect will it have on unrelated offences? What effect will the minimum terms have on unrelated offences in relation to non-terrorist crimes?” If I may respectfully say so, given that the Bill is about terrorist offences and nothing in the Bill has any impact at all on non-terrorist offences, I do not think that the analysis proposed by amendment 39 is particularly germane. The Bill will not make any difference at all to any other, non-terrorist offences, so I do not think that analysis would have any results or effect.

[Alex Cunningham]

I appreciate the Minister giving way so early in his speech. The Bill creates a host of new offences, which will capture more people. It is important that he addresses the effect on other offences, which could all of a sudden become terrorism-related offences and therefore be subject to a very different sentencing decision by a judge in a court.

[Chris Philp]

My reading of the term “other offences” in line 3 the hon. Gentleman’s amendment is offences not caught by the scope of the Bill.

Let me turn to the questions that the hon. Gentleman asked and the numbers he raised. We have published an impact assessment and equalities assessment, as we discussed at some length in the previous sitting. He asked where I got the numbers of younger offenders from. I now have some information about the under-18 cohort, which he and other Members are concerned about. Currently, there are only three terrorist offenders in prison under the age of 18. I hope that illustrates the very small numbers involved.

On the question of whether we are unreasonably widening the scope of what constitutes a terrorist offence, my judgment is that most terrorist offences would be caught under the existing list of terrorist offences. It would be relatively unusual for a terrorist act to be committed outside the current list of offences, and for it to be necessary to make the terrorist connection. It could happen, and we are rightly legislating for that, but the existing list of terrorist offences is relatively comprehensive, so I do not think that the scope increase that the hon. Gentleman is referring to will have a dramatic impact on what are already small numbers. It is of course important that we give the judge the opportunity—the power—to make that connection where somebody commits an offence not on the current list; it is logically conceivable that that could happen.

Let me turn to the number—the 50. We can extrapolate how many of those 50 are aged between 18 and 21, as we discussed in the previous sitting. I do not think that number is the annual flow or the number of convictions per year. As I understand it, it is the impact on the total prison population. Given that these sentences are quite long, one would expect that the annual flow into the system affected by these serious terrorism sentence provisions would be somewhat lower than that.

Those numbers illustrate powerfully that we are talking about an extremely small number of people. As my hon. Friend the Member for Hertford and Stortford said in her well-pitched intervention, we are talking about people who have committed a serious terrorist offence and have been found to be dangerous—in other words, the judge thinks that they pose an ongoing, serious risk to the public. Their actions either caused or were likely to cause multiple deaths, and, in the context of clause 11, the judge views the offence as so serious that a life sentence is appropriate. I hope that gives the Committee a clear sense that these numbers are extremely small and, thankfully, particularly small in relation to young people. We should take this opportunity to pay tribute to the tremendous work that our counter-terror police and the security services do to keep those numbers so very small.

Other remarks were made about funding. That is probably outside the scope of the clause, but I will address it very briefly, if I may have your indulgence for one minute, Mr McCabe. I am sure that if I stretch the bounds of your indulgence, you will call me to order. Counter-terrorism funding rightly increased substantially earlier this year in response to the enhanced level of threat. Spending on Her Majesty's Prison and Probation Service of course includes work on rehabilitation, and that also received a significant funding increase in the spending review in September 2019. I am sure that everyone here would welcome that increase in expenditure.

The shadow Minister mentioned a number of outstanding cases in the legal system. I think the number he quoted relates to magistrates courts. Of course we are in the middle of—hopefully coming towards the end of—a serious pandemic, which inhibited the operation of the courts system. Prior to the coronavirus epidemic, waiting times in the magistrates court were about eight weeks. The outstanding case load in the Crown court was certainly a great deal lower than it was in 2010. Obviously, coronavirus has caused an increase in the outstanding case load. We are working hard to address that with the new Nightingale courts. There are, I believe, 10 sites working on extending sitting hours. By the end of July every court in the country will be back up and running, and we are rolling out the cloud video platform, so that hearings can take place by video. I commend to the Committee the court recovery plan that was published two or three days ago. I hope that that demonstrates the herculean national effort currently under way to reduce the outstanding case load that has built up during the coronavirus epidemic.

[Alex Cunningham]

I most certainly welcome the increased expenditure in the area in question. It is essential that the Government look to increasing it further, because there is no doubt, from the evidence the Committee received, that the system is not adequate to receive the people who will be caught up in the range of new laws. It was good to hear the Minister try to clarify some of the numbers. The figure of only three people aged under 18 is significant. However, according to the analysis, there would be up to 50 people a year, over a long period. Does the Minister want to correct me?

[Chris Philp]

I will double check that number, but my understanding, which I will check, is that as a consequence of the measures the total prison population will increase by 50, which is different from an extra 50 people extra flowing in each year. However, I will come back to the hon. Gentleman on that.

--- Later in debate ---

[Alex Cunningham]

I appreciate that, but I thought I read it was 50 per year. I may of course be mistaken, but I look forward to the Minister clarifying that.

If the vast majority of criminal offences are committed under existing legislation, I wonder why we are here, other than to increase the determinate sentence to 14 years. Perhaps in a later speech the Minister will return to the matter. We may well return to it in future, but for the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 11, as we have been discussing, amends section 323 of the sentencing code, which makes provision for the setting of a minimum term—a tariff—for discretionary life sentences. It will make sure that, where a life sentence is handed down to an adult offender who is convicted of a serious terrorist offence—which can be considered as a serious terrorism case—for the purpose of setting a minimum term, the provisions of this clause will apply.

The minimum term in a discretionary life sentence is the period that must be served in custody before an offender can be considered for release by the Parole Board. Offenders who are subject to a discretionary life sentence are subject to a life licence following the release. Clause 11 adjusts section 323 of the code so that, where the court considers an offender who requires a life sentence for their offending and has committed a serious terrorism offence, as found in schedule 17A to the sentencing code, an equivalent consideration is made to that for the serious terrorism sentence by requiring the court to consider it as a serious terrorism case.

A serious terrorism case is one where an adult offender has committed a serious terrorism offence and meets the criteria that we discussed previously for a serious terrorism sentence—that is, the court considers them dangerous; they present a serious future risk of harm, which in this context means the prospect of death or serious personal injury resulting; and in the opinion of the court they meet the risk of multiple death condition, which we discussed earlier in connection with serious terrorism sentences. The clause therefore requires the courts to set a minimum term of 14 years, unless exceptional circumstances apply.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Minimum punishment part for serious terrorism offenders: Scotland

Question proposed, That the Clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

This clause sets out a number of offences that, from the commencement date of this provision, will be included in the list of offences eligible for receiving an extended determinate sentence in England and Wales. Adding these offences will ensure that the sentencing regime in England and Wales is consistent in the type of offences it considers serious enough to be eligible for an extended determinate sentence. To make this change, the clause adds the offences specified within the provisions to part 1 of schedule 18 of the sentencing code. These offences all carry a maximum penalty of life, and include the making of explosives, developing biological weapons, endangering the safety of aircraft, using nuclear materials and hijacking or destroying ships. As such, they are of comparable seriousness to other offences already in scope for the extended sentence. Adding these offences to the list will correct the anomaly created by their omission and will ensure that these serious offences and others are eligible for an extended sentence as well.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Increase in extension period for serious terrorism offenders aged under 18: England and Wales

[Alex Cunningham]

I beg to move amendment 40, in clause 16, page 16, line 29, at end insert—

“(4) Section 255 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”.

[The Chair]

With this it will be convenient to discuss amendment 41, in clause 17, page 17, line 4, at end insert—

“(4) Section 267 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

“(2A) The pre-sentence report must in the case of a serious terrorism offence under section 268(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(2B) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (2A).”

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”.

[Alex Cunningham]

Amendments 40 and 41 serve a similar purpose to amendments 37, 45 and 46, which we debated earlier. Hon. Members will recollect that, such was our strength of feeling on the need for the age of young people to be taken into consideration in the pre-sentencing report, and then by the judge in deciding what type of sentence to impose, we put clause 37 to a vote. The decision to do so was strengthened by the Minister’s failure to justify his estimates of the numbers that would be caught by the new offences and, therefore, sentences. We talked about that earlier. He dismissed our earlier amendments by claiming that there would be only a handful of young people caught by the measures. However, as hon. Members will have heard, I addressed our concerns about the lack of evidence of the numbers when I spoke to amendment 39—though I think there is more evidence to come from the Minister on that topic.

--- Later in debate ---

[Chris Philp]

I must say, the shadow Minister has painted for me a truly horrifying picture, namely membership of the Liberal Democrats followed by crushing defeat at a general election. Let that be a lesson to anyone who, like my former hon. Friend the Member for East Surrey, considers anything so foolish as a move to the Liberal Democrats. Looking around this Committee, that is something we can all agree on.

The first question raised by these amendments is whether there is an option for an extension period other than eight to 10 years. I am looking at amendment 40 to clause 16(3)(b). The way the legislation is currently drafted allows the judge the discretion to choose the extension period—the licence period—of anything between one and 10 years. All that these clauses do is increase the maximum from eight years—as it is now—to 10 years, but that is not mandatory; the judge can choose to have an extension period as low as one year. The choice for judicial discretion that the shadow Minister is calling for already exists without the amendment. Instead of the choice being between one and eight years, as it is now, the choice will become between one and 10 years, as we propose, but judicial discretion will still exist.

The pre-sentence report that the amendment calls for will exist already. There is always a pre-sentence report for offences of this nature. In deciding what length of extension period is appropriate, the judge will already have due regard to that pre-sentence report. They will also have due regard to that pre-sentence report in making their finding, or otherwise, of dangerousness.

On the question of a review of how things are going, I certainly do not fear any sort of review after the event. We have a standing procedure that legislation should be reviewed after—I think, typically—three years, to see how it is functioning. I would expect this legislation, as other legislation, to be subject to that same scrutiny process. I am sure that no one in the House would be shy to propose changes if, in due course, anything appeared to be amiss.

On that basis, in particular the first two points—

[Alex Cunningham]

I realised that the Minister was getting to the point at which he would sit down, but I asked specifically for him to address the issue of how young people who have committed this type of offence will be accommodated on the estate. Can the fears expressed by many individuals be properly addressed?

[Chris Philp]

Such young people will not move on to the adult prison estate until they turn 21, so that immediately provides some reassurance, I hope. The more general point that the shadow Minister makes, and has made before—and our witnesses made—is on the importance of rehabilitation. They are points well made. We should not simply lock people up and throw away the key; even with such serious offenders, who will rightly spend a great deal of time in prison, we should work on rehabilitation.

Part of the additional resources announced in the September 2019 spending review and this year’s March Budget will go to Her Majesty’s Prison and Probation Service. I have spoken to the Prisons and Probation Minister about young people, an issue that my hon. Friend the Member for Aylesbury has also raised with me, and it is an area where effort, focus and attention are being paid, and will be further in future. That point about rehabilitation is well made, but it is being addressed. I am sure it is a topic that Members will return to. I have forgotten whether this is an intervention or a speech, but on that basis, I politely and respectfully ask the shadow Minister to withdraw the amendments.

[Alex Cunningham]

It is lovely to have a guarantee from the Minister that no young person will end up in the adult estate—

[Chris Philp]

While under the age of 21.

[Alex Cunningham]

The Minister qualifies that by saying “under the age of 21”. I appreciate that, and I assume that the word “guarantee” can be applied in this particular circumstance, despite the fact that some of our witnesses were concerned that we do not have sufficient facilities within the system to house 18 to 21-year-olds and some even younger than that.

In an earlier debate, I believe on Tuesday, the Minister appeared to accept that the pre-sentence report regime could be improved. In fact, he made a commitment to speak to his colleagues in the Home Office, to see whether they might find ways to ensure that the pre-sentence report covers some of the issues that I raised in Committee. We have not heard from the Minister about that, but perhaps in a later speech we will.

[Rob Butler (Aylesbury) (Con)]

On that point, does the hon. Gentleman accept that standard practice in all pre-sentence reports is for the judge to consider not only the physical, chronological age, but maturity, so some of those concerns should, as a matter of course, be addressed?

[Alex Cunningham]

The hon. Gentleman has greater experience of this area than I do, and I bow to his superior knowledge, but the important thing is that we look carefully at the reports, in particular in relation to that cohort of young people, to ensure that every single opportunity is presented to the judge so that the judge gets the right answer. With that, although we will return to the issue of young people at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

As we have discussed, the clause extends the maximum possible licence period for serious terrorist offenders aged under 18 when given an extended sentence of detention. It gives the courts the option to increase the maximum—I say maximum—extended licence period from eight to 10 years.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Increase in extension period for adult serious terrorism offenders aged under 21: England and Wales

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

The clause sets out a number of offences that will be included in the list of offences that are eligible for receiving an extended determinate sentence in Scotland, from the date of commencement. The offences to be included are terrorist offences with a maximum penalty of more than two years, which is specified in part 1 of schedule 5ZC, and non-terrorist offences carrying a maximum penalty of life, as specified in part 2 of that schedule, in cases where a terrorist connection has been found by the court under section 31 of the Counter-Terrorism Act 2008. It also applies to under-18s convicted of terrorist and terrorism-related offences in Scotland. The clause makes that change by amending section 210A(10) of the Criminal Procedure (Scotland) Act 1995 and inserts a schedule into that Act.

[Alex Cunningham]

We have talked a lot about numbers in this Committee. Will the Minister enlighten us on how many people will be caught up in these provisions?

[Chris Philp]

These provisions relate to Scotland. In order to avoid providing the Committee with erroneous information, it would be safest if I write to the hon. Gentleman with that information.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Schedule 5

Terrorism offences attracting extended sentence: Scotland

Question proposed, That the schedule be the Fifth schedule to the Bill.

Counter-Terrorism and Sentencing Bill (Fourth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[The Chair]

Members should feel free to take their jackets off if they are so inclined. We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table. It is helpful to proceedings if hon. Members who want to push an amendment, other than the lead amendment in a group, to a vote could indicate that to me in advance. If they could supply your speaking notes to the Hansard reporters, I think they would be most grateful.

Clause 1

Offences aggravated by terrorist connection

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 35, in clause 1, page 1, line 8, at end insert—

“(ab) In subsection (3), after ‘if’ insert ‘the court has found beyond reasonable doubt that’”.

This amendment determines that a court must decide beyond reasonable doubt that an offence has a terrorist connection.

It is a pleasure to serve under your chairmanship yet again, Mr McCabe. Hansard should have our notes, as we have already forwarded them.

We support the Bill but, as hon. Members can see, we have identified some ways in which we believe it could be made better. We will get into the details of that over the coming weeks. Terror attacks have shaken this country: people have lost their lives; people have lost their livelihoods; loved ones have been lost; people have suffered life-changing injuries. Nothing we do or say in this House can bring back those people who have died or heal those people who have been so badly injured, but we can try to ensure that justice has been achieved.

In his speech on Second Reading, my right hon. Friend the Member for Tottenham (Mr Lammy) talked specifically about some of the terror incidents that we have seen in this country and the conclusions we can draw from them. Two possible conclusions were that prison sentences are not long enough and that deradicalisation programmes in prison are not working.

That is why Labour seek to work with the Government on this Bill, starting with amendment 35. We hope to make the case for why we believe there are some amendments that would improve the Bill. Ensuring that Government legislation does not discriminate unfairly against protected characteristics is a key part of what we will try to achieve throughout the process.

Terrorism is often conflated with Islamic extremism, yet the fastest-growing terrorist threat comes from the far right. We want to ensure that the legislation is fair and proportionate. It must go hand in hand with a coherent deradicalisation strategy alongside the Bill, working to minimise the risks of an offender committing further terrorism offences once they leave prison.

Many of the amendments that we will ask the Committee to consider are simply probing amendments to better understand the Government’s thinking, and to give the Minister more time to think about the different issues as we progress through this stage of the Bill. However, there are other amendments that we believe the Government should adopt, if the Bill is to achieve what it sets out to do and be seen to be fair. We will go further into the detail, but I hope we can have healthy and robust debate about how to move forward, and prove to the public out there that politicians from different parties can work together.

Amendment 35 determines that a court must decide “beyond reasonable doubt” that an offence has a terrorist connection. The purpose of this probing amendment is simply to clarify that the finding of a terrorist connection for the new offences that the Bill brings into scope will be subject to the same “criminal standard of proof” as is currently the case, and would effectively amend section 69(3) of the sentencing code, covering offences aggravated by terrorist connections.

We believe we should spell out in the Bill the need to ensure that there can be no reasonable doubt about the connection, because it can have serious ramifications for the offender and the legal system. The House of Commons Library briefing on the Bill states, under the provisions in clause 1:

“If the court determines that there was a terrorist connection, it must treat that as an aggravating factor when sentencing the offender. The presence of an aggravating factor may result in a higher sentence (within the statutory maximum) than would otherwise be the case.”

The Library briefing paper goes on to say:

“The finding of a terrorist connection can also trigger terrorist offender notification requirements and may result in the court ordering forfeiture in a wider range of cases.”

The briefing goes on:

“Such a finding also engages the restrictions on release contained”

in the Terrorist Offenders (Restriction of Early Release) Act 2020, which

“requires that all determinate terrorist or terrorism-related offenders must be referred to the Parole Board at the two thirds point of their sentence before they can be considered for release.”

The Bill’s equality statement acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the percentage of Asian/British Asian and Muslim individuals in the total population.”

The equality statement goes on to the say that the provisions in the Bill are

“unlikely to result in indirect discrimination within the meaning of the Equality Act”.

However, the Lammy review highlighted evidence of disproportionate outcomes for BAME individuals at the sentencing stage and in decision making by judges and magistrates.

While the review found decision making by juries to be largely fair and proportionate, the same was not found when considering decision making by sentencers. That is relevant to the clause, given that the finding of a terrorist connection is at the discretion of the judge, taking account of any representations made by the prosecution or the defence. That is concerning, given the findings of the Lammy review, which are currently being discussed on the Floor of the House. We believe that BAME individuals may be at increased risk of discrimination, with their crime considered to have a terrorist connection.

Amendment 35 would amend section 69(3) of the sentencing code to require that the court must find “beyond reasonable doubt” that an offence has a terrorist connection. The House of Commons Library briefing paper, which colleagues will have read, says that clause 1 would

“greatly increase the number of non-terrorist offences that can be found to have a terrorist connection”,

whereas currently only specified offences can be found to have such a connection. The widening of what can be found to have a terrorist connection will, I fear, disproportionately affect ethnic minorities. That is why we must press the Minister on how he will guarantee decisions are made on the measure of “beyond reasonable doubt”.

There is also the question of what case law is used to guide sentencers as to what constitutes terrorism, as well as what constitutes a connection to it. Some of the commentators on the Bill are not entirely convinced about what the Government are trying to achieve. I can understand that, as there are already a lot of specific terrorism offences.

Unamended, the Bill seems to create the potential for sentencers to grow their own definitions, both of “terrorism” and “connection”. Can the Minister give examples of where the absence of the provision addressed in clause 1 has resulted in an injustice or an insufficient response? There are concerns that the provision could do more damage than anything else. A wrongfully determined terrorist connection could fuel or develop a grievance against the authorities that might not have existed before. We cannot ignore the impact a wrongful terrorism sentence would have on an individual’s life. We cannot take that sort of chance. We must be sure; we must be beyond reasonable doubt.

[Taiwo Owatemi (Coventry North West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I share the concern expressed by my hon. Friend the Member for Stockton North in relation to the burden of proof and the potential implications of the Bill in disproportionately convicting ethnic minorities by widening the scope of what a terrorist connection is under this legislation.

This is a sensitive subject. Terrorism and the actions of extremists have instilled fear, caution and a sense of doubt in many communities across our country. An act of terror and of any extremist is abhorrent. Those individuals should indeed be brought before a court of law and tried for their crimes, not least because of their direct action causing injury, committing murder or traumatising those who come anywhere near their path and because of the wider implications that will be felt across the country and the world in our age of quick-fire communications and social media.

In my generation, I have seen this in how the Oklahoma bombing instilled fear; in how 9/11 changed the world; and in how 7/7 changed my perspective and that it could happen here at home. The murder of Lee Rigby proved that even those who protect us are not always safe. The slain nine churchgoers at Emmanuel African Methodist Church and the Manchester concert bombings showed that no one, even those in the most innocent of settings, is off limits. The hateful act of violence that took Jo Cox proved that our own political discourse has taken an awful turn.

These acts by rampant extremists and the murderous death toll that they leave behind, the radical ideas that brought them to this path and the many plots that have been foiled that we will never know about show us that these crime, or crimes yet to be committed, are heinous. They also prove that we must determine, as this amendment seeks to do, that these crimes or plots are not small and should be taken with the utmost seriousness.

I have three concerns about widening the terrorist connection provision under this legislation and lowering the burden of proof. First, we are leaving it to sentencers to determine their own definition of what constitutes a terrorist connection. Secondly, it creates a form of suction like a vacuum that will imprison even more ethnic minorities and put them behind bars under terrorist legislation which will see them lose their freedom longer than they need to. Thirdly, and even worse, it potentially radicalises them while they are in prison.

There is a danger, as seen in clause 1, that by allowing any offence to be capable of having a terrorist connection, one’s judgement will inevitably come into play. This punishment carries a sentence of two or more years. It would not be amiss to say that everyone holds biases, including those who administer our laws and hand down sentences. By widening the scope and effectively leaving it open to interpretation, the Government want us to believe that we will capture individuals who may have slipped through the net thus far as ordinary criminals or should have been convicted of terrorism. Can the Minister point us to data that back this assumption? The likelihood is that we will just imprison people for the sake of being seen to be attacking the issues of terrorism and extremism.

We are already aware that ethnic minorities are disproportionately sent to prison under our legal system. We are also acutely aware that black and Asian men, particularly those of Islamic faith, are more likely to be seen as threats and harbouring extremist views. The Lammy review conducted by my right hon. Friend the Member for Tottenham highlighted some concerns about how our criminal justice system sees these individuals. The odds of receiving a prison system were around 240% higher for black, Asian and minority ethnic offenders compared with white offenders. Research commissioned by the review also found that at the magistrates court, black, Asian, mixed and Chinese women were all more likely to be convicted than white women.

The number of Muslim prisoners has more than doubled over the past 17 years. In 2002, 5,502 Muslims were in prison. By 2019, this had risen to 13,341. While in prison, Muslim prisoners described having their faith viewed by prison authorities through a lens of risk, according to the research, which also found that prisoners believed that this put them at greater threat of being radicalised. Given the biases in the system and the extraordinary likelihood of women from ethnic minorities receiving a prison sentence, what do the Government think this legislation will mean for ethnic minorities? Do they really think that lowering the burden of proof and expanding the scope of what constitutes a terrorism offence will do anything to keep these young men and women away from the hands of those who wish to radicalise them?

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a pleasure to serve under your chairmanship, Mr McCabe, in our line-by-line consideration of the Bill. I thank the shadow Minister for his opening remarks, in which he expressed general support for the objectives of the Bill. I hope that we can, as he said, provide an example of constructive cross-party working, although I am sure he will have many questions about the detail. As the shadow Minister has said, and as the hon. Member for Coventry North West said in her speech, the threat that terrorism poses is a serious one, and one of our heaviest responsibilities as Members of Parliament is to protect our fellow citizens from such attacks, but in a way that is lawful, fair and just.

Amendment 35 seeks to specify a beyond-reasonable-doubt standard of proof in making the terrorist connection, as clause 1 does. I am happy to confirm for the shadow Minister that existing criminal court procedure already requires the criminal standard of proof to be met in making a determination of a terrorist connection, or indeed any finding of fact in relation to sentencing. If, after conviction by a jury, there is a finding of fact to be made by the judge prior to sentencing in what is known as a “Newton” hearing, under existing procedures the criminal standard of proof is applied. On the request that the shadow Minister and his colleagues make, I am happy to confirm that it is already inherent in the operation of our criminal justice system, and rightly so, for all the reasons that the shadow Minister and the hon. Member for Coventry North West have outlined. I trust that on the basis of that assurance they will see fit not to press the amendment, given that the provision they call for is already enshrined in law.

One further point: both the shadow Minister and the hon. Member for Coventry North West raised the question of what happens if the judge makes an error or exhibits some form of conscious or unconscious bias. That is extremely rare, but, if it did happen, there are of course appeal rights against both the sentence and any erroneous finding of fact associated with it. If a defendant or, by this point, an offender who has been convicted feels that the sentence is genuinely unfair or that an unfair determination has been made of a terrorist connection, they can appeal, so a safety mechanism by way of appeal also exists. I hope that on that basis the shadow Minister will not press the amendment to a vote.

[Alex Cunningham]

I am grateful to the Minister for his explanation. He believes that the matters are already covered in existing law, but perhaps he will accept that later in the Bill we will be discussing how we make sure that what has happened over a period of time has in fact demonstrated that the judges have got it right. In other words, we will revisit this matter with a view to seeking a form of review of how the legislation is working to ensure that we do not have the particular problems that might well be possible. I am also grateful to him for reminding us that in criminal proceedings we still have an appeal process in this country, and I am sure that that would operate appropriately. On the basis of what the Minister has said and on the basis that we will seek reassurance through a review process later in the Bill, I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Alex Cunningham]

I beg to move amendment 36, in clause 1, page 3, line 30, at end insert—

‘(8) Before this section comes into force, the Secretary of State must commission an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(9) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the equality impact of extending the ability of the court to identify a terrorism connection.

[The Chair]

With this it will be convenient to discuss amendment 42, in clause 21, page 18, line 23, at end insert—

‘(3) Before this section comes into force, the Secretary of State must conduct an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(4) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the impact of extending sentences for offenders of particular concern on people with protected characteristics.

--- Later in debate ---

[Alex Cunningham]

These amendments would require the Secretary of State to commission an analysis of the impact of this section of the Bill before it comes into force on people with protected characteristics, as well as the consequences of any disproportionate impact on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences. With this amendment, we seek to address the issue that was highlighted by the probing amendment and to clarify whether the same criminal standard of proof would apply to determining a terrorist connection for all offences, as is currently the case for listed offences. In particular, we seek to determine whether the clause may have a disproportionate impact on people from minority faith and BAME communities, including on the numbers who are received into prison and the length of the sentence served.

There are significant risks involved in expanding the number of individuals who fall under the provisions of separate terrorism legislation, particularly if the imposition of additional sanctions is seen as neither fair nor proportionate and is found to have a disproportionate impact on minority faith and BAME communities in particular. As I said during my speech on amendment 35, the equality statement on the Bill acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the total percentage”

of those individuals “in the total population.”

In 2016, a Ministry of Justice study of Crown court decision making found that, under similar criminal circumstances, the odds of imprisonment for offenders from self-reported black, Asian, Chinese or other minority ethnic backgrounds were higher than for offenders from self-reported white backgrounds. My hon. Friend the Member for Coventry North West spelled that out in some detail.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I do not know whether my hon. Friend was in the Chamber to hear the urgent question asked by my right hon. Friend the Member for Tottenham about the Lammy review, but he pointed out that, when the review was done in 2017, the proportion of BAME people in prison was 41%; it is now 51%. Does my hon. Friend have any thoughts about that?

[Alex Cunningham]

Unfortunately, I was not in the Chamber for that statement, but I bow to the superior knowledge of my boss and my Whip on this matter. It is absolutely essential that we never lose sight of the facts that my hon. Friend has just outlined.

Unfortunately, when it comes to magistrates courts, systematic scrutiny of magistrates’ decisions is hindered by the absence of reliable data collected on a number of key issues. For example, magistrates courts keep no systematic information about whether defendants plead guilty or not guilty, although there are similar disparities at the Crown court level. Magistrates courts also do not keep proper records of defendants’ legal representation, which means that no one knows whether particular ethnic groups are more or less likely to appear in court facing criminal charges without a lawyer.

The cliché suggests we are all equal under the law, but it would be foolish to deny that our justice system has a certain bias. We must make sure that when we amend or introduce legislation, we do so with our eyes and ears open. Particular attention needs to be paid to the equality impact of the Bill, to ensure that the House is as informed as possible about its impact. We must also ensure that the provisions do not have a disproportionate effect on minority faith or racial groups.

During the oral evidence session, one of my questions was to Peter Dawson from the Prison Reform Trust. We talked about the expansion of sentences for offenders of particular concern and how they would work. Peter Dawson said in written evidence:

“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.

I asked:

“How can we improve the Bill to achieve that careful monitoring?”

Mr Dawson replied:

“It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 38, Q88.]

Other witnesses talked about similar things during the evidence sessions. It is important that we do not lose sight of that.

Along with the expansion of sentences for offenders of particular concern, the clause has the potential to increase significantly the number of individuals in prison who are subject to separate terrorist sentencing. Many of those individuals are vulnerable to radicalisation and they have experienced a steady accumulation of institutional discrimination.

The danger with these provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and be subject to more onerous and lengthy supervision requirements and forfeiture orders than others who may have received shorter sentences for equivalent offences because the terrorist connection to their offence has not been identified.

That could place those individuals at greater risk from people who would seek to exploit that sense of grievance, in order to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison, increasing the currently small number of people designated as terrorism offenders to a substantial proportion of the population. This morning, we heard from a representative of the Prison Officers Association, who talked in some detail about the difficulties that prison officers now face in trying to manage particular groups in the prison establishment.

It is right that we commission analysis of the impact of our legislation and if such an analysis proves that there is a disproportionate impact on certain groups, Ministers need to act to correct any discrimination and, if required, change the law. Amendment 42 would require the Secretary of State to commission analysis of the impact of extending sentences for offenders, which is a particular concern regarding people with protected characteristics, and for that analysis to be laid before Parliament before the section comes into force.

Clause 21 replaces schedule 13 of the sentencing code, with the schedule set out in schedule 6 to the Bill. That schedule lists offences that require the imposition of an SOPC where an extended sentence or life sentence is not imposed. This will bring a wider number of offences into the SOPC regime, removing the possibility of those committing such offences from being eligible for a standard determinate sentence. That would mean that only the most minor terrorism offences—those with a maximum sentence of two years or less—would not require an SOPC where an extended determinate sentence is not imposed.

The Bill will also create new sentences—the equivalent of an SOPC for adult offenders in Scotland and Northern Ireland, and for under-18s throughout the UK. Clause 21 addresses a problem created by the TORER Act, which made all terrorist offenders serving a custodial sentence eligible for release two thirds of the way through their sentence, subject to the discretion of the Parole Board. There remained an issue with offenders who were not granted a release until the end of their sentence, and who, as a result, would be released into the community without any form of supervision. The amendment would address this anomaly by requiring that terrorist offenders in the UK would have a minimum period of supervision on licence of 12 months following release, even if they serve the full custodial part of their sentence in custody.

The combined impact of the TORER Act and the provisions of this clause, along with the provisions of clause 1 that allow for the court to determine a terrorist connection for any offence, is to significantly increase the number of individuals subject to separate and more onerous terrorist-sentencing legislation. This includes a longer period in custody, release subject to the discretion of the Parole Board, and a minimum 12 months’ supervision in the community.

There are significant risks involved in increasing the number of individuals who fall under the provisions of a harsher sentencing regime, particularly if the imposition of additional sanctions is seen as being neither fair nor proportionate, and is found, as I have said, to have a disproportionate impact on minority, faith, and BAME communities in particular.

The amendment also seeks to determine the consequences of any disproportionate impact on people with protected characteristics of efforts by the prison authorities to rehabilitate offenders convicted of terrorism offences. Many of those vulnerable to radicalisation have experienced a steady accumulation of institutional discrimination. The danger with the provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and who will be subject to those more onerous and lengthy supervision requirements than others who receive shorter sentences for equivalent offences. I have already covered that point. That could place them at greater risk from people who seek to exploit that sense of grievance to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison by increasing a currently small number of people designated as terrorism offenders to a substantial proportion of the prison population.

--- Later in debate ---

[Alex Cunningham]

The Minister says that nothing in the Bill would lead to further discrimination. I should hope that that would be the case for any legislation we pass. However, the fact remains that there are certain groups within our society—BAME and other groups—who are disproportionately disadvantaged in the legal system. The amendment asks the Minister to recognise that there could be even more of that as a direct result of the provisions of the Bill.

[Chris Philp]

Where there are concerns of the nature of those raised in the Lammy review, which I think the shadow Minister or the hon. Member for Coventry North West mentioned earlier, the Government are committed to responding to those. Indeed, in a sense, we are in the wrong room in Parliament today to raise that, because there was an urgent question earlier on exactly that topic, to which the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk) responded.

The Government are committed to acting in response to the Lammy review to make sure that no unconscious biases discriminate against any particular group. I have not had a chance to read the Hansard of the debate, and I suspect the shadow Minister has not either, but based on the conversations that I have heard taking place in the Ministry of Justice, I think that the Government generally and the Ministry of Justice in particular are committed to taking action where needed. I would have expected the response of my hon. Friend the Member for Cheltenham to the urgent question an hour or two ago to have confirmed that.

[Alex Cunningham]

The fact remains that the Lammy review talked about a whole range of provisions that were supposed to be implemented, but very few of them have been. Some have been partially implemented and others have not. Can the Minister simply accept that we are failing as a Government and a Parliament to ensure that discrimination does not exist in our system? We are simply not taking the action to do that. Does he further accept that the more legislation we have where particular groups of people, BAME or otherwise, feel that they are being discriminated against, the greater the discord in society?

[Chris Philp]

Recent events obviously tell us how important it is to maintain social cohesion and confidence in the criminal justice system. The hon. Gentleman raises a point that goes far beyond the scope of the Bill, but it is a fair point none the less. If he listens to what my hon. Friend the Member for Cheltenham, my fellow Justice Minister, said in the House of Commons Chamber earlier, he will see that the Government are resolved to act where necessary to address issues of that kind.

The substance of the Bill is obviously public protection. It makes no distinction between any kind of terrorism, whether rooted in a twisted religious ideology or a far-right ideology, or terrorist acts committed for any other reason. The Bill, as with all Bills, as the hon. Gentleman says, is even-handed between different kinds of offence and different kinds of offenders. Where we need to do more systemically, not just in relation to the Bill but across the whole range of the criminal justice system, to make sure that everybody gets a fair hearing and fair treatment, the Government will do that. I hope that the response of my hon. Friend the Member for Cheltenham to the urgent question earlier will give assurance on that point. No doubt there will be many more opportunities to debate it.

[Alex Cunningham]

rose—

[Chris Philp]

On the specific question of amendment 36 to clause 1 and amendment 42 to clause 21, which call for an impact assessment prior to the commencement of those clauses, I repeat what I said earlier. We have already done that. It has been published as the impact assessment together with the Bill and the equality statement that went with it. The obligation being requested by the amendments has already been discharged, but of course we must remain mindful, as the shadow Minister eloquently said, of potential unconscious biases. We must be vigilant and make sure that our justice system is not in any way besmirched by them. I am confident that the measures my hon. Friend the Member for Cheltenham laid out earlier will achieve that.

[Alex Cunningham]

I am sorry that the Minister would not give way, because I wanted to press him on that particular matter. We have several days of debate, so we have plenty of time to deal with these issues. It is a bit disappointing.

[Chris Philp]

I apologise; I did not realise that the hon. Gentleman was trying to intervene. Had I realised, I would, of course, have given way.

[Alex Cunningham]

Fair enough; I accept that.

The Minister was talking about how the Bill is important for public protection and I agree. It is essential to protect the interests of the public, but if the Bill results in a growing number of terrorists in prison, and if we are releasing into the community people who are still radicalised—or even new people who they managed to radicalise when they were in prison—perhaps public protection will not gain in the way that the Government hope.

I accept the Minister’s statement that he believes the law covers that, but I am disappointed that we cannot accept that a review, although it might cost a few pounds and take some time to commission, would at least give us some information to enable us to understand how well or how badly the legislation is working. I accept what he said, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We touched on many of the purposes of clause 1 in our debate on amendments 35 and 36. Very briefly, clause 1 seeks to give judges the power to make a factual finding after conviction that a particular offence has a terrorist connection, to the standard of proof beyond reasonable doubt, as has been discussed, rather than simply referring to a fixed schedule of offences. If, for example, somebody commits an offence that is a serious offence but is not currently on the list of terrorist offences, the finding of terrorist connection can none the less be made. That has consequences in the rest of the Bill, and we will debate them in due course.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2

Meaning of “serious terrorism offence”: England and Wales

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

Under the Sewel convention, where a provision in UK legislation touches on a matter that is devolved to one of the nations of the United Kingdom, one applies for a legislative consent motion. Most of the Bill, relating as it does to terrorist offences, is reserved to the UK Government, but some relatively limited elements of it touch on matters that are ordinarily devolved. For them, we will of course seek a legislative consent motion under the Sewel convention. In that context, we have made contact with the Scottish Government in Holyrood and with the Northern Ireland Administration—in particular, with Justice Minister Naomi Long. We have entered into fairly extensive correspondence, which is ongoing, about the provisions in the Bill. The Justice Minister in Northern Ireland has raised various matters, which she has asked questions about, asked for clarification about and wanted to discuss further. Those discussions and that correspondence are ongoing.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 4

Serious terrorism sentence for adults aged under 21: England and Wales

[Alex Cunningham]

I beg to move amendment 37, in clause 4, page 5, line 32, at end insert—

“(7) The pre-sentence report must—

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 45, in clause 6, page 9, line 20, leave out subsection (11) and insert—

“(11) In forming an opinion for the purposes of subsections (1)(d) and (6), the court must consider a report by a relevant officer of a local authority about the offender and the offender’s circumstances.

(11A) Where the offender is under 21 years of age, the report must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender;

and the court must take these factors into account when forming its opinion under subsection (6).

(11B) In considering the report, the court must, if it thinks it necessary, hear the relevant officer.”

Amendment 46, in clause 7, page 10, line 13, at end insert—

“(2A) Where the offender is under the age of 21, in forming an opinion for the purposes of paragraph (2), the court must consider and take into account a pre-sentence report within the meaning of Article 4 which must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.”

[Alex Cunningham]

I am sure that these amendments come as no surprise to the Minister and other members of the Committee, given my interrogation of our witnesses during the oral evidence sessions over the past few days. This area needs particular attention from the Government, and I intend to press the amendment to a vote—unless, of course, the Minister comes up with an appropriate answer. On the basis of all this kindly co-operation and friendliness that we are sharing, and our intention to prove to the public that we can work across parties, perhaps he might surprise me a little.

Amendment 37 would require that when a court considers a serious terrorism sentence for a young adult under the age of 21, the pre-sentence report must take account of the offender’s age and consider options other than a serious terrorism sentence for rehabilitation and reducing harm. It means that the court must also take into account the issues raised in the pre-sentence report and whether it constitutes exceptional circumstances under proposed new section 268B(2).

We need a basic recognition in the Bill’s sentencing framework that, simply put, young adults and adults are inherently different, not only in terms of maturity, but in their potential for rehabilitation. Regarding the level of maturity, numerous organisations, such as the Howard League, have advocated for this proposal. It has been recognised in reviews such as the Lammy review, and by the Justice Committee. Why is it not recognised in the Bill?

As we have said from the outset, serious terrorist offences deserve a serious sentence, but it is still important to consider the age of the offender when other offences of a non-terrorist nature are committed. Although the amendment is specific to under 21s, in line with the Bill, evidence of maturation suggests that young adults up to the age of 25 ought to be considered as a separate group requiring a distinct response from criminal justice agencies.

The work in this area continues apace, and I have no doubt that Ministers may well have to address their approach to all manner of sentences for people up to the age of 25 when we can all be satisfied that the science proves, beyond reasonable doubt, that they ought to be treated differently. We had a considerable amount of evidence on that. I asked Peter Dawson from the Prison Reform Trust for his view on the different factors relating to young people. He said:

“The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24.”

I think that is his opinion. He continued:

“At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 34, Q75.]

We also discussed that issue with Jonathan Hall, the Independent Reviewer of Terrorism Legislation, who said that the point he was making was that

“there is recognition that people who are young and immature are probably more susceptible to change than adults.” —[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q15.]

I asked him whether the bottom line was that with young people, there was perhaps a greater chance of change; he had said that there might be greater opportunity for reform than with those who are considerably older. Mr Hall responded:

“That is what judges are increasingly finding.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q16.]

I want to refer to a little more of Jonathan Hall’s evidence. He said that he believed that a younger person dimension needed to be considered in the Bill:

“One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, ‘I have now genuinely changed; that was me then and this is me now,’ where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say ‘unfair’, but it fails to recognise the difference between adults and children.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 11, Q18.]

The current science and evidence tend to relate to people under 21, some of whom are a long way from full maturity. Analysis from the Royal College of Psychiatrists states that in terms of brain physiology, the development of traits such as maturity and susceptibility to peer pressure appear to continue until at least the mid-20s. That view was supported by the Justice Committee, which reported in 2016 that the growing body of evidence drawing on criminological, neurological and psychological research had led the Committee to conclude that young adults’ characteristics and needs made them distinct from older adults in terms of both their needs and their outcomes. There is no distinction in the Bill that recognises what the Justice Committee had to say.

The “Judging Maturity” report by the Howard League for Penal Reform also cited research that found the following:

“For the purposes of informing sentencing practice, the neurological and psychological evidence that development of the frontal lobes of the brain does not cease until around 25 years old is particularly compelling. It is this area of the brain which helps to regulate decision-making and the control of impulses that underpins criminal behaviour.”

As the Minister knows, I support trusting the experts where there is a significant trend. The trend of opinion from experts seems to be that we need to recognise the differences in maturity and development of young adults. In 2016, the Justice Committee reported:

“Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood.”

Research into the success of interventions aimed at tackling radicalisation suggests that approaches that encourage young people to engage in education and training may be particularly beneficial, and that early interventions to encourage young people to undertake that education and training can be capable of successfully challenging radicalisation.

We talk a lot about rehabilitation, but we do not do enough of it. Labour Members do not want young offenders to be condemned to a life with no opportunity for rehabilitation when it has been reported to be successful in early adulthood. We can reform and rehabilitate, but doing so is a choice.

[Bambos Charalambous]

My hon. Friend is making an excellent speech on this point. On the point about young people’s brains still developing, there is potential for grooming and undue influence by adults. With the Justice Committee, I visited a young offenders institution in Kent, where a young woman who was being held for terrorism offences had been influenced by her mother. Will he comment on that?

[Alex Cunningham]

Indeed, that is very much the case. I am grateful to my hon. Friend, because he reminds me of some evidence we heard this morning about young people being more susceptible to being radicalised. Another important point raised this morning was that our prison system is not yet properly equipped to deal with young offenders in a suitable environment that prevents radicalisation. They are housed—wherever they are—with people who have committed similar offences, who will be aiming to build on their insecurities and their immaturity to encourage them into further wrongdoing. We must never lose sight of that important point. That is why I will talk about young people throughout our proceedings on the Bill, because young people have to be given a chance.

I will talk about this later, but if a 20-year-old is sentenced to14 years in prison, that will make them 34 on their release. Add another 25 years to that, and they are almost pensioners before they are clear of the shackles of the state. They have not been given the opportunity to reform, because they are constantly looking over their shoulder, perhaps with an attitude of, “Why on earth should I change when the authorities are always on my back?”

[Julie Marson (Hertford and Stortford) (Con)]

We talk about children as victims in this context, but the experts who gave evidence told us that these young people are also extremely dangerous. They said that rehabilitation is extremely important—of course that can take place in prisons—but that sentencing has other objectives, such as the protection of the public, including young people walking the streets who also deserve the protection of the law.

[Alex Cunningham]

The hon. Lady is entirely correct. We must, first and foremost, protect the public. We need to understand that we may never be able to rehabilitate some young people, and they may be a problem to society for the rest of their lives. However, there will also be young people in the system who have done some horrible, terrible and tragic things but who can be rehabilitated and recognise that they got it wrong. They should be given the opportunity to live their life to its full extent.

--- Later in debate ---

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I rise in support of amendments 37, 45 and 46, standing in the name of my hon. Friend the Member for Stockton North. I want to cover some general principles in what is my first opportunity to speak in this Bill Committee. Like the Government, we are committed to keeping the public safe and we share the desire to ensure that attacks such as those at Fishmongers’ Hall and in Streatham never happen again—attacks where convicted but released terrorists were able to kill and maim innocent people.

We recognise the importance of adequate and appropriate punishment in sentencing, but punishment and sentencing must go alongside rehabilitation. As my right hon. Friend the Member for Tottenham said on Second Reading:

“We must not lose faith in the power of redemption—the ability of people to renounce the darkest chapters of their lives and move towards the light.”—[Official Report, 9 June 2020; Vol. 677, c. 213.].

For that, those offenders need an effective deradicalisation programme tailored to their motivation and circumstances, and they need hope—hope that before too long they can rejoin their family; that they can get meaningful work. They could even steer others away from the path they took before. I point out that programmes have operated in prisons in Northern Ireland with convicted paramilitaries on both sides of the troubles. In the later years of the troubles, those men became beacons of peace and reconciliation, educating young people towards positive paths.

Some contributions on Second Reading sometimes felt like support for a policy that almost veered on “Lock ’em up and throw away the key”. However, as many submissions and expert witnesses to this Committee have said, removing hope from these offenders and the opportunity to prove they are safe does not make the rest of us safer. I might add, even locking up people indefinitely, as the hon. Member for Hertford and Stortford said earlier, does not protect us anyway. It does not prevent them from radicalising others. It spawns martyrs, not to mention the cost to the public purse of incarcerating prisoners for ever longer periods. As we heard this morning from the Prison Officers Association, there is also the danger to prison officers of attacks from angry men who have no hope of release in the foreseeable future.

I fear that some aspects of the Bill are born from a reaction to the terrorist atrocities in the last seven months and have been brought in without due research into what might work to further reduce the risk of attack from radicalised individuals, whether they are of a Daesh/ISIS persuasion, from the far right or, as a number of terrorists in the UK still are, rogue Irish paramilitaries.

The Fishmongers’ Hall and Streatham attacks were both committed by offenders who had been released automatically halfway through their sentence with no involvement of the Parole Board. Of course, with Labour support, the Government have now brought in the Terrorist Offenders (Restriction of Early Release) Act 2020, which ends the automatic early release of terrorist offenders and ensures that any release before the end of a sentence is dependent on a thorough risk assessment by the Parole Board. I am therefore not quite sure why the Government want to take the Parole Board out of sentencing now, without any adequate alternative provision being put in place.

Before I make some specific remarks, Dave, the father of Jack Merritt, who was killed in the Fishmongers’ Hall attack, wrote poignantly about how his son would have perceived the political reaction to his death, because of course Jack Merritt worked in the criminal justice system on the rehabilitation of offenders. Dave wrote:

“What Jack would want from this is for all of us to walk through the door he has booted down, in his black Doc Martens. That door opens up a world where we do not lock up and throw away the key. Where we do not give indeterminate sentences, or convict people on joint enterprise. Where we do not slash prison budgets, and where we focus on rehabilitation not revenge. Where we do not consistently undermine our public services, the lifeline of our nation. Jack believed in the inherent goodness of humanity, and felt a deep social responsibility to protect that.”

As I said, I support the amendments in the name of my hon. Friend the Member for Stockton South—

[Alex Cunningham]

Stockton North!

[Ruth Cadbury]

My apologies.

Amendments 37, 45 and 46 relate to under-21s. I wish that they went a little older, possibly to 25, because they consider the issue of maturity. I declare a certain interest because for many years I was a trustee and, latterly, the chair of the Barrow Cadbury Trust, which initiated and funded the Transition to Adulthood Alliance about 15 years ago. Over a number of years, the alliance worked with a number of non-governmental organisations, the Ministry of Justice, Ministers, Opposition Members and so on to the point where maturity has now been introduced into sentencing practice and several other areas of the criminal justice system. I fear that we are going to lose that in this Bill.

When considering maturity, it is really important that we work on the basis of all the research that my hon. Friend the Member for Stockton North mentioned and use that research to reduce the risk of serious harm to members of the public and to enhance the rehabilitation of the offender. The Committee has heard powerful evidence, particularly this morning, about the different motivations that people have for becoming terrorists or terrorist sympathisers, such as political, religious or psychiatric.

Sentences and rehabilitation must take account of the different motivations of different offenders. As we heard this morning, we probably also need to have tailored support, which needs to come into the pre-sentencing reports. One of the amendments says that the court must also take account of reports from local authority officers who have worked with the offender prior to the point of considering sentencing.

[Alex Cunningham]

I thank my hon. Friend for her comprehensive speech. She talks about resources and specialised facilities. The evidence we heard from some people in earlier sittings suggests that the system is not fit for purpose. Would she welcome from the Minister, as I would, a statement about how the Government will ensure proper provision for rehabilitation in our prison system?

--- Later in debate ---

[Chris Philp]

I will speak to the amendments relating to younger offenders. There are a couple of things to be clear about first of all. For the sake of absolute clarity, offenders who are under the age of 18 are not subject to the 14-year minimum prison sentence. Only offenders over the age of 18 are subject to those provisions. The amendments relate to offenders aged between 18 and 21, so we are discussing a very specific cohort.

I agree and concur with many points that the shadow Minister and the hon. Member for Brentford and Isleworth made about rehabilitation, and about the increased opportunity for rehabilitation for younger people. It is of course the case that younger people are more open to change—particularly as their brains mature—than older people, and it is right that we try to work with them to achieve that. I would not dispute that as a general principle, but clause 4 as drafted applies to an extremely small subsection of those offenders aged between 18 and 21. It by no means applies to the generality of offenders, including terrorist offenders, aged 18 to 21. It applies to that narrow subsection who have committed a serious terrorist offence, as we have discussed already, but it also requires a finding by the judge, following a pre-sentence report—something the shadow Minister referred to in his amendment and in his speech—of dangerousness. What a finding of dangerousness means in law is that there is a significant risk of the offender causing serious harm by committing further serious terrorism or other specified offences.

There are already two hurdles to jump: a serious terrorist offence, followed by a finding of dangerousness based on a pre-sentence report. However, there is also a third hurdle that must be jumped before a younger offender aged 18 to 21 would fall into the scope of this clause, which is that, at the time of committing the offence. they were aware, or should have been aware, that their offence was very likely to result in or contribute to multiple deaths. That is a well-established test dating back to section 1 of the Terrorism Act 2000. We are talking about an extremely small subsection of offenders aged 18 to 21 and a very small subsection even of terrorist offenders—those who meet all three of those criteria.

[Alex Cunningham]

I wonder whether it really is true that it is such a small cohort of offenders, because the Bill opens up the number of offences that can be considered severe enough for this sentence to be passed. There may currently be very few, but this new law extends the offences quite considerably—in fact, in some ways, it leaves it quite open for people to determine that a terrorist offence or a terrorist connection is involved. Surely there is more opportunity now for people to be serving this sort of sentence.

[Chris Philp]

The provisions open it up for judges to make a finding of a terrorist connection, but the impact assessment for the Bill refers to a potential increase in the prison population of 50 people. Of course, that is for all ages over 18; if we consider how many of those estimated additional 50 places might be occupied by people aged between 18 and 21, one might reasonably assume that the number at any one time will certainly be less than 10 and possibly even less than five. That is an estimate, but none the less, it appears in the impact assessment.

[Alex Cunningham]

It might be helpful, as the Bill progresses, if the Minister could publish some of the facts and the evidence for the claim he has just made about the 50 people and the relatively small number of younger people.

[Chris Philp]

I think the number 50 appears in the impact assessment, and I would be happy to look into the basis for that estimate. As for the number of younger people, that was something that I spontaneously generated, based on the fact that we are talking about a three-year range from 18 to 21, whereas the number of offenders will generally cover all ages, from 18 upwards.

The point I am making is that, while I accept the generality of what the shadow Minister and the hon. Member for Brentford and Isleworth say about the need to have hope and to have an opportunity to rehabilitate, we are talking about a very small number of very serious offenders, who have been assessed as dangerous following a pre-sentence report and who have engaged in activity likely to cause multiple deaths. In those very serious circumstances, I think it is appropriate, and I think the public would also think it is appropriate, that we protect the public for an extended period, as this Bill does.

If we are talking about other offenders, including terrorist offenders who do not meet that level of seriousness—there are many—all the comments made about rehabilitation and the chance to reform do legitimately apply. Indeed, we heard in evidence earlier today that the proven reoffending rate on release for that sort of offender is between 5% and 10%, which is an extraordinarily low figure compared with other cohorts. That suggests that the rehabilitation work done in prison is effective, as I think our last witness this morning suggested.

It is important, given the assessment of dangerousness that is made, that the pre-sentence report fully reflects the offender’s ability to change and the changes to the brain and so on that take place around the early 20s. That is a point that my hon. Friend the Member for Aylesbury, who is not with us this afternoon as he is attending the Justice Committee, has made to me. I will discuss with the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer)—I would not like to get my north, south, east and west muddled up—who is the prisons and probation Minister, whether there is any more we can do to make sure that these pre-sentence reports fully reflect the points that the shadow Minister and the hon. Member for Brentford and Isleworth have made about people’s ability to change. Those points are relevant in the context of assessing dangerousness, because if someone is undergoing changes, they may be less dangerous than someone who is fixed in their ways. I will take up that point with my hon. and learned Friend.

[Alex Cunningham]

The Minister may well be considering whether he is prepared to take the risk with this small cohort of people. As my hon. Friend the Member for Brentford and Isleworth outlined earlier, these individuals, who could reach middle age before there is any prospect of the state being off their back, are susceptible to further radicalisation in prison and might radicalise others. Surely, therefore, there is an element of risk that needs to be considered so that we can try to balance things.

[Chris Philp]

The cohort that I have described are dangerous, have been found to be dangerous by a judge following a pre-sentence report and have tried to kill multiple people. With this very small number of very dangerous people, who are endangering the lives of our fellow citizens, it is appropriate to prevent them for an extended period of time—a minimum of 14 years—from attacking our fellow citizens in the future. It is a truly exceptional and small cohort.

Speaking of the word “exceptional”, if there are circumstances in relation to these people that a judge thinks are truly exceptional—some extraordinary extenuating circumstances—and that, despite the fact that they have done the terrible things I have described and despite the finding of dangerousness, merit different treatment, the judge has open to them the possibility to make a finding that there is an exceptional circumstance and can derogate from the 14-year minimum. We would expect that to be extremely unusual—indeed, truly exceptional, as the word implies.

Given how dangerous and damaging this very small number of people are, and given our obligation to protect the public, this measure is couched appropriately. There is the ability to not make a finding of dangerousness, having read the pre-sentence report. There is also the ability for the judge to find that an exceptional circumstance applies. That provides more than adequate protection, bearing in mind how dangerous these people are.

As for other offenders, however, I take the point about the need to rehabilitate; rehabilitation is often successful, as we have seen from the figures. As I said, I will talk to my hon. and learned Friend the prisons and probation Minister to make sure that all the relevant information is collected in probation reports, which will help a judge when making a determination on the question of dangerousness.

I would like to briefly respond to a point made by the hon. Member for Brentford and Isleworth about indeterminate sentences and throwing away the key, as she put it. Of course, the coalition Government legislated—I think it was in 2012—to get rid of the former sentences of imprisonment for public protection, which had been introduced in the early 2000s, whereby people could be left in prison forever, despite not having been given a life sentence. Those sentences were replaced with extended determinate sentences, so the coalition Government, which of course was Conservative-led, legislated to remove, or significantly reduce, that problem of locking people up and throwing away the key, which the hon. Member referred to in her speech.

I hope that I have explained why this measure is appropriate, bearing in mind the small numbers and the extreme danger that these people represent, and I express my support for the Bill as it is currently drafted.

[Alex Cunningham]

I am grateful to the Minister for his response. However, I am not convinced that we are talking about only a handful of people. The fact that this piece of legislation grows the number of offences that could potentially fall into this cohort suggests that many more people could be caught up in it in the longer term—some of them perhaps not quite such serious offenders as some of those the Minister has described this afternoon.

The Minister says he agrees that we should have an eye to rehabilitation and that we should work hard to achieve rehabilitation. However, if I am right and he is wrong, and we do have dozens or perhaps even more young people falling into this category because of the way the Bill is drafted, there surely need to be some protections there and some opportunity for a pre-sentence report to explore specific issues around age and maturity before reporting to a judge who will make the ultimate decision.

On the basis that this measure could affect many more people than the Minister suggests, and that some of them might not be the most serious offenders, I wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

In my response to the amendment, I described the effect of the clause and the tests to be applied. If those tests are met, the minimum sentence of 14 years will be imposed, followed by a licence period of not less than seven years and not greater than 25. I beg to move that the clause stand part of the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Serious terrorism sentence for adults aged 21 or over: England and Wales

[Alex Cunningham]

I beg to move amendment 38, in clause 5, page 7, line 35, after “25 years.”, insert—

“(5) Where—

(a) a prisoner is subject to a licence for an extension period under this section, and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the National Probation Service, order that the licence is to cease to have effect.

(6) Where—

(a) the prisoner has been released on licence for an extension period under this section;

(b) the qualifying period has expired; and

(c) if the prisoner has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the National Probation Service under this subsection.

(7) Where an application is made under subsection (6) above, the National Probation Service—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(8) In this section, ‘the qualifying period’, in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.”

The main area of concern that has led to the amendment relates to the maximum 25 years on licence specified by the Bill. We of course accept that we cannot have a cliff-edge situation whereby someone leaves prison without any further monitoring, particularly offenders in this cohort. There must be a licence period once the offender leaves prison. The issue is whether a licence period of up to 25 years is reasonable and whether it is a proportionate way of addressing the problem. There is also the concern over the lack of any review mechanism.

A licence for 25 years is equivalent to a licence for life. As well as severely curtailing the human rights of the offender after they have already completed their full custodial sentence, a licence for life also fundamentally constrains their ability to play an active part in society. For example, it would be a constant barrier to employment and—who knows?—perhaps new relationships. We would essentially be telling people that there is no point in them rehabilitating or contributing to society, because they will always be under suspicion—always under the careful watch and restriction of the state. A life on licence reduces individuals’ capability to reform and take positive action. It can have a detrimental impact on the joys of life that can keep an individual on the straight and narrow.

There is also the issue of the administrative burden on an already overworked National Probation Service, which has a financial cost, and which requires additional trained probation officers to deal with those released on licence. I would be interested to know where the idea for a term of 25 years on licence comes from. Is the Government’s intention simply that anyone convicted and sentenced to a determinate sentence of 14 years, with 25 years on licence, should have a life sentence, with the state constantly on their case and without any prospect of being released from it? If so, the Minister should say so. Can he confirm that there is logic in the period that he has decided on? Has he looked at the costs and at whether 20-year licenses, which would naturally be less expensive for the state, might be just as effective?

As I have said, the main area of concern that these amendments address is the maximum 25 years on licence specified by the Bill, which is effectively a licence for life under an indeterminate sentence for public protection. However, unlike the licence for life, the Bill does not allow for the licence to be terminated in certain circumstances. That creates an issue of unfairness, as well as a huge administrative burden, at a cost to the public purse.

I agree with the Independent Reviewer of Terrorism Legislation, Jonathan Hall, who said:

“determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

I personally would not feel confident in making such a decision. Would the Minister?

As I said earlier, there is a concern about existing case law and guidance available for sentencers on identifying terrorism connections when sentencing. We cannot expect sentencers to feel truly comfortable and informed if the frame of what licence they can impose is so broad. It is worth reiterating that a 25-year licence period is not so different from a licence for life. However, whereas licences for life imposed on imprisonment for public protection prisoners could be terminated in appropriate cases, that does not apply to serious terrorism sentences. It feels like the principle of rehabilitation is again being somewhat missed.

I spoke earlier this afternoon about young people. Is it the Minister’s intention that they are effectively to remain on licence until within a few years of the state retirement age? A 14-year term for a 20-year-old means that they will be 59 before they are free of the licence. Will the Minister clarify the merits of 25-year licensing and address young people in particular?

I am a strong believer in people doing their time for violent offences, but with a strong focus on rehabilitation. Our amendment would give them some hope that their good behaviour has paid off after time. Perhaps we need to give people sight of a future where they would live their lives in a very different way—an honest and crime-free way. What, if anything, can the Minister offer those people—particularly younger ones?

[Chris Philp]

The shadow Minister posed a question: why a maximum of 25 years? Therein lies the answer.

[Alex Cunningham]

Maybe I misunderstood, but I thought the 25 years was mandatory.

[Chris Philp]

No, it is a maximum. The licence period is between seven and 25 years; within that, the judge has discretion to choose the most appropriate length of time. The point that I was about to make is that it is up to judicial discretion to decide the appropriate length of time. We ask the judge to make that determination, as we do when setting any licence condition. That is the way the licence system works at the moment. The judge sets the licence period at the point of sentence.

The shadow Minister, quoting the independent reviewer, asked, “How can the judge know in advance what a suitable length of time may be, looking potentially as far as 25 years into the future?” The answer to that question is that although the licence period cannot and in my view should not be varied by the Probation Service acting administratively—that is for the judge to decide—the Probation Service can, and frequently does, vary the terms of the licence conditions; as an offender behaves better over time and matures, or as their radical or criminal behaviour more generally changes as they get older, the licensing conditions can be and are relaxed. The Probation Service does that as a matter of routine, and I would expect and hope for that to happen as time passes.

Were we to give the Probation Service the ability to change the length of licence period, it would be overriding a judicial decision, which is wrong in principle and would possibly infringe article 6 of the European convention on human rights, which says that the Government should not be allowed to interfere with or alter a sentence handed down by the court.

The shadow Minister mentioned the arrangements for terminating licence conditions for indeterminate sentences—that is, the old imprisonment for public protection I referred to previously. As the name implies, those IPPs are indeterminate and indefinite. A judge has not imposed a time limit, so they could go on for the duration of somebody’s life. Some termination mechanism is needed.

Where a judge has made a decision—and it is up to the judge to choose, at their discretion, somewhere between seven and 25 years—it is right that licence condition is applied for that length of time. However, to reassure the Committee and the shadow Minister, I should say that the Probation Service can, as appropriate, relax and change those licence conditions as time passes. That is the right way of handling the issue.

[Alex Cunningham]

I accept the Minister’s explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We have covered many of the operative provisions. They are rather similar to the ones we debated in clause 4, in relation to people under the age of 21.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Serious terrorism sentence: Scotland

Counter-Terrorism and Sentencing Bill (Third sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[The Chair]

Thank you. We move on to the shadow Minister, Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Q Good morning, Mark. I want to reiterate the Minister’s thanks to the people out there who are working so hard—your colleagues in the prisons. I have a prison in my constituency, and I get an insight into the pressures that are facing not just prisoners and their families but prison officers and their families as well.

You recently made a film called “The forgotten service”. In that film, you talk about the lack of support for prison officers, particularly around mental health, and there are other issues as well. Somebody responded to that film by saying—I hope the Chair will forgive the swear word in the middle—

“I left 3 months ago from the high security estate, after 18 years I had seen enough. Too much political bullshit, ridiculous workload, rubbish managers causing dramas, and good managers having to pick up all the pieces”.

Few would disagree that the main measures in the Bill are right, but what needs to happen in prisons to ensure that they can cope with the ramifications of it?

Mark Fairhurst: Mental health is a massive issue at the moment. We are getting more and more members suffering from PTSD. When you take the sentiments in that statement from that member of staff who left the service, I can echo every one of those.

What you have got to understand is that staff on the frontline are doing an absolutely fantastic job. They will monitor individuals’ behaviours and make a referral. The current system goes through a three-stage referral process, with the ultimate decision being made to remove someone from the main population to a separation centre at stage three. Very few of those referrals from staff get approved, because of the red tape and the legal challenges. It seems to staff on the frontline that the legal challenges are the major stopping point and buffer to removing people, who are a real danger in the normal population, to a separation centre.

You will eventually have complete apathy from staff, who keep referring people they think should be separated from the main population and keep getting knocked back. That has a knock-on effect, because, day after day, they have to deal with people who are threatening them, who are underhand, who are trying to radicalise people. Day after day, they know that if they make a referral, there is a good chance that that person will not be moved from the main population.

[Alex Cunningham]

Q Yes, but what actually needs to happen in prisons to overcome some of these challenges that officers are facing?

Mark Fairhurst: You need mental health support. You need some sort of counselling service on site five days a week during the working week. You need training to help staff cope, to spot the signs of radicalisation and danger. There is good training on offer if you work in a separation centre, but not for the main body of staff who work on the wings. You need to recognise that staff are under stress, so you need to rotate their jobs so that they are not in a high-stress situation year after year. We need more staff on site to assist us as well, to help prevent trouble breaking out.

[Alex Cunningham]

Q That is helpful, Mark. I am sorry to keep cutting across you, but we have not got very much time. I want to talk about capacity. In answer to the Minister, you mentioned that a terrorist offender could be offered one of two radicalisation programmes. What is capacity like in the system for providing that sort of programme?

Mark Fairhurst: Spaces in the high-security estate, where most TACT offenders are housed, are at a premium. We have very few spaces at all in a high-security estate. We do have spaces on courses for deradicalisation programmes, but they are not mandatory; the offender has the choice of whether they wish to attend one. That is another issue: do we want to make these courses mandatory, and where is the incentive to go on a course if you know you will not be released early?

If we are going to increase sentences, I suspect that we will need extra headroom. We will certainly need the other two separation centres open, because of the rise of the far right, and we will certainly have to think about a high-security prison—perhaps specifically to house terrorist offenders. Although there are only approximately 230 in play at the moment, it may be an idea to separate them totally.

[Alex Cunningham]

Q Okay. The Minister talked about the fact that the Parole Board would not have any role to play in the future for these determinate sentences. Would you like to comment on that? Will there be a full set of expertise available to prepare society and those who will deal with prisoners outside, if the Parole Board, with its expertise, does not have a role?

Mark Fairhurst: I would like the Parole Board involved more, because it is an independent scrutiny body, but the measures we have in place at the moment are adequate. They work really well with the intelligence gathering from the shop floor, with the assessments and with multi-agency experts, including the security services. I do not think there is much more we can do, but I have no objections to the Parole Board being involved more as an independent scrutiny panel.

[Alex Cunningham]

Q That is helpful. I have one more question. Young people will be subject to the same legislation as older, more mature people. Do you have any thoughts on that with regards to rehabilitation and their future?

Mark Fairhurst: This is another issue. If you look at people under the age of 18 and at female offenders, do we have the capability to house them in a secure environment, or are we going to throw them into the adult estate? Throwing a young person into the adult estate due to the nature of their offence could have an adverse effect, so we need to come up with programmes for young offenders who commit terrorist crimes. I do not think we have that capability at the moment, but rehabilitation of a young person has more chance of success than rehabilitation of someone who is seasoned and radicalised. I feel that we have a big opportunity to make a difference in that field.

[Alex Cunningham]

That is very helpful. Thank you.

--- Later in debate ---

[The Chair]

I suspect that your evidence is extremely useful to the Committee, but I have to ask for slightly shorter answers, please.

[Alex Cunningham]

Q Mark Fairhurst suggested that the radicalisation programmes are far from fit for purpose. You have suggested that yourself. You have also talked about the various different issues that a prisoner may be facing. Can you develop a little bit more what needs to happen? You talked about investing significantly, so there must be insufficient resources in the system. What actually needs to happen?

Professor Acheson: The amount of skill and training required to staff separation units—we know that only one out of three is running at the minute—is significant. If you are putting our frontline prisoner-facing staff, who will have the most influence and impact on individual terrorist offenders, in that sort of environment, it will take a huge amount of training, not only in the skill to deal with those prisoners, but in psychological resilience and so on. We know what seems to work in relation to violent extremism across Europe: it is the development of long-term, high-quality relationships, which are pro-social and expand far beyond the prison gates. That is very expensive, and it takes a lot of support to put that in place and to maintain it.

[Alex Cunningham]

Q We have talked about the fact that the Parole Board will not have a role for prisoners who have a determinate sentence. Would you like to comment on that, because of the level of expertise that they bring to that package you were describing earlier?

Professor Acheson: This is not a very auspicious time to talk about the Parole Board, but it is very good at managing ordinary offenders, and statistics would bear that out. I have said this earlier, and I do not want to repeat myself, but I do not believe the Parole Board is philosophically or organisationally the best suited to managing that risk. It is very good at managing ordinary offenders, but we have a new cohort coming through of profoundly different, ideologically motivated offenders, either through Islamism or through extreme right-wing philosophies, and we probably need a different, multi-agency approach to managing that risk all the way through the system.

[Alex Cunningham]

Q During these evidence sessions, I have been concentrating on the fact that young people will be treated the self-same way as older prisoners in relation to determinate sentences. Do you have a view on that, particularly as the immaturity of a younger person may lead them to act in a particular way, but their opportunity for rehabilitation is probably greater?

Professor Acheson: I agree that the potential is greater, but I think sometimes we confuse vulnerability with dangerousness, and we use that in relation to young people and women. We have some very dangerous extremist offenders in either camp—very few of them, but we do have a small number—and we must not conflate the two.

In general terms, and I speak as somebody who worked for the Youth Justice Board, we need, where we can, to ensure that the disposals that are at the judge’s discretion, including detention and training orders and some non-custodial interventions, are still considered heavily before penalising people who, as you have said, may be just immature.

[Alex Cunningham]

Q I watched a film with you in it, where you were talking about the circle of trust and accountability. Would you like to develop that in a quick answer?

Professor Acheson: The circle of trust and accountability is a system devised by Mennonites, I think, in Canada, where one of their community had been convicted of a high-profile sex offence and was returning to the community. That group of people said, “How can we welcome this person back into our community”—because that was the Christian ethos—“but also keep our kids safe?” They devised a system where there was community involvement in a circle around the individual, which managed to help him to reintegrate properly but protected the community as well.

I am very keen on that idea being replicated for terrorist offenders after release in the community, as a parallel to the state’s responsibility to keep people safe. In other words, there could be a community response like that one, where we are getting members of the community involved in protecting national security. We miss a trick in this country—research backs this up—in that we do not, particularly in relation to Muslim communities, enlist ordinary members of the community who have some standing and some credibility in supporting the reintegration of terrorist offenders.

Those offenders will suffer many of the same challenges that sex offenders do: shame, difficulty in finding somewhere to live and difficulty in finding something to do. All those things would point towards further offending and delay disengagement, so I am very keen on the concept being looked at in relation to released terrorist offenders here.

[Alex Cunningham]

Q We are a long way from anything like that happening in the UK.

Professor Acheson: I think we probably are. We are outriders in that respect in relation to the rest of Europe, which does heavily involve non-governmental organisations and community groups, for example, in reintegration. We have seen that in the Molenbeek suburb in Belgium, which is responsible for producing quite a number of jihadis, where the community has been involved and works in partnership with, although separate from, the statutory bodies whose first priority is safety and security. That is a necessary but insufficient way of dealing with the problem.

[Kenny MacAskill]

Q Mr Acheson, you are well sighted on the Scottish system with the Risk Management Authority and the order for lifelong restriction. You talked about good regime designs not being punitive, but the imposition of a significant sentence without the opportunity for early release must appear to be so. Do you think that the order for lifelong restriction is perhaps the better option for many who are convicted by a court, rather than a mandatory sentence?

Professor Acheson: I am not sure which would work better. I am certainly on record as saying that I support the Government in much longer sentences for terrorist offenders, primarily because it is a unique opportunity to incapacitate an ideologically motivated offender and bring services around that individual. Those services need to be extended through the gate and into the community.

We need to focus on this as a national security issue that we need to deal with in a different way, so lifelong restriction may have its merits. The key thing is that we make sure that support and control exist around offenders who are being released and who may go back into extremist offending, so that in whatever way we apply restrictions on their liberty—including TPIMS, for example—we do it in a proportionate way. There is absolutely an argument that punitive measures increase alienation. I think that might be a trade-off, in some respects, for people with whom we may never be satisfied that they are safe to release. We have to embrace the idea that there will be a few offenders who must be kept in prison indefinitely, because they either cannot or will not recant a hateful ideology, and they have the means to mobilise that into violence in the community.

--- Later in debate ---

[Chris Philp]

Q Thank you. Would you agree that the historical involvement of the Parole Board in offering the possibility of early release does not really have any meaningful impact on prisoner rehabilitation or behaviour? Or to the extent that it does, that it may simply stimulate false compliance—pretending to comply with deradicalisation programmes in the hope of securing early release?

Professor Silke: It is a complicated question. In general, I agree with Mark Fairhurst’s point that the potential for early release is an important incentive for behaviour in custody. If we lose the potential for early release, we are losing a tool from the toolbox, and we need to question whether that is sensible, or whether there are advantages in keeping it in some shape or form.

Does false compliance happen? Yes, it certainly does, but if we look at reoffending stats, compliance seems to be genuine in most cases. Nobody has a 100% effective intervention for dealing with these types of prisoner or any other type of prisoner, so we should never expect an intervention to be 100% accurate. However, the stats suggest that what is happening in prison with most terrorist prisoners is currently effective, and so if we are making changes to the regime and to the interventions, we need to have a careful think about what the knock-on consequences might be.

Personally, I prefer still to have the potential for early release at some stage as a tool in the toolbox for these serious offenders. I think it can make a difference in some cases. From my perspective, the Parole Board usually brings a serious and considered assessment of the available evidence in a particular case, which is often very welcome. Again, by removing that from the equation, are we losing something that has value?

[Alex Cunningham]

Q Good morning, Professor Silke. Are the current deradicalisation programmes in prisons fit for purpose? If not, what needs to happen?

Professor Silke: The problems are relatively new. My view is that they work far better than most members of the general public want to think. Again, the proof is in the very low reconviction rates that we see after people have been released. If it is working in the vast majority of cases, that is an encouraging sign. If there are failures, we need to look into that. One thing that the Bill does not do in its current format is try to identify what is different about the failures compared with the rest of the prisoners who are being released—what went wrong in their cases compared to the others? I am not sure that we are getting at that at the moment.

The evidence base around both risk assessment and interventions for terrorist prisoners is in development. It is massively better today than 10 years ago, and I think it will continue to improve. I know that the Ministry of Justice is involved in a range of programmes to improve the evidence base around ERG and healthy identity intervention, which I strongly welcome. Many Governments are involved in similar efforts overseas.

[Alex Cunningham]

Q You talked about the potential for early release and how important that can be. I do not think any of us here are advocating that the more senior offenders should not serve the full 14 years, but do you think that the Bill has the right approach to terrorist offenders under 21?

Professor Silke: That is a very good point. There are differences between very young offenders and the older, more established offenders, and I am not sure that that necessarily comes across strongly in the Bill. That is probably an area where our understanding is more limited than it should be. It needs more attention and research.

[Alex Cunningham]

Q The Bill does not recognise that they are any different, in the way it is formatted at the moment. How could we improve it?

Professor Silke: One of the things we will need to do is refine it, in terms both of risk assessment and intervention, to tailor it more for younger offenders. At the moment, there is a question mark over whether what is currently available has young offenders firmly enough in its sights.

[Alex Cunningham]

Thank you.

[Kenny MacAskill]

Q Professor Silke, I do not know whether you are aware, but in Scotland there is a sentence called the order for lifelong restriction, which is indeterminate but allows for release or indeed for detention to continue. Given your views on the benefit of some sort of early release being available for those who show remorse or rehabilitation—indeed, the avoidance of people being released at the end of their determinate sentence because they have served it—do you think that an order for lifelong restriction may be a more appropriate sentence for some terrorists in Scotland?

Professor Silke: Honestly, I do not know enough about how it works to make an informed assessment of it. I am always cagey about anything indeterminate, which might imply indefinite detention. The advantage of having a fixed term, rather than something quite open-ended, is that at least you know exactly what you have to work with.

Counter-Terrorism and Sentencing Bill (First sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

I think that we had better move on. Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Q It is a pleasure to serve under your chairmanship, Mr Robertson.

I, too, am grateful for the work that you do, Jonathan. I want to ask you a number of questions away from TPIMs; my hon. Friend the Member for St Helens North will deal with that issue. You have produced three notes on the Bill, and I want to address questions from two of them—it might be helpful for the notes to be entered as written evidence.

Point 10 of your first note states:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

That strikes me as a cautionary note, and I invite you to talk a bit more about that. How specifically will this piece of legislation be different for younger offenders?

[The Chair]

Mr Cunningham, can you please clarify which document you are quoting from?

[Alex Cunningham]

I am referring to the Independent Reviewer of Terrorism Legislation’s “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”.

Jonathan Hall: I have identified what is really a policy choice for Parliament. As a matter of fact, I can say that an increasing number of quite young people are being caught up in terrorism, including new forms of terrorism—not just conventional Islamist, extremist or right-wing terrorism, but other new emerging forms, such as the incel movement or even things at the very boundaries of what you might consider terrorism that are very violent. It is not impossible that young people will be caught up in this.

The point I am making—I have referred to an authority from England and Wales and I think I have also referred to the approach in Scotland—is that there is recognition that people who are young and immature are probably more susceptible to change than adults. I suppose it is a choice for Parliament, but the age for a mandatory minimum sentence—meaning no prospect of early release, and effectively putting to one side the possibility of reform—might be raised to 21, rather than that being for those in the 18-to-21 bracket. I understand that in Scotland there is a debate over whether it should be as far as 25.

All I can do is identify the choice that has been made and point out that when it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 as opposed to one month under 18.

[Alex Cunningham]

Q But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.

Jonathan Hall: That is what judges are increasingly finding.

[Alex Cunningham]

Q In paragraph 13 of the same report, you talk about imprisonment for public protection orders possibly being used for this cohort of offenders, but you go on to say:

“Conversely, determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

What would be your advice to the Committee on that particular issue?

Jonathan Hall: I have imagined putting oneself in the position of the sentencing judge, who is faced by someone who has carried out a very serious attack planning offence, risking multiple casualties, and let us say they are 25 or 30. As I think I have said before, it is very hard to judge terrorist risk. It is particularly hard for sentencing judges, because they operate on an open basis; they are not going to look at secret intelligence, for good reasons. So the judge’s task is particularly difficult at the point of sentence, and it seems to be quite difficult for a judge to work out sentencing for a 25-year-old who has committed a really serious attack planning offence. When they are released from prison, are they going to be worth monitoring for seven or for 25 years? Again, it is a choice for Parliament.

What I have identified, I suppose, is that if one were going to impose a mandatory sentence, there might be thought to be more sense in imposing an indeterminate sentence—in other words, where someone has fallen into this category of really serious offending, realising that they could be a risk for life and keeping them in prison for life, unless and until they are seen as safe to be released, and then once they have been released, keeping them on licence for life and giving the flexibility to the authorities, which includes, I should say, where eventually someone, one hopes, is no longer a threat, to roll that up and bring that licence to an end; because there is a slight risk of storing up trouble for future generations if you have increasingly long periods for licences. When they are no longer necessary, how do you bring them to an end? I do not think there is that scope at the moment. To answer your question—I am sorry to have gone on so long about that—

[Alex Cunningham]

Q That is okay. There is the younger person dimension in this area as well.

Jonathan Hall: Very much. One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, “I have now genuinely changed; that was me then and this is me now,” where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say “unfair”, but it fails to recognise the difference between adults and children.

[Alex Cunningham]

Q The Minister addressed the issue of the Parole Board and the lack of its role for people given these determined sentences. I wonder whether there is potential for some form of role there. The Minister’s Bill basically dismisses the Parole Board and leaves it to everybody else. Do you have a view about how we could perhaps persuade the Minister that there is a real role for the expertise that the Parole Board brings to this situation?

Jonathan Hall: I do not want to get into the role of persuading anyone. If you like—

[Alex Cunningham]

Q I was just being mischievous.

Jonathan Hall: The practical point is one I have addressed, which is that identifying terrorist risk is really difficult. The role of the Parole Board is quite an important part of identifying terrorist risk, and if you don’t have that role then you lose that insight.

[Alex Cunningham]

Q There has been some discussion out there in the world, where people are discussing the Bill, about the sentencing code and what the definition is of an act of terrorism. It is defined in section 69 of the sentencing code, which says that

“an offence has a terrorist connection if the offence—

(a) is, or takes place in the course of, an act of terrorism, or

(b) is committed for the purposes of terrorism.”

Do you think that is clear enough to aid the courts, or do the Government need to provide more clarity in the definition?

Jonathan Hall: I think it is clear enough. It is taken from the Counter-Terrorism Act 2008. It is now being incorporated into the new sentencing code and it has worked well.

[Alex Cunningham]

Q The Law Society has provided us with a brief brief, in which it addresses the issue of polygraph testing. It says, for the record: “The Law Society does not agree that polygraph conditions should be placed on individuals released on licence.” That is quite a bold statement. The Law Society suggests that we should ensure that the Bill is not a stepping-stone towards the wider introduction of polygraph testing. May I invite you to talk about polygraph testing, because you did refer to it in your note, and ask what your view of it is when it is used in this particular context within the Bill?

Jonathan Hall: It is consistent with my point about not losing sources of information. Because it so difficult to identify whether someone will commit a terrorist offence, and as the Usman Khan case perhaps demonstrates, there are difficulties in managing released terrorist offenders or predicting what they might do. Polygraphs provide an additional source of information.

I came at this subject reasonably fresh; I read the literature on the use in England and Wales with sex offenders. I can see that the number of clinically significant disclosures is really material, and it seems to me that it would be very sensible to use that in the same way—so you ask, “Have you been on the internet?”, as a closed question—for terrorist offenders.

So, it is an additional source of information, which I think it would be sensible to use. It would do two things. One is that in certain cases it would allow the authority to find out when they are being gamed and played by manipulative and deceptive dangerous offenders. On the other hand, to some extent it would reduce the burden of the authorities. That is because the police and probation service face really difficult choices in this area. There will be a natural caution, for example, about removing someone’s licence condition. However, if you can use a polygraph test and satisfy yourself that someone is telling the truth, then it may allow you to remove some conditions and allow someone to normalise. And although that sounds odd in the context of terrorist offenders, ultimately you want people who are released to engage in a normal way in society—in other words, allowing them to get jobs and to live in their home area, and the like.

[Alex Cunningham]

Q That was very helpful. Finally, there is the need for additional expertise in the field, whether that is to do with the probation service or elsewhere, for the management of offenders under the 25-year licence, which will be considerable. Is that something that you have considered?

Jonathan Hall: I know, from when I did the review of the multi-agency public protection arrangements, that a lot of resources are being put into this area, and there are special probation officers trained in counter-terrorism. I do not think I can comment on how much resource you need for 25 years, but a lot of resource is being put into the area, which is to be welcomed.

[Alex Cunningham]

Q The Government have tabled some 17 pages of amendments to the Bill, which you may not have seen yet; they were only published on Tuesday.

Jonathan Hall: I have not seen them.

[Alex Cunningham]

The question is probably useless, then. I was going to ask whether they had reassured you that things had changed for the better, but clearly you have not seen them.

Jonathan Hall: No. I am sorry; I have not seen them.

[Joanna Cherry (Edinburgh South West) (SNP)]

Q It is a pleasure to serve under your chairmanship, Mr Robertson. Mr Hall, may I add my thanks to you for your service to all of us as parliamentarians? It is much appreciated, as were the notes that you prepared in advance of the Bill.

I will start by asking you a couple of questions about the effect of the proposed sentencing changes in Scotland. You have produced a “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (3)” that deals with the effect of the proposed sentencing changes in Scotland and Northern Ireland. In particular, in paragraphs 8 and 9, you raise the question of how what is proposed for Scotland under clause 6 of the Bill impacts on the existing sentence in Scotland called an order for lifelong restriction. Can you tell us about that?

Jonathan Hall: Scotland has a unique sentence. It has a very respected body called the Risk Management Authority, and if a risk assessment is made under the auspices of the authority that shows that someone is a real risk, the High Court in Scotland can pass an indeterminate sentence with a punishment part, but with the consequence that someone is liable to be detained until they are safe enough to be released, when they are released but very carefully monitored.

I do not know whether this was intended or an oversight, but it seems paradoxical that, as things currently stand, if a judge in Scotland found that the criteria for a serious terrorism sentence were made out, he or she would have to pass a determinate sentence, if they did not otherwise pass a life sentence, even if ordinarily they might want to pass one of these orders for lifelong restriction. One would have thought that an OLR would provide more protection for the public than a determinate sentence. I do not know whether that has been dealt with in the amendments that have just been referred to.

--- Later in debate ---

[Chris Philp]

Q Thank you for making that extremely clear. I am sure that the Committee will pay close attention to the advice being given to us through you by the security services. I have one more question on TPIMs, relating to the current two-year expiry date and the proposal to make them annually renewable. They will not be indefinite unless the threat is indefinite. Do the security services for whom you speak see a threat to the public as a consequence of the gaps that we have heard Mr Hall describe: the 12-month gap in one case and the 16-month gap in the other?

Tim Jacques: Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.

[Alex Cunningham]

Q There is a very helpful question on our briefing paper about the danger that measures perceived as oppressive and disproportionate may alienate individuals who could otherwise be rehabilitated. Do you have a view on that, particularly in relation to younger people, who might be a little immature?

Tim Jacques: I certainly have a view on that. From a policing perspective—I do not think it is any different for our operational partners—there are two trains in place here: one is punishment and incarceration, which was mentioned earlier; and the other is rehabilitation, desistance and disengagement. Ultimately, the best outcome is the latter: we change the individual’s mindset and view of the world, and mitigate the risk that they pose to the public in an enduring manner. Anything that promotes that prevent, disengagement and deradicalization position is to be welcomed.

Both those options are considered with TPIMs, and indeed with most of the work that we undertake. Both protect the public, if successful. We are conscious of that and drive both of them. Counter-terrorism policing operates across all the Ps of the Government’s counter-terrorism strategy, called Contest, and prevent and pursue are included in that.

[Alex Cunningham]

Q Specifically on rehabilitation, do you think we need to amend the Bill to give younger people an opportunity to appear before the Parole Board. Should they be managed differently?

Tim Jacques: I cannot comment in detail on the Parole Board element of it. If we can encourage people via the use of TPIMs and the programmes that TPIMs include, that would be a good thing, but the intricacies of sentencing and release are beyond my expert knowledge.

[Alex Cunningham]

Q There is much talk in the Bill about polygraphing. Do you believe that introducing polygraphs in this area will drive the benefits that the Minister hopes for? Are you satisfied that the science around them is good enough, and that they provide real value?

Tim Jacques: There are two elements, as I understand it, where polygraphs are introduced: one is in licence conditions and the other is the use of TPIMs. I can certainly talk about the latter, but maybe not the former.

It is safe to say that the science around polygraphs is not absolutely fool-proof. For that reason, we and the CPS agree that we would never seek to use them as evidence in a criminal prosecution in the UK. By introducing polygraph measures in these circumstances—in TPIMs—you may end up with that evidence through disclosure, not for criminal prosecutions.

The reality is that polygraphs are untested in the terrorist space, but we would welcome the ability to pilot them. We would not necessarily be seeking mandation on every single TPIM. It says “if required”, and again that should be an operational decision for us. They are untested, which is why they are not used in criminal proceedings. They have utility in the management of sex offenders, as Jonathan pointed out, and they may well have utility in the management of terrorist offenders. We would be happy to try that and see where it takes us.

[Alex Cunningham]

Q So you would want to see a trial, rather than wholesale introduction?

Tim Jacques: Our point has always been that polygraphs are something that may have utility. If the Bill enables that utility, we would be very happy to try that, but whether to use them is an operational decision. They are untested, but the Bill enables them to be tested.

[Alex Cunningham]

Q Do you have any concerns about the fact that this cohort of offenders will be released into the community without the involvement of the Parole Board? They are just taken out and simply released, although I know that other work will go on. How do you feel about the fact that there will not be the expertise of the Parole Board behind any decision for them to be released into the community?

Tim Jacques: I do not want to dodge the question, but these people will come out of prison at some point. My understanding of the measures in the Bill is that they will come out later, rather than sooner. We have to manage and mitigate the risk as and when they come out. We have to manage them when they come out, and they are going to come out at some point. That is the point for us.

[Joanna Cherry]

Q I have just a couple of brief questions. You have mentioned three potential justifications for lowering the current standard of proof. You will be aware that the Independent Reviewer of Terrorism Legislation does not consider that there is any justification, but just let me cover a couple of the points that you raised. Jonathan Hall tells us that at present there is something called a new variant TPIM, which has been used by the security services, and that is a means of using the existing law to reduce the administrative and litigation burden on the authorities, which really means that when fewer measures are imposed on individuals, it is not necessary to establish in evidence every chapter and verse of an individual’s terrorist-related activity before a TPIM can be imposed. Mr Hall seems to envisage that the existence of these new variant TPIMs is sufficient to reduce the sort of administrative and motivation burden on the authorities that you have described in relation to sensitive material and a rapidly increasing risk. Do you see his point?

Tim Jacques: I do see his point, yes. The new variant, as Jonathan describes it, is about using fewer measures and can include, of course, not relocating the subject, which was a matter of discussion earlier. Because each measure has to be justified as necessary and proportionate to the Home Secretary and then approved by the court, of course each one of the measures and the case for each one of the measures can be, and very often is, challenged on behalf of the subject. In simple terms, the fewer measures there are, the less opportunity there is for challenge and the less need for administrative work to deal with that. That is where that comes into play. It is MI5’s view that potentially there is further opportunity for them to get engaged in that if there is a lower standard of proof, and for disclosure of sensitive material potentially.

--- Later in debate ---

[Joanna Cherry]

I would like to add to what Julie Marson said. I do not think we can say often enough how much we and our constituents appreciate the risk that police officers put themselves in. You are there for us. I think all political parties would want to associate themselves with that. Thank you.

Tim Jacques: Thank you.

[Alex Cunningham]

On a point of order, Mr Robertson. Given that the Government have tabled 17 pages of amendments to the Bill, would it be in order for us to invite Mr Jonathan Hall to provide a further note on the Bill?

Counter-Terrorism and Sentencing Bill (Second sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

Order. I have to interrupt there, Mr Dawson, because I am conscious of the time.

[Alex Cunningham (Stockton North) (Lab)]

Q Thank you very much, and good afternoon. I want to address the issue of young people—that seems to be my theme of the day. The independent reviewer said that, when it comes to these sentences, age—the only basis on which the 14-year minimum sentence can be avoided—may not result in exceptional circumstances being found. I see that as a cautionary note. Do you have a view on that?

Peter Dawson: Yes. There is evidence that the Committee may want to look at on this. There has been a movement for about a decade called the Transition to Adulthood Alliance, which has looked very hard at evidence of maturation in young people—the physiological evidence.

There does now seem to be general acceptance that for most young people the process of maturing certainly does not conclude before the mid-20s. There is a consensus, really, that if you are interested in dealing with people according to their maturity, you should look at the age of at least 25. It is even more marked, of course, for children under the age of 18.

Tragically, many of the people who are committing offences of this nature are very young. That does not take away from the fact that they are young and very immature—very susceptible to being led astray and very likely to change dramatically from the moment they commit the offence to their mid-to-late 20s, when that maturation has happened. The risk—

[Alex Cunningham]

Q Let me interrupt you because we need to crack on. How could the Bill be improved to take into consideration the factors that you have just raised?

Peter Dawson: The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24. At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.

[Alex Cunningham]

Q I am grateful for your written submission to the Committee. You were talking about parole and the Minister mentioned it earlier. What role could there be for parole in the new regime that the Government are proposing?

Peter Dawson: I would simply leave the extended sentence provision as it is and have a discretionary release element in the sentence of particular concern. We know that parole works well. Of course there are cases where people go on to offend, but that is rare and the Parole Board has a very good record of success in relation to people who do not commit serious crime in future. We have an institution that works. Let us take advantage of it because of the impact it has on the management of the sentence and the likely future behaviour of the person.

[Alex Cunningham]

Q Again, the question has to be about what needs to change in the Bill to take into account the issues that you have raised.

Peter Dawson: There needs to be a discretionary release element in all extended sentences with no exclusion for terrorist offences and no exclusion for the new sentence. The new sentence needs to be designed in a way that includes a discretionary release element. It is for Parliament to decide where that falls; I would say that the obvious thing to do would be to have the discretionary release at the halfway point and a possible release on licence at the two-thirds point, although I understand that Parliament may want to reflect the perilous nature of the offences with a different division of the sentence.

[The Chair]

Maybe we should move on. I call Joanna Cherry.

--- Later in debate ---

[The Chair]

We can squeeze in one last question, if you are quick, Mr Cunningham.

[Alex Cunningham]

Q In your written evidence, you say:

“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.

How can we improve the Bill to achieve that careful monitoring?

Peter Dawson: It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.

This is not about Parliament’s intention and it is not about the equality assessment. It is about the behaviour of people on the ground who are not properly aware, when faced with someone from the Muslim faith, that, overwhelmingly, prisoners from the Muslim faith have not committed offences connected with terrorism and would not dream of doing so. Most prisoners see their religion as something that provides structure and help in their life, not something that motivates them to perform criminal acts. None of that is well understood generally, and I am not sure that it is always well understood in prisons. So that unconscious bias—that unwitting prejudice—risks disadvantaging people in all sorts of different ways, from the way complaints are handled to their privilege level in the prison—

[The Chair]

Order. Mr Dawson, I am afraid I will have to call you to a halt as we have run out of time. Thank you very much for your evidence to the Committee.

Examination of Witnesses

Les Allamby and Dr Hannah Russell gave evidence.

--- Later in debate ---

[Alex Cunningham]

Q Your counterpart, the Law Society of England and Wales, said in its written evidence that it does not agree that the polygraph condition should be placed on individuals released on licence, and it goes on to say that a negative polygraph reading on its own should not be sufficient to justify a recall to prison. Do you share that view?

Michael Clancy: I have great respect for the Law Society of England and Wales’s positions most of the time. As you will have seen from our memorandum of comments, we have reservations about the use of polygraphs. In particular, we think that there is an issue about the reliability of polygraphs. They have been used in England and Wales, but they have not been used in Scotland. One point that I would like to pick up on is that the adaptation of Scottish criminal procedure through the Bill to provide for polygraphs is something we would have liked to see further consultation on, with greater explanation of how this would work before it is fully imported into the legal system in Scotland. I know that considerable advances have been made in neuroscientific technologies, such as the use of polygraphs, but in many instances in the United States—I draw your attention to the Supreme Court case of US v. Scheffer in 1998—there were considerable concerns about the reliability of polygraphs. That concern has persisted since that time, to such an extent that we have to be quite careful about citing American jurisdictions, because some of them do not allow for any—

[Alex Cunningham]

Q Okay, we can leave that one there and move on to a question about parole. As you know, the Parole Board does not have a role where somebody has been given a determinate sentence. Do you have any concerns about the fact that the Parole Board has been taken out of the equation and will not have a role with those particular offenders?

Michael Clancy: Of course, the Parole Board for Scotland is not referred to much in the Bill—only in a couple of instances. We would need to take a further look at exactly how the implications of the Bill work for the Parole Board for Scotland, which has its own particular arrangements. I will therefore pass on that question as to its effects on the Parole Board for England and Wales.

[Alex Cunningham]

Q Finally, the provisions are the same for young people as they are for adults. Do you have a view on that?

Michael Clancy: As you will have seen from other evidence that has been submitted, the aspect of children and young persons is quite significant for Scotland. I refer in particular to paragraphs 21 to 27 of the submission by Jonathan Hall, the Independent Reviewer of Terrorism Legislation, which clearly discuss the effects on children and young people in Scotland. He says:

“The proposed application of the serious terrorism sentence to offenders aged 18 to 21 in Scotland raises starkly the question of whether there is a bright line between offenders above and below…18. This is because the Scottish Sentencing Council is currently consulting on its third draft guideline, ‘Sentencing Young People’ and proposes that special sentencing principles should apply to offenders up to the age of 25.”

For all who are interested in the Bill, it would be helpful to know the extent to which the Government have been able to consult with the Scottish Sentencing Council about the provisions affecting children and young people in Scotland, particularly as they are carrying out the current review.

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Good afternoon, Mr Clancy. Can I follow up on your reference to Jonathan Hall’s notes? You will have seen that Jonathan Hall has also prepared a note—his third—on the implications for sentencing in Northern Ireland and Scotland, which I think you referred to in the written evidence you lodged. That is correct, is it not?

Michael Clancy: Yes, I believe so.

--- Later in debate ---

[The Chair]

Otherwise, we will have too much.

[Alex Cunningham]

Q We have heard very different views on the use of polygraphs. The assistant chief constable, Ted Jacques, said this morning that maybe a trial would be a good idea before it is rolled out in this particular piece of legislation, and Les Allamby said it is untested in this environment, which I suppose is one and the same thing. Is 80% accuracy good enough to recall somebody to prison?

Professor Grubin: Nobody is recalled on the basis of a failed polygraph test. That is the important point which people often misunderstand.

[Alex Cunningham]

Q But the Government seem to be depending on it now.

Professor Grubin: No. The sex offender work is, in effect, a pilot for this, because even though the risks are different the underlying principles are the same: there are individuals who are a cause for concern and you have time to intervene if you are picking up warning signs. If they are making disclosures that indicate that the risk is increasing, that would be grounds for recalling them to prison, but that is because of something they have told you. If they told you in another setting, if they said it in an interview with a probation officer, they would be recalled on that basis as well. If they simply fail a polygraph test but they do not make any disclosures, nothing happens to them. The questions on which they failed are explored further and to say, “Maybe this is wrong, maybe one in five times it is wrong, but maybe there is something there that we have missed and we have to have a closer look.” That is followed up by further interviewing with the offender. There may be other investigations that are put in place. We have a lot of examples, with the sex offender work, where that has happened. I would say, in a way, that the sex offender work is just a very large pilot for this application.

[Alex Cunningham]

Q It is interesting that you should major so much on disclosures, because, as you know, the Bill takes away the role of the Parole Board in determining sentences. That is the source of a tremendous amount of data for the authorities. Do you have a view on that?

Professor Grubin: I am not quite clear what you are asking. In terms of the disclosure, this is after they have been released so the tests are not being run in prison, they are being run in the community, so any issues with the Parole Board I do not think are directly relevant to the polygraph testing.

[Alex Cunningham]

Q Okay. Finally, on young people, I have reservations about the Bill applying to young people in the same way and the same applies to polygraph tests. I wonder if you would like to comment on that directly in relation to young people, bearing in mind more general issues about mental health and the effects of such a regime.

Professor Grubin: There are two aspects: one is mental health and one is young people. I share your concerns regarding young people. It depends on what sort of age we are talking about. Certainly, I have had discussions about what an appropriate age might be. I am very clear that certainly any individual below the age of 16 should not be subject to a polygraph test.

[Alex Cunningham]

Q So a child of 17, it is okay for them to be subject to polygraph testing?

Professor Grubin: You say “subject”—that is probably not the right word. The reasons why you would not want to use it under 16 are, first, we are not sure that brain development means the polygraph will work in the same way as it does with adults. We know there is a big change in brain development around the time of puberty. Around the age of 16, I think things are adult-like enough to mean that polygraph testing will be valid.

[Alex Cunningham]

Sorry to interrupt you, but colleagues in Scotland are suggesting that you do not have full maturation until the age of 25.

Professor Grubin: It is actually a bit older than that—I have seen 29. It is not a question of full maturation; it is a question of whether the brain has matured enough so that the polygraph works in similar way to how it works with adults. Again, there is a lot of confusion about what a polygraph detects. It does not detect lies; we know that. It detects activity within the autonomic nervous system that reflects cognate processing in response to questions. By the time somebody has reached the age of around 16, that looks similar to an adult’s.

[Alex Cunningham]

Q And the mental health issues?

Professor Grubin: That is an issue for training and oversight. There is an important thing for me with polygraph testing. A lot of the criticisms of it are not about polygraph but bad practice and the limitation of polygraph. It is very important that examiners understand issues around mental health and mental illness. If there are problems, they can either adapt their testing to take that into account or not do the test, depending on what the circumstances are.

[Alex Cunningham]

Q That is helpful, but what do we need to do to improve the Bill to make sure that the issues you have just mentioned about mental health, mental health capacity and illness are taken into consideration?

Professor Grubin: I am not sure that that is something you can legislate for, apart from saying that there needs to be proper training and proper supervision. My concern always is that, being Government, one day somebody will want to save a little bit of money and will say, “We don’t really need this supervision quality control. They can just get on with it.” That is where I think danger lies. Provided that there is proper supervision, I do not know how much further you can legislate.

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Professor Grubin, your evidence is fascinating. I think the reference to the pilot project earlier might have been in relation to jurisdictions where polygraph testing is not currently used. You will gather from my accent that my jurisdiction is Scotland—I have a legal background—and we do not use it there. You say it is part of a suite of risk management measures, so it is not pivotal but part of a suite. The previous witness pointed out that Jonathan Hall has written about Scotland’s very highly respected Risk Management Authority, and at present it does not use polygraph testing. If it were to be introduced in Scotland, it would require a pilot and various steps to be taken before it could be rolled out. I think that that is what he was referring to.

Professor Grubin: I was a member of a risk management authority for a number of years, so I know how they work and what they look at. When you talk about piloting, are you looking to get disclosures that will have the same levels of accuracy? There is no reason why a Scottish offender should be any different from an English or American one. The polygraph should work in the same way. There is a lot of experience now on how to implement. From my point of view, this is one of the few things where we have been able to scale up from pilot studies to actual implementation and to continue to keep its integrity and keep it working. I do not see why any of that would be any different in Scotland. I appreciate there are resource and training issues, but that would not be a reason not to pilot it. That would be a reason to get the training and implementation issues in place.

--- Later in debate ---

[Laura Trott]

Q I have a quick follow up to that. In terms of the formulation of questions, with the sex offender work that has been done so far, how has that worked most effectively? What lessons can be learned from that when we think about applying it in terrorism offenses?

Professor Grubin: It is very similar. In sex offender testing, the majority of questions relate to their licence conditions and they are asked specifically about those conditions. You have to remember in a polygraph test and a screening test you get, at most, three relevant questions, so if they have 15 licence conditions you are only going to be able to test three of them. You can ask about all of them during the pre-test interview and, of course, the examinee won’t know which ones he will be asked on the test, which is why you get disclosures.

By and large, they are about licence conditions, and I would think that with this group that is what they would be. The things you would be interested in are undisclosed internet devices, have they been in contact with certain individuals, have they travelled to certain places and those sorts of question. The sex offenders are also asked about fantasies, but I am not sure that you would be particularly interested in that with this group.

[Alex Cunningham]

Q My hon. Friend the Member for Brentford and Isleworth talked about people with disabilities in relation to polygraph testing. You said that the success rate goes down to about 60%. Is that a fair success rate to be used as part of the evidence for a recall to prison?

Professor Grubin: Either I have either misunderstood you or you have misunderstood me. Were you referring to intellectual disability?

[Alex Cunningham]

Yes.

Professor Grubin: I think what I said was when IQ gets down to around 60; I did not say that the accuracy was around 60. I said that it becomes less accurate as the IQ lowers and that we typically would not test somebody with an IQ below 60.

[The Chair]

Minister, I think I promised I would come back to you.

Senior Courts of England and Wales

Alex Cunningham Excerpts

Wednesday 10th June 2020 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

I shall be brief; I have just a few comments and a couple of questions for the Government.

This is the fifth time that I have seen the Minister in the past four sitting days, as we have sat on our respective Front Benches, and the fourth time that he has the Opposition’s support for a piece of legislation. But neither I nor the Labour party are going to start going soft on the Tories. Far from it—as the Leader of the Opposition said when he was elected, when the Government get it right, we will support them, whilst holding them to account.

We on this side of the House have demonstrated in the past that we support measures such as the online streaming of public court cases to create a more transparent and fair justice system, and I hope the move towards supporting digital justice where possible extends well beyond coronavirus and becomes a substantial part of our justice system. But whether in court hearings or the recording of court proceedings, digital justice must be done properly and be seen to serve justice in every situation.

This instrument will facilitate live streaming of family Court of Appeal cases, allowing the broadcasting of judgments and advocates’ arguments in family cases in the Court of Appeal. It is a positive move, which will allow the public to see what happens in court in one of the most sensitive areas, and it will allow them to hear the decisions of judges in their own words.

I hope that Ministers may even take the opportunity of watching proceedings from the family court and others, particularly when people are forced to represent themselves in what are often complex legal matters because of the absence of legal aid. I hope that the Government will learn from the broadcasts and that they can find a way to make the system work more fairly and effectively.

Family proceedings are often regarded as insufficiently transparent, and this motion will go some way towards tackling that and helping people who are totally bamboozled by the whole court process. However, in such a move consideration must be given to matters such as protecting what are often some of the most vulnerable people in our society. Family court cases can involve highly emotional and sensitive matters and we must take seriously even any potential issues relating to safeguarding. The Minister has talked about that, but I ask him to say a little more about the safeguarding processes that will be in place to meet the need to protect these people while making this move to greater transparency.

Steps must also be taken to address the digital divide in our society and to ensure that, by opening up justice for people to engage with, we do not just find ourselves in a situation where people are excluded because they do not have the appropriate equipment to access it. I would welcome the Minister’s comments on that. Ultimately, though, we welcome the steps that this order is taking and look forward to working with the Government to ensure that justice is even more open and transparent.

Sentencing (Pre-Consolidation Amendments) Bill

Alex Cunningham Excerpts

3rd reading & Committee stage & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Thursday 4th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

The Bill seeks to pave the way for the consolidation of sentencing procedural law in the forthcoming sentencing code. Currently, when passing sentence, a sentencing judge must consider the sentencing law that was applicable at the time of the offence. Given the number of different pieces of sentencing legislation passed over the years, that is often a complicated exercise. When reviewing that area, the Law Commission discovered 1,300 pages of legislation governing sentencing in this country. When it conducted a review in 2012, it discovered that errors were made in sentencing in 36% of cases, we think as a consequence of the extraordinary complexity of having to work out which piece of sentencing law applied at the time of the offence. Therefore, given the concept behind the sentencing code and its essential precursor, the Bill will ensure that a single set of sentencing legislation is applicable at the time of sentence, to which sentencing judges may refer.

The Law Commission was asked to look at this issue in September 2014. After Herculean labours it reported back in late 2018, but as a consequence of various general elections and other constitutional disruption, only in 2020 do we finally enact this Bill. I put on record my thanks to the Law Commissioners for their work, and particularly Professor David Ormerod, QC, for the enormous amount of work he has done in preparing the sentencing code for which this Bill paves the way.

As I understand it there are no amendments to the Bill’s five clauses, but I will briefly speak to each clause—I will be extremely concise. There are two substantive clauses. Clause 1(3) contains a clean sweep provision that removes those historical layers of sentencing law legislation to which I referred, so that when the sentencing code is enacted, which will be soon, sentencing courts will no longer need to refer to the historical versions of sentencing law in place at the time of the offence, and can instead refer to the sentencing code that was in force at the time of sentence.

We are, of course, extremely mindful of the well-established common law right that no offender should be subject to a heavier penalty at the point of sentence than was in force at the time of the offence. That right is enshrined in article 7 of the European convention on human rights, but the common law right long predates that. Therefore, in recognition of that important principle, there are a series of exemptions to ensure that no offender will suffer a heavier penalty than would otherwise have been the case. Those are expressed in clause 1(4) and (5), and in a wider list of exemptions enumerated in schedule 1.

Clause 2, the second substantive clause, essentially makes a series of amendments and modifications to existing sentencing legislation. Those are enumerated in schedule 2, which is quite long, and they essentially correct minor errors, streamlining sentencing procedural law. For example, they change language to avoid inconsistency and update statutory references. Because any consolidation must operate on the current law, we need to make those changes to enable the consolidation to happen in a technically correct way. They are therefore all essentially technical amendments to ensure that legislation works in the way that is intended.

I stress that the provisions of neither clause 1 nor clause 2 make any substantive changes to sentencing law. They do not increase or reduce the penalties for any particular offence; they simply clarify the way that sentencing law is available to judges to use when they pass sentence. It is a procedural simplification. Nothing in the Bill changes the actual level of sentences that are available to the courts to pass down.

Clause 3 is a technical interpretation clause, clarifying what is meant by the various definitions and phrases used in the Bill. Clause 4 provides regulation-making powers in the Bill, if any changes need to be made that are necessary for the implementation of the sentencing code and for no other purpose. Any such statutory instruments would be made by the affirmative procedure.

Finally, clause 5 sets out the commencement provisions. Although, of course, the regulation-making powers will have effect upon gaining Royal Assent, the wider force of the Bill takes effect only when the sentencing code has been passed. The sentencing Bill enacting the code will be before the House relatively shortly.

I do not wish to detain the Committee any longer discussing clauses to which no amendments have been tabled, but I hope that gives the Committee a flavour of the clauses’ operative effect. This is a piece of extremely important legislation that I think the entire legal community will strongly welcome. It is a shame that it could not have been introduced any earlier, but we are doing so today, and it will greatly improve the operation of criminal sentencing in this jurisdiction. I urge the Committee to agree that clauses 1 to 5 stand part of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

This is the first piece of legislation that I am leading on as a shadow Justice Minister, and I am sure that it will be the first of many over the coming months, particularly given the Government’s legislative programme and the need for action in so many parts of our justice system. It is very clear to me, and to others, that the Government are facing a series of crises, from the impact of the coronavirus in prisons to the huge backlog of cases in the Courts and Tribunals Service, which had reached over 1 million, months before the pandemic. Much action is clearly needed.

I join the Minister in thanking the Law Commission and others who have been working so diligently on preparing this material. As has already been said, this is a largely technical and uncontroversial Bill and we have tabled no amendments. We agree that we cannot continue with complicated and complex guidance on sentencing, which is resulting in unfair sentences that are causing further problems, such as costs and delays in justice processes. Our current system is in no way perfect, by any measure. A near-dysfunctional mess of mixed legislation and amendments has, over time, led to wrong sentencing decisions resulting in lengthy and costly appeals, adding more and more stress to what is an overburdened justice and court system, as I referred to earlier. There must be a standard approach to provide clarity.

Offenders receiving unlawful sentences is unacceptable. That could mean offenders receiving more lenient sentences than the law says they should receive, or it could mean an excessive prison sentence outside of the guidelines for the particular offence committed. The Minister pointed out earlier that the survey showed that 36% of sentences were seen to be wrong. That is unacceptable in a just judicial system.

--- Later in debate ---

[Alex Cunningham]

I very much welcomed the Minister’s comments in Committee and his attitude on how we can work together to create good law in this place as part of his and my brief. The same, of course, applies to the Lord Chancellor, but we will continue to do our best to hold the Government properly to account.

Everyone across the House can, I believe, welcome the progress of this Bill today. Its provisions have long been called for by the professions, and we all hope that the simplification brought in by this and the Sentencing Bill and code itself will put an end to the high proportion of wrong decisions made on sentencing. Likewise, we hope to see an end to the tremendous workload created in the Court of Appeal, dealing with the mistakes, and an end to the many cases where people are not being handed the sentences that they actually deserve.

I very much welcomed the fact that the Lord Chancellor focused on the defendant, because they are the people who are at the sharp end when it comes to sentencing. We should never ever lose sight of the fact that, when we are dealing with these matters, we are dealing with people’s lives.

This Bill coupled with the Sentencing Bill, which creates the actual sentencing code, should make that whole system more efficient and assist in dealing with the backlog of cases which have only been added to during the current pandemic. I recognise that the Government are struggling with the escalating backlog in courts and tribunals. As I said, over 1 million cases are awaiting process in courts and tribunals, and that was at the end of 2019, before we had the effects of coronavirus. As Ministers know, this has been caused by the huge court closure programme, the lack of interpreters, and other problems, but there is no doubt that today’s legislation will contribute to better and speedier justice and reduce congestion and backlog in the courts over the coming years. As I said, I look forward in the coming weeks to learning how Ministers will address the huge backlog and whether the Minister will review the court closure programme and shorter sitting hours of many courts.

Virtual courts are part of the answer and the Minister in Committee addressed that, but they do not work in all contexts. We have seen cases halted because the system did not work in a fair and just way. The Opposition believe that the adoption of virtual proceedings, which have been heavily used using during covid-19, should never have a detrimental effect on the people participating, including defendants. I would appreciate clarity from Ministers—perhaps not now, but on another occasion—about whether they are concerned about the discrepancy in sentencing between physical and virtual proceedings, whether today’s new legislation will help to rectify that, and whether they will address this issue. I ask that specifically because I believe that while the sentencing code is much needed and welcomed, we must consider other issues that have an impact on sentencing and the environment that the sentencing code will operate in. I hope that Ministers will be able to have a clear conversation with us on virtual justice and the impact on sentencing, as it is an issue that the Opposition most certainly will raise time and again.

In conclusion, we know that this Bill and the Sentencing Bill are designed to simplify sentencing and enable the Government and individual lawmakers to do their jobs even better. It would therefore be useful to understand the plans that the Government now have for more general law reform. I look forward to future indications from Ministers about how they plan to do just that—reform further—but today, we are pleased to support the Bill’s passage and take that much needed step to improve the justice process for all.

Policing (England and Wales)

Alex Cunningham Excerpts

Monday 24th February 2020 Commons Chamber

[The Minister for Crime, Policing and the Fire Service (Kit Malthouse)]

I beg to move,

That the Police Grant Report (England and Wales) for 2020–21 (HC 51), which was laid before this House on 22 January, be approved.

I am proud to be part of a new Government who are delivering on the people’s priorities. The public have demanded an end to the horrific crime and violence that has recently blighted our streets once again. They deserve no less, and it is our duty to deliver the safer towns, villages, cities and country that they want. That means enthusiastically supporting our outstanding police to cut crime. They are our first and finest line of defence against murderous terrorists and ruthless drug gangs and our protection against burglars, robbers and rapists. All hon. Members will join me in paying tribute to their world-renowned courage, sacrifice and professionalism.

As the natural party of law and order, the Conservatives owe the police the resources they need to get their immensely important job done. One of the first acts of this Government was to start recruiting 20,000 new police officers, giving them the strength in numbers they now need, supporting and equipping them with the powers and kit to keep us safe, including lifting restrictions on emergency stop-and-search powers for all forces across England and Wales and, crucially, giving them new and immediate funding to keep our streets safe.

Nothing is more important than protecting the British people, and the settlement will do just that. Our generous offer also recognises the immense challenges that policing faces today. Crime is becoming increasingly complex, serious violence is threatening ever more people, and ruthless thugs are finding new ways to exploit the vulnerable. The scale, range and brutality of the new criminality we face is daunting, but we are rising to the challenge by empowering our police to fight back. This deal will give them the power to take down the criminals and bring those threatening our people and communities to justice.

[Alex Cunningham (Stockton North) (Lab)]

Cleveland currently receives no serious violence funding, despite having the third highest level of violent crime in the country. The hon. Member for Redcar (Jacob Young) appealed to the Prime Minister at Prime Minister’s questions last week for more resources, but he was fobbed off. Will the Home Secretary now review it and give Cleveland the funding it needs to tackle serious violence in our area?

[Kit Malthouse]

The hon. Gentleman is absolutely right to raise the issue of serious violence, which is blighting not only Cleveland but other parts of the country, too. It is obviously a huge focus of my work.

We are giving Cleveland police an extra £10 million this year, which I hope it will use to tackle some of the serious problems there. I have met the chief constable of Cleveland police, who is doing sterling work to move the force from one that has sadly been underperforming to one that can hopefully satisfy the needs and desires of the people of Cleveland.

--- Later in debate ---

[Ms Abbott]

What can I say—nice try?

The National Audit Office recently said that the Home Office

“does not know if the police system is financially sustainable.”

That is the National Audit Office talking about Home Office Ministers.

However, the Government did not confine austerity to police officer numbers; they also cut thousands of police community support officers and thousands of police support and administrative staff. That has had two consequences. First, there has been a huge detriment to community policing, which is often the first eyes and ears on everything from vandalism and petty crime all the way through to terrorist threats. Secondly, the cuts to admin staff, often dismissively called “backroom staff” on the Government Benches, have meant that police officers have had to do more of their own admin work, so less time is available for police work as such.

The consequences have been terrible, as most of our constituents know. Compared with the previous year, the proportion of crimes resulting in a charge or summons fell by one percentage point, from 8.7% to 7.4%—the lowest ever recorded. That continues a downward trend since March 2015, when 15% of crimes were resolved with a charge or summons. No category of crime registered a majority of prosecutions. The sad fact is that too much crime goes undetected, largely because of a shortage of police officers, and therefore unpunished, and the public are all too well aware of that. It is truly shocking that the very lowest prosecution or summons rate was in cases of rape, with just one in 70 cases leading to charges. In all cases of violence against the person, just one in 13 cases led to charges or summonses. As we have argued consistently, cuts have consequences.

[Alex Cunningham]

I am grateful to my right hon. Friend for giving way. She is outlining the things on which all this extra money needs to be spent. In his response to me, the Minister suggested that the extra £10 million for Cleveland—that is half of what we have lost since 2010—should be used to tackle violent crime, but other areas where violent crime is actually lower get specific targeted resources from a separate fund. That is not fair. Does she share my bewilderment as to why Ministers seem to be blind to the needs of Teesside?

[Ms Abbott]

I entirely share my hon. Friend’s concern that the people of Teesside do not appear to be treated fairly. Cuts have consequences—in Cleveland as well as everywhere else. Over the past 10 years, almost every conceivable social factor has contributed to rising crime. Ministers did not mention these things, but let me remind the House that youth services have been slashed, schools have been encouraged to exclude pupils, inequality and poverty have been made worse, some of our young people have become resigned to a life of zero-hours contracts, and drug and alcohol rehabilitation funding has been slashed. Mental health funding has been decimated, as, too, has the probation service, which we have seen in the probation activities in relation to recent terrorist activity. The criminal justice system is in crisis. Our prisons have become places where a person is more likely to become a hardened criminal, a drug user, or radicalised.

It is an abysmal record of failure. Ministers cannot expect their claims of being the natural party of law and order to be taken seriously when they have allowed the criminal justice system to fall into this state. It is no use these Ministers simply partially making good some of the police cuts that this Tory Government have made—that is all that has been claimed of this policy. They are not even restoring all the cuts that they have made since 2010. Effectively tackling crime is not just about funding the police properly, but about funding all those services, such as the youth service, education and the NHS, which help to bear down on crime. The Government do not intend to do that, and we on this side of the House believe that without a proper level of funding for the police force, for schools, for youth services and for the NHS, we will continue to see the negative consequences. There will be a spiral of violent crime, which causes so much fear in all our communities.

[Richard Drax (South Dorset) (Con)]

It is a pleasure to speak in this debate. Just before I start, may I remind the Opposition that we are in this plight because of the spendthrift ways with which they ruined our country?

[Alex Cunningham]

You’ve had 10 years, man. Ten years.

[Richard Drax]

Ten years is how long it was predicted to take to get this country back. I know the Opposition do not like to hear it, but that is the truth of the matter. [Interruption.] Yes, there was a banking crisis too, but the people of this country do not forget the spendthrift ways of the Opposition.