Counter-Terrorism and Sentencing Bill (Second sitting)

Joanna Cherry Excerpts

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

[The Chair]

Maybe we should move on. I call Joanna Cherry.

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

Q Thank you, Chair. Could I ask, Mr Dawson, about something you said to the Minister at the beginning of your evidence? You said that some aspects of the Bill may undermine public protection. Can you summarise what you meant by that?

Peter Dawson: There are two aspects in particular. One I have spoken about: the absence of a process for some of the people affected. There is probably nothing more to say on that.

The second is probably rather more controversial because it is about the length of sentences. The Government, in explaining the Bill and justifying a 14-year minimum, say that that gives time for work to be done with the offender during the sentence. That is much longer than is needed for that work to be done.  The difficulty with very long sentences, across the board, is that they destroy what is known in the trade as protective factors—they destroy the things that are most likely to help someone out of crime in the future.

Relationships are an obvious example. For somebody who is convicted in their late teens or early 20s and who is not released until their mid to late 30s, the opportunity to build a life that is worth living, in which they can contribute to or play a part in society, has very often been destroyed. All of the things that the rest of us do during that period in our lives have not happened and may not happen once that person is released. It is a disgruntling process. Long sentences are justified for the most serious crime, but the longer we make them, the more harm we do and the more difficult it is for the person to live the rest of their life in the way that we all do.

[Joanna Cherry]

Q How important is rehabilitating terrorist offenders for the ongoing protection of our constituents and the public at large?

Peter Dawson: It is essential. We know that there is no evidence of any deterrent effect with long sentences—they are not protecting in that way; they only have a protective impact by taking that particular person off the street for that length of time—but people are going to be released, and that is when the risk arises, so I would say rehabilitation is absolutely essential for public protection. You cannot trade off one against the other. If you remove incentive—if you destroy all the things that keep somebody interested in a life without crime—then you are just delaying risk for when the moment for release comes.

[Joanna Cherry]

Q To be clear, you have served in the Prison Service as a deputy governor and as a governor. To what extent do you draw on that experience in your evidence today?

Peter Dawson: Well, I draw on it heavily. Once somebody is in prison, you have this enormous acreage of time to fill. People struggle to adjust to prison. People often have a tremendous sense of grievance in the early years of a long sentence, and very often a sense of grief as well, and very often remorse. There is a sort of teachable moment when someone may change their behaviour, but that [Inaudible] if there is nothing after that moment.

People are completely subject to the authority of the system. They are very sensitive to whether the system plays fair by them. If the system invests in their rehabilitation, but then does not follow through, and all they have ahead of them is time that serves no purpose, which is simply time to fill, then grievance grows. Once somebody has a legitimate grievance in prison, the chance of them engaging with anything more constructive reduces dramatically. In terms of managing difficult people in prison who can be very dangerous, this is a dangerous problem.

The other thing I would say, and I say this as someone who governed prisons and had responsibility for the safety of everybody in the prison—staff, prisoners and visitors—is that crime happens in prisons too. Prisoners without hope and prisoners with a sense of grievance are dangerous to the other prisoners and the staff around them as well. We have seen the homicide rate in prisons rise in recent years and at the same time the number of people serving very long sentences or sentences with no release has also risen.

[The Chair]

Order. We are going to move on now, to Mr Butler.

--- Later in debate ---

[Chris Philp]

Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.

My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?

Les Allamby: It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.

If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.

I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.

[Joanna Cherry]

Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.

Les Allamby: Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.

I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.

TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.

[Joanna Cherry]

Thank you.

[Rob Butler]

Q Briefly, I want to pick up on your concern over polygraphs and what is written into the Bill, by looking at the explanatory notes that were issued. I refer to paragraph 213 of section 34, “Polygraph conditions for terrorist offenders: Northern Ireland”, which states:

“New subsection (5) establishes that statements or physiological reactions of the offender in polygraph sessions cannot be used as evidence in proceedings for an offence against the released person.”

Does that provide you with the comfort you were seeking?

Les Allamby: Yet again, it provides me with a very limited measure of reassurance. It is absolutely right that you should not be able to take someone back to court to suggest a new offence has been committed on the basis of the polygraph, so that provides a measure of reassurance.

But I am mindful that if, for example, you are released on licence and you fail a polygraph test, it can be used to revoke your licence and place you back in prison. That is a pretty severe consequence for technology that has not been piloted. The reassurance is welcome in those terms, but you have to understand where else the ramifications of—

--- Later in debate ---

[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.

[Joanna Cherry]

Q We have heard evidence from Mr Hall today about the concerns he has expressed regarding the interaction between the proposed new sentence and the existing sentence of an order for lifelong restriction, which is available in the Scottish courts for the sentencing of offenders who pose a serious risk to the safety of the public. Do you share Mr Hall’s concerns about the interplay between what is proposed in this Bill, particularly in clause 6, and the existing sentence of an order for lifelong restriction?

Michael Clancy: I found Mr Hall’s analysis of the issue of orders for lifelong restriction very compelling. As he points out, this is a unique type of sentence, imposed

“for serious violent offences if certain risk criteria are met”—

for example,

“where the offender would otherwise seriously endanger the lives, or physical or psychological wellbeing, of members of the public at large.”

Therefore, I think we should view Mr Hall’s evidence carefully. He points out in his note:

“An Order for Lifelong Restriction is an indeterminate sentence comprising a stated period of detention or imprisonment (called a punishment part) during which the offender cannot be considered for release, followed by the continued incarceration of the offender unless and until the Parole Board for Scotland is satisfied that the offender no longer”

carries such a risk. That implies a paradox: the 14-year sentence plus the extended sentence might be a shorter period in prison than one under an order for lifelong restriction, so we have to be careful about weighing Jonathan Hall’s evidence against the provisions in the Bill. I hope that answers your question.

[Joanna Cherry]

Q Yes, it does; thank you very much. You have already talked about the implications of clause 33 of the Bill for Scotland, where polygraphs are not currently in use. You have explained that they are not currently used in Scotland because, as far as you understand, there is still a question mark over their reliability. Is that right?

Michael Clancy: Yes. Well, I do not pretend to know the mind of Scottish Ministers as to why they have not introduced polygraphs in Scotland. I suspect that they think the jury is out on that question, because of the variable opinions about the value of polygraphs.

[Joanna Cherry]

Q They are not used for anything in Scotland. I understand that they are currently used for sex offenders in England, but they are not used for sex offenders in Scotland, are they?

Michael Clancy: That is true: they are not.

[Joanna Cherry]

Q You say in your written evidence that if they were introduced, that would be “a significant step”, and that it would raise various issues regarding

“responsibility, organisation, funding, monitoring and training”.

Can you elaborate on that?

Michael Clancy: It would be a significant step, because there has been no prior consultation to discuss the appropriateness of the use of polygraphs, how that would be implemented and whose responsibility it would be to arrange for polygraphs to be used in Scotland. Those are the kinds of issues that need to be explored quite carefully. It would also be important to know how they will be resourced. We are going to enter into a period of extraordinary public expenditure difficulty in the next few months and years, so introducing something that would be a significant expense in terms of their usage, the training of the operators and such, would be something one would want to look at very carefully.

[Joanna Cherry]

Q Can I move now to TPIMs? What is the Law Society of Scotland’s view on the proposal to change the standard of proof from the balance of probabilities to reasonable grounds for suspecting? What is your view of that, and what are the reasons for that view?

Michael Clancy: Before I answer that, could I add a small coda to the provisions about polygraphs? Under clause 33, a new section is inserted into the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides that

“Scottish Ministers may…specify a polygraph condition”.

The emphasis of that discretion in the Bill is an acknowledgement that this matter would be within the devolved competence of Scottish Ministers to be talking about and implementing legislation for. It would therefore be a question to ask Scottish Ministers, as to what their views are about the implementation of polygraphs in Scotland.

Going back to the standard of proof—

[Joanna Cherry]

Q Just to interrupt there to pick up on that last point about polygraphs, as a matter of law, a legislative consent motion will be required for this Bill in so far as it impinges on devolved matters. Is that right?

Michael Clancy: Yes, that is correct.

[Joanna Cherry]

Q Okay. Sorry; I asked you for the Law Society of Scotland’s view on lowering the standard of proof in relation to TPIMs.

Michael Clancy: Again, we set out some views in our memorandum. Moving from a position where it was on the balance of probabilities to a reasonable suspicion is a significant drop. It is even a drop from reasonable belief, which was a prior standard used in the old control orders that preceded TPIMs. We take that as being something that is problematic. It certainly indicates a lower standard, but that is about as far as I would put it at the moment. It is within the range of civil contemplation. We have got to be cautious about what we actually mean by reasonable suspicion. The balance of probabilities means satisfaction on the evidence that the occurrence is more likely than not. Reasonable suspicion is simply, “Have I got any basis for thinking that this is the case?”

[The Chair]

Order. I think we are going to move on to Sarah Dines.

--- Later in debate ---

[Chris Philp]

Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.

I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?

Michael Clancy: Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.

[Joanna Cherry]

Q The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?

Michael Clancy: I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.

[Joanna Cherry]

Q You have already said that if there is such clear evidence, you would be happy to consider it. Is that correct?

Michael Clancy: Yes.

[Joanna Cherry]

Q Is it also fair to say that the concerns expressed by the Law Society of Scotland about dropping the burden of proof are those that are widely held, including by the current independent reviewer of terrorism legislation and his predecessor, David Anderson QC?

Michael Clancy: As far as I know. I have not actually seen a statement by Jonathan Hall about the burden of proof, but I am sure that you are leading me to the conclusion that there is one.

[Joanna Cherry]

Yes. He has given us evidence this morning and provided a note to that effect, but, as always, you are being scrupulously fair.

[The Chair]

Absolutely. Are there any further questions? In that case, Mr Clancy, thank you very much for giving your evidence today.

Michael Clancy: Thank you, Mr Chairman. It has been a pleasure, a rather disembodied pleasure, but a pleasure none the less.

Examination of Witness

Professor Donald Grubin gave evidence.

--- Later in debate ---

[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.

[Joanna Cherry]

Q While we have you here, can I ask a couple of other questions to aid my own understanding? Sometimes people call polygraph tests “lie detectors”, in common parlance, but, as I understand it, that is not entirely correct. It does not measure lies; it measures the physiological changes in the central nervous system when somebody is asked a question. Is that right?

Professor Grubin: Yes.

[Joanna Cherry]

Q And you have to ask a very closed question such as, “Have you accessed the internet?”

Professor Grubin: No wiggle room.

[Joanna Cherry]

Q Or, in an Irish context, if someone asks me, “Have you been to Dublin recently?” I have to confess that I have, so perhaps I would fail a lie detector test. Joking apart, it is not a lie detector test. It measures physiological changes. There is some scientific dubiety as to whether those central nervous systems are under the conscious control of the subject. What is your view on that?

Professor Grubin: They are not under the conscious control of the subject. We know that. Also, you get those responses not just from being deceptive; there is a range of things that can cause that response. In a polygraph test, somebody does not just walk into the room, get hooked up to a polygraph and then get asked questions. It is a fairly lengthy process. It takes at least an hour: typically two or three hours for a polygraph test. Most of that is spent in a pre-test interview where you go through information with the examinee with the aim of making sure that, if he is responding, he is responding because he is being deceptive and not for some other reason. That is where are lot of the training comes from and that is what differentiates a good polygraph examiner from a bad one: the way they have approached the interview and the test means that those responses are seen because of deception. It doesn’t always happen, which is why we get the one in five, one in 10 error rate. What you are looking for is physiological responses associated with deception. They can be associated with other things as well, but the aim of the polygraph test is to try to make sure it is because somebody is being deceptive.

[Joanna Cherry]

Thank you.

[Miss Dines]

Q Thank you for your evidence, Professor Grubin. I am interested in your view of how valuable the polygraph test is in assessing an offender’s intention in the long term, in comparison with the other tools available by way of standard psychological testing.

Professor Grubin: It is not valuable at all. You cannot use polygraph testing as a means of testing intentions. The polygraph is looking specifically at behaviours. Your colleague referred to concrete, very narrow questions of the type, “Have you done this?” They can be screening-type questions, or they can be very specific, such as, “Did you rob the bank?”, “Did you shoot the gun?” or whatever. It is not a tool for eliciting intentions or validating responses to those sorts of question.