Counter-Terrorism and Sentencing Bill (First sitting)

Joanna Cherry Excerpts

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

[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.

[Joanna Cherry]

Q What is it about an order for lifelong restriction that, in your view, makes it preferable to what is proposed under clause 6?

Jonathan Hall: It is the fact that risk changes. You want to make a decision about when someone is going to be released in the light of all the information at the point of time at which release becomes an issue. People might become more radical in prison, and it seems to me that allowing a body to make a decision on whether they are safe in the light of all the information is preferable to a decision to impose a determinate sentence taken by a judge, who does not know, actually, whether in the 14 years or 16 years imposed that person will be safe.

[Joanna Cherry]

Q Am I right in understanding that the OLR cannot be imposed until a formal risk assessment has been carried out by Scotland’s Risk Management Authority for the benefit of the judge?

Jonathan Hall: I think it is carried out not by the Risk Management Authority but by assessors who are certified by the authority. I am not a Scottish lawyer, but that is my understanding.

[Joanna Cherry]

Q What about the involvement of the Parole Board? You have already spoken favourably about what the Parole Board can bring to assessing risk of involvement in terrorism. Of course, there is a separate Parole Board for Scotland. Is that board involved in the order for lifelong restriction sentence?

Jonathan Hall: Yes, it is. One of the things that I discovered when I did my MAPPA review is that there is probably work to be done to ensure that where a dangerous offender is considered by a Parole Board, whether in Scotland or in England and Wales, all the information relevant to the question of risk—including, in certain circumstances, sensitive information—is brought to the attention of the Parole Board. There are ways and means of doing that. So there are certainly improvements that can be made about the way in which the Parole Board can operate, but yes, that is right: the Parole Board would have a role.

[Joanna Cherry]

Q In the second part of paragraph 9 of your note, you say:

“It would be preferable if Clause 6 was disapplied where an Order for Lifelong Restriction is passed. This also raises the question of whether a more flexible indeterminate sentence, such as the Order for Lifelong Restriction, is not preferable generally to the inflexibility of a serious terrorism sentence.”

Those are your views. Have you seen anything to change your mind since you wrote the note?

Jonathan Hall: No, those are my views. It is obviously for Parliament. As I say, I do not know whether the position with orders for lifelong restriction was an oversight in the drafting of the Bill. In Northern Ireland, there is something called an indeterminate custodial sentence, and certainly that can be passed in priority to a terrorism sentence. On the question whether a lifelong restriction is better in principle, I have made my views known. The reason, in a nutshell, is that it is a very difficult to judge risk at the point of sentencing.

[Joanna Cherry]

Q Of course, sentencing is a devolved matter, so normally the Scottish Parliament would deal with it. There would have to be a legislative consent motion from the Scottish Parliament for aspects of this Bill that impact upon devolved matters, so there could be some fruitful discussion between the Scottish Government and the UK Government about your suggestion about disapplying clause 6 where an order for lifelong restriction is passed.

Jonathan Hall: I do not think I can comment on that.

[Joanna Cherry]

Q I want to ask a couple more questions about TPIMs. The Minister took you through what is being proposed. As I understand it, you have not been given a justification or a business case for lowering the standard of proof. Is that right?

Jonathan Hall: I have obviously had discussions, but I have not been able to identify a cogent business case. Reference has been made to reducing the administrative burden. I do not fully understand that point because, as I said in my note, there are cases in which what you might call a new variant or a light-touch TPIM has been made. The courts have yet to say that those are not an acceptable way of proceeding, so it seems to me that there are options already on the table.

[Joanna Cherry]

Q Beyond the example that the right hon. Member for New Forest East raised on the Floor of the House on Second Reading about somebody who has been in Syria for a few years—you have dealt with that—have you been given any other example of a case in which the protection of the public has been hampered by the existing standard of proof?

Jonathan Hall: No. What has been communicated to me is that this is something for the future. There is a phrase that counter-terrorism officials like to use: “having a tool in the toolbox”. You could probably summarise this by saying that it will be another tool in the toolbox. They cannot necessarily say when they would use it, but it might be beneficial in the future.

[Joanna Cherry]

Q What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.

Jonathan Hall: I should start by saying that when the control order regime was in force, and the standard was reasonable grounds to suspect, that was not found to be unlawful. I cannot and do not put forward the suggestion that this change would be unlawful; it is a legislative choice.

As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor, which would be an option for Parliament, is to say that if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.

Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject. Again, I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.

[Joanna Cherry]

Q Would you welcome the retention of the two-year limit on TPIMs?

Jonathan Hall: As things currently stand, yes.

[Joanna Cherry]

I will leave it there.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

Q It is my first time serving under your chairmanship, Mr Robertson, and it is a pleasure.

Mr Hall, thank you for the very thorough online report. It is over 200 pages, and it is obviously a very thorough piece of work. I want to ask a general question from the perspective of one of my constituents. Looking at the overall measures that the Bill would bring in, you must agree that they will make the average citizen safer.

Jonathan Hall: I think some measures certainly will. For some measures, I am less clear in my mind that they will. It would be going too far to say that some of them would have a negative effect, although there is always a question about whether people being in prison for longer will make them safer when they come out.

Something that I was struck by, when I started doing this job, was that most terrorism sentences are quite short. The reason for that is that counter-terrorism police want to go in early and stop attack planning. They may go in when they have intelligence, but before the evidence is really there. They may have secret sources that they cannot use in court. That often results in finding things on phones or computers, which results in lots of convictions for having attack manuals, but not many convictions for attack planning. In practice, that means that most people convicted of terrorism offences will come out after a period of time.

The police and MI5 are always thinking, “How can we make the risk as low as possible when that person eventually comes out?” Obviously, one of the issues that one has to confront is that prisons do not always end up making people more safe. Extending their time in custody for a bit makes someone safer in the sense that they are off the streets for that period of time, but it does not necessarily mean that they are safer when they come out.

All I would say is, yes, there are some bits that are definitely to be welcomed. Anything that allows additional monitoring, that increases licences and that allows the police more monitoring powers is to be welcomed. Some of the things I am less sure about.

--- Later in debate ---

[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.

[Joanna Cherry]

Q So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.

Tim Jacques: Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.

[Joanna Cherry]

That is quite an important statement: there is no case so far where the current standard of proof has prevented an application for a TPIM. Thank you.

[Rob Butler]

Q Assistant Chief Constable, we have heard, and probably all accept, that young people can be immature and easily led, but would the police view also be that they can be extremely dangerous?

Tim Jacques: Absolutely. Sadly, we have seen—you have mentioned the case that is within my background knowledge—very recent examples of very young people who pose an extreme risk to the public. It is sad, but it is real and it is true.

--- Later in debate ---

[The Chair]

We have about six minutes left. Would anybody like to come in?

[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?