Counter-Terrorism and Sentencing Bill (Fourth sitting)

Taiwo Owatemi Excerpts

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

[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 ---

[Chris Philp]

I thank the shadow Minister for his detailed exposition of some of the risks that we must seek to navigate and overcome. For justice to function, we must make sure that it is truly even-handed and fair in assessing anyone who comes before the court, regardless of their background, race or religion.

[Taiwo Owatemi]

Is the Minister not concerned that, without proper consideration of the impact of the Bill on many BAME communities, relationships between these communities and authorities may worsen?

[Chris Philp]

Let me come on to that point, which is the substance of the amendment. The amendment calls for an assessment prior to the clause coming into effect; it does not ask for an assessment afterwards but beforehand. I submit to the Committee that the impact assessment published with the Bill and the accompanying equality statement, which looks specifically at questions of racial and religious discrimination—or the potential for those things to happen—has already thoroughly analysed the Bill’s potential impact. That detailed analysis, which obviously included a review by Government lawyers and others, concluded that nothing in the Bill would unlawfully discriminate against people of a particular ethnic or religious background within the meaning of the Equality Act 2010.

Of course, the provisions in the Bill are simply based on a measure of criminality—has somebody committed a specified offence? Is there a terrorist connection? Nothing in any of those provisions is biased for or against anyone from any particular background, as is the case with all laws that Parliament passes.

Counter-Terrorism and Sentencing Bill (Seventh sitting)

Taiwo Owatemi Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

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

It is a pleasure to serve under your chairmanship again, Mr Robertson. I have listened very carefully to hon. Members. I appreciate the comments, concerns and the constructive way in which they have made their arguments. I support the Government, and I support the principle of TPIMs and of using every tool that we have in our armoury to protect the public, which I know is a concern for hon. Members.

I would like to try to put this into context, which is important, today of all days. Today is 7 July—7/7—and the 15th anniversary of one of the worst attacks that this country and this city have ever faced. It is an important reminder of why we are here doing this and why the Government want to bring in this legislation to protect the public.

With the indulgence of the Chair and the Committee, I would like to talk about my friend Louise—I will not get emotional. Fifteen years ago today, my friend Louise was on a train from Aldgate to Liverpool Street. The night before, she had had a great night out. She had been in Trafalgar Square, celebrating the fact that London had just won the bid to host the Olympics.

It was a very busy train. She was standing when the train was rocked by an explosion in the next carriage to her. Louise’s carriage filled with smoke. The lights went out and the train screeched to a juddering halt. She says her heart was beating so much she thought it was going to come out of her chest, but she fought to keep calm amid the screams and the panic around her.

Some people managed to control their panic and started helping each other. They were calling up and down the train for doctors and nurses—anyone who could come and help. Some people had fallen. Some had hit their heads. It was chaos. Some people tried to get out. They were trying to get out of the windows between the carriages. They tried to prise the doors apart. None of that would work. Someone cried out that there was a body on the track.

They waited in the dark. Some emergency lights were going on, but it was mainly dark, for over an hour, until Louise says she saw the top of a policeman’s helmet outside the tunnel. From that moment—seeing the policeman—she felt safe. All of a sudden, she felt that she was going to get out and that everything would be all right.

They could not open the doors, so those who were able to moved out of the way to make way for the injured to be carried or to walk past them. They were bloodied, black, bewildered. Many of them were bandaged with commuters’ possessions, like belts and scarves and ties. After what seemed like forever, Louise was able to get off the train, but she had to walk past the bombed carriage. She said it looked like it had just been ripped apart like a can of Coke.

She passed two bodies on the track, covered up by a fluorescent transport worker’s jacket. She saw a man who was badly injured being tended to by paramedics. He was barely clothed and was propped up against the tunnel wall—his entire body blackened by bomb blast.

She said it was very surreal to come from that black, hellish atmosphere into the light, where it was light, there were helicopters above, there were blue lights and sirens, and there was a triage unit on the pavement where people were being treated. Quite surreally, she was told to give her details to the police and she walked off into London, trying to find her husband and blackened by soot.  She said she just wanted a cup of tea, very weirdly.

The “Sliding Doors” moments, and the fear, panic and shock, came later. The overriding feeling she was left with was why did she get into that carriage, why did she not get into the next carriage and why did she survive, when so many others did not. She was determined not to change her way of life, so she got straight back on the tube and went straight back to work. I think she personifies bravery, and what we always say, that in the face of terrorism we just get on with it and we will not let our way of life be changed.

Today, 15 years to the day afterwards, Louise will be leaving flowers at Aldgate, as she does every year. Many of her fellow passengers and other victims who were affected by the incident have never been back on a tube. Some are still suffering from anxiety and depression, some suffered life-changing injuries, some lost a loved one and some will never see the light of day again. Over the weekend, I asked Louise what she would say to the Committee. This is what she said:

“Terrorism is the biggest threat we face to our way of life. I have so much faith in our intelligence and security services. I feel they should be given whatever powers and resources they need to fight it. Whilst there will always be those who slip through thej net, especially the lone wolves, we need to feel safe and learn lessons, and let our police and courts have the authority to act and protect us.”

Today I wanted to talk about Louise and pay tribute to her, and all of those affected, not just in that incident but in others. My belief is that the best tribute we could all pay is to pass this Bill.

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

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

The No. 1 priority for all of us here is to keep ourselves and our constituents safe. On this side of the House, we recognise the seriousness of this crime and we will do everything that we can to ensure we can effectively and robustly tackle the threat of extremism, and the terrorists who threaten our national security. As emphasised by my hon. Friend the Member for St Helens North, we aim to be a constructive Opposition in identifying areas in which we can support the Government. In other areas, where we have questions and concerns about the legislation that comes before the House, we seek to strengthen and improve that legislation, where it is right to do so.

In support of amendment 69, I will briefly highlight some of my concerns about the imposition of TPIM notices, as outlined in the Bill. Terrorist offences are especially heinous and it is incumbent on us to ensure that we maintain a good, high standard in believing that an individual falls within this threat category. Having that standard for TPIMs, which we would support to keep our constituents safe, would protect the measures and not impede their robust or operational nature.

As my hon. Friend outlined, this standard of proof has been raised twice before, by the coalition Government in 2011 and by the Conservative Government in 2015. We have to wonder why the Government seek to implement the lowering of the standard of proof in clause 37. That would inevitably broaden the category of people who are suspected of being terrorists, but who may not pose a threat at all.

Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has serious concerns that this clause could work on the assumption that courts have and could interpret “reasonable grounds for suspecting” as

“a belief not that the person is a terrorist, only that they may be a terrorist.”

There is a strong possibility that some TPIM subjects would not be actual terrorists and, by virtue of that, be innocent.

Mr Hall, who has access to highly sensitive national security information, said that the current standard of proof “has not proven impractical” and has expressed doubt that there is an operational justification for making these changes to the regime at this time. The Opposition are firm believers in evidence-based policy making and in not amending legislation for its own sake, but these are no small matters. The threat and the serious nature of terrorist activities have implications we are all too familiar with. However, we do not see the merits of targeting individuals for the sake of it. That would see a disproportionate number of ethnic minorities and potentially innocent people subject to quite intrusive measures.

We also do not think it appropriate to add strain to the security services and to the public purse, particularly when resources are already stretched. It prompts the question of why, despite the evidence and the advice of independent reviewers, we are making this change. I urge the Minister to outline his case.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Taiwo Owatemi Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

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

Once again, it is a pleasure to serve under your chairmanship, Mr McCabe.

I speak in support of new clause 5, in the name of the hon. and learned Member for Edinburgh South West, which calls on the Secretary of State to review the effect of the measures in the Bill on children and young offenders. Much of the new clause relates to young offenders, and I agree that the impact of this Bill on them must be huge. We simply cannot treat young offenders in the same way as fully matured, grown adults, who fully understand their actions. The impact on their mental and physical wellbeing should be a fundamental consideration on how we carry out justice in this country.

The new clause also leaves room to consider the more general impact on children who are not accused of a crime. Children are often victims in the pursuit of justice, when they have done nothing to deserve the situation or warrant being the victims of a crime. All too often, children of offenders will pay the price for their parents’ crimes. This crime will also have serious effects on women. Only 9% of children whose mothers are in prison are cared for by their fathers, in the absence of their mothers. Only 5% of children remain in their family home when their mother goes to prison. A fifth of women prisoners are lone parents before imprisonment.

I am not aware of the background of Members in this Committee, but I cannot imagine how it must be for a child to see their parents taken away from them for a long period of time and having to live in a different way, with different people. Victims of crime never deserve to be so. It is imperative that this House recognise the true impact of our legislative decisions and how they affect the most vulnerable, in this case children. We support this new clause on that basis.

The young offenders of today do not have to be the reoffenders of tomorrow, but we need to make an effort and carry out the research to stop that happening. There will be children and young offenders caught up in terror crimes. It would be naive of us to think that there is any crime that children cannot be drawn into, but we have a choice about how we respond. We have the opportunity to ensure that they are not defined by the actions of their youth and that the actions of others will not disproportionately affect their lives.

I hope that the Minister will be able to support this new clause, as we do, and act to acknowledge that we must put the focus on how children and young offenders are treated and impacted.

[Chris Philp]

I thank the hon. and learned Member for Edinburgh South West for moving the new clause, and for the eloquence and passion with which she described its various component parts.

The Bill already treats people under the age of 18 very differently from those aged over 18. It has different provisions, as we have already debated. Therefore, people who are children in the legal sense of the term—people who are under the age of 18—are already treated completely differently by the Bill, compared with those over the age of 18.

In relation to those aged between 18 and 20, 18 and 21, or 18 and 24, depending on where the line is drawn, there is clearly a wider debate to be had about the way that their brains mature and about the opportunity to reform those people, compared with people who are a little bit older. However, in the context of the Bill, I emphasise that we are talking about the most serious terrorist offenders. We are not talking about the average 20 or 21-year-old. We are talking about people who have committed the most serious terrorist offences.

It is worth reminding ourselves what level of severity has to be met before somebody gets the mandatory 14-year minimum term, all of which gets spent in prison. To qualify for that sentence, it has to be a serious terrorist offence. The offender has to be found to be dangerous—a finding that the judge makes on reading a pre-sentence report, so the judge can take that into account. It has to be an offence—one of the most serious offences—that ordinarily carries a life sentence. Most chillingly of all, it has to be an offence where there was a risk of causing multiple deaths, and the person carrying out the offence would have known or should have known about that. So we are talking about offences of the most exceptional gravity.