Counter-Terrorism and Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

In thanking the noble Lord, Lord Parkinson, for his very clear and careful introduction of the Bill, I thank him, the Home Office and the Ministry of Justice for making the changes that need to be made to sentencing legislation in the form of amendments to the code. This was a vital first act in that respect. Of course, it may not appear easy to follow as incorporated in the Bill before us, but it is plain from the way in which the code will be developed that judges will have before them all the provisions in the right place in one document. This is a huge step forward. The ministry and the Home Office deserve thanks for adhering to this Bill, unlike what happened in 2003.

I want to make three points of substance, two relating to the provisions in Part 1 of the Bill and one relating to Part 3. The first, in relation to Part 1, relates to the sentencing of youths and, in particular, Clause 4. It is clear that sentencing those under 21 is the most difficult task for a court. In relation to terrorist offences it is particularly difficult, partly because they are the people who are most suggestible or susceptible to persuasion to embark on terrorism and, in my experience, at least some of those who have committed offences have had learning or other difficulties. I think there can be little doubt that evidence exists to say that such persons are deterred by the prospect of long sentences. It seems to me that the clause ought to be examined in terms of whether the emphasis is in the right place on dealing with someone for the future and ensuring that that person does not in the longer term pursue a career of terrorism. It is an area where it is essential that the judge has full information and should be left to form a judgment.

The second point that I want to make on Part 1 is on the provisions for minimum terms, whether for life sentences, extended sentences or custodial sentences. The general principle should be that there should not be minimum terms unless there is a compelling justification. This is particularly so in relation to offences where there is a huge range of conduct that can be brought within the section, some less serious and some of the utmost severity. Section 5 of the 2006 Act is a very clear illustration of the range that can be encompassed and the difficulties to which it gives rise.

There are guidelines now and I have no doubt that the Sentencing Council will produce new guidelines to reflect the changes. The judges who try these cases are few and, by and large, the courts have been very tough. We need to be very careful in our scrutiny of the provisions for minimum sentences as applied by the Bill.

On TPIMs, perhaps I may make one or two brief observations. First, the use of control orders and TPIMs has a long history and it is clear that they have played an important role in dealing with terrorism. However, that long history makes two things clear. There needs first to be proper judicial scrutiny of all aspects of them. In looking at the amendment made by Clause 37 to the standard of proof, we need to be particularly careful about whether the test set out there is capable of good judicial scrutiny. The second concerns the need for a maximum period. There is quite strong evidence that one of the worst effects of imprisonment for public protection where there are no defined limits to the end point is that the lack of a defined limit can lead to people losing hope and becoming more dangerous. We ought to examine carefully whether we do not wish to impose a maximum, or at least subject that maximum to judicial approval.