Counter-Terrorism and Sentencing Bill (Second sitting) Debate
Full Debate: Read Full DebateAlex Cunningham
Main Page: Alex Cunningham (Labour - Stockton North)Department Debates - View all Alex Cunningham's debates with the Home Office
(4 years, 2 months ago)
Public Bill CommitteesOrder. I have to interrupt there, Mr Dawson, because I am conscious of the time.
Q
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—
Q
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.
Q
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.
Q
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.
Q
“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—
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.
Q
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—
Q
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.
Q
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.
Q
Michael Clancy: Yes, I believe so.
Q
Professor Grubin: Nobody is recalled on the basis of a failed polygraph test. That is the important point which people often misunderstand.
Q
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.
Q
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.
Q
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.
Q
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.
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.
Q
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.
Q
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.
Q
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.
Q
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.
Q
Professor Grubin: Either I have either misunderstood you or you have misunderstood me. Were you referring to intellectual disability?
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.