Counter-Terrorism and Sentencing Bill (First sitting)

Alex Cunningham Excerpts

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

[The Chair]

I think that we had better move on. Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

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

I, too, am grateful for the work that you do, Jonathan. I want to ask you a number of questions away from TPIMs; my hon. Friend the Member for St Helens North will deal with that issue. You have produced three notes on the Bill, and I want to address questions from two of them—it might be helpful for the notes to be entered as written evidence.

Point 10 of your first note states:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

That strikes me as a cautionary note, and I invite you to talk a bit more about that. How specifically will this piece of legislation be different for younger offenders?

[The Chair]

Mr Cunningham, can you please clarify which document you are quoting from?

[Alex Cunningham]

I am referring to the Independent Reviewer of Terrorism Legislation’s “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”.

Jonathan Hall: I have identified what is really a policy choice for Parliament. As a matter of fact, I can say that an increasing number of quite young people are being caught up in terrorism, including new forms of terrorism—not just conventional Islamist, extremist or right-wing terrorism, but other new emerging forms, such as the incel movement or even things at the very boundaries of what you might consider terrorism that are very violent. It is not impossible that young people will be caught up in this.

The point I am making—I have referred to an authority from England and Wales and I think I have also referred to the approach in Scotland—is that there is recognition that people who are young and immature are probably more susceptible to change than adults. I suppose it is a choice for Parliament, but the age for a mandatory minimum sentence—meaning no prospect of early release, and effectively putting to one side the possibility of reform—might be raised to 21, rather than that being for those in the 18-to-21 bracket. I understand that in Scotland there is a debate over whether it should be as far as 25.

All I can do is identify the choice that has been made and point out that when it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 as opposed to one month under 18.

[Alex Cunningham]

Q But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.

Jonathan Hall: That is what judges are increasingly finding.

[Alex Cunningham]

Q In paragraph 13 of the same report, you talk about imprisonment for public protection orders possibly being used for this cohort of offenders, but you go on to say:

“Conversely, determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

What would be your advice to the Committee on that particular issue?

Jonathan Hall: I have imagined putting oneself in the position of the sentencing judge, who is faced by someone who has carried out a very serious attack planning offence, risking multiple casualties, and let us say they are 25 or 30. As I think I have said before, it is very hard to judge terrorist risk. It is particularly hard for sentencing judges, because they operate on an open basis; they are not going to look at secret intelligence, for good reasons. So the judge’s task is particularly difficult at the point of sentence, and it seems to be quite difficult for a judge to work out sentencing for a 25-year-old who has committed a really serious attack planning offence. When they are released from prison, are they going to be worth monitoring for seven or for 25 years? Again, it is a choice for Parliament.

What I have identified, I suppose, is that if one were going to impose a mandatory sentence, there might be thought to be more sense in imposing an indeterminate sentence—in other words, where someone has fallen into this category of really serious offending, realising that they could be a risk for life and keeping them in prison for life, unless and until they are seen as safe to be released, and then once they have been released, keeping them on licence for life and giving the flexibility to the authorities, which includes, I should say, where eventually someone, one hopes, is no longer a threat, to roll that up and bring that licence to an end; because there is a slight risk of storing up trouble for future generations if you have increasingly long periods for licences. When they are no longer necessary, how do you bring them to an end? I do not think there is that scope at the moment. To answer your question—I am sorry to have gone on so long about that—

[Alex Cunningham]

Q That is okay. There is the younger person dimension in this area as well.

Jonathan Hall: Very much. One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, “I have now genuinely changed; that was me then and this is me now,” where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say “unfair”, but it fails to recognise the difference between adults and children.

[Alex Cunningham]

Q The Minister addressed the issue of the Parole Board and the lack of its role for people given these determined sentences. I wonder whether there is potential for some form of role there. The Minister’s Bill basically dismisses the Parole Board and leaves it to everybody else. Do you have a view about how we could perhaps persuade the Minister that there is a real role for the expertise that the Parole Board brings to this situation?

Jonathan Hall: I do not want to get into the role of persuading anyone. If you like—

[Alex Cunningham]

Q I was just being mischievous.

Jonathan Hall: The practical point is one I have addressed, which is that identifying terrorist risk is really difficult. The role of the Parole Board is quite an important part of identifying terrorist risk, and if you don’t have that role then you lose that insight.

[Alex Cunningham]

Q There has been some discussion out there in the world, where people are discussing the Bill, about the sentencing code and what the definition is of an act of terrorism. It is defined in section 69 of the sentencing code, which says that

“an offence has a terrorist connection if the offence—

(a) is, or takes place in the course of, an act of terrorism, or

(b) is committed for the purposes of terrorism.”

Do you think that is clear enough to aid the courts, or do the Government need to provide more clarity in the definition?

Jonathan Hall: I think it is clear enough. It is taken from the Counter-Terrorism Act 2008. It is now being incorporated into the new sentencing code and it has worked well.

[Alex Cunningham]

Q The Law Society has provided us with a brief brief, in which it addresses the issue of polygraph testing. It says, for the record: “The Law Society does not agree that polygraph conditions should be placed on individuals released on licence.” That is quite a bold statement. The Law Society suggests that we should ensure that the Bill is not a stepping-stone towards the wider introduction of polygraph testing. May I invite you to talk about polygraph testing, because you did refer to it in your note, and ask what your view of it is when it is used in this particular context within the Bill?

Jonathan Hall: It is consistent with my point about not losing sources of information. Because it so difficult to identify whether someone will commit a terrorist offence, and as the Usman Khan case perhaps demonstrates, there are difficulties in managing released terrorist offenders or predicting what they might do. Polygraphs provide an additional source of information.

I came at this subject reasonably fresh; I read the literature on the use in England and Wales with sex offenders. I can see that the number of clinically significant disclosures is really material, and it seems to me that it would be very sensible to use that in the same way—so you ask, “Have you been on the internet?”, as a closed question—for terrorist offenders.

So, it is an additional source of information, which I think it would be sensible to use. It would do two things. One is that in certain cases it would allow the authority to find out when they are being gamed and played by manipulative and deceptive dangerous offenders. On the other hand, to some extent it would reduce the burden of the authorities. That is because the police and probation service face really difficult choices in this area. There will be a natural caution, for example, about removing someone’s licence condition. However, if you can use a polygraph test and satisfy yourself that someone is telling the truth, then it may allow you to remove some conditions and allow someone to normalise. And although that sounds odd in the context of terrorist offenders, ultimately you want people who are released to engage in a normal way in society—in other words, allowing them to get jobs and to live in their home area, and the like.

[Alex Cunningham]

Q That was very helpful. Finally, there is the need for additional expertise in the field, whether that is to do with the probation service or elsewhere, for the management of offenders under the 25-year licence, which will be considerable. Is that something that you have considered?

Jonathan Hall: I know, from when I did the review of the multi-agency public protection arrangements, that a lot of resources are being put into this area, and there are special probation officers trained in counter-terrorism. I do not think I can comment on how much resource you need for 25 years, but a lot of resource is being put into the area, which is to be welcomed.

[Alex Cunningham]

Q The Government have tabled some 17 pages of amendments to the Bill, which you may not have seen yet; they were only published on Tuesday.

Jonathan Hall: I have not seen them.

[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.

--- Later in debate ---

[Chris Philp]

Q Thank you for making that extremely clear. I am sure that the Committee will pay close attention to the advice being given to us through you by the security services. I have one more question on TPIMs, relating to the current two-year expiry date and the proposal to make them annually renewable. They will not be indefinite unless the threat is indefinite. Do the security services for whom you speak see a threat to the public as a consequence of the gaps that we have heard Mr Hall describe: the 12-month gap in one case and the 16-month gap in the other?

Tim Jacques: Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.

[Alex Cunningham]

Q There is a very helpful question on our briefing paper about the danger that measures perceived as oppressive and disproportionate may alienate individuals who could otherwise be rehabilitated. Do you have a view on that, particularly in relation to younger people, who might be a little immature?

Tim Jacques: I certainly have a view on that. From a policing perspective—I do not think it is any different for our operational partners—there are two trains in place here: one is punishment and incarceration, which was mentioned earlier; and the other is rehabilitation, desistance and disengagement. Ultimately, the best outcome is the latter: we change the individual’s mindset and view of the world, and mitigate the risk that they pose to the public in an enduring manner. Anything that promotes that prevent, disengagement and deradicalization position is to be welcomed.

Both those options are considered with TPIMs, and indeed with most of the work that we undertake. Both protect the public, if successful. We are conscious of that and drive both of them. Counter-terrorism policing operates across all the Ps of the Government’s counter-terrorism strategy, called Contest, and prevent and pursue are included in that.

[Alex Cunningham]

Q Specifically on rehabilitation, do you think we need to amend the Bill to give younger people an opportunity to appear before the Parole Board. Should they be managed differently?

Tim Jacques: I cannot comment in detail on the Parole Board element of it. If we can encourage people via the use of TPIMs and the programmes that TPIMs include, that would be a good thing, but the intricacies of sentencing and release are beyond my expert knowledge.

[Alex Cunningham]

Q There is much talk in the Bill about polygraphing. Do you believe that introducing polygraphs in this area will drive the benefits that the Minister hopes for? Are you satisfied that the science around them is good enough, and that they provide real value?

Tim Jacques: There are two elements, as I understand it, where polygraphs are introduced: one is in licence conditions and the other is the use of TPIMs. I can certainly talk about the latter, but maybe not the former.

It is safe to say that the science around polygraphs is not absolutely fool-proof. For that reason, we and the CPS agree that we would never seek to use them as evidence in a criminal prosecution in the UK. By introducing polygraph measures in these circumstances—in TPIMs—you may end up with that evidence through disclosure, not for criminal prosecutions.

The reality is that polygraphs are untested in the terrorist space, but we would welcome the ability to pilot them. We would not necessarily be seeking mandation on every single TPIM. It says “if required”, and again that should be an operational decision for us. They are untested, which is why they are not used in criminal proceedings. They have utility in the management of sex offenders, as Jonathan pointed out, and they may well have utility in the management of terrorist offenders. We would be happy to try that and see where it takes us.

[Alex Cunningham]

Q So you would want to see a trial, rather than wholesale introduction?

Tim Jacques: Our point has always been that polygraphs are something that may have utility. If the Bill enables that utility, we would be very happy to try that, but whether to use them is an operational decision. They are untested, but the Bill enables them to be tested.

[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.

--- Later in debate ---

[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?