Counter-Terrorism and Sentencing Bill (Fourth sitting)

Bambos Charalambous Excerpts

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

[Alex Cunningham]

These amendments would require the Secretary of State to commission an analysis of the impact of this section of the Bill before it comes into force on people with protected characteristics, as well as the consequences of any disproportionate impact on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences. With this amendment, we seek to address the issue that was highlighted by the probing amendment and to clarify whether the same criminal standard of proof would apply to determining a terrorist connection for all offences, as is currently the case for listed offences. In particular, we seek to determine whether the clause may have a disproportionate impact on people from minority faith and BAME communities, including on the numbers who are received into prison and the length of the sentence served.

There are significant risks involved in expanding the number of individuals who fall under the provisions of separate terrorism legislation, particularly if the imposition of additional sanctions is seen as neither fair nor proportionate and is found to have a disproportionate impact on minority faith and BAME communities in particular. As I said during my speech on amendment 35, the equality statement on the Bill acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the total percentage”

of those individuals “in the total population.”

In 2016, a Ministry of Justice study of Crown court decision making found that, under similar criminal circumstances, the odds of imprisonment for offenders from self-reported black, Asian, Chinese or other minority ethnic backgrounds were higher than for offenders from self-reported white backgrounds. My hon. Friend the Member for Coventry North West spelled that out in some detail.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I do not know whether my hon. Friend was in the Chamber to hear the urgent question asked by my right hon. Friend the Member for Tottenham about the Lammy review, but he pointed out that, when the review was done in 2017, the proportion of BAME people in prison was 41%; it is now 51%. Does my hon. Friend have any thoughts about that?

[Alex Cunningham]

Unfortunately, I was not in the Chamber for that statement, but I bow to the superior knowledge of my boss and my Whip on this matter. It is absolutely essential that we never lose sight of the facts that my hon. Friend has just outlined.

Unfortunately, when it comes to magistrates courts, systematic scrutiny of magistrates’ decisions is hindered by the absence of reliable data collected on a number of key issues. For example, magistrates courts keep no systematic information about whether defendants plead guilty or not guilty, although there are similar disparities at the Crown court level. Magistrates courts also do not keep proper records of defendants’ legal representation, which means that no one knows whether particular ethnic groups are more or less likely to appear in court facing criminal charges without a lawyer.

The cliché suggests we are all equal under the law, but it would be foolish to deny that our justice system has a certain bias. We must make sure that when we amend or introduce legislation, we do so with our eyes and ears open. Particular attention needs to be paid to the equality impact of the Bill, to ensure that the House is as informed as possible about its impact. We must also ensure that the provisions do not have a disproportionate effect on minority faith or racial groups.

During the oral evidence session, one of my questions was to Peter Dawson from the Prison Reform Trust. We talked about the expansion of sentences for offenders of particular concern and how they would work. Peter Dawson said in written evidence:

“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”.

I asked:

“How can we improve the Bill to achieve that careful monitoring?”

Mr Dawson replied:

“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.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 38, Q88.]

Other witnesses talked about similar things during the evidence sessions. It is important that we do not lose sight of that.

Along with the expansion of sentences for offenders of particular concern, the clause has the potential to increase significantly the number of individuals in prison who are subject to separate terrorist sentencing. Many of those individuals are vulnerable to radicalisation and they have experienced a steady accumulation of institutional discrimination.

The danger with these provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and be subject to more onerous and lengthy supervision requirements and forfeiture orders than others who may have received shorter sentences for equivalent offences because the terrorist connection to their offence has not been identified.

That could place those individuals at greater risk from people who would seek to exploit that sense of grievance, in order to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison, increasing the currently small number of people designated as terrorism offenders to a substantial proportion of the population. This morning, we heard from a representative of the Prison Officers Association, who talked in some detail about the difficulties that prison officers now face in trying to manage particular groups in the prison establishment.

It is right that we commission analysis of the impact of our legislation and if such an analysis proves that there is a disproportionate impact on certain groups, Ministers need to act to correct any discrimination and, if required, change the law. Amendment 42 would require the Secretary of State to commission analysis of the impact of extending sentences for offenders, which is a particular concern regarding people with protected characteristics, and for that analysis to be laid before Parliament before the section comes into force.

Clause 21 replaces schedule 13 of the sentencing code, with the schedule set out in schedule 6 to the Bill. That schedule lists offences that require the imposition of an SOPC where an extended sentence or life sentence is not imposed. This will bring a wider number of offences into the SOPC regime, removing the possibility of those committing such offences from being eligible for a standard determinate sentence. That would mean that only the most minor terrorism offences—those with a maximum sentence of two years or less—would not require an SOPC where an extended determinate sentence is not imposed.

The Bill will also create new sentences—the equivalent of an SOPC for adult offenders in Scotland and Northern Ireland, and for under-18s throughout the UK. Clause 21 addresses a problem created by the TORER Act, which made all terrorist offenders serving a custodial sentence eligible for release two thirds of the way through their sentence, subject to the discretion of the Parole Board. There remained an issue with offenders who were not granted a release until the end of their sentence, and who, as a result, would be released into the community without any form of supervision. The amendment would address this anomaly by requiring that terrorist offenders in the UK would have a minimum period of supervision on licence of 12 months following release, even if they serve the full custodial part of their sentence in custody.

The combined impact of the TORER Act and the provisions of this clause, along with the provisions of clause 1 that allow for the court to determine a terrorist connection for any offence, is to significantly increase the number of individuals subject to separate and more onerous terrorist-sentencing legislation. This includes a longer period in custody, release subject to the discretion of the Parole Board, and a minimum 12 months’ supervision in the community.

There are significant risks involved in increasing the number of individuals who fall under the provisions of a harsher sentencing regime, particularly if the imposition of additional sanctions is seen as being neither fair nor proportionate, and is found, as I have said, to have a disproportionate impact on minority, faith, and BAME communities in particular.

The amendment also seeks to determine the consequences of any disproportionate impact on people with protected characteristics of efforts by the prison authorities to rehabilitate offenders convicted of terrorism offences. Many of those vulnerable to radicalisation have experienced a steady accumulation of institutional discrimination. The danger with the provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and who will be subject to those more onerous and lengthy supervision requirements than others who receive shorter sentences for equivalent offences. I have already covered that point. That could place them at greater risk from people who seek to exploit that sense of grievance to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison by increasing a currently small number of people designated as terrorism offenders to a substantial proportion of the prison population.

--- Later in debate ---

[Alex Cunningham]

I am sure that these amendments come as no surprise to the Minister and other members of the Committee, given my interrogation of our witnesses during the oral evidence sessions over the past few days. This area needs particular attention from the Government, and I intend to press the amendment to a vote—unless, of course, the Minister comes up with an appropriate answer. On the basis of all this kindly co-operation and friendliness that we are sharing, and our intention to prove to the public that we can work across parties, perhaps he might surprise me a little.

Amendment 37 would require that when a court considers a serious terrorism sentence for a young adult under the age of 21, the pre-sentence report must take account of the offender’s age and consider options other than a serious terrorism sentence for rehabilitation and reducing harm. It means that the court must also take into account the issues raised in the pre-sentence report and whether it constitutes exceptional circumstances under proposed new section 268B(2).

We need a basic recognition in the Bill’s sentencing framework that, simply put, young adults and adults are inherently different, not only in terms of maturity, but in their potential for rehabilitation. Regarding the level of maturity, numerous organisations, such as the Howard League, have advocated for this proposal. It has been recognised in reviews such as the Lammy review, and by the Justice Committee. Why is it not recognised in the Bill?

As we have said from the outset, serious terrorist offences deserve a serious sentence, but it is still important to consider the age of the offender when other offences of a non-terrorist nature are committed. Although the amendment is specific to under 21s, in line with the Bill, evidence of maturation suggests that young adults up to the age of 25 ought to be considered as a separate group requiring a distinct response from criminal justice agencies.

The work in this area continues apace, and I have no doubt that Ministers may well have to address their approach to all manner of sentences for people up to the age of 25 when we can all be satisfied that the science proves, beyond reasonable doubt, that they ought to be treated differently. We had a considerable amount of evidence on that. I asked Peter Dawson from the Prison Reform Trust for his view on the different factors relating to young people. He said:

“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.”

I think that is his opinion. He continued:

“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.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 34, Q75.]

We also discussed that issue with Jonathan Hall, the Independent Reviewer of Terrorism Legislation, who said that the point he was making was that

“there is recognition that people who are young and immature are probably more susceptible to change than adults.” —[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q15.]

I asked him whether the bottom line was that with young people, there was perhaps a greater chance of change; he had said that there might be greater opportunity for reform than with those who are considerably older. Mr Hall responded:

“That is what judges are increasingly finding.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q16.]

I want to refer to a little more of Jonathan Hall’s evidence. He said that he believed that a younger person dimension needed to be considered in the Bill:

“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.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 11, Q18.]

The current science and evidence tend to relate to people under 21, some of whom are a long way from full maturity. Analysis from the Royal College of Psychiatrists states that in terms of brain physiology, the development of traits such as maturity and susceptibility to peer pressure appear to continue until at least the mid-20s. That view was supported by the Justice Committee, which reported in 2016 that the growing body of evidence drawing on criminological, neurological and psychological research had led the Committee to conclude that young adults’ characteristics and needs made them distinct from older adults in terms of both their needs and their outcomes. There is no distinction in the Bill that recognises what the Justice Committee had to say.

The “Judging Maturity” report by the Howard League for Penal Reform also cited research that found the following:

“For the purposes of informing sentencing practice, the neurological and psychological evidence that development of the frontal lobes of the brain does not cease until around 25 years old is particularly compelling. It is this area of the brain which helps to regulate decision-making and the control of impulses that underpins criminal behaviour.”

As the Minister knows, I support trusting the experts where there is a significant trend. The trend of opinion from experts seems to be that we need to recognise the differences in maturity and development of young adults. In 2016, the Justice Committee reported:

“Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood.”

Research into the success of interventions aimed at tackling radicalisation suggests that approaches that encourage young people to engage in education and training may be particularly beneficial, and that early interventions to encourage young people to undertake that education and training can be capable of successfully challenging radicalisation.

We talk a lot about rehabilitation, but we do not do enough of it. Labour Members do not want young offenders to be condemned to a life with no opportunity for rehabilitation when it has been reported to be successful in early adulthood. We can reform and rehabilitate, but doing so is a choice.

[Bambos Charalambous]

My hon. Friend is making an excellent speech on this point. On the point about young people’s brains still developing, there is potential for grooming and undue influence by adults. With the Justice Committee, I visited a young offenders institution in Kent, where a young woman who was being held for terrorism offences had been influenced by her mother. Will he comment on that?

[Alex Cunningham]

Indeed, that is very much the case. I am grateful to my hon. Friend, because he reminds me of some evidence we heard this morning about young people being more susceptible to being radicalised. Another important point raised this morning was that our prison system is not yet properly equipped to deal with young offenders in a suitable environment that prevents radicalisation. They are housed—wherever they are—with people who have committed similar offences, who will be aiming to build on their insecurities and their immaturity to encourage them into further wrongdoing. We must never lose sight of that important point. That is why I will talk about young people throughout our proceedings on the Bill, because young people have to be given a chance.

I will talk about this later, but if a 20-year-old is sentenced to14 years in prison, that will make them 34 on their release. Add another 25 years to that, and they are almost pensioners before they are clear of the shackles of the state. They have not been given the opportunity to reform, because they are constantly looking over their shoulder, perhaps with an attitude of, “Why on earth should I change when the authorities are always on my back?”