Counter-Terrorism and Sentencing Bill

Baroness Prashar Excerpts

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

[Baroness Prashar (CB) [V]]

My Lords, I will focus on two aspects of the Bill. The first is the serious terrorism sentence introduced by Clauses 4 to 7 and the second is the removal of restriction of early release for terrorist prisoners introduced by Clauses 27 to 31. The Bill’s objective is to ensure that victims and the wider public are protected for longer and to enable victims to feel safe for longer. I fully support that objective, but the principal consequence of these provisions is to remove the role of the Parole Board, a body I chaired between 1997 and 2000, in assessing risk to determine the safe release of the most serious terrorist offenders. Instead, offenders sentenced under these provisions will be released automatically at the end of their custodial term.

The Independent Reviewer of Terrorist Legislation, Mr Hall, has described this as “a profound change”. He notes three immediate consequences. First,

“the possibility of early release, which acted as a spur to good behaviour and reform for offenders with long sentences”,

will be removed. Secondly, he says that it removes

“the opportunity to understand current and future risk at Parole Board hearings”.

Thirdly,

“child terrorist offenders, whose risk may be considered most susceptible to change as they mature into adults, have lost the opportunity for early release.”

As a former chair of the board, I entirely agree with Mr Hall’s concerns.

Parole is a vital stage in the risk management of those whose offending is serious enough to merit the imposition of an indeterminate or extended determinate sentence, including those convicted of the most serious offences. Parole is also a stage included in the special custodial sentence for offenders of concern and the Bill seeks to expand the remit of the sentence to include all terrorist offenders given a custodial sentence of over two years. Indeed, a paradox of the Bill is that on one hand it seeks to expand the role of the Parole Board in determining the risk of those convicted of less serious terrorist offences but, on the other, it seeks to remove the board from its role for offenders convicted of the most serious ones. How can this be logical?

No system for identifying future risk can ever be perfect and Mr Hall’s review included a number of recommendations on how to improve the court process involving terrorist offenders. It also highlighted the important role that the board plays as part of the process of assessing risk. Justifications provided by the Government for removal of parole are not convincing and I am not sure they are totally evidence-based. Denying parole hearings removes a key incentive for prisoners to engage with efforts by authorities to address their extremist beliefs. It also reduces incentives for prisoners to comply with the prison regime more generally, which could put staff at risk of violence. This has been highlighted by the Prison Officers’ Association as its biggest fear.

Then there are concerns about the fairness and proportionality of removing parole—authorised release for young adults convicted of terrorism offences where the maximum penalty is life imprisonment. The proposed changes would go against the recognition of age and maturity in other areas of sentencing by imposing the same conditions on children and young adults as on adults convicted of terrorist offences. It also runs counter to existing sentencing practice and evidence that this group is the most capable of change.

The need to reduce the risk posed by people convicted of terrorist offences is something we all agree on, but we must ensure that in the understandable desire to punish we do not undermine incentives to rehabilitate, or the arrangements in place to manage risk and protect the public. I am very grateful to other noble Lords: in particular to the noble Lord, Lord Ramsbotham, for highlighting the role of the Parole Board, and to the noble Lord, Lord Vaizey, in his maiden speech, for highlighting the role of art and culture in rehabilitation. I look forward to the Minister’s response.

Counter-Terrorism and Sentencing Bill

Baroness Prashar Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

Moved by

[Baroness Prashar]

12: Clause 27, leave out Clause 27 and insert the following new Clause—
“Release on licence for prisoners serving a serious terrorism sentence: England and Wales
(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 244(1) (duty to release prisoners on licence) after “247A” insert “, 247B”.(3) After section 247A insert—“247B Release on licence of prisoners serving a serious terrorism sentence(1) This section applies to a prisoner (“P”) who is serving a serious terrorism sentence under section 268A or 282A of the Sentencing Code.(2) It is the duty of the Secretary of State to release P on licence in accordance with subsections (3) to (6).(3) The Secretary of State must refer P’s case to the Board—(a) as soon as P has served the requisite custodial period, and(b) where there has been a previous reference of P’s case to the Board under this subsection and the Board did not direct P’s release, not later than the second anniversary of the disposal of that reference.(4) It is the duty of the Secretary of State to release P on licence under this section as soon as—(a) P has served the requisite custodial period, and(b) the Board has directed P’s release under this section. (5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred P’s case to the Board, and(b) the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.(6) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).(7) For the purposes of this section—“appropriate custodial term” has the meaning given in section 268C of the Sentencing Code in relation to a sentence under section 268A of the Code, and in section 282C of the Sentencing Code in relation to a sentence under section 282A of the Code;“the requisite custodial period” means—(a) in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and(b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).””

[Baroness Prashar (CB) [V]]

My Lords, the principle aim of the amendment is to ensure that the Parole Board retains its vital role in assessing risk to determine the safe release of terrorist offenders given a serious terrorism sentence or an extended sentence. I am grateful to the noble Lords, Lord Anderson and Lord Ramsbotham, for supporting the amendment.

The amendment would remove Clause 27 and replace it with a new clause, which would provide for parole-authorised release for terrorist offenders given a serious terrorism sentence in England and Wales. The amendment is modelled on equivalent provisions on the extended sentences contained in Section 125 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In line with these provisions, an offender sentenced to a serious terrorism sentence would become eligible for parole-authorised release at the two-thirds point in their sentence. The release test applied is the same as those for other sentences for dangerous offenders, whereby the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. If that test is not met, the amendment provides for the offender to be retained in prison until the end of the custodial term. During that period, the offender is entitled to a parole hearing to reconsider their case every two years.

It should be noted that the changes to serious terrorism sentences introduced by the amendment would apply only in England and Wales. Equivalent provisions for Scotland and Northern Ireland would need to be drafted for the changes to be fully workable. The amendment would also remove the changes to the release arrangements for terrorist offenders given an extended sentence in England and Wales introduced by Clause 27. Following the deletion of Clauses 28 and 31, other amendments would be needed to make equivalent changes to extended sentences in Scotland and Northern Ireland. This would mean that convicted terrorist offenders sentenced to an extended sentence for which the maximum penalty is life would continue to be eligible for parole-authorised release at the two-thirds point.

This amendment addresses the concerns raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, as well as by me and a number of other Peers on Second Reading. They relate principally to how the new serious terrorism sentence and the changes to the extended sentence will result in a loss of the benefits of both a risk assessment and an incentive to reform which the parole process provides.

The parole process contributes to public protection in a number of important ways. First, it helps to ensure that dangerous people are not released when they would represent an unacceptable risk to the public. The Parole Board deals with some of the most serious and complex cases in the justice system. It rightly takes a cautious approach when assessing whether the statutory release test by Parliament is met. However, it also decides that around 10,000 prisoners need to stay in prison for the protection of the public. This means that fewer than one in four prisoners meets the Parole Board’s stringent release tests.

Secondly, parole hearings provide an opportunity to give careful consideration to the risk presented by an individual and to put in place arrangements to mitigate the risk, if they are authorised for release. While no system for assessing future risk can ever be perfect, the Parole Board has an excellent track record when it comes to limiting the dangers posed by offenders on release. As Jonathan Hall has stated, with the new serious terrorism sentence and changes to the release arrangements for terrorist offenders serving extended sentences,

“the opportunity to understand current and future risk at Parole Board hearings has been removed.”

Thirdly, the parole process provides hope and incentive for good behaviour and rehabilitation, particularly for offenders serving lengthy sentences. It can act as an encouragement for prisoners in the often difficult work of rehabilitation and reform. Poor behaviour and lack of engagement inevitably lessen the chance of release at parole hearings. Removing parole-authorised release removes a clear incentive for prisoners or authorities to engage in efforts to address their offending behaviour. It also reduces incentives for prisoners to comply with the prison regime more generally, which could put staff at risk of violence.

The changes introduced in the Bill also give rise to some significant anomalies in the sentencing framework for terrorist offenders. Under the provisions of the Bill, a life sentence will continue to be the most severe penalty available to courts. Unless an offender is given a whole-life sentence—there are currently just 62 prisoners with this sentence—these prisoners will be ineligible for consideration by the Parole Board once their punishment period is served. However, under the new serious terrorism sentence, an offender receives a 14-year minimum sentence, which must be served in full. Once that term is served, the prisoner is released automatically on an extended licence, without a risk assessment. Similarly, a terrorist offender given an extended determinate sentence, convicted of an offence for which the maximum penalty is life imprisonment, would have to serve the entire custodial term. However, once that term is served, they are released automatically on an extended licence—again without a risk assessment.

These provisions are also more confusing given the welcome changes that the Government have made elsewhere to strengthen the role of the Parole Board in its risk assessment of less serious terrorist offenders. In February 2020, the Terrorist Offenders (Restriction of Early Release) Act ended the automatic release of terrorist offenders at the halfway point of their sentence. Under this Act, these prisoners will be released only at the two-thirds point of their sentence if they can satisfy the Parole Board that their risk can be safely managed in the community.

It is surely worth considering parole participation in these new sentences to ensure that the benefits of both risk assessment and incentives to reform afforded by the parole process are not lost. As chairman of the Parole Board from 1997 to 2000, I have seen the incentives that parole provides at first hand. I too welcome the two new Ministers to the Front Bench and the open way in which they have engaged in Committee. I look forward to the Minister’s response, and I hope that he spells out for me the rationale for removing parole from this set of offenders.

--- Later in debate ---

It is a matter of public protection and public confidence in the justice system that this extremely serious type of terrorist offender is not granted the privilege of early release from the custodial sentence. While I have no doubt that we will continue to consider these matters in this House and in discussions outside it, for those reasons I urge the noble Baroness to withdraw her amendment.

[Baroness Prashar (CB) [V]]

My Lords, I thank the Minister for a very open response and all other noble Lords who have spoken in this debate. I support and agree with my noble friends Lord Anderson and Lord Carlile and the noble Lord, Lord Marks, because the points they made reinforce the points I was making. I respectfully disagree with my noble friend Lord Faulks about governors setting the licence conditions. Although the Minister explained carefully how that will be done, I do not see why that should replace an assessment made by the Parole Board, which has a great deal of experience in assessing risk.

Having said that, I think the principles of why parole is an essential part of our criminal justice system have been rehearsed. It is about public protection and the better management of prisoners. I do not think that it is fair to say that early release could lead to false compliance, because those who assess risk are very familiar and can assess whether the prisoner is serious or it is a false claim. I very much hope that the Government will consider the points made in the course of this debate. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.