Counter-Terrorism and Border Security Bill

Earl Howe Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.

I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.

We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.

Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as we have heard Clause 6 adds a number of further offences to the existing list at Section 17 of the Terrorism Act 2006, which extends extraterritorial jurisdiction over those offences. This will ensure that UK courts are able to prosecute foreign terrorist fighters who travel to the UK, having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people—the general public or targeted individuals—in the UK. It is this latter category of radicalisers, and propagandists on behalf of terrorist organisations, that the noble Baroness’s amendments deal with.

Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article such as a flag, in circumstances which,

“arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

As a result of Clause 2, it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances.

Extraterritorial jurisdiction is most relevant to Section 13, and in particular to the offence the Bill will add at new subsection (1A), in a case where a person located overseas publishes images of flags or logos associated with a proscribed terrorist organisation. We have seen in the Syrian conflict that Daesh has run a slick and effective online propaganda operation, which has included exactly this type of activity—publishing images on social media and other online platforms, aimed at promoting the group, its ideology and its methods, to individuals around the world, including in the UK. Other terrorist groups, in other parts of the world, do the same.

It has been a recurring theme of the debates on the Bill that this is a downside of the rapid development of online technologies in recent years. Although people have been connected and brought together in myriad positive ways, and the world has been opened up, those who would do us harm have been equally quick to exploit the opportunities of the digital age. Terrorists are no exception, and we need to update our laws to keep pace with the evolving threat. The online world simply does not respect national boundaries in the traditional sense, nor does it pay heed to geographical distance. Where this gifts radicalisers the opportunity to reach across the world to target vulnerable people in the UK, it is absolutely right that the UK Government respond by ensuring that our courts have the ability to deal with that. There is a clear operational case to justify this measure.

The noble Baroness, Lady Hamwee, has explained that her concern is that a person could find themselves prosecuted in the UK, having acted in support of an organisation that is not proscribed in the country where the conduct took place, and therefore having no awareness or expectation that they could be held criminally responsible. I respect the principled stance taken by the noble Baroness but, respectfully, I do not agree that it would be right to either simply remove this provision, as Amendment 31 would do, or limit its application, as Amendment 33 would do. The reality is that there is no universal and internationally agreed list of proscribed organisations, and there is no realistic prospect of one being implemented. Even if there were, the kinds of countries in which terrorist organisations are most likely to be based are those that are the least likely to sign up to and implement such an international rules-based system.

Despite this, terrorists are travelling and communicating across international boundaries, in a way which poses a direct threat to the safety of the public in the UK and elsewhere. Given this, we should not deny our courts the ability to act against such individuals if they return or travel to the UK, pending the adoption of such an international list, and we should ensure that the powers available are flexible and not unduly restricted. To proceed as the noble Baroness advocates would risk sacrificing public safety and justice in the pursuit of a frankly unrealistic ideal.

It is right that we should be able to prosecute those who travel overseas to join terrorist organisations, and who publish propaganda in support of those groups, seeking to radicalise others back in the UK or elsewhere. That is the nub of the matter. The noble Lord, Lord Carlile, was absolutely spot on in the way that he characterised these provisions. Such crimes are most likely to be committed in areas of conflict and instability, within failed states that may not have functioning systems of government with effective jurisdiction over their own territory, or in countries where there may not be clearly defined or well-developed terrorism laws equivalent to those in the UK, or which may simply take a different approach. Those are not good reasons to ignore the threat posed on UK soil by people who have published propaganda in support of terrorist groups while overseas. Simply put, foreign terrorist fighters should not be able to evade justice because the country that they travelled to, or hail from, does not have a proscription system equivalent to that of the UK.

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Moved by

[Earl Howe]

32: Clause 6, page 5, line 16, at end insert—
“(cza) an offence under section 12(1) or (1A) of that Act (inviting or expressing support for proscribed organisation);”

[Earl Howe]

My Lords, Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, as I have already explained, to which extraterritorial jurisdiction—or ETJ—applies. This means that individuals can be prosecuted in the UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here.

Following further consideration, we have identified two additional offences where it would be right to extend ETJ to ensure that the full range of relevant terrorism offences is covered. These are, first, the offence of inviting support for a proscribed organisation at Section 12(1) of the Terrorism Act 2000 and, secondly, the offence of expressing an opinion or belief in support of a proscribed organisation, reckless as to whether another person will be encouraged to support the organisation, which Clause 1 will insert into the 2000 Act as new Section 12(1A). Extending ETJ to these offences will help to tackle radicalisation, particularly by people who have travelled from the UK to join a terrorist organisation and reach back to the UK to spread its propaganda and promote its aims. This will allow prosecution in a case where, for example, someone overseas is in contact with a person in the UK, who may be a vulnerable person such as a child, and is either deliberately or recklessly encouraging them to support a particular proscribed organisation, such as Daesh.

Clause 6 received broad support in the House of Commons and, with the exception of the extension of ETJ to the Section 13 offence which we have just debated, has also been supported in this House. None the less, I hope that your Lordships will be persuaded that it is the right approach to ensure that we have as comprehensive coverage as possible of terrorist offences that might be committed overseas, subject to the normal safeguards, so that we can protect the public in this country. I commend this amendment to the Committee on that basis.

[Baroness Hamwee]

My Lords, since the Joint Committee on Human Rights is meeting at this moment it has not been possible to take its view on this amendment but I think it must follow from my comments on Clause 1 that it would not be enthusiastic, as these provisions obviously have to be read together. I was amused that the Minister said, as did the noble Baroness’s letter to noble Lords of 24 October, that the Government have identified further offences. They are not quite offences yet, are they? It would perhaps be fairer to say that the amendment is consequential on Clause, but that is a minor point.

[Lord Rosser]

I shall be very brief. I await the Government’s response to the points made by the noble Lord, Lord Anderson of Ipswich, with interest.

I would like to pursue another point he raised in his contribution. Bearing in mind that this amendment, which adds offences, is coming in at a very late stage in proceedings, is this a result of a perceived oversight on the Government’s part or does it represent a significant rethink of policy?

[Earl Howe]

My Lords, I am grateful to noble Lords who have responded to this proposed amendment. We are very conscious that it is less than ideal to bring in an amendment of this kind at this stage of the Bill’s passage. If we had been able to do so at an earlier stage, it would have been much better.

Having said that, we felt that it was, on balance, right to introduce this change rather than not introduce it. I recognise the reservation expressed by the noble Lord, Lord Anderson, on that score. He also expressed the reservation that we heard on the previous group of amendments about applying extraterritorial jurisdiction to those who are not UK citizens or UK residents. I have already said that as a general rule I respect that point of principle. However, I put it to the noble Lord and the noble Baroness that what we are seeking to do here is not any different in concept from what we sought to do at the beginning of the Bill.

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[Lord Rosser]

This amendment, moved by the noble Lady Baroness, Lady Hamwee, and to which my name and that of my noble friend Lord Kennedy of Southwark are also attached, is another which reflects a recommendation from the Joint Committee on Human Rights. One of the key aspects of the Bill is the proposed increase in maximum sentences for a number of terrorist offences. This was one—but only one—of our reasons for raising concerns about the prospect of innocent parties falling foul of some offences.

The JCHR said that the increases in sentences do not appear to be supported by evidence to suggest that they are justified or proportionate. The committee was particularly concerned that a sentence of 15 years could be imposed for an offence of viewing terrorist material online—even more so in the light of amendments on Report in the Commons that might make a single viewing sufficient for such an offence to be deemed to have been committed. As has already been said, the committee asked the Home Office for the evidence on which it based its decision that the current maximum sentences were insufficient and why it considered the proposed higher maximum sentences to be necessary and proportionate.

The reply from the Home Office, as set out in the JCHR report, stated, among other things:

“The division between preliminary terrorist activity and attack planning is increasingly blurred”.


It did not, according to the committee, explain why existing sentencing powers were inadequate. I hope, like others, that the Government will address this point on existing sentencing powers in their response, as well as the specific terms of the amendment, reflecting the view of the JCHR, which deletes the increase in the maximum sentence from 10 years to 15 years for the “collection of information” offence provided for in Section 58 of the Terrorism Act 2000.

[Earl Howe]

My Lords, Clause 7 increases the maximum sentences for a number of terrorism offences to ensure that the available punishment properly reflects the seriousness of the crime. That is the point that I urge noble Lords to focus on in this debate. A key aspect of the review of our terrorism laws announced by the Prime Minister following last year’s attacks, of which the Bill is the product, was looking again at the courts’ sentencing powers to ensure that they are sufficient to respond to the threat and keep the public safe. The clear conclusion was that sentencing needs to be updated and strengthened, and the Bill contains a package of measures to deliver that, including Clause 7. However, I recognise that the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, have queried whether these changes need to be made and have suggested that such changes are unnecessary and disproportionate. However, I sincerely hope that in responding to such concerns I can explain why the Government believe that Clause 7 as drafted is a necessary, proportionate and timely response to the contemporary terrorist threat.

Since the offences in question were first introduced, in some cases 12 years ago and in others 18 years ago, the terrorist threat has evolved significantly. Its source has shifted and diversified, its methods have developed and it has been quick to exploit modern online technology. Both its extent and its severity have maintained an upwards trajectory, and the intelligence services consider that in recent years there has been an enduring shift in the nature of the threat, rather than just a spike. We can be under no illusion: the scale of the threat we face today is unprecedented and, sadly, more attacks are likely.

In particular, we have seen increases in the scale of radicalisation and changes in its methodology and patterns. The growth of the internet has brought new and powerful ways for people to connect with each other, and to share ideas and information, which have brought great benefits to the vast majority of the public. But they have also brought new opportunities to those who would do us harm, increasing the ability of terrorists both to access and to disseminate unlawful terrorist information and training material, propaganda, and incitement to hatred and violence—and to do so, potentially, to a wide audience. Indeed, those who seek to recruit and to inspire or direct individuals to carry out attacks have never found it easier to identify and connect with would-be terrorists, often across international borders, and those who are embarking on the path of radicalisation have never found it easier to access material, to communicate with terrorist individuals and organisations, and to receive encouragement or direction which will move them further and more quickly along that path.

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[Lord Davies of Stamford (Lab)]

I think that the noble Earl would carry the whole House in saying that terrorism has become a greater threat to our society in the last 10 years and that Parliament should do something about this serious matter. I, for one, would be open to persuasion—as, I suspect, would many others in this House—that what is required, among other things, is to strengthen the hands of the courts and to give them the ability to increase the sentences that they impose for terrorist or terrorist-related offences.

However, I have noticed that the Minister has not even begun to answer the quite significant questions asked by the noble Lord, Lord Marks, and my noble friend Lord Rosser, about the principle on which this increase in sentences has been decided—if you like, the multiple which is being applied to existing sentences. What is the origin of this? The Minister mentioned the review. Has the review set out exactly what the increased sentences should be, and if so, on what basis has it come to that conclusion? Did it decide on a universal multiple? From the figures of the noble Lord, Lord Marks, it sounded as though it was about 50%. Is that applied across the board, or was it decided that a different multiple should be applied to different types of sentence, and if so, on what principle? I do not sense that we have heard enough about the methodology that the Government have used to come up with the proposals that they have put before the House today.

[Earl Howe]

I am sorry that the noble Lord did not take one of the central points that I was trying to convey: that the review into this area, instigated by my right honourable friend the Prime Minister, concluded that the kinds of offences that we are considering preparatory to terrorism—which in 2000 and 2006, when the previous Terrorism Acts were passed, were not considered to be as heinous as terrorism offences themselves—were given sentencing structures that reflected that point of view; but that since that time, the intensity and scope of terrorist acts has so increased that it is necessary to treat those former, lesser offences as much more serious and harmful than before. In that context, it is to enable society as a whole, through legislation, to make a more emphatic statement, through sentencing guidelines, of the seriousness of those offences.

[Lord Davies of Stamford]

I did not ask the noble Earl to repeat what he has said to the House before. The question I asked is very specific: on what principle had these precise multiples been arrived at?

[Earl Howe]

There is always a judgment to be made. Once one has reached the conclusion that I have just articulated, there is indeed scope for argument about whether the increase should take place at all—we believe that it should—and, if so, to what extent. The Government have taken a view. We are putting it to Parliament and we believe it strikes the right balance in this context.

[Lord Thomas of Gresford]

The guidelines which came into effect on 27 April this year, a few months ago, were arrived at following consultation and a request for comment. They were considered by the Justice Committee in the House of Commons. What is the review to which the noble Earl is referring? What was its date? Was it not before the Sentencing Council at that time?

I assume that the noble Earl would expect the Sentencing Council to go back to its guidelines in the light of what he has said and the lack of principle to which the noble Lord referred a moment ago, and review the appropriate sentencing. These sentencing guidelines set out six steps for a judge to take before he announces the sentence. They are detailed, categorise the nature of the crime and consider what aggravating or mitigating circumstances there are. There are six steps to getting to a decision. They were all set out on 27 April this year. As the Prime Minister would say, what has changed? Is it the review? If so, what is this review?

[Earl Howe]

My Lords, it may be helpful to the noble Lord and the Committee if I quote part of a press release which the Sentencing Council issued on 28 March this year when it launched the publication of the new sentencing guidelines for terrorism offences:

“In terms of the impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could be planned in a very short time period, using readily available items such as vehicles as weapons, combined with online extremist material providing encouragement and inspiration, these lower-level offences are more serious than they have previously been perceived”.


Max Hill QC, the Independent Reviewer of Terrorism Legislation, when he gave evidence to the Joint Committee on Human Rights, said:

“The other aspect which is partly to do with the passage of time as well is that the sentencing powers of those few experienced senior judges who deal with terrorism cases are capable of helpful review … There are examples where a higher discretionary maximum may be appropriate. It is not my purpose to talk about individual cases, but the Choudary case, which I have mentioned, might be a case in point. Some commentators were surprised at the sentence that he received, given the gravity of his offending, but the judge applied the statutory maximum, discounted in the various ways that he is enjoined to do. It seems to me that there is an argument for a higher discretionary maximum”.


That is the context in which the Government have taken the view that they have. I hope that is helpful.

[Lord Thomas of Gresford]

The March press statement was an explanation of the guidelines which were to come into effect on 27 April. It was not looking beyond those guidelines to some future date. Indeed, the noble Earl has not referred to the review that he quoted to us a short time ago—what it is, when it was published and whether it was before the Sentencing Council came to its conclusions. Its March justification for an increase in sentencing power was not for something that might happen now, but because it was increasing the level of sentences with its guidelines in April. What has happened since then?

[Earl Howe]

My Lords, the Sentencing Council’s new guidelines for terrorism offences came into force, as the noble Lord rightly says, on 27 April. In its consultation on the draft guidelines, the council was able to anticipate the proposed increases. Consequently, we believe it will not be a difficult task for the council to modify the guidelines once the Bill is enacted, and the Government will of course work with the council on those increases. Any changes to sentencing will only be made following parliamentary debate and approval.

[Lord Rosser]

Unless I am getting confused, which is quite possible, as I understand it the Security Minister, when the Bill was in the Commons, said,

“we have kept the Sentencing Council apprised of the provisions in the Bill, and the chairman has indicated that the council plans to revisit the guidelines once the Bill has completed its parliamentary passage”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 3/7/18; col. 105.]

Is that still the Government’s position?

[Earl Howe]

That is exactly the position. I sense no resistance from the Sentencing Council to that approach and I think it is eminently practicable. To answer the question from the noble Lord, Lord Thomas, about the review, it was announced by my right honourable friend the Prime Minister in June 2017. It is an internal government review and as such was not published, but I have informed the Committee today of some of the conclusions that it reached.

[Lord Thomas of Gresford]

It follows from that that the review was prior to the Sentencing Council coming to its decision in March and April of this year, so its members must have had that material before them. Nothing has happened between April and now that would justify this increase. From what the Minister says, I assume that he is expecting the Sentencing Council to double the sentences that it proposed in April—that is the basis of the increase in sentences from seven years to 15 years. That gives more scope for the judge to do justice, and consequently the Minister would be expecting the Sentencing Council to double its sentences.

[Earl Howe]

My Lords, what I had better do is take advice on the timelines that were involved in all this and clarify that to noble Lords who have taken part in this debate; I would not wish to give the wrong impression about the sequence of events. What I am saying is that the Sentencing Council’s new guidelines, which came into force on 27 April, are capable of being updated, and we believe that that is not a difficult task for the council to do once the Bill is enacted. We will consult with the council to that end, as appropriate.

[Lord Marks of Henley-on-Thames]

I am sorry to keep the Minister on his feet for longer than I am sure he wants. I ask that when the exercise that he has promised is undertaken, he also investigates what evidence there was to justify the sentences. He has mentioned in particular the views of the police and the CPS. Was any evidence taken from any members of the judiciary responsible for sentencing in terrorist cases where they felt that their powers were insufficient under the existing sentences?

[Earl Howe]

My understanding is that the consultation that took place was a wide one, but I can clarify that point having taken advice on it. It is of course not for the Sentencing Council to comment on or recommend statutory maximums; it issues guidance on the application of currently existing maximums. That clarification is important.

[Lord Davies of Stamford]

The Minister has been very helpful to the Committee, but would it not solve an awful lot of problems if he were to publish the review on which these revised sentencing guidelines were based so that we could all see what arguments were adduced and how the conclusions were arrived at that are reflected in the draft Bill before us?

[Earl Howe]

I am happy to take that request away with me and investigate whether it is possible.

[Baroness Hamwee]

My Lords, I too had written down not just “timelines” but “evidence to the review”. I do not think one can disregard that. The Minister also referred to lower-level offences, which were commented on by the Sentencing Council, but we seem to have slid away from that.

The Minister put great emphasis on the need to—I hope I am quoting him correctly—strengthen the ability of the police and the agencies in the criminal justice system to intervene. I do not think anyone has queried the seriousness of the offences that we are discussing, nor have we queried the powers. That has not been the thrust of the argument.

The Minister has not disputed the mean average of three years and four months. Of course, I appreciate that any average is an average, so there are much higher periods and much lower ones, but 10 years seems to send a pretty clear message, which was the term that he used, and it leaves a lot of headroom above the average. Three years and four months is quite a shortfall from 10 years. Unless there is a big increase in that, there will be an even greater shortfall from 15 years. I would have thought that that sent a rather dangerous message. The message that I take is the one from the very recent sentencing guidelines, whose consideration, as a matter of common sense, must have been taken into account in preparing the Bill—or should have been.

I think we have more discussion to come on this issue. For the moment, I beg leave to withdraw the amendment.

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[Lord Carlile of Berriew]

In fact, the Government have a working relationship with the senior judiciary, which is often conducted at a fairly subtle level. The Attorney-General, it is to be hoped, has reasonably frequent conversations with the senior judiciary, but one would not expect the content of those conversations to be published. I apprehend that this matter has been considered fairly carefully in the usual way, and I am sure that we can trust Ministers when they say that there is evidence in their view for extended sentences of this kind.

I was going to add that there seems quite a clear analogy between sexual offences and terrorist offences, save that the evidence for extended sentences in terrorism offences may be much clearer than in sexual offences. When a judge is sentencing someone for a sexual offence, he will often have a clear apprehension drawn, for example, from the probation officer’s pre-sentence report and from the evidence in the case that the person concerned, usually male, represents a serious risk to children for an unknown period. The person is then sent to prison and courses are offered which they may or may not follow. The judge will often have an indication at the time of sentence as to the likely willingness of the individual to follow such a course, and that may influence the judge’s decision on whether to impose an extended sentence, usually for the protection of children.

A terrorism case may come before a court to defend someone like—he is not unique—Anjem Choudary. He has a clear intention, depicted on numerous occasions, to ignore those who criticise what he has been doing and to continue to attempt, in the subtle way that he follows, to radicalise others. There are other cases of a similar kind, but it is not very difficult for the judge to form the conclusion that the person is someone from whom the public needs to be protected by the special measure of an extended sentence. That is not only empirically defensible but meets public concern, which is reflected in the attempt to modernise these provisions in these clauses.

I urge noble Lords to support the spirit behind these clauses and to support the clauses in the knowledge that judges have never been lavish in their passing of extended sentences. In my experience and observation, when it happens it is usually done with great care and much concern by the judges, who start from an impartial standpoint before passing sentence.

[Earl Howe]

My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.

To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.

If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.

The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.

If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.

A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.

I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.

As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorism offences to the list. These are:

“membership of a proscribed organisation”,

covered by Section 11 of the 2000 Act;

“inviting support for a proscribed organisation”,

under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;

“publishing information about members of the armed forces etc”,

under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,

“attendance at a place used for terrorist training”,

under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.

In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.

For the sentences of particular concern, Clause 9 adds the same eight additional terrorism offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.