Counter-Terrorism and Sentencing Bill (Third sitting)

Kenny MacAskill Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[Kenny MacAskill (East Lothian) (SNP)]

Q Can I come back to the issue of incentivisation or early release? Do you believe that that is actually important, and in what way does it impact on your officers’ employment?

Mark Fairhurst: I do think it is important to have an incentive for people to engage with rehabilitation and improve their behaviour. You must also consider that when terrorist offenders are released, they rarely reoffend. Only about 5% to 10% reoffend, compared with 50% to 60% of the general population. I understand that those who do reoffend are high profile and commit atrocities, but we are looking at a cohort that, on the whole, has a 90% success rate, because only 10%—max—reoffend. We need to take that into account when we are thinking about the future of the offender—not only when they are in prison and what we offer them there, but when they are released. I do not think anyone has mentioned that yet.

[Kenny MacAskill]

Q In Scotland, we have a particular order called the order for lifelong restriction. That will be trumped by a mandatory sentence under the Bill. The order for lifelong restriction allows for release at any stage, but for recall on cause shown. Do you think that the order for lifelong restriction has merit?

Mark Fairhurst: I like the sound of that, Kenny, I really do, because it gives people an incentive and gives them hope that they will be released before serving their full term, but they are also under no illusion that they will be monitored in the community, and if they commit an offence, they will end up back in prison. I like the idea of that. As you know, Scotland has a lot of good practices that we could adopt in England and Wales, and I ask people to seriously consider that element.

[Kenny MacAskill]

Q Given the importance that appears to be getting put on polygraph tests, which are basically unknown within the Scottish jurisdiction at present, what training, if any, is given to prison staff?

Mark Fairhurst: None whatsoever, Kenny. That would be down to some independent body responsible for performing polygraph tests. That is another skill that I would not mind staff getting trained in—it would be another string to our bow. How often is it going to get used? Is it going to be a regular occurrence? All these issues need to be ironed out, but I am not against the polygraph test and I am not against prison staff being trained in polygraph testing. However, I would guess that scrutiny panels would say that prison officers are not independent because they work with the offenders, so they would want a totally independent body to facilitate that.

[Kenny MacAskill]

Q Finally, given the importance being put upon separation centres, which do not, so far as I know, exist in the Scottish Prison Service, have you any idea how your colleagues north of the border are expected to cope if a great deal of weight is being put upon them?

Mark Fairhurst: This is the major concern from my colleagues at the only separation centre that is open, in Frankland. We have had one serious assault, and that member of staff had to be a moved away from the separation centre, because there is nowhere to transfer the prisoner. Once that prisoner goes to court, if he is convicted of that assault on the member of staff, where do we transfer him to? We do not. We keep him at Frankland.

We have got a Muslim member of staff at Frankland who is being moved from the separation centre because the terrorist offenders in that separation centre have threatened him. That is not right—staff are being penalised for doing their job because we do not have the capability to transfer violent and disruptive prisoners to another separation centre. We have funding for three, but we only have one open because of the red tape and the legalities of moving people into a separation centre, because apparently, if you have three or fewer prisoners in a separation centre, it is classed as segregation. Well, you know what? Staff on the frontline are not interested in how you term things; they are not interested in the legalities. They are interested in you keeping them safe and giving them the tools to do their job, so let us get these other two centres open and let us respect staff safety.

[Rob Butler (Aylesbury) (Con)]

Q Mr Fairhurst, let me echo the praise and the credit for your members that has already been mentioned. As a former non-executive director of Her Majesty’s Prison and Probation Service, I met many of your members, who do a tremendous job. What is your view of the current rehabilitation and deradicalisation programmes for terrorist offenders?

Mark Fairhurst: I think we need a full review of those two courses, simply because of the last two atrocities, where both offenders had attended one of those courses. One was, in effect, a poster boy for one of the courses. I would like to see a full review, because what do we actually class as a success? Do we class success as offenders attending and passing those courses, or do we class as success the offender who attended those courses being released and not committing further atrocities? We need to look internationally at what is on offer for terrorist offenders, certainly around Europe, if not the world. We really need to review what we class as success, because I am not sure that those two courses offer what they should.

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[Alex Cunningham]

Q We are a long way from anything like that happening in the UK.

Professor Acheson: I think we probably are. We are outriders in that respect in relation to the rest of Europe, which does heavily involve non-governmental organisations and community groups, for example, in reintegration. We have seen that in the Molenbeek suburb in Belgium, which is responsible for producing quite a number of jihadis, where the community has been involved and works in partnership with, although separate from, the statutory bodies whose first priority is safety and security. That is a necessary but insufficient way of dealing with the problem.

[Kenny MacAskill]

Q Mr Acheson, you are well sighted on the Scottish system with the Risk Management Authority and the order for lifelong restriction. You talked about good regime designs not being punitive, but the imposition of a significant sentence without the opportunity for early release must appear to be so. Do you think that the order for lifelong restriction is perhaps the better option for many who are convicted by a court, rather than a mandatory sentence?

Professor Acheson: I am not sure which would work better. I am certainly on record as saying that I support the Government in much longer sentences for terrorist offenders, primarily because it is a unique opportunity to incapacitate an ideologically motivated offender and bring services around that individual. Those services need to be extended through the gate and into the community.

We need to focus on this as a national security issue that we need to deal with in a different way, so lifelong restriction may have its merits. The key thing is that we make sure that support and control exist around offenders who are being released and who may go back into extremist offending, so that in whatever way we apply restrictions on their liberty—including TPIMS, for example—we do it in a proportionate way. There is absolutely an argument that punitive measures increase alienation. I think that might be a trade-off, in some respects, for people with whom we may never be satisfied that they are safe to release. We have to embrace the idea that there will be a few offenders who must be kept in prison indefinitely, because they either cannot or will not recant a hateful ideology, and they have the means to mobilise that into violence in the community.

[Kenny MacAskill]

Q I have one final question. Scotland does not have a regime operating polygraph tests. In your experience, how do you think Scotland could establish one, regulate it and be able to check against delivery?

Professor Acheson: I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.

I am much more interested in using technology—wearable technology, in particular—with released terrorist offenders that will give us biodata and geographical data to allow us to spot when somebody is starting to re-engage in terrorist offending in all sorts of ways. It would create a geo-fence that restricts their movements and give real-time information on how that person is. I am not at all suggesting that technology is not useful here. I think we need to have much more investment in that.

The particular issue that I have seen—it has been talked about before—is the issue of disguised compliance, or lying, in layman’s terms. I am very happy to tell the Committee that Staffordshire University hopes to start a piece of research on disguised compliance led by me and Professor James Treadwell. It is mostly in the realm of social work in relation to domestic violence, but we want to see if there are ways to avoid a situation in which somebody like Usman Khan goes through an apparently successful deradicalization programme without apparently recanting any of his extremist principles, which are then put into murderous effect. I think this is a very under-explored area. It touches on polygraphs, but it is much broader than that. It is about how we skill up the people who are making the decisions on questions such as, “Can I trust you? Is your change authentic and credible, or are you trying to pull the wool over our eyes?”

We cannot have a perfect system. A perfect system would destroy our civil liberties, because we would keep terrorist prisoners in jail indefinitely and achieve the very effect that terrorists hope for in creating massive disruption in a liberal democracy. However, I think that we can do a lot more in relation to skilling up people to make decisions about whether and when somebody is safe to release, and under what conditions, and for how long they can be supervised.

[Rob Butler]

Q Professor, do you agree that until we have better deradicalization and rehabilitation programmes, we need to ensure that terrorists remain behind bars for longer to keep the people of this country safer?

Professor Acheson: Yes, for the reasons that I have just mentioned. I think that our position in January, where people who were so dangerous that they had to be man-marked by armed police officers had to be released from custody, was absolutely intolerable. We need to be focused on public protection. In relation to terrorist offenders, the Prison Service needs a bit of a change of mindset. There is too much of a reclamation and rehabilitation focus. I am not saying that that is not important, but I am saying that in relation to these prisoners, there has to be a primary public protection focus and a primary national security focus. That is not to say that the regimes in which terrorist prisoners are kept should not be as full and as varied as possible, so that people do not become alienated and further full of grievance.

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[Alex Cunningham]

Thank you.

[Kenny MacAskill]

Q Professor Silke, I do not know whether you are aware, but in Scotland there is a sentence called the order for lifelong restriction, which is indeterminate but allows for release or indeed for detention to continue. Given your views on the benefit of some sort of early release being available for those who show remorse or rehabilitation—indeed, the avoidance of people being released at the end of their determinate sentence because they have served it—do you think that an order for lifelong restriction may be a more appropriate sentence for some terrorists in Scotland?

Professor Silke: Honestly, I do not know enough about how it works to make an informed assessment of it. I am always cagey about anything indeterminate, which might imply indefinite detention. The advantage of having a fixed term, rather than something quite open-ended, is that at least you know exactly what you have to work with.

[Kenny MacAskill]

Q Scotland does not have a polygraph regime, if we can call it that. Can you give me some information about how uniform it is across Europe, for example?

Professor Silke: Polygraph testing is controversial—I think you have already had evidence on that—because it is not 100% accurate; there are errors in it. However, as I have already flagged, just because something is not 100% accurate, that does not mean that we should not use it.

Polygraph testing has a potential role to play in these cases. As an extra link in risk assessment and risk management, it could play a useful role. There has already been a commitment not to recall prisoners purely on the basis of a poor polygraph result. There would need to be additional information in order to justify that, and I think that is entirely sensible. There are potential benefits to using polygraphs within an enhanced framework, recognising that they do have their limits. I support the calls that are being made, if polygraphs are being introduced, for running a pilot programme first before implementing them across the estate.