Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

First, I thank the Government Front Bench, whose approach to this very serious Bill has been measured and appropriate. The noble and learned Lord, Lord Stewart of Dirleton, and the noble Lords, Lord Wolfson of Tredegar and Lord Parkinson of Whitley Bay, have been incredibly open with the House, and we are very grateful for that. I cannot remember whether this is their first Bill, but they have conducted it incredibly well. May I particularly mention the noble Lord, Lord Parkinson of Whitley Bay, who ended up having to take this Bill when, I think, the person originally nominated left in somewhat of a hurry? He did an incredibly good job.

We have had very open and co-operative help from the Front Bench. It is clear that we on this side of the House strongly support many of the measures. We did not reach agreement on TPIMs or polygraphs, but we have made changes, particularly in relation to TPIMs. Some were agreed by the Government, but they did not agree to all of them. I very much hope that those in the other place will consider very seriously the changes that we have made, which have focused mostly on TPIMs, and will perhaps think that we have provided appropriate protection, but in a more nuanced and better way.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.

My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?

We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.

In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?

In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?

Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.

In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.

In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.

Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.

As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.

This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.

The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.

I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.

In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.

Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.

I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.

That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.

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Moved by

[Lord Falconer of Thoroton]

20: After Clause 35, insert the following new Clause—
“Review of polygraph testing on terrorist offenders
(1) The Secretary of State must, within six months of this Act being passed and before sections 32 to 35 come into force, conduct a pilot of the use of polygraph testing on terrorist offenders.(2) The outcome of the pilot must be reported to Parliament within 12 months of this Act being passed.(3) The report must include—(a) data on the number of terrorist offenders who have been subject to polygraph testing during the pilot;(b) an explanation of how the results of polygraph tests have been used during the pilot;(c) an analysis of the effect polygraph testing has had on the licence conditions of terrorist offenders;(d) data on the number of terrorist offenders who were recalled to prison on the basis of polygraph test results;(e) a recommendation from the Secretary of State as to whether sections 32 to 35 should enter into force following the pilot; and(f) evidence from independent research on the reliability and value of polygraph testing of terrorist offenders.” Member’s explanatory statement
This new Clause requires the Secretary of State to conduct a pilot test of the use of polygraph testing on terrorist offenders and report the outcome to Parliament, in addition to setting out evidence for the reliability of polygraph tests based on independent research.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment proposes that the Secretary of State, within six months of the Bill being passed, should set up a pilot to see how the polygraph condition works in relation to terrorist offenders. It is a probing amendment. It may well be that a different or longer period would be required for the pilot, but the purpose of a pilot is to test a number of aspects of polygraph testing. We have gone through this on the previous group, and I do not want to spend too much time on it because we have already discussed it a lot, but I have three particular concerns that would be tested by a pilot.

First, how does polygraph testing operate in practice? I would be grateful if the Minister, who was very helpful on the previous amendment, would give us some indications about how it works in practice. By that, I mean the following. If one asks a question of an offender in a polygraph test, “Did you, in breach of your conditions, visit a certain place?”, and he gives an answer to which there is—to use the language of the Minister and the briefing—a significant response, does that mean that further investigations take place? If there is no significant response, would that mean, for example, that there would not be any further investigation? Does that give rise to risks that too much reliance will be placed on the answers in polygraphs to, for example, not undertake further investigations?

My second area of concern is the one raised by the noble Baroness, Lady Hamwee, on Amendment 19. It would appear from the very helpful answer given by the Minister on the previous group that answers given would be admissible in proceedings against another offender, albeit that their admission would be subject to the discretion of the trial judge for the other offence. In certain circumstances I can see very clearly that they might be of real evidential value—for example, because they constituted an admission or because they constituted evidence of a conspiracy, depending on the content of what is being said. Can I take it that the Government are saying that they might in certain circumstances be admissible and that they are content for that to be the position? It is important that the Committee knows what the position is.

Thirdly, am I right in saying that decisions about recall are made not by a court but by a probation officer, and are there any reasons why he or she should not rely on a significant response—to use lay man’s language, a failure—of a polygraph test? I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, the questions that have been asked are important. We cannot assume that the rules that currently apply for use with sex offenders are going to apply in terrorism cases. Indeed, Clause 35(2) tells us that there may be particular rules for terrorism cases, and even if that was not in the Bill, we know that rules can be changed at any time, relatively easily.

Polygraphs do not have a great reputation with the public, and “The Jeremy Kyle Show” did not enhance it, which is another reason for wanting to explore details today. I made the point only yesterday on the Domestic Abuse Bill that operators have to follow courses accredited by the American Polygraph Association, and I was interested—I will try to use a neutral term—that we in this country are following American practice.

Under the rules, there are requirements about reports and records. I had a look at the 2009 rules, under which the operator is required to explain the requirements of the session: that anything disclosed might be communicated to the probation officer, and that there must be consent—or, rather, written confirmation—from the offender that these explanations have been given. I stopped myself calling it “consent” because, in that situation, I wonder whether the anxiety to which my noble friend Lord Thomas referred would preclude a complete understanding by the offender of what is happening. In that situation, knowing that refusal to take a test would amount to a breach of licence conditions, would you not sign anything?

The current reviewer of terrorism legislation has called for a pilot, and, if not a pilot, then post-legislative scrutiny. Not many Bills come along for post-legislative scrutiny by Parliament. The noble and learned Lord, Lord Stewart, painted a picture that I did not quite recognise. It sounded rather more like a departmental review—an internal review—than scrutiny by Parliament to see how an Act is getting on.

At last week’s briefing, I asked about the reliability of polygraphs used on subjects who have undergone some extreme experiences, such as having been in a war zone. I understand that that cohort is particularly in the Government’s mind at the moment. The professor of psychiatry—Professor Grubin, I think—who, I understand, advises the Home Office, realised that I was referring to trauma. I had not wanted to assume that they were subjects who had been traumatised, but he was right. I remain concerned not only about what might be perceived from offenders’ reactions but that the test itself might be retraumitising, so I think that the questions being posed are very helpful.

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[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to everybody who has participated in the debate, particularly the noble Baroness, Lady Hamwee, the noble Lords, Lord Thomas and Lord Paddick, and the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon—all of whom, with the possible exception of the noble Lord, Lord Paddick, supported the idea of some sort of pilot. I am also very grateful to the noble Lord, Lord Wolfson of Tredegar, for his response.

I take from this debate that there are very considerable issues and uncertainty around the use of polygraphs because they are quite new in this country. Like everybody else, I am concerned that, if they are a genuinely useful tool, they should be available to the authorities.

I am struck by what the noble Lord, Lord Wolfson, said about not having enough terrorist offenders on which to base a pilot, and I take note of that. I understood him to say that the Government will themselves carry out a review within two years. In light of what he said, I am minded to think that the right thing to do is to come back on Report with an amendment suggesting a pilot which can embrace all the terrorist offenders, because there will not be that many. That will not restrict the Government from using them now, but it will require them within two years—not the 12 months I have referred to—to come back with the information referred to in proposed new subsection (3) of the amendment. That would be good from the point of view of informing the public about polygraphs and, more importantly, informing the Government on how they do it, because they have to make a report on it.

I am very grateful to the noble Lord, Lord Wolfson, for his response, and I beg leave to withdraw my amendment.

Amendment 20 withdrawn.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past.

The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial.

The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well.

Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject.

These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008,

“we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves.”

The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to “reasonably believe” that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied

“on the balance of probabilities”

—the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to

“has reasonable grounds for suspecting”.

A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect.

If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said:

“I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; cols. 6-7.]


That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals.

It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases.

The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of “reasonable grounds for suspecting”. After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former.

The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with

“on the basis of reasonable and probable grounds”.

I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening.

The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I am delighted to follow the noble Lord, Lord Paddick, as ever. I am sorry that he did not have the energy to get to my amendment, but I completely understand why that would be. The difference between my amendment and that of the noble Lord, Lord Anderson, is that mine seeks to unpack what the standard of proof would be; it requires an objective standard of “probable grounds”: in effect, balance of probabilities, but more spelled out. The difference between the amendments is that, in effect, the noble Lord’s amendment would give a year when the lower standard—namely, reasonable suspicion—could apply and thereafter insist on the balance of probabilities. The real difference is that first year of grace which the noble Lord, Lord Anderson, would give to the Government or the Secretary of State to have a lower standard of proof.

Our position on this side of the House is that the TPIM powers have utility to the Government for fighting terrorism. The noble Lord, Lord Paddick, indicated clearly the intrusive effect of TPIMs on those subject to them; for example, having to move to a different location, not being entitled to go to particular places, or not being able to associate or communicate with particular people. These are powers of utility for the Government. They are, however, intrusive and infringe against what would otherwise be people’s rights. Before those rights are taken away, it is for this House to decide what the right balance should be between those individuals’ rights and the protection of the public.

All those who have looked at it in any detail, in particular the noble Lord, Lord Anderson, and his successor as the terrorism reviewer, take the view that the higher standard of proof from that which the Government currently propose—namely, the balance of probabilities—has not caused them any difficulty in imposing TPIMs where they want to. As the noble Lord, Lord Anderson, put it, there is no need to lower the standard to keep the public safe.

In addition to the point that no change is required, a significant change is being made to the ability to roll over TPIMs indefinitely, so the consequence of the proposed amendments to the existing law being suggested by the Government in this Bill is to lower the standard of proof for no purpose and to do so on the basis of indefinite restrictions on individuals’ liberty.

The right reverend Prelate the Bishop of Manchester was, in my view, correct to say that the right approach is to ensure that the Government have the right powers but also to ensure that people are confident that they are being properly imposed. If people do not have that confidence, it will cause difficulties down the line.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee said, requiring a TPIM subject to relocate can have significant consequences, particularly, for example, if he or she has school-age children. It is a well-established fact in the rehabilitation of offenders that social ties are powerful in preventing reoffending. Relocating to another part of the country, presumably, would have the opposite effect.

Clearly, if there is a national security issue that requires the TPIM subject to be relocated somewhere they are not easily in contact with people they should not be in contact with, relocation should be considered. But to allow relocation simply to save police resources seems neither necessary nor proportionate.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because

“the variation is necessary for reasons connected with the efficient and effective use of resources.”

While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it

“is necessary for reasons connected with efficient and effective use of resources.”

I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have explained, this amendment is intended to prevent the possibility, as proposed by Clause 39, of varying a TPIM subject’s relocation measure for reasons connected with the efficient and effective use of resources in relation to that individual. I hear what they say about wanting to understand and explore that through this amendment.

We do not believe that the amendment as drafted would have that effect in practice, and we think that it could inadvertently broaden out the application of the clause to enable relocation of the TPIM subject for the second time for any reason. However, as I say, I understand the questions which lie behind their tabling it.

The Government are committed to future-proofing the TPIM regime to ensure that our operational partners are fully supported to manage TPIMs efficiently and effectively. Clause 39 has an important role in doing that. It will allow the Home Secretary to move an already relocated TPIM subject to an alternative location, if necessary, for resource-related reasons, provided that the national security reason for requiring relocation still exists—that is key to note.

We want to ensure that operational partners, and in particular counterterrorism policing, are supported in their function of managing this small but significant cohort of high-risk individuals within the community. This clause seeks to ensure that there is a greater degree of flexibility in the system, so that there can continue to be effective management of a TPIM subject when operational circumstances evolve.

To provide a real-world example of where a police force finds that resources are affected, I draw the Committee’s attention to the Novichok poisonings in Amesbury, in Wiltshire, in June 2018, which suddenly and significantly diverted police resource in a small force for a considerable period of time to that important and high-profile investigation. In such a scenario, if a TPIM subject was residing within the force area, it might no longer be possible for counterterrorism policing to provide the same dedicated resources to ensure that the TPIM was being managed effectively and in a way that reduced the threat to the wider public.

The new ground to vary the relocation measure could also potentially be used to cover the following: first, a temporary move of the TPIM subject because all relevant counterterrorism officers with the necessary skills become unavailable at the same time due to illness or another temporary reason, such as during the current pandemic, for example, which I am sure will be on noble Lords’ minds; or, secondly, in circumstances where the presence of the TPIM subject becomes known locally and, as a result, there is increased pressure on counterterrorism resources to keep the subject both monitored and safe.

The noble and learned Lord, Lord Falconer of Thoroton, asked about the test for the Home Secretary. When first deciding where to relocate a TPIM subject, provided there is a national security reason to do so, the Home Secretary takes into account various factors to arrive at a proportionate decision. These include but are not limited to: the personal circumstances of the individual; the availability of services and amenities, including access to employment, education, places of worship and medical facilities; the proximity to prohibited associates; and the demographics of the community. It is reasonable to apply a similar approach when deciding whether the police force area in which the TPIM subject currently resides continues to be the most appropriate area for them to be placed.

We do not anticipate this ground to vary the relocation measure being used except in exceptional circumstances. We fully recognise that the relocation of a TPIM subject —or the re-relocation of the subject, as would be the case if relying on this new ground—is a significant action to take given the potential impact on the individual and could be used only when necessary and proportionate to do so, taking into account their Article 8 rights. The Government understand that stability in a subject’s life is a crucial factor behind their rehabilitation and supporting them to move away from an extremist mindset, which, of course, we want them to do.

The noble and learned Lord, Lord Falconer, rightly said that this amendment does not address head-on the question of relocation. However, as he raised it and noble Lords are interested, it is worth reiterating that the Home Secretary can relocate a TPIM subject only if it is necessary and proportionate to prevent and restrict involvement in terrorism-related activity, that consideration is always given to the subject’s Article 8 rights, and that, furthermore, a TPIM notice does not prevent an individual seeking or maintaining employment or study—in the past, TPIM subjects have pursued both of those. It is also worth reminding the Committee that TPIMs are different from the control order regime. Under control orders, somebody could be relocated anywhere in the country, whereas under TPIMs, relocation is up to 200 miles away from their home address.

We assess that, in most cases where a TPIM subject has been relocated but there is then a requirement to move them to a new place of residence, that is provided for within existing legislation. However, as with several of the changes we are seeking to introduce through this Bill, we deem it important expressly to create this flexibility for our operational partners within the TPIM Act 2011 as part of our mission to future-proof the system and to ensure that TPIMs can be managed efficiently and effectively.

Decisions to vary the relocation measure for resource reasons will be capable of appeal. As with other unilateral variations to the TPIM notice, the function of the appeal court will be to review whether the variation was necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Additionally, however, for variations to the relocation measure on resource grounds, the appeal court will also review whether the variation was necessary for the efficient and effective use of resources.

Given the crucial tasks that we expect of our operational partners, we want to ensure that we support them as best we can in their effective management of TPIM subjects, as well as in their ability to respond to other high-priority work such as the examples I have given.

Amendment 30B is consequential on Amendment 30A, and the same arguments apply. I therefore invite the noble Baroness not to press her amendments.

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[Lord Paddick (LD) [V]]

My Lords, the only thing that I will add to what my noble friend Lady Hamwee has said about this amendment is an assumption that, even if the subject of the TPIM provides the authorities with all the details of his or her communications equipment—computers, mobile phone and so forth—it would be possible that they could end up borrowing a device from somebody else in his or her household. That is what the authorities are seeking disclosure of, to ensure that they keep track of all the communications the subject of the TPIM is engaged in. As my noble friend Lady Hamwee said, the provisions contained within Section 43(2)(a) reinforce the fact that TPIMs can impact to a highly intrusive extent on innocent people living with the subject of the TPIM.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of

“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”

Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.

However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I wholeheartedly agree with the final comments of the noble and learned Lord; that is exactly what Committee stage is for. It has been thorough but good natured, and long may that continue.

Clause 43 amends the existing electronic communication device measure in order that a TPIM subject will be required, upon request, to provide details of electronic communication devices—also known as ECDs—which they possess or use, or any such devices belonging to other individuals in their residence. It almost goes without saying that in the digital age in which we now live there is vast scope for ECDs to play a key role in the conduct or facilitation of terrorism-related activity, including attack planning and the radicalisation of others in a bid to inspire them to carry out a terrorist attack.

Amendment 30F would prevent the Home Secretary from being able to require TPIM subjects to provide details of electronic communication devices belonging to other people in their residence. This would significantly undermine the utility of the changes we are seeking to make and would ultimately be to the detriment of national security. We have seen in the past that TPIM subjects will access or try to access devices belonging to others in their household, as the noble Lord, Lord Paddick, rightly noted.

Clearly, there is an important balance to be struck between security and civil liberties, particularly of family members such as children. But we are clear, particularly given how sparingly we envisage this measure being imposed, that any impact on those residing with the TPIM subject—such as their family members—will be proportionate.

Preventing the Home Secretary from being able to require the provision of certain ECD-related information, as this amendment would have it, would leave a gap in a potentially useful information source which can assist with the effective management of the TPIM subject. I am happy to reassure noble Lords that, as with all measures contained in Schedule 1 to the TPIM Act, this measure will not be applied unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.

The Committee has already heard during the course of today’s debate that the TPIM regime has inbuilt and robust judicial oversight. This includes all TPIM subjects having an automatic right to have a court review of the imposition of their TPIM notice and each of the measures imposed, as well as a right of appeal should a TPIM subject wish to challenge a variation to one or more measures contained within the TPIM notice. This oversight will of course apply to the updated ECD measure proposed in this clause.

I hope that that provides noble Lords with the reassurances that they were hoping to receive and I invite the noble Baroness to withdraw her amendment.

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[Lord Falconer of Thoroton (Lab) [V]]

The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,

“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”

Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.

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[Lord Paddick (LD) [V]]

My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.

[Lord Stewart of Dirleton (Con)]

My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.

Serious Criminal Cases Backlog

Lord Falconer of Thoroton Excerpts

Tuesday 26th January 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, by 2010 the system did 150,000 jury trials a year with about 47,000 waiting, about 30%. The median period between crime and court disposal was 240 days. By the time the pandemic started in March last year, jury trials were down to 100,000 a year with a median delay of 305 days, so fewer trials and longer waits. Now there are 54,000 cases awaiting a jury trial and rising. No one can blame the courts for Covid. The judges, court staff, defence and prosecutors have done bravely and well but the Ministry of Justice has overpromised and underdelivered. It said that there would be 200 Nightingale courts in which jury trials could be done; there are 20. Some 600 people in the last seven weeks have got Covid, from judges to court staff. There is no systematic testing. We have not made the necessary changes to preserve jury trials. What is the target for getting the backlog down and how is it going to be achieved?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the noble and learned Lord fails to put this information in context. In the Crown Court, prior to the Covid pandemic hitting in March last year, the outstanding caseload was 39,000, which was well within the range of 33,000 to 55,000 over the last decade. Immediately before the pandemic hit, we had increased the number of sitting days in response to an incoming demand on the courts. He will be aware that we have taken various steps to ensure that delays are minimised. However, I agree with him on one point: that we should pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, CPS staff and, if I may say so, MoJ officials who have made a monumental effort to deliver justice in very challenging times.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

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

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.

Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.

The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.

Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.

Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?

[Lord Falconer of Thoroton (Lab) [V]]

I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.

This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.

Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.

I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.

What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.

The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.

Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?

It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.

In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?

Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?

Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.

On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.

On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.

I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.

I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.

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Moved by

[Lord Falconer of Thoroton]

7: Clause 16, page 16, line 33, at end insert—
“( ) Section 255 of the Sentencing Code (extended sentence of detention: availability) is amended as follows.( ) After subsection (2) insert—“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—(a) take account of the offender’s age;(b) consider whether options other than an extension period of eight to ten years might be more effective at—(i) reducing the risk of serious harm to members of the public, or (ii) rehabilitating the offender.(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”( ) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.( ) The report of the first review must be laid before Parliament within one year of this Act being passed.”

[Lord Falconer of Thoroton (Lab) [V]]

Through this amendment, before the court considered whether to apply an extended sentenced of eight to 10 years to somebody aged under 18 at the time of conviction it would have to consider a pre-sentence report. That report should specifically address the age of the defendant and whether there are alternatives to the extended sentence of eight to 10 years. If the pre-sentence report considers that there are alternatives, the court is then obliged to consider that. It can reject it, but it has at least to consider it.

The amendment reflects our belief that for young adults, or people who might not even be adults, there may be, on the particular facts of a particular case, other ways better to protect a community than an extended detention period of eight to 10 years. The amendment would not require a court to accept that, but it would ensure that there is proper focus on whether there are better ways of protecting the community. I beg to move.

[Lord Woolf (CB) [V]]

My Lords, I adopt what the noble and learned Lord, Lord Falconer, said and will add a few words. Although it was not accepted, I suggest that, from a practical point of view, the other provisions of the Bill would fall within what the Secretary of State might want to consider in reviewing the effectiveness of the section once a year has passed. That makes such a review highly desirable.

It is always possible for something to be thought of as exceptional, which, in fact, cannot be shown to fall within that limitation. It is a very healthy safeguard if the matter has to come before the Secretary of State as indicated in the proposed amendment, because that will give an opportunity to reconsider based on the experience of actually seeing the provisions of the Bill being implemented in the Act of Parliament, which in due course will be passed.

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[Lord Wolfson of Tredegar (Con)]

My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.

I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.

I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.

I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

[Lord Stewart of Dirleton (Con)]

My Lords, the purpose of the amendment was to reflect the approach adopted across England and Wales, and Northern Ireland. The “waterfall” approach means that courts can impose the new sentence only where they do not impose, for example, a life sentence or an extended sentence. Within the Scottish sentencing framework, this waterfall includes the sentence of detention without time limit, which was unintentionally omitted during initial drafting of the clause. As I said earlier, subsection (6) in the previous version of the Bill was amended during the Commons debate. The amendment would simply remove a reference to a provision that no longer exists.

Just as the noble Lord, Lord Thomas of Gresford, is aware of attractive waterfalls in Scotland, I am aware of attractive waterfalls in Wales. I hope that some day soon we will be permitted to discuss them in a friendly fashion together.

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Moved by

[Lord Falconer of Thoroton]

11: Clause 27, page 24, line 5, at end insert—
“and the prisoner was aged 21 or above at the time of their conviction”

[Lord Falconer of Thoroton (Lab) [V]]

These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.

There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.

Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.

“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.

The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.

Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.

I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained, Amendments 11, 13 and 14 are intended to retain the current release provisions for under-21s sentenced to an extended determinate sentence for a serious terrorism offence. As has been mentioned, the Fishmonger’s Hall and Streatham attacks revealed the devastating consequences of releasing terrorist prisoners too early. In the Bill, we are changing the release arrangements for all offenders convicted of serious terrorism offences to ensure that the most dangerous and serious terrorist offenders serve their full custodial term, essentially for two reasons—first, to reflect the severity of their crimes but, secondly and perhaps more importantly, the intention to preserve lives.

The amendment seeks to draw a distinction in release policy between those aged over 21 and those younger. However, the Bill will introduce changes to release for both adult and youth offenders sentenced for serious terrorism offences. The extended determinate sentence already operates in the same way for adults and youths in every other aspect, and because the nature of the offending and the threat posed is so severe, these changes should align with that pre-existing approach.

For those aged under 18, instances of terrorist acts occur, although, thankfully, they are rare. I shall come back to that point later. Among those under-18s are some who are capable of extremely serious offending and present a real threat to the public. They are the dangerous few youth offenders that these provisions aim to capture. This measure, therefore, is about offenders who have been deemed dangerous by the court. That also means that, when sentencing the offender to an extended determinate sentence, the judge would have already taken into account age and other relevant factors.

In that context, I turn to the points raised by the noble and learned Lord, Lord Falconer. As to the possibility of change, one has to remember that this measure is about public protection and applies only to the most serious young offenders who have committed terrorist offences that carry a maximum sentence of life and have been deemed dangerous by the court.

We are alert to the point on prisoner management and have carefully considered it. There are a number of programmes within prison to make sure that the sentences proposed here do not adversely affect prison management within the institution. Although, as the noble and learned Lord, Lord Falconer, correctly said, the prisoner is likely to end his sentence as an adult, the fact is that even when sentenced at the time, the nature of the offences mandate the sort of sentence we now propose.

As to the point made by the noble Lord, Lord Thomas of Gresford, on radicalisation in the prison system, there are, as my noble and learned friend Lord Stewart pointed out, a number of interventions in the prison system designed to prevent radicalisation. They are extensive. I will not go over the points that he made earlier but I repeat and endorse them. As I said—I said that I would come back to this point—the number of young offenders in this regard who have been radicalised in prison is extremely small. We are alive to the noble Lord’s point, but do not believe that that is a reason not to proceed in the way in which the Bill is currently drafted.

Finally, and only because I wish to reassure the noble and learned Lord, Lord Falconer of Thoroton, that I read all his amendments with extreme care, these seem to be technically defective, given that the wording is to be added after the close of quotation marks and, on the face of it, would appear to apply only to new Section (2A)(iv), and affect only the provisions related to service personnel. However, I hope that I have approached his amendments on their merits. For those substantive reasons that I have set out, I respectfully invite the noble and learned Lord to withdraw or not move his amendments.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble Lord, Lord Wolfson of Tredegar, for the careful way in which he dealt with my amendments. I fully accept and am guilty of the technical error he identified. He was kind to deal with the merits of the three amendments. I very much hope that the Government will reflect on what I and the noble Lord, Lord Thomas of Gresford, said because it is a considerable mistake to treat the under-21s the same as those who are 21 or over, particularly with regard to public safety. We will return to this matter at a later stage. With the leave of the Committee, I will withdraw my amendment.

Amendment 11 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

[Lord Falconer of Thoroton (Lab) [V]]

This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.

The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.

[Lord Wolfson of Tredegar (Con)]

My Lords, in this amendment the noble Baroness, Lady Prashar, whose experience in this area is profound, proposes replacing Clause 27 with an amended set of provisions. Certainly as I read them, their effect—and to deal immediately with the point raised by the noble and learned Lord, Lord Falconer of Thoroton—is to provide that all prisoners subject to an extended determinate sentence or a serious terrorism sentence would be eligible for relief by the Parole Board at the two-thirds point of their custodial term. In concept, therefore, this is similar to the intention tabled by the noble Lord, Lord Marks of Henley-on-Thames, which he referred to— we will come to it shortly—as he opposes Clause 27 standing part of the Bill. With this amendment, the noble Baroness goes further: to replace Clause 27 with a new provision. If I may say respectfully, the noble Baroness is correct to identify that without Clause 27 there must be some replacement provision included to provide the legislative authority to release those sentenced to the new serious terrorism sentence.