Counter-Terrorism and Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

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

Debate on whether Clause 1 should stand part of the Bill.

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

My Lords, in opening this debate, on the first day of Committee on this Bill, it might be sensible for me to outline our approach. This is particularly so, because I was not able to be present for the Second Reading debate on 21 September—for which I apologise but I was involved in a court hearing.

All on these Benches—and, I believe, all across the House—regard terrorist offences as particularly serious and deserving of the highest condemnation. This Bill was a response to two appalling terrorist attacks. The first was the attack in and outside Fishmongers’ Hall in November 2019, when Usman Khan, who had been released on licence after serving half of a 16-year sentence for terrorist offences the previous December, stabbed five people, killing two of them, after attending a prisoner rehabilitation programme, before being shot dead by police. The second was the attack on Streatham High Road in February last year, when Sudesh Amman, a terrorist who was under surveillance and had been released a month or so previously from a three year and four month prison sentence for disseminating terrorist material, stabbed and injured two people before being shot dead by police. As the noble Lord, Lord Parkinson of Whitley Bay, rightly pointed out at Second Reading, both of those attacks were carried out by offenders who had been released half way through their sentences. The central feature of Part 1 of this responsive Bill is to make the sentencing regime tougher, both for offences that are considered by their nature to be terrorist offences and for offences deemed to have a terrorist connection.

Our concern, in considering this Bill at Committee stage, is to ensure that damage is not done, by the perceived requirement to respond severely to terrorist offences, to consistent and long-held principles of our criminal law. Clause 1, broadly, extends the range of offences that can be deemed to have a terrorist connection to include any offence, committed after the Act comes into force, that is punishable with imprisonment for more than two years. The terrorist connection need not be determined by the judge in the case of a number of specific terrorist offences listed in Schedule A1, effectively because it is presumed. Otherwise, it is for the judge to determine and state in open court that an offence has such a connection. A finding that an offence does have a terrorist connection, requires a sentencing judge to treat that terrorist connection as an aggravating factor when imposing sentence by reason of Section 69 of the Sentencing Code. For the purpose of that section, an offence has a terrorist connection if the offence

“is, or takes place in the course of, an act of terrorism; or … is committed for the purposes of terrorism.”

I note in passing that the code does not require that the offender was a knowing party to the planning, objectives or implementation of the act of terrorism, actual or intended, that was in fact committed. Furthermore—and this is our central point on Clause 1 —the decision that the offence has a terrorist connection is to be taken by the court at the sentencing stage, even though such a decision inevitably fundamentally changes the nature of the offence for which the offender has been convicted. The decision that is then made involves a factual determination of great significance to the criminality of the defendant and of the offence, yet it is taken by the judge alone without the involvement of a jury. Because the category of offences that may give rise to such a finding is so wide—that is, any offence that carries a maximum prison sentence of more than two years—the offences include a very wide range, such as causing criminal damage over £5,000, assault occasioning actual bodily harm, theft and many others, some of which would often be quite minor if committed without a terrorist connection.

Terrorism as an aggravating factor in sentencing was introduced by the Counter-Terrorism Act 2008. By Section 30 of that Act, where a person was found guilty of an offence listed in Schedule 2 to that Act and the court found that the offence had a terrorist connection, the judge was bound to treat the terrorist connection as an aggravating factor. The mechanism was the same as is proposed under this legislation, but the Schedule 2 offences under the 2008 Act were of the utmost severity. They included murder, kidnapping, Section 18 wounding with intent to cause grievous bodily harm, a number of serious explosives offences, hijacking, biological weapons offences, hostage taking and serious aviation offences.

A determination that an offence has terrorist connections has implications beyond sentencing, as it also triggers a number of forfeiture provisions and the terrorism notification requirements that apply. Under the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation we passed last year to prevent terrorist offenders being released after serving half their sentences—any offender whose offence came under the prescribed list of serious offences, and had been determined by a judge to have a terrorist connection, was subject to the rules in that legislation against release at the halfway point but, again, that Act involved a list of serious prescribed offences.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.

Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.

Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.

This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.

It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.

I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.

It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:

“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]


The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.

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

My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.

I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.

The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.

Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.

The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.

The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.

Clause 1 agreed.

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Moved by

[Lord Marks of Henley-on-Thames]

4: Clause 4, page 5, line 39, leave out “14” and insert “10”
Member’s explanatory statement
This amendment probes the balance between custody and licence for young offenders.

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

My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.

The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.

I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.

There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.

The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.

I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.

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

My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”

I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.

This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?

It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.

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[Lord Stewart of Dirleton (Con)]

If I may, I will respond to the noble Baroness’s question in writing.

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

My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.

My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.

The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.

The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

6: Clause 11, page 12, line 33, leave out “exceptional” and insert “significant”
Member’s explanatory statement
This amendment would give the courts more discretion when applying the minimum term.

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

My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.

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[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.

The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.

By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.

A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.

By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.

As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.

For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.

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

My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.

The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Lord, Lord Marks of Henley-on-Thames.

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

My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.

The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.

Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.

The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.

The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.

The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.

The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.

For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.

However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.

In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.

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[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

[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.

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

Noble Lords should be aware that the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have withdrawn from this debate, so the speaker after the noble Lord, Lord Marks, will be the noble Baroness, Lady Prashar. I call the noble Lord, Lord Marks.

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

My Lords, as was said on the previous group, Clause 27 as it stands would mean that offenders serving serious terrorism offences sentences and those serving extended determinate sentences for an offence carrying a possible sentence of life imprisonment would be excluded from the operation of subsections (3) to (5) of Section 247A of the Criminal Justice Act 2003. Those subsections presently govern the involvement of the Parole Board in the release of offenders at the two-thirds point of their custodial term.

In answer to some who spoke about early release in the debate we have just had, the description of release at the two-thirds point, which is what is largely envisaged, is not, on our traditional understanding, early release. We have long recognised that there is a benefit in a remission system whereby release generally takes place at the two-thirds point of a custodial term before the offender’s sentence has been concluded.

As the noble Lord, Lord Anderson, pointed out, subsections (3) to (5)—the present arrangements—were themselves the result of the Terrorist Offenders (Restriction of Early Release) Act, the so-called TORER Act, which we passed last year, ending release on licence after the halfway point in an offender’s sentence. However, in the section concerned, we preserved the role of the Parole Board in cases where generally an offender had served two-thirds of his custodial term. That was emergency legislation. I invite the Minister to explain what has changed to justify removing the Parole Board’s involvement since that emergency legislation, which retained it. I venture to suggest that no further justification has arisen since we passed that Act.

Subsections (3) to (5) presently require referral by the Secretary of State to the board for consideration after the completion of two-thirds of the required custodial period, then consideration by the board as to whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained. Only if it is so satisfied does the board direct release on licence. The effect of Clause 27 on the offences to which it applies is that release before the conclusion of the custodial term is excluded altogether and the Parole Board is not to be involved in relevant offenders’ release. Clause 28 and Schedule 10 apply similar provisions to Scotland, and Clause 31 to Northern Ireland.

One effect of removing the prospect of early release is that the Bill removes an incentive to behave acceptably in prison, which makes offender management in prisons far more difficult. It also makes it less likely that prisoners will engage with deradicalisation programmes within prisons—partly because there will be less incentive for them to do so, but also because deradicalisation, like rehabilitation more generally, is advanced by hope and inhibited by hopelessness. It would increase, in those subject to these sentences, the sense of hopelessness, powerlessness and hostility in prison from all around; I urge those who argue that hope and some sense of power in a prisoner’s own destiny are important to the welfare of society at large to accept the weakness of that position.

One reason why I make these points is that all those subject to these sentences will be released one day, unless their sentences outlast their lives; for that reason, their rehabilitation is important. Nor should we forget that the reoffending rates for terrorist offences are in fact low, as the noble Lord, Lord Anderson, pointed out when he referred to the response to the Question he raised last February, in which the Ministry of Justice calculated a recidivism rate of 3.06% for terrorist offences, as opposed to a rate of 28% for other offences. Of course I take the point made by the noble Lord, Lord Faulks, that any reoffending by a terrorist offender is or may be disastrous, but I venture to suggest that excluding any involvement of the Parole Board, with its wealth of experience in weighing up risks to public safety, would be an unhelpful way of improving public safety; indeed, it would not improve public safety at all.

The central question that the Parole Board is directed to consider is whether continued detention is required by a continuing risk to the safety of the public. The noble Baroness, Lady Prashar, repeatedly described this as risk assessment; that was the correct description. She rightly highlighted the importance in this process of the Parole Board and its hearings. Of course I accept in all this the point made in response to her amendment by the noble Lord, Lord Wolfson, that a replacement for Clause 27 would be required if that clause were to go. Whether or not that would have been the replacement proposed in Amendment 12 by the noble Baroness and others matters not. What does matter is that the present proposal does not help public safety, and has very serious adverse ramifications.

--- Later in debate ---

For those reasons, I respectfully invite the noble Lord, Lord Marks of Henley-on-Thames, not to press these various amendments.

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

My Lords, we have had two serious and thoughtful debates on the last two groups, and I am very grateful to all noble Lords who have spoken and to the Minister, who, on his first outing on a Bill, has undoubtedly impressed us all with the care and the courtesy with which he has approached the amendments discussed today. We have one further group today, but nevertheless I express the hope that further consideration between now and Report will persuade him and some of his colleagues in government to compromise when they see the faults of some of these amendments.

All of us—and I say to the noble Lord, Lord Naseby, not only those who see Clause 27 as an unmitigated, good toughening-up of terrorist sentencing—approach these issues from the perspective of what is best for public safety. That involves consideration of how to improve behaviour, and with behaviour the atmosphere, in prison.

I take the important point made by the noble Lord, Lord Ponsonby, about the safety of prison staff. It involves consideration of how to avoid reoffending, how to rehabilitate and deradicalise even terrorist prisoners, and how to ensure fundamentally that when prisoners are released, that release is safe.

The Minister responded to my question on what has changed since the TORER Act to justify the removal of consideration by the Parole Board of the release of offenders, or removal of release at the two-thirds point, but for the moment I am not sure that I accept the distinction that he made, though I will read what he said with care.

Counter-Terrorism and Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

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

Moved by

[Lord Marks of Henley-on-Thames]

16: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review. (3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence;(c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.

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

My Lords, by the amendments in this group noble Lords from around the House seek reviews of the impact of this legislation on the operation of our criminal justice system. Such reviews would consider: how we are dealing with terrorist offences, including the effects on the Prison and Probation Service and, in particular, the effects on prison capacity; the financial impact of the legislation; and the effect of the legislation on Northern Ireland.

The very fact that so many noble Lords seek such reviews, each with different emphases, demonstrates that however much the Bill’s provisions may chime with the prevailing public mood, for many of us they nevertheless cause uncertainty and misgivings. While we all recognise that terrorism must be dealt with extremely severely, on any view the Bill provides for radically harsher sentencing than we have had before. I suspect that the Minister and the Government recognise that this approach is not risk-free.

I shall concentrate on the review called for in the amendment in my name and the names of my noble friends Lady Hamwee and Lord Paddick. Our amendment is concerned with Part 1 of the Bill. To remind ourselves briefly of the ground we covered on day one in Committee, Part 1 deals first with sentences for what I might call ordinary criminal offences, punishable by two or more years’ imprisonment but aggravated by a terrorist connection; then, with serious terrorism offences and minimum custodial terms for offenders; with increased extended sentences for specified violent offences; and with other special custodial sentences for offenders of particular concern. The common threads running through all these provisions are, first, that judges’ discretion to impose more lenient sentences than prescribed in the legislation is considerably limited and, secondly, that terrorist offenders will generally spend much longer in prison than has been the case to date.

The review called for by our amendment is to be concerned, first, with the effect of the imposition of longer prison sentences on the reform and rehabilitation of those who serve them; secondly, with the likely outcome that longer sentences will mean offenders spending a greater proportion of them in custody and a lower proportion on licence; thirdly, with the radicalisation of other prisoners by those who will now spend far longer in custody and may have the dangerous potential to radicalise others who come into contact with them while in prison; and finally, on the segregation of serious terrorist prisoners serving these very long sentences. I make no apology for the fact that Liberal Democrats start from the position that while punishment plays an extremely important part in sentencing and that the more serious the offence the greater the punishment element in any sentence, nevertheless reform and rehabilitation, even in very long sentences, is a central purpose of sentencing.

Hope of reform and rehabilitation should motivate all who work within the system, as well as society at large. That belief is in our DNA. We do not believe that we should give up on serious offenders, even terrorist offenders. Nor do we accept that the lives of at least some among those whom we punish cannot ultimately be turned around.

Importantly, the review we seek calls for a person with professional experience of imprisonment for terrorist offences to be appointed by the Secretary of State, in consultation with the Independent Reviewer of Terrorism Legislation. It was therefore heartening to note that on 25 January Jonathan Hall QC, the independent reviewer, issued a statement saying that he had decided to review the subject of terrorism in the prison estate in England and Wales as part of his annual review of the terrorism Acts. His statement said that he was particularly interested in criminal behaviour which effectively encourages terrorism within prisons, in the status and influence of terrorist prisoners within them, in any connection to prison gangs, and in how to secure evidence of terrorist offences or terrorism-related activity in prisons. He is clear that his focus will be on terrorism because there is, he says, considerable literature already on radicalisation and extremism in prisons. Nevertheless, I would be surprised if he did not feel driven to consider, as part and parcel of considering terrorist activity within prisons, the question of radicalisation and extremism, and its effect on the prison population as a whole. Inevitably, he will also consider how to achieve reform and rehabilitation for as many terrorist offenders as possible.

One of any reviewer’s main starting points will be the work and findings of the 2016 Acheson review of Islamist extremism in prisons, probation and youth justice, the recommendations of which many noble Lords mentioned earlier in the passage of the Bill. In setting out the context of his review, Ian Acheson wrote:

“Islamist ideology can present itself in prisons as a struggle for power and dominance in which perceived weaknesses are exploited by a gang culture which threatens or undermines legitimate authority and security”


and that Islamic extremism

“should therefore be a greater and more visible priority for NOMS, led by people with the time and resource to act swiftly and with authority.”

I make no apology for concentrating on Islamic extremism in the context of the type of terrorism that this country, and many others, have faced in recent years.

Perhaps the most significant of that report’s recommendations was that those few extremists who presented what Acheson called

“a particular and enduring risk to national security through subversive behaviour, beliefs and activities”

should be segregated in specialist units, where they would be given “effective deradicalization” programmes. It has been very disappointing that although the Government accepted this recommendation, as they did nearly all the Acheson recommendations, there has been so little action. When I have asked Ministers about this failure of promised implementation, I am afraid that the responses have been defensive or, worse, complacent.

In the wake of the London Bridge attack by Usman Khan on 1 December 2019, Professor Acheson wrote in the Times:

“I have evidence that the separation centres that I recommended be established to incapacitate those posing most risk are not filling up because of institutional timidity to deal with a terrorist threat that is more acute than senior officials want to admit.”


He then said that

“I remain deeply unconvinced that this service has the corporate leadership, competence or will to deal with terrorist offenders. I’m not sure any tangible progress has been made since my review concluded three years ago.”

My concern is that since the disastrous attacks in 2019, the Government have been so focused on tougher sentencing that other aims, just as important or even more so, have been sidelined.

--- Later in debate ---

In the light of these remarks, I ask the noble Lord, Lord Marks, to withdraw his amendment and hope that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Ponsonby—who spoke to the noble and learned Lord’s amendment as well as to his own—will not move theirs when they are called.

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

My Lords, I am grateful to all noble Lords who have spoken and to the Minister for his detailed reply.

The noble and learned Lord, Lord Morris of Aberavon, with all his experience, had no difficulty in recognising the need for the review for which we have called, and clearly set out why a review after a year was appropriate. My noble friend Lord Paddick emphasised the need for deradicalisation and made the point, which ought to be obvious but was not addressed by the Minister, that everyone will be released at some stage so working to help them to be safe on release is therefore crucial. He also highlighted the clear danger that keeping offenders in prison for disproportionately long sentences may make them more likely to offend rather than less by further radicalising them, depriving them of hope and undermining their prospects of reform.

The noble Lord, Lord Ponsonby, in speaking to the amendments in his name and that of the noble and learned Lord, Lord Falconer, pointed out the risk of implementing increased sentences without a clear approach to making safe, new prison places available and to ensuring that the special implications for Northern Ireland are properly considered. Particularly important from my perspective, he stressed the role of the probation service.

In response, the Minister urged the Committee to accept that the Independent Reviewer of Terrorism Legislation is the appropriate reviewer of this legislation. I do not accept that. While his role is of course extremely important, it is not the same as someone tasked with a full review directed at the whole, overall impact of this legislation and focused on it. There is a well-established place for formal review after legislation is passed. Nor do I accept that it is necessary for reviewing the impact of this Bill that we should see, as the Minister appeared to suggest at one stage, what has happened on release at the end of offenders’ periods in custody or even after three years. What is necessary is to see, and see reasonably quickly, how these sentences are working and how they are affecting prisons and the prison population—including in particular how the presence of more, very long-term terrorists affects those already in prisons. We need to assess the financial and other impacts at an early stage and see how far the system is changed by the new long sentences.

The Minister questioned the impact of those long sentences because the number of prisoners is low—indeed, he went so far as to describe it as “minimal”—but that leaves out of account the impact of the number of prisoner years to be served by those on very long sentences and the importance of those prisoners within the system, including the danger of their glorification by other prisoners with an inclination towards terrorism.

For all the Minister asserting that enough review work and impact assessments have been done already, so that the reviews we seek are unnecessary, I disagree. However, in the hope that we will be able to discuss a programme for future review with the Government, I beg leave to withdraw my amendment at this stage.

Amendment 16 withdrawn.

--- Later in debate ---

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

My Lords, may I say how much I agree with the noble Lord, Lord Faulks, in his warning against equating too closely the use of polygraphs in monitoring sexual offenders with their use on terrorist offenders, who obviously pose a very different problem? The Minister should consider that.

Sixty years ago, in 1961, I was proudly driving my red and black little Austin A40—new car, brand new wife—along the twisting road from Mold to Denbigh in north Wales. It was a snowy day, just like today—that is what reminded me of the incident. We were not in a hurry. I approached a bend well on my own side of the road at a reasonable speed. There was a car parked on the bend; a large lorry coming from the opposite direction at speed saw it late, swerved out to overtake it on my side of the road and, as he pulled back, his rear end hit my car.

I gave evidence in the Denbigh Magistrates’ Court and found it very stressful. A police sketch of the accident was produced which purported to show where my car had ended up, with a 30-foot, perfectly straight skid mark. I told the chairman of the Bench I thought my car had finished some 20 yards short of where it was shown on the plan. He said, “Don’t you appreciate this is a carefully prepared police plan of your accident?” I said, “Well, it is entitled ‘rough sketch plan’.” Everybody laughed—except the chairman. The defendant was acquitted of careless driving, with the chairman commenting that the wrong person had been prosecuted —it should have been me. However, the lorry driver’s insurers paid me and my wife damages for personal injury without any questions.

The point of this lengthy reminiscence is that witnesses are giving evidence up and down the country in Crown Courts and magistrates’ courts every day, but nobody has ever thought to put a polygraph test on them as they are questioned. Your pulse may be racing, your blood pressure through the roof; you may be sweating, wishing you were anywhere other than perched in a witness box above the well of the court with myriad sceptical eyes looking you up and down—not because you are lying, but you may be afraid that someone, like the chairman of the Denbigh Bench, may not believe you. There are also those pesky lawyers paid to make you out to be a liar with their ridiculous version of the event. That is why the present Domestic Abuse Bill calls for special measures for victims and their witnesses and the present overseas operations Bill has a presumption against prosecution altogether, to save old soldiers the stress of recalling bad times.

The purpose of polygraph testing, as I said at our last meeting on 26 January, is to measure the physiological response of a person to questioning. It depends on the proposition that a person who lies will demonstrate it by changes in his blood pressure, perspiration, heartbeat and so on. I pointed out last time that these conditions are explicable by the stress of being questioned, by being thought to be lying, even by the state of your stomach-turning digestion, or by fear.

Because these physiological changes do not demonstrate that a person is lying, at least to the degree of certainty required for a conviction, evidence of the result of a polygraph test is excluded in court. It is therefore very good policy that, so far, the courts of this country have refused to accept polygraph results as admissible evidence.

We have already discussed whether such evidence should be used where terrorists are released from prison to monitor their continuing behaviour in the community. The purpose of this amendment is to probe whether the Government harbour any desire to go any further: whether this restraint will be maintained if the results of such a test appear to be relevant to a future terrorist trial in a court. That is when principle is put to the test—when there appears to be an indiscriminate danger to the public.

I support this amendment and I look forward to hearing the Minister’s comments on the proposal.

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

My Lords, as my noble friend Lady Hamwee and others have explained, Clause 32 puts the imposition of polygraph conditions on serious terrorist offenders released on licence on the same footing as applies in the case of serious sexual offences. I say at the outset that I agree with the noble Lord, Lord Faulks, and my noble friend Lord Thomas that different considerations apply with terrorist offenders and sexual offenders.

Yesterday, in Committee on the Domestic Abuse Bill, we discussed the use of polygraph testing for domestic abuse offenders released on licence—and again, different considerations apply. Nevertheless, I said then that my outright opposition to the use of polygraph testing anywhere in our criminal justice system had become more nuanced when the proposed use was for the limited purpose of monitoring compliance with licence conditions on release from custody. My outright opposition hitherto stemmed from the lack of proven reliability of polygraph testing and from the perception at least that it is directed to providing binary answers, true or false, to complex evidential questions—hence the use of statements such as “He failed a polygraph test”. Lawyers naturally prefer a system which depends on the careful and balanced evaluation of evidence, often conflicting or inconsistent, rather than certainty.

In part, as I said yesterday, I have become more sympathetic to the use of polygraph testing with the help of the comprehensive and very helpful learning session organised by the MoJ last Thursday, which was attended by a number of Peers, including the noble Lord, Lord Faulks, and my noble friend Lady Hamwee, as they have said. In addition, I accept that there are legitimate reasons for the use of polygraph testing to provide information to the police and others investigating serious offences and, in the case of terrorism, often potential offences that threaten multiple lives. However, accepting polygraph testing for those limited purposes does not mean that we can accept polygraph testing in criminal cases, and that will remain our position unless and until the reliability of polygraph testing is far more conclusively established than it is now. I agreed completely with the observations of my noble friend Lord Thomas of Gresford on how stress can affect evidence given in a court and on how falsely polygraph testing may skew such evidence.

Our Amendment 19 would amend Section 30 of the Offender Management Act to ensure that evidence of any statement made by a released defender in a polygraph session, and any of his physiological reactions while being so examined, could not be used in a criminal prosecution of any person, not just the released offender. It is right that this amendment is billed as a probing amendment, but that is plainly right. However, at the moment, Section 30 does not say that. As the noble and learned Lord, Lord Wolfson, said yesterday in answer to me on the domestic abuse provisions:

“Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.”—[Official Report, 8/2/21; col. 41.]


Therefore, the Government accept the principle that evidence obtained as a result of polygraph testing, or flowing from physiological reactions under such testing, cannot be used as evidence in a prosecution brought against the person being tested. It must be right that it should not be possible to use such evidence in the prosecution of anybody else, and the reasons mentioned by my noble friend Lord Thomas apply equally to that situation.

It therefore seems that, while this is a probing amendment, it is an amendment that the Government can and should plainly accept without compromising their position or anything that the Bill is trying to achieve, and that it is simply consistent with the position taken by the Government that polygraph-testing evidence cannot be used to secure a criminal conviction.

I stress, in the context of the danger posed by terrorism, that I take the point made by the noble Lord, Lord Faulks, that deradicalisation is difficult to achieve. He described it as a holy grail. I emphasise that nothing we say would prevent those administering polygraph testing to released offenders from passing on to the police for the purpose of preventing terrorism information revealed to them. Nor should the police be inhibited from using such information passed on to them in investigating and avoiding terrorist offences.

Amendments 19A and 19B would have the effect of insisting on the affirmative resolution procedure for regulations making provision relating to the conduct of polygraph sessions further to a terrorism-related offence. I suggest that the need for the affirmative resolution procedure is obvious. I would be grateful, however, if the Minister could confirm a number of other points about the regulations proposed, not just for the conduct of polygraph sessions but for using information obtained in the course of such sessions in relation to recall from licence.

My understanding is that, as with sexual offences, and as we were assured yesterday with domestic abuse offences, no decisions on recall from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about breach of a licence condition or about further offences, for example, I understand that investigators may ask the police to investigate further before taking any positive action. There is therefore to be no recall on the basis of a failed test, which will lead to recall only if the police find other evidence establishing that a breach has occurred. I hope that will be confirmed in a terrorist context as well.

I also have some concerns about cases where an offender makes a disclosure in a polygraph test, confessing to behaviour that is a breach, and who might therefore be recalled. I asked yesterday about this and was told by the noble and learned Lord, Lord Wolfson, that recall in domestic abuse cases may follow if

“disclosures made voluntarily by the offender during the polygraph examination … reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.”—[Official Report, 8/2/21; col. 41.]

I take that point, but I regard it as important that, before a disclosure in a polygraph test can lead to recall, there should be a hearing where the disclosure is either admitted by the offender to be true or can be tested so as to ensure that it is voluntary, genuine and true before a recall based on it is affected.

Yesterday I posed a number of questions to the Minister in relation to domestic abuse polygraph conditions. They are reported in Hansard, but the same questions are pertinent today in connection with this Bill. They concerned in particular: first, a guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions of a criminal offence; secondly, that recall from licence on the basis of a disclosure in a polygraph test of a breach of a licence condition will not be possible without a further hearing—the point I just mentioned; and, finally, whether evidence of a breach of a polygraph licensing condition could ever be itself based on evidence from a failed polygraph test. It would be helpful to have those answers in the context of this Bill relating to terrorist offences as well.

Counter-Terrorism and Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

1: Clause 1, page 1, line 8, at end insert—
“(aa) after subsection (1) insert—“(1A) The court may not assume that an offence has a terrorist connection for the purpose of this section unless—(a) the defendant has admitted in person and in open court that the offence has such a terrorist connection, or(b) where the defendant does not make such an admission, the court is satisfied beyond reasonable doubt upon a trial of the issue that the offence has a terrorist connection.(1B) A trial held pursuant to subsection (1A)(b) above must be determined by a jury unless the court determines that the interests of justice would be better served by a trial by a judge alone upon evidence admissible in a criminal court.””Member’s explanatory statement
This amendment would require a trial of the issue as to whether or not there is a terrorist connection in relation to an aggravated offence.

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

My Lords, I argued in Committee that Clause 1 should not stand part of the Bill because it would create a whole raft of new aggravated offences, for which offenders would be sentenced on the basis that the offences had a terrorist connection without the question of whether they had such a connection ever having been tried by a jury or a judge or even tried on the basis of admissible evidence.

For the purpose of Section 69 of the Sentencing Act, which is to be amended by this clause, an offence has a terrorist connection if it is, or takes place in the course of, an act of terrorism or is committed for the purposes of terrorism. The principal point I made in Committee was that the decision that the offence had a terrorist connection was not made by the jury before the offender was convicted but was reserved to the judge at the sentencing stage. A defendant might be convicted by a jury of the basic offence, for which the appropriate penalty might be a short term of imprisonment, but sentenced on the basis of a decision taken by a judge alone, without hearing any evidence, that the offence had a terrorist connection and merited a sentence of a long term of imprisonment. I said then and repeat now that that feature would cut across the principle of our criminal law that no one should be convicted of an offence except upon admissible evidence, open to challenge in a trial and, if in the Crown Court, heard by a jury.

Prior to this Bill, offences with a terrorist connection that would act as an aggravating factor in sentencing comprised a relatively limited range of very serious offences which might often be expected to have a terrorist connection, such as murder, a number of explosives offences, hijacking, hostage-taking and serious aviation offences. They were listed in Schedule 2 to the Counter-Terrorism Act 2008 and would all normally merit long terms of imprisonment.

For that reason, the effect of aggravating the sentence was less objectionable than it is to be as a result of Clause 1 of this Bill. That is because this Bill broadens the range of offences that may be treated as aggravated by a terrorist connection to include any offence that carries a sentence of imprisonment of more than two years. An offence of assault occasioning actual bodily harm, for example, carries a maximum sentence of seven years’ imprisonment, even though the violence involved can be relatively minor and the harm caused can be restricted to bruising or pulled muscles. The basic offence might merit a fine or a short term of imprisonment, but the offence committed with a terrorist connection might attract the maximum sentence. While the offender’s guilt of the basic offence would be determined by a jury, the terrorist connection would be a matter for the judge alone at the sentencing stage.

The finding that an offence has a terrorist connection does not simply increase the likely sentence; it also has the effect of activating the notification requirements for terrorist offences, thus classing the offender as a terrorist, with lifelong consequences, and the further effect of activating a number of forfeiture provisions. In addition, the increased sentence is subject to the restriction on early release under the so-called TORA Act, the Terrorist Offenders (Restriction of Early Release) Act 2020 that we passed as emergency legislation last year. Not only would the sentence be longer, but the proportion served in custody would be greater. In short, the consequences of a finding of a terrorist connection are devastating for the offender.

It was the fact that those consequences could be imposed without a trial of the fact of the terrorist connection that led us in Committee to oppose Clause 1 standing part of the Bill, despite our complete acceptance of the central proposition of this Bill that terrorist offences call to be treated with the greatest severity, for the protection of the public as well as the punishment of the offenders.

Amendment 1 is far more targeted than the opposition to the clause standing part. I am extremely grateful to the noble Lord, Lord Wolfson, and the noble and learned Lord the Advocate-General for discussing this amendment with me at a meeting yesterday. Importantly, the noble and learned Lord, Lord Stewart, reminded us that in Scotland the different charging arrangements and arrangements for jury verdicts would enable verdicts to be given making it clear whether a terrorist connection was proved or not.

Not being a Scottish or Northern Irish lawyer, I had not attempted to formulate amendments that would apply in Scotland and Northern Ireland. At the suggestion of the Public Bill Office, I have confined my amendment to England and Wales in the hope that, if it is agreed, the Government will draft and bring back suitable amendments for Scotland and Northern Ireland. However, it is to be noted that Section 31 of the Counter-Terrorism Act 2008, which applies to Scotland and is also to be amended by this Bill—although not materially for this purpose—requires that, before an offender in Scotland can be sentenced for the aggravated offence,

“(a) it is libelled in an indictment, and


(b) proved”.


Only then does the court take into account the aggravation of the offence. This was, no doubt, what the noble and learned Lord had in mind, proving once again to this Englishman how often Scotland is more enlightened than England and Wales on justice issues.

In the short debate in Committee on 26 January, my noble friend Lord Thomas of Gresford raised the possibility of a Newton hearing—a hearing to determine a question of fact relevant to sentence—as a way of determining whether an offence had the necessary terrorist connection to justify treating it as aggravated. That point was also hinted at by the noble and learned Lord, Lord Falconer of Thoroton.

The applicable legislation does not provide for such a hearing. Section 30 of the Counter-Terrorism Act 2008 provides only that the court must determine whether the offence has or may have a terrorist connection. Under subsection (3):

“For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.”


That provision is entirely unsatisfactory for the wide range of aggravated offences now proposed, many of them not of the greatest seriousness in the absence of the aggravating factor.

Our amendment would require that before an offence is taken to have a terrorist connection, either the defendant must admit

“in person and in open court that the offence has such a … connection”

—in much the same way as a plea of guilty would entitle the court to pass sentence—or there must be a trial of the issue. That trial would be by a jury

“unless the court determines that the interests of justice would be better served by a trial by a judge alone”.

At the trial of the issue, evidence admissible in a criminal court would be adduced and the court could proceed on the basis that the offence had a terrorist connection only if satisfied of that fact beyond reasonable doubt.

I suggest that this amendment strikes a proper and important balance between the public interest in securing severe punishment for offences with a proved terrorist connection and the public interest—also of great significance—in ensuring that sentences are imposed for offences that are properly proved before the court upon admissible evidence. That is the way our criminal law has generally proceeded, and that is the way it should proceed. I will wish to test the opinion of the House if the Government do not accept the amendment. I also wish to record the fact that I would like my voice to be heard when the voices are counted. I beg to move.

[Lord McCrea of Magherafelt and Cookstown (DUP) [V]]

My Lords, I strongly support the Bill, and welcome its extension to Northern Ireland. It is absolutely right that we have a unified approach to the sentencing and release of offenders across our United Kingdom. Although I share the desire expressed by the noble Lord, Lord Marks, to uphold the principles of our criminal justice system and defend everyone’s right to a fair trial, I believe that the concerns underlying Amendment 1 have been overstated.

At present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing, for a defined list of non-terrorism offences. Clause 1 would extend that requirement to all non-terrorism offences with a maximum penalty of more than two years. Importantly, for the aggravating factor to be applied, the offence would have to be committed in the course of an act of terrorism or for the purposes of terrorism. I see no compelling argument that consideration of those issues at the point of sentencing represents a disproportionate burden on a defendant or restricts their rights. Judges already have discretion in many cases, including for the offence of murder, to increase or reduce a sentence in accordance with their view of the evidence.

The key factor in this case, therefore, is the need for effective guidance relating to the threshold for an aggravated offence, and its fair application. Only if there is enough evidence to satisfy the criminal standard of proof that there is a terrorism connection should the judge apply an aggravation. We have to remember, especially in an ever more digital and connected world, that terrorist offending can take many forms, so it is appropriate that the range of routine offences that can come under the scope of counterterrorism legislation is being extended. Ultimately, this process will help identify offenders who might otherwise have fallen through the cracks, and will ensure that they are registered, monitored and subject to notification requirements.

I make these points not because I am not committed to due process, or to respecting the fundamental rights of defendants, but because I believe that we must take a strong but balanced approach to enhanced sentencing and release provisions in such hearings.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

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

My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.

The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.

The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.

The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.

Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.

Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.

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[Lord Carlile of Berriew (CB) [V]]

My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.

First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.

It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.

As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.

A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.

The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.

I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.

Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.

The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.

I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.

Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.

I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.

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

My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.

Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.

The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.

As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.

I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, Amendment 2 in the name of the noble Lord, Lord Carlile, sets out an alternative possible architecture for assessing terrorists and the possibility of extending sentences. In speaking to the amendment, the noble Lord and the noble Lord, Lord Marks, expressed their faith in the Parole Board and the view that it should play a much fuller role in assessing terrorist prisoners who are coming towards the end of their sentences. I too joined in the very useful expert panel held last week with presentations from Home Office experts as well as senior psychologists who have an overview of this work.

The probation service itself employs around 350 psychologists, some of whom are specialists in this work. The message I got from that meeting last week is that it is very complicated work and there is no guarantee of success. However, that does not mean that there should not be efforts—indeed, very strenuous efforts—made to try to rehabilitate these offenders.

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Moved by

[Lord Marks of Henley-on-Thames]

12: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence; (c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.

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

My Lords, Amendment 12 echoes the amendment calling for a review which we proposed in Committee. The purpose of the amendment is to enable the noble and learned Lord—or another Minister—to update the House on the Government’s proposals for reviewing the impact of the first 31 sections of this Act, as it will then be. During my speech in Committee, I spent some time setting out in detail why we contend that the review called for by our amendment is necessary. I will not trespass for long on the House’s time this afternoon.

My noble friend Lady Hamwee will speak to Amendment 13, in the name of my noble friend Lord Paddick, about polygraphs. We broadly support Amendment 24 in the name of the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jones of Moulsecoomb and Amendment 25 in the name of the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Jones of Moulsecoomb.

We are concerned, first, to ensure that the Government keep under review and report on the impact on prisoners of longer terms of imprisonment and consequently proportionately shorter periods on licence. To answer a point made in Committee on behalf of the Government, in our view it is not premature to ask for such a review at an early stage. It is not necessary to await the release of such prisoners in many years to come before reviewing the working of this part of the Bill. The impact of very long sentences on, for example, prisoners’ behaviour in prison—a point raised by the noble Lord, Lord Ponsonby of Shulbrede—their prospects of rehabilitation and their continued contact with their families and friends outside prison can be assessed from an early stage.

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[Lord Stewart of Dirleton (Con)]

My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.

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

My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.

The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.

The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.

I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.

The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.

Amendment 12 withdrawn.