Counter-Terrorism and Border Security Bill

Lord Marks of Henley-on-Thames Excerpts

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

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

My Lords, this group also includes the question as to whether Clause 7 should stand part of the Bill. I speak in favour of the proposition that it should not and in support of my noble friend Lady Hamwee’s amendment, to which she has just spoken.

At Second Reading I mentioned the dangers of sentence inflation. It is not just many of us in this House who, in the course of numerous debates on prisons, have talked about the dangers of overcrowding and the fact that it is caused to a very large extent by sentence inflation, both statutory and as demanded by public opinion and the press. Senior judges, including the Lord Chief Justice, the organisation Justice, the Howard League and many others have spoken about the dangers of a prison system in crisis—overcrowded, understaffed, violent beyond anything we have ever known before, with little opportunity for education and training or reform, and very little success in reforming offenders.

I echo the point made by my noble friend that there is absolutely no evidence of a deterrent effect of longer sentences when long sentences are already passed. That is as true of terrorism as other areas. However, there is plenty of evidence of the effect of prison sentences and the experience of being in prison for terrorist offences in radicalising other prisoners. A collection of studies edited by Andrew Silke, published in 2014 under the title Prisons, Terrorism and Extremism: Critical Issues in Management, Radicalisation and Reform, contains considerable evidence on the risks of imprisonment in this area. The danger, without wishing to overdramatise it, is that our prisons become academies of terrorism.

The problem has been recognised by the Government. They have introduced two so-called separation centres, the first at Frankland, the second at HMP Full Sutton. A third is opening shortly. But there is limited evidence that these centres will do anything but encourage subversive prisoners to draw strength from each other in furthering terrorism elsewhere. The number of inmates involved in the separation centres will be very small; I understand that a figure of 28 is intended. There are very large numbers of those convicted of terrorist offences in prison and a very large population of prisoners who are liable to be converted to terrorism when they might not have those tendencies so far.

The Parole Board has raised particular concern about radicalisation in prisons. I quote the report of the House of Commons Justice Committee of 21 February this year:

“The Board also raises concerns about radicalisation in prisons, a problem that it suggests will remain regardless of whether the Government decides to segregate prisoners or continues to spread them around the prison estate. In the Board’s assessment, there are concerns that increasing the penalties for less serious offenders will result in them becoming more likely to commit terrorist acts when they are released. The Board goes on to observe:


‘Most of the rest of Europe is devising interventions in the community to deradicalise less serious offenders. These programmes are more likely to be successful in the community than in prison where the influence of extremist inmates is likely to be stronger’”.


Before this legislation is introduced one would expect some evidence from the Government to support the case for longer sentences; certainly before the legislation is passed we should look for that evidence. But there is none produced by the Government. Page 14 of the Explanatory Notes merely sets out the new sentences proposed, without a word of justification. I remind your Lordships what they are. For failure to disclose information about acts of terrorism, the maximum sentence would double from five years to 10; for collection of information of a kind likely to be useful to a person committing or preparing an act of terrorism, the increase would be from 10 years to 15; for eliciting, publishing or communicating information about members of the Armed Forces of a kind likely to be useful to a person committing or preparing an act of terrorism, there would be an increase from 10 years to 15; for encouragement of terrorism, an increase from seven years to 15, and for dissemination of terrorist publications, an increase from seven years to 15. The last two represent a more-than-doubling of the existing maximum sentences. As my noble friend Lady Hamwee pointed out, the Joint Committee on Human Rights said simply that,

“the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate”.

We have not had it.

However, there is evidence on this subject which tends the other way. The Sentencing Council produced a definitive guideline in April this year. It considered all these sentences. Perhaps I may take as an example the offence of the encouragement of terrorism. It looked at levels of culpability, which they rated A to C; for instance, if a person was in a position of trust and had intention to provide assistance to terrorism, that would be the highest rating. It rated harm factors from one to three, so that a category 1 example was where others had either acted on or been assisted by the encouragement to carry out activities endangering life, while the lowest, category 3, example was a statement or publication with non-specific content encouraging support for terrorism activity not endangering life. So the range went from a category 3, culpability C, level of sentencing proposed—of a high-level community order to two years’ imprisonment—to, at the top, a category 1, culpability A, sentence range of four to six years, which is well below the maximum allowable at the moment and does not justify any increase. The council listed in detail aggravating factors—it is clear that such factors are always to be taken into account, whether or not they are listed in the statute—as well as mitigating factors.

The definitive guideline followed a statutory consultation under the Coroners and Justice Act 2009 and was considered by the Justice Committee, which produced in February this year the report from which I earlier quoted. There was no suggestion by the Justice Committee of any increase in the level of sentences for the offences with which this clause is concerned. Only at the top of the statutory limits proposed was there even a suggestion that consideration be given to any increase. It stated that the Sentencing Council might consider an approach where the recommended range was up to nine years when the statutory maximum was 10, but of the offences with which this clause is concerned, only failure to disclose information had a guideline range that went up to the five-year limit.

All that information was carefully considered by the Sentencing Council. It issued its definitive guideline in April and nothing has changed. There was no justification for increases in the ranges. The attacks with which we were concerned in considering the introduction of this legislation all happened before the sentencing guidelines were produced. We would be interested to hear any evidence from the Government to support these radically increased sentences in terms of better outcomes, deterrence, reform or the safety of the public. Without such evidence, we cannot support this clause.

[Lord Anderson of Ipswich]

My Lords, Ministers will know that the equivalent sentences in other European countries for the type of offences that we are talking about tend to be much lower than they are here. Perhaps that is no bad thing.

In light of these issues and the proposed very substantial increases to which the noble Lord has referred, will the Minister say what steps will be taken to address—or at any rate, given the sensitivities, to research—the disparities that have been observed by informed observers between sentencing levels for terrorism offences in England and those in Northern Ireland, where sentences imposed appear to be a great deal lower for conduct that on the face of it looks quite similar?

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[Earl Howe]

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

[Lord Marks of Henley-on-Thames]

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

[Earl Howe]

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

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Debate on whether Clause 9 should stand part of the Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I was not proposing to speak to Clause 8 but I do propose to speak to Clauses 9, 10 and 11. The effect of those clauses is, in brief, to introduce a provision for extended sentences for terrorism offences where previously extended sentences were applicable for specified violent or sexual offences. Clause 9 deals with England and Wales, Clause 10 with Scotland and Clause 11 with Northern Ireland.

The provision for extended sentences involves an extension of the conditions set out in the legislation of up to eight years in England, Wales and Northern Ireland and 10 years in Scotland. The sentences have serious consequences: they extend the time for release on licence from half way through the sentence to the two-thirds point. They mean that release on licence will not follow after two-thirds of the sentence has been served unless the Parole Board has in fact recommended release. The extended term will then be served on licence after the custodial period has been served.

This is a probing opposition to the clauses standing part, on the basis that before the Government secure support for extended sentences to be used in this way we say, much as we did in respect of Clause 7, that they need to demonstrate why these very substantial extensions are necessary. Once again the Explanatory Notes explain how the extension works and how the system works, but do not seek to provide any justification. Much as I heralded in my intervention at the end of the noble Earl’s speech on the last group, we would expect to see evidence of cases where judges felt constrained to impose terms that they believed were too short, where they believed their powers were insufficient adequately to protect the public, or where these very long extended terms on licence were necessary. Again, it is not simply enough to rely on the views of the police and the Crown Prosecution Service; one really needs the evidence of judges, to show why they believe they cannot do enough under the existing law. There has been no such evidence.

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[Lord Marks of Henley-on-Thames]

I was not suggesting that we were looking for a public statement by judges that in particular cases they would have imposed longer sentences—although one has heard of that. However, surely the Government, in proposing this legislative change, should have sought out the views of the senior judiciary about the changes and whether their powers are sufficient or restricted. That sort of research is frequently done by government when considering changes that affect judicial powers.

[Lord Carlile of Berriew]

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

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

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

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