Counter-Terrorism and Sentencing Bill

Lord Parkinson of Whitley Bay Excerpts

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

[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.