Counter-Terrorism and Sentencing Bill

Lord Thomas of Gresford Excerpts

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

[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.

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[Lord Woolf (CB) [V]]

My Lords, it has been a privilege to listen to the speeches this afternoon. I have benefited very much from what has been said by all noble Lords and I make these submissions bearing that in mind.

At the moment, I see Clause 35(1) as the most important provision dealing with polygraph licence conditions. What we have heard this afternoon indicates just how clearly we are engaged on a learning curve at present. As I read it, subsection (1) provides that the power to use polygraph licence conditions will be limited by the regulations made in that subsection. Therefore, it seems that the whole of this debate should be conditioned by that provision, and that is why I thought it right to intervene in this almost private party that is dealing with these issues.

It seems to me that we are on a learning curve not only with regard to the provisions of this Bill but generally on the use of polygraphs in this country. It is obviously very useful to have as much material as we can so that, before we give the Government such powers as we consider appropriate, we know what the limitations will be.

I of course recognise that the Ministers we have heard address the House today would have given the assurances they did only if they were confident that they would in fact be applicable. But the provisions will be in their final form only after the regulations have already been drafted and the limitations expressed. That is why I think the whole concept in the amendment proposed by the noble and learned Lord, Lord Falconer, should be treated as being very appropriate, because this is the mechanism by which those limitations are going to be defined.

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

My Lords, I was very happy with the Minister’s reply when he said that a significant response—not a failure—does not lead to a recall and to the loss of liberty of the person who is being examined by polygraph. That seemed to be a very clear statement. But the noble and learned Lord, Lord Falconer, has raised some interesting questions and I would like to pursue them a little further.

He asked how it works in practice; I ask how it works in principle. For example, on 26 January I raised the point of the right to silence. The person who is obeying the conditions of his licence by taking part in a polygraph test is asked a series of questions. Nobody has suggested that he is warned that he need not say anything unless he wishes to do so. He does not have a caution, and he does not apparently have a right to silence, because if he refuses to obey the condition of his licence—regardless of anything he may or not say about his position—he is presumably open to be recalled to prison and to lose his liberty. That is a very important point that we should consider and address.

The noble and learned Lord, Lord Falconer, also introduced an interesting concept in relation to the third person—namely, can the transcript of a polygraph test be used as evidence of a conspiracy? We would like a straightforward response to that from the Minister.

Finally, my noble friend Lady Hamwee revealed something that I had not appreciated: the recall to prison—the loss of liberty—is determined not by the court but by a probation officer. A probation officer takes the decision. “Well, he’s refusing to answer the polygraph test, he’s breached his conditions and I’m going to send him back to prison.” That, to my mind, introduces an important point of principle.

I wholly support the proposal in the amendment that there should be a pilot to investigate these practical and principled questions that have been raised.

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

My Lords, my Amendment 32 would put into legislation a deadline for the Prevent review to be published. The Government commissioned the independent review in January 2019; it has been repeatedly delayed and postponed. The initial statutory deadline of 12 August 2020 will now be missed. The Government say that they intend to have the report by the summer of this year, but they will not commit to putting a date in the Bill. We have long campaigned for a wide-ranging and robust review, which we believe is the right approach. This amendment would reinstate a statutory deadline for the independent Prevent review.

Amendment 33 takes a slightly different approach, which is to put in place a timetable. It would ensure that the Prevent review and any recommendations were laid within 12 months rather than 18 months, as the Bill currently states. This issue has been mentioned a number of times in Committee, and I think I can guess what the Minister is going to say in response to these amendments. Nevertheless, we need to be as confident as we can be that we can get this deadline and have a reasonable timetable, because it is important that we get these things right and that people can consider the effectiveness of the Prevent programme. I beg to move.

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

My Lords, I pay personal tribute to the stamina and persistence of my noble friends Lady Hamwee and Lord Paddick. I pay tribute also to the Ministers. The noble Lord, Lord Parkinson, came off the bench half way through the second half, and my noble friend Lord Paddick put up a high one, which unfortunately he dropped: the clash between the presumption of innocence and the requirement to answer a question in a polygraph, which I raised earlier. I was not satisfied with the answer that I got—that it is appropriate to question somebody after conviction, when they face a further term of imprisonment, without any form of caution. I do not think that our law is that they have to answer.

The Prevent strategy, with its statutory duty for schools, NHS trusts, prisons and local authorities to report concerns, has received much criticism. It is clear that it has not been thought fit for purpose in the Muslim community, which regards it, rightly or wrongly, as discriminatory. A lack of trust leads to a lack of co-operation. Consequently, the Government should accept the burden of completing at the earliest opportunity the review that they have announced. Deadlines have already been passed. I have no wish to go into the appointments that have been made save to wonder to what extent those who are immediately affected by the strategy have been involved.

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

My Lords, Amendments 37 and 40 concern “lone terrorists” and the review of the strategy concerning them. Amendment 37 ensures that the Government will order a judge-led review into the effectiveness of current strategies to deal with lone terrorists, including, but not limited to, current “counter-terrorism policy” and “sentencing policy”. My right honourable friend Nick Thomas-Symonds has called for such a review, following the shocking and tragic incident in Reading on Saturday 20 June 2020, which was the third time in seven months that such devastation caused by a lone attacker has been seen on UK streets.

The review would undertake an assessment of the systemic response needed to address this threat, building on prior research and expertise. It would include an analysis of various public services: probation services, prisons, mental health services, housing providers and local authorities. Professor Ian Acheson, who completed a report for a Conservative Government, said last year:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


What steps are the Government taking to put forward a deradicalisation strategy in the prisons?

Amendment 40 looks at MAPPA—multiagency public protection arrangements—and its purpose is to encourage the Government to define which agencies are included within them. I have received a short briefing on this from Napo, and the point that the probation officers make is that the input into the MAPPA arrangements varies according to the individuals one is dealing with: it may be local faith-based groups, housing providers, social services, education providers or substance misuse agencies—a multitude of organisations could be called on to work within the MAPPA system. In this example—and, I have to say, in all examples that I have come across—the system is all about integrated working, and it would be helpful if the Government could offer some perspective on the agencies that they think should be working within the MAPPA system. I beg to move.

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

My Lords, the lone terrorist poses a particular danger. “We do not understand them,” said the noble Lord, Lord Robathan, earlier this afternoon. By definition, the lone terrorist is not engaged in communications of any nature that could lead to his apprehension through ordinary surveillance methods and techniques. His motivation may be obscure and entirely personal to himself.

Nevertheless, he can cause huge and unexpected damage, as we saw in the London Bridge episode in Fishmongers’ Hall. In that case, the attacker had been released in the belief that he was no longer a danger to the public—yet, without any obvious motivation, he launched himself against those who were trying to help him.

I support Amendment 37, on the basis that public safety demands that we burrow down into the causes and motivations of the lone actor. The threat to public safety is such that the appointment of a judge, with all the powers that a Supreme Court judge has, is very appropriate.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I shall speak also to Amendments 42 to 65 inclusive and to Amendments 69, 71, 72, 74 and 76. I make four very short points. First, the hour is late and getting later. Secondly, these are all technical and consequential amendments. Thirdly, we have placed an explanatory note for each of them, which I am sure Members of the Committee will have looked at. Fourthly, I propose to set out in a letter, which I shall place in the Library, a more detailed analysis of the admittedly somewhat arcane and, in many cases, technical and consequential nature of these amendments. I hope that in those circumstances, I can draw my remarks to a close there. Obviously, if noble Lords have specific questions, I will attempt to answer them now, but otherwise, I beg to move.

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

My Lords, since requests to speak after the Minister are delivered to the Deputy Chairman of Committees by forked stick, perhaps I might comment on the earlier group concerning the review. Mr William Shawcross’s report on compensation for Libyan-backed terrorist atrocities in Northern Ireland was discussed on Monday. It was received by the Government last May but not published, as we have discussed. I hope that any review or report in the field that we have been discussing will not similarly be kept clutched to the Government’s bosom.

I have considered the government amendments to this schedule, and I am satisfied that they are consequential to amendments to legislation made necessary by this Bill and do not contain in themselves any questions of principle. I would not be surprised, given the complexity of the Bill, if other amendments emerged in the course of time.

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[Lord Stewart of Dirleton (Con)]

In moving the amendment in the name of my noble friend Lord Wolfson of Tredegar, I shall speak also to Amendments 67 and 70, also in his name. These amendments are intended to modify Scottish provisions on sentencing with the intention of providing that, throughout the United Kingdom, terrorist offenders serve the appropriate custodial period of sentences for terrorism offences. They are made necessary by an aspect of Scottish sentencing practice that does not appear elsewhere in the United Kingdom.

The three amendments, taken together, make provision for technical sentence calculation adjustment. They clarify how terrorism sentences will operate when served consecutively with non-terrorism sentences. The amendments come at the end of a positive engagement with the devolved Government; as a result of that engagement, the Scottish Government have now tabled a legislative consent Motion in respect of this Bill.

As I said in the course of these brief remarks, the amendments are technical in nature and I shall be happy to place detail of them and their implications in a letter in the Library of this House. I beg to move.

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

My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.

[Lord Paddick (LD) [V]]

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