Counter-Terrorism and Sentencing Bill

Lord Woolf Excerpts

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

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

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

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

[Lord Woolf (CB) [V]]

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

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

--- Later in debate ---

[Lord Robathan (Con)]

My Lords, I listened carefully to the noble Lord, Lord Hunt, and agreed with a great deal of what he said—and I understood it all. I realised that that was because he is not a lawyer either. Nevertheless, even as just a layman, I think we all appreciate how hugely difficult this issue is. I also listened to the very sensible comments of the noble Lord, Lord Carlile; he has huge experience of this matter. It is terribly complicated, and wishful thinking will not make it go away.

The strategy we are talking about is very important, but this has been going on for at least two decades and I do not have total confidence in deradicalisation or rehabilitation. Neither does Jonathan Hall, who is currently carrying out his review. We talk about rehabilitation but Usman Khan—who the noble Lord, Lord Carlile, mentioned—killed his mentor, Jack Merritt, who believed in his redemption and had faith in his deradicalisation, because Khan managed to lie successfully. Do polygraphs and lie detectors find this out? I do not know.

I agree with many of the points made by the noble Lord, Lord Carlile, and others. This hugely complicated issue needs further thought and deep consideration of how, if at all, we can solve these problems. With religious fanaticism or a fanatic ideology, is it possible to deradicalise people? I do not know. Are we talking about what was mentioned earlier, those no-hope sentences? I hope not. Should we throw away the key as the noble Baroness, Lady Jones, suggested some of us want to do? I hope not, because I think people have to have some hope. However, I do think we need to have greater depth of thinking in this. I say to the Minister that we need to be looking at this in such depth that it may be we are still discussing it in a year’s time.

[Lord Woolf (CB) [V]]

My Lords, in view of the speeches we have had from a number of noble Lords, there is nothing which I would want to detain noble Lords with regarding this amendment. I agree that it serves a useful purpose and particularly associate myself with the remarks made by the noble Lord, Lord Carlile, with regard to the openness of the Front Bench on behalf of the Government. Like him, I hope that will be something that will happily continue.

[Lord Paddick (LD) [V]]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to his first Bill. In my limited contact with him, I think that he is more than a match for the challenge the noble Lord, Lord Faulks, alluded to. I completely agree with the noble Lord, Lord Hunt of Kings Heath, in his assessment of the current dangers of longer prison sentences in the absence of an effective programme of deradicalisation and rehabilitation. The noble Lord, Lord Carlile of Berriew, also mentioned the comments of the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. His concerns seem to chime with the concerns of all noble Lords who have spoken in this short debate. I do not share the faith that noble Lords have in polygraph testing, for the reasons explained earlier by Lord Marks of Henley-on-Thames.

My noble friend Lady Hamwee rightly expressed concerns that prisons continue to be incubators, hothouses, or academies of crime—use which term you will—for crime generally, as well as places where vulnerable inmates are radicalised, whether by right wing extremists or by others. If ever there was evidence of the need for these amendments, it is what the Government describe as the

“range of tailored interventions available”—[Official Report, 21/9/20; col. 1650]

to the perpetrators of the Fishmongers’ Hall and Streatham atrocities, that were designed to deradicalise and rehabilitate them while they were in prison. Unless and until the deradicalisation and rehabilitation of offenders is effectively applied to those sentenced under Part 1 of the Bill, and its impact is assessed, there is a real danger that the longer these terrorist offenders spend in prison, the greater the threat they pose to the safety of the public—whether by radicalising others in prison or directly upon their release. I intend to expand on these statements and the comments of the noble Baroness, Lady Jones of Moulsecoomb, which I agree with, when we come to the group beginning with Amendment 16.

Counter-Terrorism and Sentencing Bill

Lord Woolf Excerpts

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

[Baroness Hamwee (LD) [V]]

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

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

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

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

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

[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.