My Lords, the purpose of this Bill is to end the automatic early release of terrorist offenders, moving the earliest point at which they can be released and making their release contingent on approval by the Parole Board. Noble Lords will be all too aware that twice in the last few months we have seen appalling attacks on members of the public by terrorist offenders. In each case, these known terrorists were released automatically at the halfway point of their sentence without any oversight by the Parole Board.
It is clear that we must put a stop to the current arrangements, whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence. It is clear that automatic halfway release is simply not right in all cases. We must now respond as quickly as possible. Further releases of prisoners serving relevant sentences are due by the end of February, and if the Bill is to achieve its desired effect then emergency legislative procedure and early commencement is required.
The Bill sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to this: first, to standardise the earliest point at which they may be considered for release, at two-thirds of the sentence imposed; secondly, to require that the Parole Board assess whether they are safe to be released between that point and the end of their sentence. This will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which the Streatham attacker, Sudesh Amman, was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for these offences are rare. The changes affect those serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force.
The emergency provisions will extend parole release to those serving standard determinate sentences and other transitional cases subject to automatic release before the end of the custodial term. In line with the normal arrangements for prisoners released by the Parole Board, for this cohort of offenders the board will set the conditions of an offender’s licence when they are released before the end of their sentence. The Parole Board has the necessary powers and expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists serving indeterminate sentences, extended sentences and sentences for offenders of particular concern.
Will my noble and learned friend remind the House whether the Parole Board has to consider any burden or standard of proof? Is there any provision, statutory or otherwise, for the Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner concerned?
I am not aware of any statutory provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole Board has to be satisfied that the prisoner does not represent a threat of harm if released under licence.
There is a cohort of specialist Parole Board members trained specifically to deal with terrorist and extremist offenders. This is, in effect, the specialised branch of the Parole Board that will be used to handle the additional cases. This cohort includes retired High Court judges, retired police officers and other experts in the field, all with extensive experience of dealing with the most sensitive terrorist cases.
We acknowledge that applying these measures retrospectively is an unusual step. However, this reflects the unprecedented gravity of the situation we face, and the danger posed to the public. The Bill simply will not achieve its intended effect unless it operates with retrospective effect, necessarily operating on both serving and future prisoners. The provisions do not, however, alter the length of the sentence, and therefore the penalty already imposed by the court. The Government are confident that the Bill is compatible with Article 7 of the European Convention on Human Rights, as both European and domestic case law have held that release provisions relate to the administration of a pre-existing sentence and do not form part of the penalty.
Due to the nature of this emergency legislation, the Government are proposing that the provisions in the Bill apply only to England, Wales and Scotland. The justification for emergency, retrospective legislation is to prevent the automatic release of terrorist offenders in the coming weeks and months, and such immediate measures are not currently required in Northern Ireland. However, we intend to make provision as appropriate for Northern Ireland via the upcoming counterterrorism Bill, which will deal with sentencing and release.
Can the noble and learned Lord tell the House what opinions have been expressed by prison staff, including chaplaincy services—for example, in Whitemoor prison—about the effectiveness or ineffectiveness of the programme he is describing?
My Lords, I am not in a position to give a specific answer to that focused point with regard to the institution in question, but I will take advice and seek to revert to the noble Lord during the debate.
Beyond the work I have outlined, following the events at Fishmongers’ Hall in November 2019, we have also announced a set of measures to overhaul the sentencing and release arrangements for terrorist offenders. These include: introducing longer sentences for the most serious dangerous terrorist offenders and ending early release for other serious dangerous terrorist offenders; an overhaul of prisons and probation, to include tougher monitoring conditions and a doubling of counterterrorism probation officers; increasing counter- terrorism police funding by £90 million for 2020-21; and a review of support for victims of terrorism, including an immediate £500,000 to the Victims of Terrorism Unit.
The Government have also launched an independent review of the way different agencies, including police, probation services and the security services investigate, monitor and manage terrorist offenders. This is referred to as the Multi-Agency Public Protection Arrangements, and is being conducted by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation. Many of these measures are under way, and the legislation to ensure that the most serious and dangerous terrorist offenders spend longer in prison, with strengthened licence periods, will be included in a new counterterrorism Bill dealing with sentencing and release, to be introduced later this Session.
We must acknowledge that while all efforts must be made to rehabilitate and deradicalise terrorist offenders, there will be times when these efforts do not succeed. Therefore we must have in place robust safeguards which mean that these offenders are not released automatically. The Bill’s objective is clear: to take the necessarily urgent steps required to protect the public from terrorist offenders who are still considered dangerous. This is a sensible safeguard against the early release of offenders who continue to pose a significant threat to the safety of the public. I commend the Bill to the House, and I beg to move.
At end insert “but that this House regrets that the bill fails to propose measures to deradicalise and rehabilitate offenders and to provide adequate resources to that end; and that the bill offends against the common law principle that new law should not be made to have retrospective effect.”
My Lords, I am grateful to the Minister for the careful way in which he has opened this debate. No one who considers the recent attacks at London Bridge and Streatham High Road can fail to understand the Government’s concern to prevent further such events. At Fishmongers’ Hall on 29 November, Usman Khan, released at the end of 2018 after serving eight years of a 16-year sentence, brutally killed two people and injured three others near London Bridge, ironically and cynically while attending an event on prisoner rehabilitation. On 2 February, just over three weeks ago, on Streatham High Road, Sudesh Amman, released less than a fortnight earlier after serving half of his three and one-third year sentence for possessing and disseminating terrorist documents, stabbed two innocent members of the public.
So it is not surprising that public attention has focused on the fact that these two terrorist offenders had been so recently released from prison at the time of their offences and that the Government are clearly committed to preventing a recurrence of such offences by recently released offenders. And there is much in this Bill that we welcome. For example, it is clear to us that the Parole Board should be involved in assessing whether prisoners can be safely released before their early release on licence.
But there are two aspects of the Bill which cause us particular concern. First, the Bill alters release dates and defers release from prison for all offenders to whom it relates but contains or presages no new measures to improve the chances of deradicalising and rehabilitating such offenders. Secondly, the Bill offends against the common-law principle of retrospectivity: new criminal legislation should not have the effect of increasing the length of a prison sentence imposed on an offender who was sentenced before the new legislation was passed. By “length of the prison sentence” I include the time the offender is statutorily bound to spend in prison.
Is the noble Lord aware of the recent judgment of the European Court of Human Rights in Abedin v the United Kingdom on 12 November 2019? This dealt with the change to the statutory regime and said:
“Nothing in the Court’s judgment in Del Río Prada”—
which the noble Lord is relying upon—
“called into question the central proposition outlined in Uttley that where the nature and purpose of the measure relate exclusively to a change in the regime for early release, this does not fall part of the ‘penalty’ within the meaning of Article 7”.
Therefore, the complaint was dismissed. That case would suggest that there is no basis for a complaint about this Bill.
My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.
I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,
“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]
The noble and learned Lord, Lord Hope of Craighead, described the principle as being,
“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]
The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.
My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.
The original question was that this Bill be now read a second time, since when an amendment has been moved, at the end to insert the words as set out on the Order Paper. The question I now therefore have to put is that this amendment be agreed to.
3:36 pm
Lord Judge (CB)
My Lords, we are being required to legislate urgently to remedy an emergency created, at least in part, by overcomplicated sentencing law. I deeply regret the rush, and my support for the Bill —I do support it—is predicated on the premise that, before long, we shall be taking an entire look at the whole spectrum of sentencing: how it operates, how it is legislated for and how it will work. However, as I emphasise, I should prefer specific problems with sentencing to be considered in the context of time and measured reflection. We do not have that time; I am satisfied that recent events have shown that we are facing a real threat of catastrophic damage to public safety, not excluding multiple murders, by individuals who have been convicted and who, even as they strike, are still subject to prison sentences for terrorist-related offences. In my opinion, although this legislation does no more than postpone release dates—which will come and will have to be addressed, and we are not addressing that issue—and, even if we had the time to work towards a better solution to this very real problem, the interests of public safety must come first, particularly in the context of retrospectivity and the expectations of convicted criminals.
I want to put the issue of retrospectivity into some sort of context. There is no right of a convicted criminal to be released after he or she has served the prescribed part of their sentence; it is only lawyerly talk, but the Acts of Parliament that deal with this refer to a “duty” on the Secretary of State to release the prisoner on licence after he or she has completed the defined proportion. The release date itself has absolutely nothing to do with good behaviour or earning remission. It is automatic and time-based. The proposed legislation is retrospective but, to put it in context, it does nothing to remove anything that the criminal personally has earned.
It will not help the House if I try to sort out the differences between—wait for it—the extended determinate sentence, the standard determinate sentence, the sentence for an offender of particular concern, extended sentences, minimum terms of imprisonment and so on. There is a whole cacophony of this sort of language. What matters is the complexity that results. Some prisoners are released after half their sentence; some are released after half their sentence, provided the Parole Board has had a look at the case and recommends it. Some prisoners are released after two-thirds of their sentence, and some do not get released until the minimum term has been completed. There is no axiomatic period that works in relation to release and nothing sacrosanct about a half-time release. The legislation has come and gone, and gone and come, covering these sorts of issues.
My Lords, I will speak briefly on the question not of law—which I shall leave to others who have more knowledge than I have—but of dangerousness. I have dealt with this quite a bit, albeit 40-odd years ago when I dealt with an awful lot of serious offenders and dangerous people. At times I got predictions right and at times wrong, but the important point is that we need to look at—
May I remind the noble Lord that there is a speakers’ list?
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It is of course crucial that we continue to do our utmost to rehabilitate terrorist offenders when they are in custody. In prison and on probation, all terrorist offenders are closely managed by specialist counterterrorism personnel, and we have a range of capabilities to manage the risk posed by terrorist offenders, and to support their disengagement and rehabilitation, including tailored interventions. The time an offender spends in prison is an opportunity for us to do our best to rehabilitate them, while recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and Her Majesty’s Prison and Probation Service has psychologists and specialists to supply formal counter-radicalisation programmes, both in custody and in the community.
The desistance and disengagement programme provides a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of extremism. This can include mentoring, psychological support, and theological and ideological advice. The programme draws on the expertise of academics both from the United Kingdom and internationally through its academic advisory group, ensuring that it is under- pinned by the latest research on desistance, disengagement and deradicalisation to provide constructive challenge and evidence on good practice in an innovative field.
Taking the first point on rehabilitation and deradicalisation, it is worth noting that the Bill affects all offenders within its ambit, not only those who present a particular danger. For all those offenders, it reduces their time on licence when, for many, it is time spent under supervision, on licence after release, that offers the best chance of deradicalisation and rehabilitation.
We know that the probation service is in crisis, underresourced and demoralised, but we should aim to have an improved and well-resourced probation service with more time to work with prisoners following release, not less. Furthermore, there is real concern that spending longer in prison risks further radicalising not only those terrorist offenders but others they meet in prison. Only last Wednesday, the Times devoted its lead article and its first leader to radicalisation in prisons, and in particular a jihadist knife attack on prison staff by a prisoner in HMP Winchester who was there for non-terrorist offences. As the leader writer put it:
“Prisons are not only failing to deradicalise terrorists; in some cases they risk creating them.”
At Second Reading in the House of Commons, Theresa May, with all her experience, pointed out that the Lord Chancellor and the Government were
“absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success.”—[Official Report, Commons, 12/2/20; col. 867.]
In 2015, the Lord Chancellor commissioned former prison governor Ian Acheson to write a review of Islamist extremism in prisons, probation and youth justice. He reported in March 2016, making 69 recommendations, including the appointment of
“an independent adviser on counterterrorism in prisons … responsible for an overarching counterextremism strategy”,
special enlightened separation units, as he called them, for high-risk extremists, greater training for staff in cultural and religious traditions, tighter vetting of prison chaplains, tackling extremist literature, a focus on the safe management of Friday prayers to prevent their abuse, improving the speed of response to serious violence within prisons, and more involvement of specialist police from outside.
On 29 January this year, more than two years after his report, Mr Acheson presented a BBC documentary called “The Crisis Inside”, in which he said that he was appalled that his 69 recommendations had been distilled to 11, of which the Government had recommended the implementation of eight. There would be a new directorate but no new independent adviser.
On separation units, planning at this stage was apparently under way. But just three had been recommended, and of those only one had been opened, at HMP Frankland. In the programme Mr Acheson interviewed Fiyaz Mughal, the founder of Faith Matters, who said that the imams relied on by the Government lacked the strength or the skills to mount a credible challenge to the theological base of extremism that motivated the terrorists. He was also clear that the Government’s Healthy Identity Intervention programme was far too easy for prisoners to game and manipulate.
The probation service feels undervalued and largely ignored. It is significant that Usman Khan’s mentor following his release warned the Government of the danger he presented eight months before the London Bridge attack, but no notice was taken of his warning.
We are not handling this crisis well. In the Netherlands, France and Spain, serious terrorist and Islamic extremist prisoners are separated from others, with improvements in prison safety and order, and more chance of targeted counter-radicalisation interventions working. We have 220-odd terrorists in custody and we must do more to reduce the threat from them, all the way from the period before they are taken into custody to the period following their release.
I turn now more briefly to our second concern with retrospectivity. I shall try not to get bogged down in the detailed legal question of whether altering prisoners’ release dates part way through their sentence is a breach of Article 7 of the European Convention on Human Rights. The noble and learned Lord repeated the view of the Government that it is not such a breach, but there are many who disagree. However, the question cannot be entirely avoided in this debate. On the question of penalties, Article 7.1 provides:
“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
In the case of Uttley in 2004, the House of Lords considered whether Article 7.1 had been infringed when statutory automatic release at the two-thirds point was changed to release on licence at the same point, because release on licence would involve the imposition of supervision and restrictions on Mr Uttley’s freedom under the terms of the licence. The House decided that the sentence that was “applicable”, to use the terms of the article, was the maximum sentence that could have been passed for the offence for which the defendant was originally convicted. It followed that Article 7.1 would be infringed only if a sentence imposed on a defendant constituted a heavier penalty than that which could have been imposed on him under the law in force when his offence was committed. Since Mr Uttley’s multiple sexual offences included three rapes, for which he could have been sentenced to life imprisonment, and since he was sentenced to only 12 years’ imprisonment, he could not complain that his 12-year sentence was not applicable when his offences were committed. It was also said that altering his release conditions was an act of administration of his sentence, not an increase in that sentence.
However, I would suggest that the decision in Uttley arguably has no application to the changes to the statutory automatic release date proposed in this Bill, because all relevant offenders will spend longer in prison than they were statutorily bound to serve under the terms of the 2003 Act when sentence was passed on them. Furthermore, in a Spanish case in the European Court of Human Rights, Ms Del Río Prada had been sentenced prior to 2000 to a total of more than 3,000 years of imprisonment for serious terrorist offences for the ETA. Under Spanish law, these sentences were subject to a statutory maximum of 30 years. In 2006, the Spanish supreme court decided that remission for work carried out in custody would be deducted not from that 30-year maximum but from the overall sentences, so that her release date was deferred by nine years from 2008 to 2017 and thus she would serve the full 30-year maximum. The Strasbourg court decided that the change in the treatment of remissions had not merely altered the manner of the execution of the penalty but had redefined its scope. Furthermore, when Ms Del Río Prada was sentenced, she was entitled to expect, as a matter of law, that her remissions would be deductible from the 30-year maximum. It followed that there was an infringement of Article 7.1.
For my part, I find it difficult to see how the decision in Uttley could enable this Bill to withstand a challenge under Article 7 on the basis of the Del Río Prada case, where every sentence passed on a relevant offender means that the offender will spend a third longer in prison than he would have done under the 2003 Act. The case of Uttley has been further considered in the UK courts, but I would not wish to predict that the view taken in Uttley could still prevail in Strasbourg.
However, I prefer to rest this regret Motion on the long-held—
At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:
“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”
That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:
“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report,Commons, 12/2/20; col. 872.]
Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.
I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:
“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”
I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.
Those released are released on licence. Their sentence is not completed until the full period of that sentence has elapsed. So, under the present legislation, release is more or less automatic, depending on which category it comes under, but it is conditional. Among other features worth underlining are the responsibilities of the Parole Board, the way periods of remand spent in custody should be credited against the sentence, the power to release early—even earlier than the statute requires, for example, on compassionate grounds—curfews and the nature and terms of licence conditions for individual prisoners, which have always been regarded as administrative responsibilities. They are administrative responsibilities to be carried out by the Secretary of State; they are not judicial decisions, and no reference is made to the sentencing judge about how those responsibilities should be exercised.
In the meantime, the sentence of the court remains in force and, as I said, there are a number of different restrictions. It is possible—we cannot afford it, but as a matter of law it is possible—to impose what used to be called control orders and are now called TPIMs. I had to remind myself that they are terrorism prevention and investigation measures, which may be imposed on a prisoner at liberty under licence. For an unconvicted person, those conditions are usually regarded, rightly, as a massive interference with their ordinary civil liberties. Can we be clear that the liberty of a prisoner released under the statutes is not the same liberty that we enjoy as we walk up and down the streets? More importantly—or no less importantly—that licence may be revoked by the Secretary of State. The offender may then be recalled to prison without a further trial to serve the rest of the sentence.
Of course, the Secretary of State cannot whimsically disapply the relevant statute because he does not like someone, and, of course, the criminal will expect to be released. Since 2012 the sentencing judge has been required to tell the prisoner that the sentence is X, which means he will serve Y, and so on. By the time the prisoner has been in prison for, say, three days, five days or a week, he or she will have been told the expected date of release. That is the retrospectivity concern. It is a serious issue that I do not dismiss, but we have to put it in a context that I have endeavoured to describe. What I find completely extraordinary is that, although rightly, the Secretary of State may revoke the prisoner’s licence and recall him to prison for breach of any licence conditions, and may—if not, why not?—do so if his behaviour while on licence gives rise to a reasonable suspicion that he is engaging in activity that represents a threat to public safety, the duty to release once the requisite custody has expired appears in practice to be absolute, or at least seems in practice to be treated as though it were. Can that be correct? If so, is it not obviously wrong—indeed, absurd—that if the deradicalisation process for an individual convicted of terrorist offences has plainly not had the desired effect, it is nevertheless the duty of the Secretary of State to release him?
I shall illustrate what I mean. In relation to the Streatham attack, we have been told that the perpetrator was subject to close police scrutiny, as I understand it, immediately or almost immediately after his release, presumably because he was believed—rightly, as it turned out—to pose a serious risk. There may have been many reasons why he was not recalled to custody. One may have been that his release had been so recent that it could have been argued on his behalf that the Secretary of State had failed to comply with the duty to release. To the extent that the answer does not compromise intelligence or create any embarrassment to anybody, the simple question is: if the Secretary of State was lawfully entitled not to release him, why was he released? If she was not entitled, given all the evidence we now know, why on earth not?
The legislation is complex and difficult. I have nothing to say about it that suggests that I am entirely happy with it, but we have to look at recent disasters, which have provided disquieting evidence that the deradicalisation processes in prison have been far from successful and that convicted terrorists, still subject to the sentence imposed by the court, have immediately resumed terrorist attacks while on licence. There is an immediate danger; we have to address it. I support the Bill.