Amendment 4

Counter-Terrorism and Sentencing Bill - Committee (1st Day) – in the House of Lords at 2:45 pm on 26th January 2021.

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Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

4: Clause 4, page 5, line 39, leave out “14” and insert “10”Member’s explanatory statementThis amendment probes the balance between custody and licence for young offenders.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.

The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.

I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.

There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.

The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.

I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”

I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.

This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?

It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice)

My Lords, the noble Lord, Lord Thomas of Gresford, concluded his remarks by saying that the amendment was “testing the rationale” of these sentences, and that is indeed clearly the case. The first amendment reduces the minimum term in custody and the second increases the period on licence. Both the noble Lords, Lord Thomas and Lord Marks, referred to these as “no-hope sentences”. I understand the sentiment they expressed on these extremely long and very serious sentences being given to children—but they are not really no-hope sentences, are they? YOT and, more likely, probation and the Prison Service will have been working with these people for many years to give them hope that, when they get out of prison and are on licence and, eventually, off licence, they can go on to lead a constructive life.

Now this is a very tall hurdle. I understand that; we are dealing with the most serious sentences that one can imagine. Nevertheless, that is the role of probation and it is very important, I would say, for the young person to see that there is hope at the end of the period, because it is far more likely that, if they see that hope, they will engage constructively with people in prison and carry on that constructive intervention when they leave on licence. So I have some questions for the Minister. What assessment has been done of the likelihood of reform of offenders—is there any data on that? Also, what is the number of young offenders now in custody who are likely to be in custody as a result of this legislation? Are there any examples of where longer custodial sentences have helped young people to go on to lead lives in which they no longer offend?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, it is a privilege to stand and answer points made by the noble Lords who have spoken. I first acknowledge their great experience and wisdom in the field, and the evident compassion that underpinned their observations to the Committee. I know that at least two of them have had the experience that I have of acting for a very young person charged with a crime of the greatest magnitude and severity. I can tell from the way in which their questions were framed that they are aware of the extreme sadness at the loss of potential that the advocate finds when acting for a person in such a position. I hope that noble Lords appreciate that I am fully aware, from the perspective of legislation, of the awkwardness and difficulties attendant upon arriving at an appropriate sentence for these most serious of crimes.

As the noble Lord, Lord Marks, has explained, these amendments are intended to reduce the minimum custodial term that may be imposed on an offender aged between 18 and 20 sentenced to a serious terrorism sentence from 14 to 10 years, and to increase the minimum licence period that may be imposed in such a case from seven to 10 years. I respectfully disagree that such changes are appropriate or necessary. The Government are determined to ensure that those who commit serious acts of terror and put members of the public at risk of death serve sentences that properly reflect the harm that they cause. In answer to the noble Lord, Lord Thomas of Gresford, while headlines may be a consequence of the imposition of such a sentence, the sentence is selected not to generate such headlines.

The serious terrorism sentence, introduced by Clauses 4 and 5 of the Bill, will strengthen the current sentencing framework to ensure that terrorists, who put lives in danger, are given sentences that reflect the severity of their crimes. These amendments seek to draw a distinction in sentencing policy between those aged 21 and over and those aged between 18 and 20. While the new serious terrorism sentence is structured so as to distinguish those two groups, this is simply to reflect the existing sentencing structure.

At the commencement of his remarks, the noble Lord, Lord Marks of Henley-on-Thames, accepted that this sentence will be imposed in the gravest of circumstances. To remind your Lordships, the sentence may be imposed only when a set of conditions is met. The offence must be serious enough to attract a life sentence but the court has decided not to impose one in this case. The offender must be found to be dangerous by the court. The offender must or ought to have been aware that the offending was very likely to result in or contribute to multiple deaths. When these conditions are met, it is right that a lengthy minimum term should be served in prison and in full, and an extension period should be served on licence. This should be consistent for anyone to whom the serious terrorism sentence applies.

We have carefully considered the right balance between the custodial terms and the licence period for this sentence, and are satisfied that 14 and seven years are appropriate, with the licence period being at least half the time that the offender would have served in custody. But it will be for the sentencing judge to determine this length, up to a maximum of 25 years, according to their judgment of the need to protect the public from the risk of serious harm that the offender poses.

The noble Lord, Lord Thomas of Gresford, sought to know the extent of the consultation procedure that went into selecting 14 years as the appropriate period. It was not simply plucked out of thin air; it was arrived at as a result of deliberation on the nature of the crime, the extent of the offending and the need to protect the public. The noble Lord can be satisfied, if he wishes for further elucidation of the identity of persons with whom consultation took place, that I will write to him to explain the nature of the consultation process or the thinking that underpinned the sentence.

I echo the formulation of the noble Lord, Lord Marks of Henley-on-Thames, that this is a rebalancing. However, the Government are content that the current balance is correct.

The noble Lord, Lord Ponsonby of Shulbrede, sought to know about the assessment that has been carried out on the likelihood of reform of persons on whom sentences of this sort are imposed. He asked about the number of young offenders in custody in relation to these matters and sought examples of situations when lengthy custodial sentences have led to reform. I propose to touch on these matters on other amendments. By way of advertisement of what I will be saying, I can tell the Committee that, while data on these matters is available, is it difficult, given the small quantity of data and the evolving understanding of matters, to use it precisely to arrive at conclusions. I hope that that answers the noble Lord’s point, albeit it is necessarily doing so by reference to things that will be said on forthcoming amendments.

I believe that these measures are necessary and appropriate. I therefore urge the noble Lord to withdraw his amendment.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 3:00 pm, 26th January 2021

I have received one request to speak after the Minister from the noble Baroness, Lady Hamwee.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

The noble and learned Lord very briefly answered the questions on consultation from my noble friend Lord Thomas. I hope he has in his brief the answer to the headline question of whether consultation was undertaken with probation and what its views were on the balance between custody and licence.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

Will the noble Baroness confirm that she is referring to the probation service?

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

I appreciate that there are levels and areas of probation. The question extends to all parts of those who provide probation services, but the central probation service, offender management, is probably more relevant to this than local probation services.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

If I may, I will respond to the noble Baroness’s question in writing.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.

My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.

The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.

The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5 not moved.

Clause 4 agreed.

Clauses 5 and 6 agreed.

Schedule 4 agreed.

Clauses 7 to 10 agreed.

Clause 11: Minimum term order for serious terrorism offenders: England and Wales