Amendment 6

Counter-Terrorism and Sentencing Bill - Committee (1st Day) – in the House of Lords at 3:00 pm on 26th January 2021.

Alert me about debates like this

Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

6: Clause 11, page 12, line 33, leave out “exceptional” and insert “significant”Member’s explanatory statementThis amendment would give the courts more discretion when applying the minimum term.

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

My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.

The point of this amendment is simply to broaden the judge’s discretion to refrain from imposing a serious terrorism sentence where the circumstances demand it. The replacement of the word “exceptional” with the word “significant” would permit the judge to take into account circumstances that he views as sufficient to alter his view of the offender or of the offence so as to justify the imposition of a lesser sentence. The use of the word “significant” allows the judge an element of subjectivity about what seems to him to be important enough to justify that departure.

We believe in judicial discretion, for all the reasons mentioned by my noble friend Lord Thomas of Gresford in relation to the previous group, and for all the reasons which we discussed in the previous short debate. We do not believe that Parliament or any Minister can foresee what circumstances might persuade a judge to exercise less severity in these very serious offences. However, I suggest that the use of the word “exceptional” introduces a straitjacket, and I make that suggestion on the authorities because the use of the word “exceptional” places the judge in the position of having to make a finding that the circumstances are exceptional: that is, that they are so far away from the norm as to justify a finding, effectively, of fact that they are an exception. Without such a finding, he cannot use any discretion. The lack of discretion, I suggest, can be inimical to the interests of justice, and for that reason I invite the Committee to agree ultimately to a different formulation and invite the Government to consider a formulation that allows just a bit more flexibility than the Bill as drafted permits. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 3:15 pm, 26th January 2021

[Inaudible]—is in relation to the necessity for the judge at trial to have full discretion in passing sentence. I do not wish to repeat that, but I will add a particular comment. When a judge is faced with a provision such as this, he has to define those circumstances which influence him. He has to set out in his sentencing remarks precisely what factors influence him. Things have moved very considerably over the decades away from the swift disposal of a defendant by a judge with very little comment. What he says is important not just for the defendant to understand why he is being sentenced in that way but of course, if there should be any appeal on sentence, for the Court of Appeal to understand precisely what it was at the time that the judge had in mind. “Exceptional” circumstances is too great an imposition on the judge’s discretion and I believe that my noble friend’s proposal that it should be “significant” is right.

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

My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.

My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.

The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.

By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.

A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.

By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.

As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.

For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.

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

My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.

The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Clauses 11 to 15 agreed.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

We now come to the group consisting of Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 16: Increase in extension period for serious terrorism offenders aged under 18: England and Wales