Amendment 7

Counter-Terrorism and Sentencing Bill - Committee (1st Day) – in the House of Lords at 3:15 pm on 26th January 2021.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

7: Clause 16, page 16, line 33, at end insert—“( ) Section 255 of the Sentencing Code (extended sentence of detention: availability) is amended as follows.( ) After subsection (2) insert—“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—(a) take account of the offender’s age;(b) consider whether options other than an extension period of eight to ten years might be more effective at—(i) reducing the risk of serious harm to members of the public, or (ii) rehabilitating the offender.(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”( ) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.( ) The report of the first review must be laid before Parliament within one year of this Act being passed.”

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

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.

Photo of Lord Woolf Lord Woolf Crossbench

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.

Photo of Lord Robathan Lord Robathan Conservative 3:30 pm, 26th January 2021

My Lords, I congratulate my noble friend Lord Wolfson of Tredegar on what I think is his first outing with the Bill. I know where Tredegar is, but I am not sure I have ever been there. I do know, rather too well, the Brecon Beacons, just to the north, which are very beautiful but also extremely wet and cold, as I recall.

I enter this debate with some trepidation because we have a lot of clever lawyers taking part. On this occasion, I do not mean that in any derogatory sense; this is legislation, and we need it to be examined by clever lawyers who are lawmakers, but I speak only as a layman. We know what the issues are, and in this, as in so much, there is a need for balance. I heard what the noble and learned Lord, Lord Falconer of Thoroton, said, but we need to not be starry-eyed when thinking that a young person might not be perfectly capable of being radicalised early and remaining radicalised. We need to look at how the judiciary and the legal process can keep tabs on people who have been radicalised. That is why, in this particular case, I am certainly on the side of community safety rather than the rights of offenders.

Religious fanaticism is not, of course, confined to Islam. People inspired by ideology do not always respond well, whatever their ages. In December, Jonathan Hall said that deradicalisation using monitoring and theological programmes does not work. Therefore, we need, in exceptional cases—and there will be very few —to give courts the right, and indeed the duty, to ensure that society is protected, over and above the rights of some very unfortunate young people—young men, almost exclusively—who have transgressed in these terrorist actions.

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

I call the next speaker, the noble and learned Lord, Lord Morris of Aberavon. I think we are having some problems with him, so I call the noble Baroness, Lady Jones of Moulsecoomb.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I have a slightly embarrassing confession to make. When I first decided to get involved with this Bill, I thought it was a completely different Bill. Having realised what is was about, I then realised that it is one of those bits of legislation that is a bit rushed. It reminds me of the Dangerous Dogs Act 1991, which was rushed through Parliament because of public concern about, I think, 11 very dangerous and nasty incidents of people being savaged by dogs. It proved to be, first, a not very effective piece of legislation, and then, a not very popular one. I also had not realised there would be so many eminent lawyers involved in this debate, and I feel slightly uneasy, because I am coming into this as a member of society who has a very practical reaction to this sort of legislation. I do not believe that locking people up and throwing away the key is the best way of treating them, for all sorts of reasons. I do not mean for them, necessarily, but for society and the whole prison system.

This amendment goes to the heart of what we are trying to achieve when we sentence terrorist offenders. Are we locking up monsters and not letting them out again in the hope that prison is going to crush or contain them, or whatever? Or are we locking people away to protect society for as long as it takes to teach them the error of their ways and, perhaps, confront them with the consequences of their actions and return them to society as re-engaged citizens?

Statistics suggest that only a tiny percentage of people who have been locked up for terrorist offences come out and reoffend. We need to look at that and be practical about what we are trying to achieve. It is easy for the Government to appear to be tough on crime, throw red meat to the tabloids and satisfy the people who think that anything less than the death penalty for almost every crime is being soft on crime. I think there might be people on the Government Benches who think like that. But it is much harder for the Government to do the tough work of reintegration into society, which is a much more effective use not only of money but of resources. Locking people up in an extremely expensive prison service just teaches people to be better at crime while they are there.

As we have seen in the United States, extremist ideologies have spread among our own western societies. The so-called QAnon conspiracies, fuelled by Donald Trump, and promulgated across the internet, TV, and among the Republican Party, led people to hope for mass arrests and the execution of their political opponents. This is a domestic terrorism movement, which is growing and exists here in Britain. We are going to be encountering a completely different sort of terrorist: a white terrorist, just for starters. The Government have to step up. The problem is growing, and the solution is not just to lock more people up but to learn how to deal with this at source and also once people have offended. The Government need to rethink this a little bit, and be a bit more practical, and less reactive to perhaps transitory public opinion.

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

The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Lord, Lord Marks of Henley-on-Thames.

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

My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.

The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.

Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.

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

My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.

The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.

The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.

The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.

The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.

For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.

However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.

In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.

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

I have received one request to speak after the Minister from the noble Lord, Lord Paddick, so I call him.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I am very grateful to the Minister for his comments. Yesterday, in debating the Domestic Abuse Bill, the Government declined to include child offenders in the definition of “domestic abuse” because, as the Minister said, the Government did not want to criminalise children. In this Bill, however, they seem to be taking a hard line when it comes to child offenders. What is the difference in approach? Is it because the Government think that domestic abuse is not a serious offence where the public need to be protected but terrorism is?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 3:45 pm, 26th January 2021

My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.

I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.

I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.

I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 16 agreed.

Clauses 17 to 19 agreed.

Schedule 5 agreed.

Clauses 20 and 21 agreed.

Schedule 6 agreed.

Clause 22 agreed.

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

We now come to the group beginning with Amendment 8. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this amendment or anything else in this group to a Division must make that clear in debate.

Clause 23: Terrorism sentence with fixed licence period: Scotland