Amendment 1

Counter-Terrorism and Sentencing Bill - Report – in the House of Lords at 1:31 pm on 3 March 2021.

Alert me about debates like this

Votes in this debate

Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

1: Clause 1, page 1, line 8, at end insert—“(aa) after subsection (1) insert—“(1A) The court may not assume that an offence has a terrorist connection for the purpose of this section unless—(a) the defendant has admitted in person and in open court that the offence has such a terrorist connection, or(b) where the defendant does not make such an admission, the court is satisfied beyond reasonable doubt upon a trial of the issue that the offence has a terrorist connection.(1B) A trial held pursuant to subsection (1A)(b) above must be determined by a jury unless the court determines that the interests of justice would be better served by a trial by a judge alone upon evidence admissible in a criminal court.””Member’s explanatory statementThis amendment would require a trial of the issue as to whether or not there is a terrorist connection in relation to an aggravated offence.

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

My Lords, I argued in Committee that Clause 1 should not stand part of the Bill because it would create a whole raft of new aggravated offences, for which offenders would be sentenced on the basis that the offences had a terrorist connection without the question of whether they had such a connection ever having been tried by a jury or a judge or even tried on the basis of admissible evidence.

For the purpose of Section 69 of the Sentencing Act, which is to be amended by this clause, an offence has a terrorist connection if it is, or takes place in the course of, an act of terrorism or is committed for the purposes of terrorism. The principal point I made in Committee was that the decision that the offence had a terrorist connection was not made by the jury before the offender was convicted but was reserved to the judge at the sentencing stage. A defendant might be convicted by a jury of the basic offence, for which the appropriate penalty might be a short term of imprisonment, but sentenced on the basis of a decision taken by a judge alone, without hearing any evidence, that the offence had a terrorist connection and merited a sentence of a long term of imprisonment. I said then and repeat now that that feature would cut across the principle of our criminal law that no one should be convicted of an offence except upon admissible evidence, open to challenge in a trial and, if in the Crown Court, heard by a jury.

Prior to this Bill, offences with a terrorist connection that would act as an aggravating factor in sentencing comprised a relatively limited range of very serious offences which might often be expected to have a terrorist connection, such as murder, a number of explosives offences, hijacking, hostage-taking and serious aviation offences. They were listed in Schedule 2 to the Counter-Terrorism Act 2008 and would all normally merit long terms of imprisonment.

For that reason, the effect of aggravating the sentence was less objectionable than it is to be as a result of Clause 1 of this Bill. That is because this Bill broadens the range of offences that may be treated as aggravated by a terrorist connection to include any offence that carries a sentence of imprisonment of more than two years. An offence of assault occasioning actual bodily harm, for example, carries a maximum sentence of seven years’ imprisonment, even though the violence involved can be relatively minor and the harm caused can be restricted to bruising or pulled muscles. The basic offence might merit a fine or a short term of imprisonment, but the offence committed with a terrorist connection might attract the maximum sentence. While the offender’s guilt of the basic offence would be determined by a jury, the terrorist connection would be a matter for the judge alone at the sentencing stage.

The finding that an offence has a terrorist connection does not simply increase the likely sentence; it also has the effect of activating the notification requirements for terrorist offences, thus classing the offender as a terrorist, with lifelong consequences, and the further effect of activating a number of forfeiture provisions. In addition, the increased sentence is subject to the restriction on early release under the so-called TORA Act, the Terrorist Offenders (Restriction of Early Release) Act 2020 that we passed as emergency legislation last year. Not only would the sentence be longer, but the proportion served in custody would be greater. In short, the consequences of a finding of a terrorist connection are devastating for the offender.

It was the fact that those consequences could be imposed without a trial of the fact of the terrorist connection that led us in Committee to oppose Clause 1 standing part of the Bill, despite our complete acceptance of the central proposition of this Bill that terrorist offences call to be treated with the greatest severity, for the protection of the public as well as the punishment of the offenders.

Amendment 1 is far more targeted than the opposition to the clause standing part. I am extremely grateful to the noble Lord, Lord Wolfson, and the noble and learned Lord the Advocate-General for discussing this amendment with me at a meeting yesterday. Importantly, the noble and learned Lord, Lord Stewart, reminded us that in Scotland the different charging arrangements and arrangements for jury verdicts would enable verdicts to be given making it clear whether a terrorist connection was proved or not.

Not being a Scottish or Northern Irish lawyer, I had not attempted to formulate amendments that would apply in Scotland and Northern Ireland. At the suggestion of the Public Bill Office, I have confined my amendment to England and Wales in the hope that, if it is agreed, the Government will draft and bring back suitable amendments for Scotland and Northern Ireland. However, it is to be noted that Section 31 of the Counter-Terrorism Act 2008, which applies to Scotland and is also to be amended by this Bill—although not materially for this purpose—requires that, before an offender in Scotland can be sentenced for the aggravated offence,

“(a) it is libelled in an indictment, and

(b) proved”.

Only then does the court take into account the aggravation of the offence. This was, no doubt, what the noble and learned Lord had in mind, proving once again to this Englishman how often Scotland is more enlightened than England and Wales on justice issues.

In the short debate in Committee on 26 January, my noble friend Lord Thomas of Gresford raised the possibility of a Newton hearing—a hearing to determine a question of fact relevant to sentence—as a way of determining whether an offence had the necessary terrorist connection to justify treating it as aggravated. That point was also hinted at by the noble and learned Lord, Lord Falconer of Thoroton.

The applicable legislation does not provide for such a hearing. Section 30 of the Counter-Terrorism Act 2008 provides only that the court must determine whether the offence has or may have a terrorist connection. Under subsection (3):

“For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.”

That provision is entirely unsatisfactory for the wide range of aggravated offences now proposed, many of them not of the greatest seriousness in the absence of the aggravating factor.

Our amendment would require that before an offence is taken to have a terrorist connection, either the defendant must admit

“in person and in open court that the offence has such a … connection”

—in much the same way as a plea of guilty would entitle the court to pass sentence—or there must be a trial of the issue. That trial would be by a jury

“unless the court determines that the interests of justice would be better served by a trial by a judge alone”.

At the trial of the issue, evidence admissible in a criminal court would be adduced and the court could proceed on the basis that the offence had a terrorist connection only if satisfied of that fact beyond reasonable doubt.

I suggest that this amendment strikes a proper and important balance between the public interest in securing severe punishment for offences with a proved terrorist connection and the public interest—also of great significance—in ensuring that sentences are imposed for offences that are properly proved before the court upon admissible evidence. That is the way our criminal law has generally proceeded, and that is the way it should proceed. I will wish to test the opinion of the House if the Government do not accept the amendment. I also wish to record the fact that I would like my voice to be heard when the voices are counted. I beg to move.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, I strongly support the Bill, and welcome its extension to Northern Ireland. It is absolutely right that we have a unified approach to the sentencing and release of offenders across our United Kingdom. Although I share the desire expressed by the noble Lord, Lord Marks, to uphold the principles of our criminal justice system and defend everyone’s right to a fair trial, I believe that the concerns underlying Amendment 1 have been overstated.

At present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing, for a defined list of non-terrorism offences. Clause 1 would extend that requirement to all non-terrorism offences with a maximum penalty of more than two years. Importantly, for the aggravating factor to be applied, the offence would have to be committed in the course of an act of terrorism or for the purposes of terrorism. I see no compelling argument that consideration of those issues at the point of sentencing represents a disproportionate burden on a defendant or restricts their rights. Judges already have discretion in many cases, including for the offence of murder, to increase or reduce a sentence in accordance with their view of the evidence.

The key factor in this case, therefore, is the need for effective guidance relating to the threshold for an aggravated offence, and its fair application. Only if there is enough evidence to satisfy the criminal standard of proof that there is a terrorism connection should the judge apply an aggravation. We have to remember, especially in an ever more digital and connected world, that terrorist offending can take many forms, so it is appropriate that the range of routine offences that can come under the scope of counterterrorism legislation is being extended. Ultimately, this process will help identify offenders who might otherwise have fallen through the cracks, and will ensure that they are registered, monitored and subject to notification requirements.

I make these points not because I am not committed to due process, or to respecting the fundamental rights of defendants, but because I believe that we must take a strong but balanced approach to enhanced sentencing and release provisions in such hearings.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice) 1:45, 3 March 2021

My Lords, the noble Lord, Lord Marks, set out his amendments clearly, and concentrated on the fact that the decision about a terrorist connection is made by a judge at the sentencing stage, not by the jury when they are assessing guilt or otherwise.

The noble Lord said that prior to the Bill, a limited number of offences were included. Those were serious offences, so his argument was that it did not make that much difference if there was a terrorist connection. He gave the example of ABH, for which the maximum sentence is seven years’ custody, although the penalty for low-level ABH may be some type of community order. His argument was that putting a terrorist connection on a wider range of lower-level offences would have a much larger effect on the likely sentence.

The noble Lord also spoke about activating notification requirements, and early release provisions. He prayed in aid the noble Lord, Lord Thomas of Gresford, who previously raised the possibility of Newton hearings. I am much more sympathetic to that possibility than that laid out in the amendments tabled by the noble Lord, Lord Marks, which would mean that either somebody admitted in open court that there was a terrorist connection or there would be a trial of the issue.

Surely that determination should be made by the judge. A judge could make a determination that a Newton hearing was the right way forward. Perhaps the Bill should be amended to enable the judge to make a determination for a Newton hearing, or to take it on himself or herself to make a determination of whether there is a terrorist connection. For that reason, we will abstain on these amendments—but if, at a later stage, amendments along the line that I have just suggested, giving the judge discretion to order a Newton hearing, are tabled, we may well be in favour of those.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

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

My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.

The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.

The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.

The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.

Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.

Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.

Ayes 126, Noes 281.

Division number 1 Counter-Terrorism and Sentencing Bill - Report — Amendment 1

Aye: 126 Members of the House of Lords

No: 281 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Division conducted remotely on Amendment 1

Amendment 1 disagreed.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 2:12, 3 March 2021

We now come to the group consisting of Amendment 2. Anyone wishing to press this amendment to a Division must make this clear in the debate.

Clause 27: Removal of early release for dangerous terrorist prisoners: England and Wales