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Clause 29

Counter-Terrorism Bill – in a Public Bill Committee at 3:00 pm on 8th May 2008.

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Sentences for offences with a terrorist connection: England and Wales

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I beg to move amendment No. 76, in page 20, line 32, after ‘If’ insert

‘having regard to the material before it for the purposes of sentencing’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 27, in page 20, line 33, leave out ‘court’ and insert ‘jury’.

No. 128, in page 20, line 34, after ‘and’, insert ‘the jury’.

No. 129, in page 20, line 37, leave out first ‘court’ and insert ‘jury’.

No. 28, in page 20, line 37, leave out ‘determines’ and insert ‘is satisfied beyond reasonable doubt’.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The amendment seeks to make it even clearer that a court in England and Wales, when considering whether an offence listed in schedule 2 is connected to terrorism, must do so only on the basis of open evidence presented by the prosecution and defence. That is the evidence that a court usually has before it for sentencing. The defendant will be able to challenge any evidence on which a terrorist determination is made, either during the trial or, if there is a guilty plea and the judge holds a Newton hearing where the defence and prosecution dispute facts of the case which would affect sentences, so as to decide the matter at that hearing.

It was always intended for that to be the case. There was never any suggestion in the Government’s proposal that a determination could be made on the basis of intelligence, or evidence withheld from the defence due to PII or other, lesser-status information, such as that contained in a pre-sentence report. However, we felt that we should make a slight amendment to the drafting so as to put the matter even more beyond doubt than it already was. That is the substance behind the amendment.

For completeness, it may be appropriate if I leave others to move their subsequent amendments, and I will reply to them all in due course.

Photo of John Bercow John Bercow Conservative, Buckingham

Other hon. Members do not move amendments at this stage, but they can speak to them as they are part of the same group.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:15 pm, 8th May 2008

I thank the Minister for his introduction and for his amendment, which was welcome. It did not cross my mind that it was intended for a judge to be asked to make his decisions without having any facts in front of him, but the amendment clarifies that point beyond any doubt.

These are probing amendments designed to look at the same issue, albeit in a slightly wider context. The Government said that the judge would make a determination. That determination may be made either in the course of the trial, because it would be the basis of the conviction, or it may be made on the basis of a guilty plea, in which case there may be the possibility of  a Newton hearing. That raises two issues. The first is what would happen if, during the course of a hearing, the Crown’s case alleges that something is an aggravated offence because it is connected to terrorism. If that issue is in contention, are we to assume that, in certain circumstances, juries will be asked to return special verdicts indicating whether or not they consider it to be terrorist connected?

Secondly, as the Minister will be aware, currently, the judge on his own determines if there is to be a Newton hearing. No jury is empanelled to decide whether there is a terrorist connection; it follows very normally in a pattern of determinations made by judges sitting on their own. I have participated in many Newton hearings. The judge hears evidence and submissions such as the prosecution and defence wish to put forward and makes up his mind about the matter. Moreover, I recollect that he makes up his mind effectively on the balance of probabilities and not beyond reasonable doubt.

On the whole, the Newton system has worked perfectly well. Equally, I have participated in trials where a major issue of fact has been resolved by the judge asking a special question of the jury when it comes to return its verdict—“Is it on basis A or basis B?” Judges, on the whole, do not like doing it but if they are forced to do it, they will do it.

One of the issues that we must consider here is that the introduction of a terrorist element is making not some minor difference but a colossal difference to sentencing. One only has to look at the sentences now being imposed, very properly, on individuals who although they have not killed anybody, have nevertheless been engaged in conspiracies with a view to killing people—although often conspiracies in a very early stage—to see that they have ended up with discretionary life sentences and 40-year terms being prescribed. Therefore, particularly with the way that the Government are widening the scope of the aggravated offence, it is possible to envisage circumstances where somebody coming before the court on the sort of offence that might first appear to be very minor indeed—the sort of thing that might attract six months’ imprisonment—might go to prison for five, six or more years, once the terrorist connection is established.

The Committee has to consider how we reach the decision in such cases and whether the decision should be given to juries in the Newton hearing and not to the judge on his own. Alternatively, how will juries be asked to deal with these issues, if there is the possibility of them returning a verdict that might be “Yes, he is guilty of this but it has no terrorist connection” or “He is guilty and there is.”

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am trying to identify my hon. and learned Friend’s position. Let us take a plea of guilty that is to be dealt with by the single judge—the jury not having been empanelled. Is my hon. and learned Friend suggesting that in such a case a jury should be empanelled, as it were, on a Newton hearing to determine whether or not the offence is terrorist related?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

These are probing amendments, but yes. If we were to have a jury on a Newton hearing, we would have to empanel the jury in rather the same way  as one empanels a jury to decide if somebody is insane—in order to determine on the facts whether it was a terrorist-related matter. That is one issue. I was raising another issue, which is about the mechanism in a jury trial where an allegation is being made of a terrorist connection. How does one go about dealing with that in terms of the jury being able to indicate if it concludes, having heard all the evidence, that there is no terrorist connection?

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am listening carefully to the hon. and learned Gentleman’s arguments, which, as he knows, are similar to the ones that we had hoped to deploy in this group. In the circumstances where he envisages a jury establishing whether there is a terrorism connection, what standard of proof does he believe would be appropriate? I notice that he has added his name to our amendment No. 27 but not to our amendment No. 28. Does that suggest that he is happy with a balance-of-probability test on the part of the jury in that instance?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am rather open-minded about it. This is a Committee stage and I have some doubts in my mind as to the best way to proceed. Being conservative with a small “c”, a strong argument commends itself to me—if the current system has worked well dealing with such issues of fact in the past, should we be getting too worried? There is a good argument for saying, “Let us leave the current situation as it is.” Judges have always been able to deal with the issue and ask the jury a supplementary question if a real issue arises in a trial about the facts on which the ultimate sentencing will take place. So far as a Newton hearing is concerned, where there is a guilty plea, the judiciary in my experience have managed fairly well to come to conclusions when the facts are placed in front of them. They usually listen very carefully to the evidence put before them.

That is one argument. The alternative argument is to say that that is all very well in the context of the sort of decisions that used to have to be taken. However, the anxiety is about the growing consequence of the aggravated offence, which would start to create penalties that bear little relation to what one would expect to be imposed if the offence was not aggravated. That is what I would ask the Committee to consider. I await the Minister’s response with interest—but before I hear from the Minister, I give way.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry on the whole to be sounding a note of caution when I hear my hon. and learned Friend speaking on the matter. He will remember and keep well in mind the provisions of the Criminal Justice Act 2003, where we have tariffs for murder. It is for the judge to determine where within the tariff the appropriate sentence lies. However, I have never heard it suggested—I have certainly never seen it done—that the jury should determine the class of homicide as prescribed in the schedule to the Act. I would be very cautious about giving juries a role in sentencing, which is what my hon. and learned Friend is in reality about.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am cautious. If we were dealing only with homicide, I do not think that I would be particularly bothered. However, the issue is that we  now have aggravated terrorist offences that can be almost anything. Using a credit card to carry out some fraudulent activity with a terrorist connection may attract a sentence much higher up the scale than one would normally expect from the sums involved. I thought that the issue ought to be brought before the Committee, although I share my right hon. and learned Friend’s caution. That is why my amendments are probing. I do not have a concluding viewpoint. I am interested to hear the Minister’s view and what degree of consultation has taken place. Based on what the Minister tells me, I am minded to go away and reflect on whether I want to do anything else about it.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I am listening with great care to the debate and understand both sides of the argument, but I want to throw one thing in: the Homicide Act 1957. On a plea of diminished responsibility that is not accepted by the Crown, the decision then goes to the jury. That supports the hon. and learned Gentleman’s contention, I think. I also throw in the point that, for many years, lay magistrates have been very comfortable with their role in determining facts in Newton hearings in magistrates courts.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes a good point. As I said, I cannot amplify my views further, because they have not crystallised. I make no apology for that. I am open to persuasion either way, but I would be interested to know the Government’s position and the views of any member of the Committee who might have them.

Photo of Tom Brake Tom Brake Shadow Minister (Olympics and London), Liberal Democrat Spokesperson (Olympics and London)

I thank the Minister, for clarifying the purpose of the Government’s amendment, and the hon. and learned Member for Beaconsfield, for speaking to the grouped amendments. The first amendment in the string was our amendment, which I am pleased that the Conservatives put their name to, as did the hon. Member for Meirionnydd Nant Conwy. I thank the hon. and learned Gentleman for opening the debate and for being able to set out, perhaps slightly more convincingly than I might have been able to do, the strengths and merits of our amendments Nos. 27 and 28.

Clearly, we are talking about the need for greater safeguards, because the terrorist component of an offence is making that offence so much more aggravated. Hence the need for a jury and hence, possibly, the need for a criminal standard of proof. Again, I follow the lead of the hon. and learned Member for Beaconsfield in saying that these are probing amendments, so that we can hear what the Government have to say about this matter, given that we are talking about perhaps much more substantial and lengthy sentences, and so a need for greater safeguards, as well as a jury or a criminal standard of proof.

We would not seek to press the amendments but wish to listen to what the Minister has to say in response, before perhaps formulating further views later on.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

My hon. and learned Friend the Member for Beaconsfield invited members of the Committee to express a view; mind you, we could not stop them doing so. None the less, it was very gracious of him.

I am bound to say that I approach this issue with considerable caution. I myself have always taken the view that sentence was very much a matter for the trial judge. I have always resisted suggestions that the jury should be involved in the sentencing process. In reality, that is what the suggestion by my hon. and learned Friend would amount to.

There is logic in what my hon. and learned Friend says, but I can anticipate quite a lot of other circumstances where the same sort of case arises. Where, for example, there is a racially aggravated assault, is the sentence for that crime to be put to the jury by way of a special verdict? Alternatively, take the point that I adverted to in the intervention, where one is dealing with a homicide case. We all know that there is a range of starting points for the tariff: the starting point is 15 years but it can go to whole life in certain circumstances and it can fall to about 12 years in others. It depends on the balance of the mitigating and aggravating factors, which are specified in the schedule. I would be sorry to see juries being asked to state, by way of special verdict or otherwise, where within the schedule the person convicted of murder stood. Once we go down the road that my hon. and learned Friend outlined, we will get into precisely this sort of world. I am against it, I think.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am, of course, listening very carefully to what the right hon. and learned Gentleman has to say and I understand the point that he is making. However, does he accept that there is a bigger difference in consequence in this? There is a very much bigger difference between the consequence on what can be a relatively minor offence carrying a very small tariff and the consequence of a terrorist offence with a heavy sentence tariff, forfeiture orders and notification procedures consequent on that. That is what gives some of us cause for concern.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Yes, I understand the logic in that, and the hon. Gentleman and my hon. and learned Friend the Member for Beaconsfield have a point. However, we must ask where the principle is. I take the fact that there is a distinction; within homicide, the range is from whole life to 12 years, which is a big gap. That is also a huge difference. At the end of it, however, I think that I want to leave sentence to judges; I do not think that I want to involve juries.

One of the reasons that I do not want to involve juries is that one would get oneself into the world of unintended consequences. For example, juries are reluctant to convict in certain classes of offence because of the consequences to the defendant that they can envisage. Furthermore, if juries found it difficult to answer the question in the negative—is this a terrorist offence?—they might very well acquit in circumstances where they should not acquit.

I think that this matter is best left to judges. If there is to be further consultation, I am sure that members of this Committee would wish to reflect further on it, but I am very cautious about it.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

We have had a very interesting debate. For once, I disagree with the right hon. and learned Member and my reason for that is, first, I do not  believe that what is being proposed brings the jury into sentencing. Clearly, the jury should have no role in sentencing; we all agree on that, I am sure.

I mentioned the Homicide Act 1957 in passing. We entrust the jury, albeit with specialist medical evidence and so on, as well as requiring them to look at the circumstances of the offence, with deciding, “Is this a case of murder, or do we accept this person’s plea of manslaughter based on diminished responsibility?” That we do.

Let us say, for example, that the jury come back—I, and other people, have seen it in court—and say, “We accept the plea of diminished responsibility, therefore we find that he is guilty of manslaughter.” If we follow the argument of the right hon. and learned Member, the jury take part in sentencing, because what is open to the judge is severely limited, compared with what was open to the judge when the offence was murder.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 3:30 pm, 8th May 2008

I wonder whether the hon. Gentleman is entirely right, because he will keep in mind that for manslaughter, which is what the verdict would be if there was diminished responsibility, there is a penalty that ranges from life to a non-custodial sentence. The sentence is at large; it is for the judge to impose any sentence within that bracket.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I understand that point, but does not my point undermine the idea that in terrorist offences, juries might find it easier to go for the softer option and so on? I fully accept what the right hon. and learned Gentleman says: we need to keep juries away from sentencing. I have no doubt about that. But there is a huge difference between an offence involving terrorism and an offence presumably not involving terrorism, and on that basis alone, the jury should have a say in that determination. Then, of course, it will be entirely open to the judge to decide, if one can imagine, and I use the phrase advisedly, a minor terrorist offence: one on that side of the scale, as opposed to one at the very top. There is good sense in the amendment and it is worth having the debate, but I must confess that, as the right hon. and learned Gentleman said, we need to be cautious with it. It should not, however, be dismissed out of hand.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

We are in danger of confusing what clause 29 is about with the previous debate about clause 27 and jurisdictional issues. Clause 29 relates directly to a specific set of serious offences and no others. We shall come on to discuss schedule 2, but the offences are outlined in it. In substance, clause 29 merely formalises the current situation. I shall pursue the example from the hon. Member for Meirionnydd Nant Conwy, whereby the jury says, “manslaughter”, rather than “homicide”, which is perfectly reasonable. I am no lawyer and I do not want to jump into a catfight between three significant lawyers, but it is perfectly wrong to say that the jury are influencing a sentence. They are not; they have determined the offence. As the right hon. and learned Member for Sleaford and North Hykeham says, it is then entirely up to the judge, having got a manslaughter result, to decide  the mitigating and other circumstances and whether the sentence should be non-custodial or life—as manslaughter rather than as homicide. That is rightly and properly the purview of the judge, not of the jury. To pursue the analogy, no one in that case would think it right or proper for the judge then to say to the jury, “You’ve said manslaughter. Where do you think the sentence should lie in this whole range from non-custodial to life?” When, perfectly properly, the prosecution authorities say, as they have done, “This is a terrorist offence,” it will be perfectly in order for the judge to take it—once the outcome has been determined—as a mitigating circumstance prior to sentencing, as he would any other. That is all the provision will do.

To be perfectly fair, I think—again, I am no lawyer—that if we were to accept the amendment, we would drive Herbert Morrison’s proverbial “coach and ‘orses” all the way through the principle that it is for the judge to determine a sentence, not for the jury. Let us look at schedule 2. I do not think that the judge would give, in every circumstance, the impression of a huge, whopping, decade-related sentence because the offence happened to have “terrorist” connected to it. The minor offences are not in schedule 2. We have moved on from the jurisdiction; we are now on to those schedule 2 offences that are appropriate for enhanced sentencing. We must regard the matter in that context, and again, as a non-lawyer, I should say that, in those circumstances, to ask the jury to play a role would be perverse in our current system.

The hon. and learned Member for Beaconsfield asked a perfectly fair question about consultation. He will know that we have had five months’ consultation on this, including discussions with prosecutors and the judiciary, who did not think the measure was necessary at all—he is free to come back to that with a Mandy Rice-Davies comment and say, “Well, they would, wouldn’t they?” Some legal organisations did think it appropriate for the jury to make the decisions—principally, Liberty and Justice. He will know that there is a summation of views. Opinion was split.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister has fairly pointed out that the judiciary did not think that this section of the Bill was required. That point of view commends itself to me because the judiciary would simply say that the provision is just not necessary because it can take account of the facts in relation to aggravating circumstances without it having to be spelt out in statute. So why have the Government put the provision in the Bill?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Purely to formalise that which has prevailed thus far, and because it is right and appropriate to do so. First, doing so will formalise the range of offences for which it is appropriate; those offences are outlined in schedule 2. Secondly, as I have said, the provision will formalise the position that has prevailed in some terrorist cases up to now. It is perfectly proper for the judge to determine whether it is a terrorist offence or otherwise where the principal charge was clearly a non-terrorist offence. It is also perfectly proper for the judge to reflect that in the enhanced sentencing.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

To come back to the Minister’s point about these being serious offences, I agree that the vast majority are. However, I dare say it will come as a  salutary shock to the average yob who has caused a disturbance on the aeroplane while flying back from Ayia Napa to the United Kingdom to find that the judge sentencing him must consider whether he has a terrorist connection.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I have never been to Ayia Napa, so I shall let that lie. I recently went to Cyprus for the first time, but happily I was nowhere near Ayia Napa. I stayed at a lovely little hotel called the Anassa—the surrounding countryside was miserable as sin, but the hotel was lovely. However, that is by the bye. It is clear that these are, in principle, serious offences and will be taken as serious in a case with a terrorist overlay to it. The hon. and learned Gentleman knows that entirely. I am minded to remind him—although I do not want to go there—that, among other things, noxious substances and noxious things are included. During our deliberations, he reminded me, or informed me rather, that Mosquitoes—not the nasty little bug, but the antisocial behaviour devices that emit UHF sounds to put off teenagers—are also a noxious thing. So far, we have two noxious things: pathogens and potentially Mosquitoes.

The formalisation of what has already prevailed is appropriate. The explanation of what schedule 2 offences should be—and we will come on to schedule 2—is equally appropriate. Notwithstanding our amendment, we have set out the appropriate way to go forward. Before enhancing sentences, the judge rather than the jury should properly consider what is essentially on one level, as I have suggested, a mitigating circumstance. I just do not think doing otherwise is reasonable.

I am told reliably that the point made about beyond reasonable doubt in amendment No. 28 is principally already the case—certainly in terms of including the aggravation in sections 145 and 146 of the Criminal Justice Act 2003 that covers race, religion, disability and sexual orientation aggravation. There is no provision in that Act to spell out that the standard is beyond reasonable doubt and similarly it is not necessary to spell it out in the Bill because it is already the case that the court will apply the criminal standard and there is no suggestion that it would do otherwise. In that context, clause 29—suitably amended by me—should stand and the other amendment should be withdrawn.

Amendment agreed to.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have decided not to move amendment No. 169.

Clause 29, as amended, ordered to stand part of the Bill.

Clauses 30 and 31 ordered to stand part of the Bill.