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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.”