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Examination of Witness

Counter-Terrorism and Sentencing Bill – in a Public Bill Committee at 11:32 am on 25th June 2020.

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Jonathan Hall QC gave evidence.

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury 11:34 am, 25th June 2020

We will now hear evidence from Jonathan Hall QC, who is the Independent Reviewer of Terrorism Legislation. Welcome, and thank you very much for coming. I think I am supposed to ask you to introduce yourself, but I have just done that, so we will go straight into questioning.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q May I first take the opportunity to thank you for your service as Independent Reviewer of Terrorism Legislation, Mr Hall? The whole House is very grateful for the work that you do in this area, and I want to put on the record our thanks to you for doing that.

I am sure we have all read the notes that you very helpfully prepared on this legislation and published on your website at the end of May and the beginning of June. I have them in front of me and have read them with great interest. To start, I want to ask about TPIMs—terrorism prevention and investigation measures—which were the subject of some debate on Second Reading. I want first to ask about the current circumstances in which a TPIM expires and has to be reapplied for from scratch without it being possible to use the previous evidence from two or more years before. Do you think there are circumstances in which public safety may still demand a TPIM beyond the two-year period? Are these proposals a better way of handling it than the current method?

Jonathan Hall:

The answer is yes, there are be circumstances in which someone ought to be subject to controls for longer than two years. Yes, there will be circumstances in which it will be appropriate to rely on terrorism-related activity that predates the imposition of the first TPIM. I understand the business case, if you like, for allowing an extension beyond the two-year period. However, the reason I question in the first instance whether it is justified is that it is none the less possible, as the law currently stands, to extend beyond two years. There are two current examples—I will not go into the details—of where a second and fresh TPIM has been imposed.

The practical consequence of the current regime is that some will come off controls, and if they have literally lain doggo and have done nothing for that two-year period, the police and MI5 will have to start assembling a new case, assuming that the person re-engages with terrorism-related activity. There could be a gap period during which that terrorism-related activity is going on, during which the case is being built when they are re-imposed.

If TPIMs were currently imposed against attack planners, I would have fewer observations to make about the ability to extend further. However, in practice, as I said in my note, having spoken to officials, TPIMs are really currently used against radicalisers. It is certainly the case that public safety is not helped by radicalisation activities, but as things currently stand, people subject to TPIMs are not the attack planners, who, if they are free from restrictions, might go and do something very violent. More likely, they will re-engage in radicalising activities. As shown by the fact that two new TPIMs have been imposed, it is currently possible to manage that risk.

I understand the business case, more than I do for the lowering of the standard of proof, which we can come to separately. At the moment, I do not understand why it is needed as TPIMs are currently used.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q You mentioned that, in the two cases where there have been renewals, there was a hiatus—a gap—between the expiry of the first TPIM and the second coming into force. Could you give the Committee any information about how long that gap was?

Jonathan Hall:

Yes, I have worked it out. In one case it was a gap of a year, and in the second it was a gap of 16 months.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q In those hiatuses—those gaps—of between a year and almost a year and a half, there is clearly a risk to which the public is being exposed. The rationale for the proposed changes is to remove the possibility of that gap.

Jonathan Hall:

What I would say is that the risk was managed, as the law currently stands. There was a gap, but in fact, it is not as if something very bad happened from those sources in that period, as far as I can work out, having read the materials that I have read.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q But it is about risk; not all risks actualise. A risk may exist, but no consequence may follow. What we are trying to prevent with TPIMs is the risk itself. It is fair to say that the risk would have existed in that 12 to 16-month period.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q You mentioned the burden of proof earlier, which I am sure other Members will ask about in due course. With the TPIM regime as it stands, very few TPIMs are actually enforced. Published data, dating back to November last year, said that five were in force at that time. Have you seen any evidence of the Government overreaching, stretching or even misusing the TPIM powers, or would you say that the Government have exercised the powers that already exist with care and circumspection?

Jonathan Hall:

The latter. I am quite satisfied that the Government are doing that.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q So in the context of the Government having behaved responsibly and carefully so far, what basis do you have for being concerned about the change to the burden of proof, given that the powers that have existed for some years now have been used, as you have said, very carefully?

Jonathan Hall:

You asked me about the current TPIMs. I cannot speak for all the uses of control orders and TPIMs that have happened before my period. There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.

The point that you make, which is that the authorities can be generally trusted to make TPIMs against the right people, to my mind rather demonstrates that a change is unnecessary. The authorities have been able to impose TPIMs, as far as I can see, where they have wanted to. I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower—where they could say, “We think this person’s a terrorist, but they may not be and we’d like to impose a TPIM, but we can’t, because we cannot show on the balance of probabilities.” I am not aware of that sort of case. So I agree that the authorities can be trusted and, at the moment, I think things are working okay.

The regime of control orders and TPIMs has fluctuated over the years since it was introduced. It has been subject to a lot of scrutiny and consideration by my predecessors and by the courts. It has landed in a reasonably good place. The danger about changing unnecessarily is that, maybe not now, but in a few years’ time, you might provoke an overreaction.

I will give an example of that. When the control order regime came in, it was seen as a bit illiberal and that led to the removal of the power to relocate individuals when the TPIM regime was introduced. Eventually, my predecessor David Anderson, the Government and Parliament agreed that it was necessary to bring back that power of relocation. So if you like, there was a period when the public were less safe because the ability to relocate had been removed, and the reason why that ability to relocate had been removed is that it was the reaction to what had been seen as a slightly illiberal measure. If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q I want to pick up on a couple of those points. We should both try to be brief, because other Committee members want to ask questions. You mentioned that the state holds all the cards, but is it not the case that a judge looks at a TPIM prior to it coming into force and if it is—I forget the phrase—“manifestly unreasonable”, or some test like that, they will strike it down? Secondly, there is, of course, a right of appeal against TPIMs, so anyone made the subject of a TPIM has those two judicial protections in place, do they not?

Jonathan Hall:

Yes, but of course if the standard of proof is lowered, the extent of judicial protection is lowered, because the judge will not be asking him or herself, “Was the Secretary of State right to be satisfied on the balance of probability that this person is a terrorist?” The judge would have to say, “Well, in theory, they may not be a terrorist, but the Home Secretary’s view that they may be a terrorist is reasonable,” so you would remove the judicial protection.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q It would not remove it; it would alter the balance.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q You mentioned the original control orders set up in 2005 by the then Labour Government, which had reasonable suspicion as the burden of proof: precisely the same burden of proof being proposed today. The years following, probably between 2005 and 2012, were the years during which the lower burden of proof—the one we are now proposing—was enforced. I know you were not the reviewer at the time, but are you aware of any evidence of misuse in that seven-year period when the lower burden of proof prevailed?

Jonathan Hall:

I am not aware of any misuse, but I am aware of circumstances in which the intelligence was misunderstood.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q Finally, a moment ago you posed the question, “If it ain’t broke, why fix it?”, and you said you were not aware of any cases where a lower burden of proof would have been required to control someone. Of course, we are looking prospectively rather than retrospectively. If there are conceivable circumstances in future whereby someone is potentially a threat to the British public—our constituents, who would need protection from them—and we cannot establish the matter to the higher standard but could for the lower, it clearly would be useful to change the burden of proof.

On Second Reading, my right hon. Friend Dr Lewis raised the question of someone who had been a member of Daesh returning from Syria. Of course, if somebody has been circulating in Syria, it is very hard to establish their activities on the balance of probabilities. It is hard to get witness testimony and there will be no intelligence surveillance, but the fact remains that they have been to Syria and done whatever they have done over there. In those circumstances, is it conceivable that, when British citizens who are members of Daesh return from somewhere like Syria, the lower burden of proof might be helpful, or in fact necessary?

Jonathan Hall:

I have thought a little about this. It is certainly the case that evidential coverage of what goes on in Daesh-controlled areas will be limited, which is why prosecution is particularly difficult. Intelligence coverage might be more, but it might be patchy. I think that if someone has been in Syria for a long time, it is a pretty obvious inference that they have been up to no good, so I do not think that you would need the lower standard of proof. You would not say, “I reasonably suspect that because you spent five years in Syria, you were engaged in terrorism-related activity.” My own view is that a judge would say, “On the balance of probabilities, you were engaged in terrorism-related activity.” Of course, there will always be some coverage. I do not think that what you said is right, although I see where you are coming from.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q It is clearly much harder to establish that, on the balance of probabilities, somebody was up to no good in Syria, given that the evidential base is patchy at best and possibly even non-existent.

Jonathan Hall:

Yes, but I think that, with respect, what you are missing out is the big factual matter, which would be undisputed, that they were in Syria. The Secretary of State’s starting point would be, “Here is a matter of fact, undisputed, that somebody spent all those years in Syria.” I think that that would provide a fairly good jumping-off point for an inference that they were engaged in terrorism-related activity.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q They would no doubt argue that they might have been in Syria and might have been members of or living in Daesh territory, but that they were not engaged in terrorist activities expressly, and we would likely have no further evidence to establish that they were.

Jonathan Hall:

I think that judges, when they come to consider these matters, are prepared to draw robust inferences. They are not fools. No doubt the Secretary of State would also not be fooled by someone who simply claimed that they were there for humanitarian reasons.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q I have one further question, which is on a different part of the Bill: the new serious terrorism sentences and the requirement to serve all of those in prison without the prospect of early release by the Parole Board. You commented in one of your notes that the Parole Board would therefore not have involvement in release decisions in the way that they currently do in many cases. Are you reassured by the fact that, although the Parole Board would not take release decisions, the usual MAPPA—multi-agency public protection arrangements —arrangements would be engaged, the Prison Service would closely monitor and evaluate the prisoner prior to release, and of course the probation service would be closely involved both before and after release during the licence period, which is now going to be longer than would otherwise have been the case? Would you accept that the involvement of those agencies, particularly the MAPPA arrangements and the probation service, provide a good level of supervision and evaluation?

Jonathan Hall:

The difficulty with terrorism risk is that it is quite difficult to measure. You have actuarial tools to look at whether people who have committed burglary will reoffend, and they are reasonably robust. You do not have those sorts of tools for terrorism. As I probably said in my notes, some of the factors that you normally associate with reoffending—for example, not having a stable family background—do not tend to work so well with terrorism offenders. You find terrorism offenders who come from a stable background and have a job, so it is inherently difficult to identify the probability that someone will reoffend.

The approach that I took when I did my MAPPA review was that the more information, the better. I agree that the probation service, the police and MI5 will be carrying out assessments, but you lose the confrontation that takes place at a Parole Board hearing. As you have probably done, I have attended such a hearing, where there is an opportunity for the chairman to speak to the offender in quite a formal setting. It brings something different to the table, which you would obviously lose. You would definitely have covert intelligence sources, and you would have overt management in the sense of the police being able to speak to the offender, but you would lose the opportunity for a confrontation before they have been released. You are losing something—that is probably how I would put it.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Q You said that it is inherently difficult to assess dangerousness and threat. Given that, is it not safest to get them to serve the whole of their sentence in prison, to be on the safe side? All the Parole Board can do is release them early, and all we are doing is removing the Parole Board’s ability to do that. One loses nothing in terms of public safety. Given the difficulties with assessing threat that you have outlined, is it not safe and prudent as custodians of public safety, which we all are in different ways, to remove the prospect of early release?

Jonathan Hall:

The Parole Board has two choices: it could release early, but it could, and often will, decide not to release early and say, “Actually, you’re far too dangerous.” That additional source of information about their risk will then be very useful to the security services when they are eventually released.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

It is a pleasure to serve under your chairmanship, Mr Robertson.Q

I, too, am grateful for the work that you do, Jonathan. I want to ask you a number of questions away from TPIMs; my hon. Friend the Member for St Helens North will deal with that issue. You have produced three notes on the Bill, and I want to address questions from two of them—it might be helpful for the notes to be entered as written evidence.

Point 10 of your first note states:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

That strikes me as a cautionary note, and I invite you to talk a bit more about that. How specifically will this piece of legislation be different for younger offenders?

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

Mr Cunningham, can you please clarify which document you are quoting from?

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

I am referring to the Independent Reviewer of Terrorism Legislation’s “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”.

Jonathan Hall:

I have identified what is really a policy choice for Parliament. As a matter of fact, I can say that an increasing number of quite young people are being caught up in terrorism, including new forms of terrorism—not just conventional Islamist, extremist or right-wing terrorism, but other new emerging forms, such as the incel movement or even things at the very boundaries of what you might consider terrorism that are very violent. It is not impossible that young people will be caught up in this.

The point I am making—I have referred to an authority from England and Wales and I think I have also referred to the approach in Scotland—is that there is recognition that people who are young and immature are probably more susceptible to change than adults. I suppose it is a choice for Parliament, but the age for a mandatory minimum sentence—meaning no prospect of early release, and effectively putting to one side the possibility of reform—might be raised to 21, rather than that being for those in the 18-to-21 bracket. I understand that in Scotland there is a debate over whether it should be as far as 25.

All I can do is identify the choice that has been made and point out that when it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 as opposed to one month under 18.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.

Jonathan Hall:

That is what judges are increasingly finding.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q In paragraph 13 of the same report, you talk about imprisonment for public protection orders possibly being used for this cohort of offenders, but you go on to say:

“Conversely, determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

What would be your advice to the Committee on that particular issue?

Jonathan Hall:

I have imagined putting oneself in the position of the sentencing judge, who is faced by someone who has carried out a very serious attack planning offence, risking multiple casualties, and let us say they are 25 or 30. As I think I have said before, it is very hard to judge terrorist risk. It is particularly hard for sentencing judges, because they operate on an open basis; they are not going to look at secret intelligence, for good reasons. So the judge’s task is particularly difficult at the point of sentence, and it seems to be quite difficult for a judge to work out sentencing for a 25-year-old who has committed a really serious attack planning offence. When they are released from prison, are they going to be worth monitoring for seven or for 25 years? Again, it is a choice for Parliament.

What I have identified, I suppose, is that if one were going to impose a mandatory sentence, there might be thought to be more sense in imposing an indeterminate sentence—in other words, where someone has fallen into this category of really serious offending, realising that they could be a risk for life and keeping them in prison for life, unless and until they are seen as safe to be released, and then once they have been released, keeping them on licence for life and giving the flexibility to the authorities, which includes, I should say, where eventually someone, one hopes, is no longer a threat, to roll that up and bring that licence to an end; because there is a slight risk of storing up trouble for future generations if you have increasingly long periods for licences. When they are no longer necessary, how do you bring them to an end? I do not think there is that scope at the moment. To answer your question—I am sorry to have gone on so long about that—

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q That is okay. There is the younger person dimension in this area as well.

Jonathan Hall:

Very much. One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, “I have now genuinely changed; that was me then and this is me now,” where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say “unfair”, but it fails to recognise the difference between adults and children.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q The Minister addressed the issue of the Parole Board and the lack of its role for people given these determined sentences. I wonder whether there is potential for some form of role there. The Minister’s Bill basically dismisses the Parole Board and leaves it to everybody else. Do you have a view about how we could perhaps persuade the Minister that there is a real role for the expertise that the Parole Board brings to this situation?

Jonathan Hall:

I do not want to get into the role of persuading anyone. If you like—

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q I was just being mischievous.

Jonathan Hall:

The practical point is one I have addressed, which is that identifying terrorist risk is really difficult. The role of the Parole Board is quite an important part of identifying terrorist risk, and if you don’t have that role then you lose that insight.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q There has been some discussion out there in the world, where people are discussing the Bill, about the sentencing code and what the definition is of an act of terrorism. It is defined in section 69 of the sentencing code, which says that

“an offence has a terrorist connection if the offence—

(a) is, or takes place in the course of, an act of terrorism, or

(b) is committed for the purposes of terrorism.”

Do you think that is clear enough to aid the courts, or do the Government need to provide more clarity in the definition?

Jonathan Hall:

I think it is clear enough. It is taken from the Counter-Terrorism Act 2008. It is now being incorporated into the new sentencing code and it has worked well.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q The Law Society has provided us with a brief brief, in which it addresses the issue of polygraph testing. It says, for the record: “The Law Society does not agree that polygraph conditions should be placed on individuals released on licence.” That is quite a bold statement. The Law Society suggests that we should ensure that the Bill is not a stepping-stone towards the wider introduction of polygraph testing. May I invite you to talk about polygraph testing, because you did refer to it in your note, and ask what your view of it is when it is used in this particular context within the Bill?

Jonathan Hall:

It is consistent with my point about not losing sources of information. Because it so difficult to identify whether someone will commit a terrorist offence, and as the Usman Khan case perhaps demonstrates, there are difficulties in managing released terrorist offenders or predicting what they might do. Polygraphs provide an additional source of information.

I came at this subject reasonably fresh; I read the literature on the use in England and Wales with sex offenders. I can see that the number of clinically significant disclosures is really material, and it seems to me that it would be very sensible to use that in the same way—so you ask, “Have you been on the internet?”, as a closed question—for terrorist offenders.

So, it is an additional source of information, which I think it would be sensible to use. It would do two things. One is that in certain cases it would allow the authority to find out when they are being gamed and played by manipulative and deceptive dangerous offenders. On the other hand, to some extent it would reduce the burden of the authorities. That is because the police and probation service face really difficult choices in this area. There will be a natural caution, for example, about removing someone’s licence condition. However, if you can use a polygraph test and satisfy yourself that someone is telling the truth, then it may allow you to remove some conditions and allow someone to normalise. And although that sounds odd in the context of terrorist offenders, ultimately you want people who are released to engage in a normal way in society—in other words, allowing them to get jobs and to live in their home area, and the like.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q That was very helpful. Finally, there is the need for additional expertise in the field, whether that is to do with the probation service or elsewhere, for the management of offenders under the 25-year licence, which will be considerable. Is that something that you have considered?

Jonathan Hall:

I know, from when I did the review of the multi-agency public protection arrangements, that a lot of resources are being put into this area, and there are special probation officers trained in counter-terrorism. I do not think I can comment on how much resource you need for 25 years, but a lot of resource is being put into the area, which is to be welcomed.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q The Government have tabled some 17 pages of amendments to the Bill, which you may not have seen yet; they were only published on Tuesday.

Jonathan Hall:

I have not seen them.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

The question is probably useless, then. I was going to ask whether they had reassured you that things had changed for the better, but clearly you have not seen them.

Jonathan Hall:

No. I am sorry; I have not seen them.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to serve under your chairmanship, Mr Robertson. Mr Hall, may I add my thanks to you for your service to all of us as parliamentarians? It is much appreciated, as were the notes that you prepared in advance of the Bill.Q

I will start by asking you a couple of questions about the effect of the proposed sentencing changes in Scotland. You have produced a “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (3)” that deals with the effect of the proposed sentencing changes in Scotland and Northern Ireland. In particular, in paragraphs 8 and 9, you raise the question of how what is proposed for Scotland under clause 6 of the Bill impacts on the existing sentence in Scotland called an order for lifelong restriction. Can you tell us about that?

Jonathan Hall:

Scotland has a unique sentence. It has a very respected body called the Risk Management Authority, and if a risk assessment is made under the auspices of the authority that shows that someone is a real risk, the High Court in Scotland can pass an indeterminate sentence with a punishment part, but with the consequence that someone is liable to be detained until they are safe enough to be released, when they are released but very carefully monitored.

I do not know whether this was intended or an oversight, but it seems paradoxical that, as things currently stand, if a judge in Scotland found that the criteria for a serious terrorism sentence were made out, he or she would have to pass a determinate sentence, if they did not otherwise pass a life sentence, even if ordinarily they might want to pass one of these orders for lifelong restriction. One would have thought that an OLR would provide more protection for the public than a determinate sentence. I do not know whether that has been dealt with in the amendments that have just been referred to.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q What is it about an order for lifelong restriction that, in your view, makes it preferable to what is proposed under clause 6?

Jonathan Hall:

It is the fact that risk changes. You want to make a decision about when someone is going to be released in the light of all the information at the point of time at which release becomes an issue. People might become more radical in prison, and it seems to me that allowing a body to make a decision on whether they are safe in the light of all the information is preferable to a decision to impose a determinate sentence taken by a judge, who does not know, actually, whether in the 14 years or 16 years imposed that person will be safe.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q Am I right in understanding that the OLR cannot be imposed until a formal risk assessment has been carried out by Scotland’s Risk Management Authority for the benefit of the judge?

Jonathan Hall:

I think it is carried out not by the Risk Management Authority but by assessors who are certified by the authority. I am not a Scottish lawyer, but that is my understanding.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q What about the involvement of the Parole Board? You have already spoken favourably about what the Parole Board can bring to assessing risk of involvement in terrorism. Of course, there is a separate Parole Board for Scotland. Is that board involved in the order for lifelong restriction sentence?

Jonathan Hall:

Yes, it is. One of the things that I discovered when I did my MAPPA review is that there is probably work to be done to ensure that where a dangerous offender is considered by a Parole Board, whether in Scotland or in England and Wales, all the information relevant to the question of risk—including, in certain circumstances, sensitive information—is brought to the attention of the Parole Board. There are ways and means of doing that. So there are certainly improvements that can be made about the way in which the Parole Board can operate, but yes, that is right: the Parole Board would have a role.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q In the second part of paragraph 9 of your note, you say:

“It would be preferable if Clause 6 was disapplied where an Order for Lifelong Restriction is passed. This also raises the question of whether a more flexible indeterminate sentence, such as the Order for Lifelong Restriction, is not preferable generally to the inflexibility of a serious terrorism sentence.”

Those are your views. Have you seen anything to change your mind since you wrote the note?

Jonathan Hall:

No, those are my views. It is obviously for Parliament. As I say, I do not know whether the position with orders for lifelong restriction was an oversight in the drafting of the Bill. In Northern Ireland, there is something called an indeterminate custodial sentence, and certainly that can be passed in priority to a terrorism sentence. On the question whether a lifelong restriction is better in principle, I have made my views known. The reason, in a nutshell, is that it is a very difficult to judge risk at the point of sentencing.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q Of course, sentencing is a devolved matter, so normally the Scottish Parliament would deal with it. There would have to be a legislative consent motion from the Scottish Parliament for aspects of this Bill that impact upon devolved matters, so there could be some fruitful discussion between the Scottish Government and the UK Government about your suggestion about disapplying clause 6 where an order for lifelong restriction is passed.

Jonathan Hall:

I do not think I can comment on that.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q I want to ask a couple more questions about TPIMs. The Minister took you through what is being proposed. As I understand it, you have not been given a justification or a business case for lowering the standard of proof. Is that right?

Jonathan Hall:

I have obviously had discussions, but I have not been able to identify a cogent business case. Reference has been made to reducing the administrative burden. I do not fully understand that point because, as I said in my note, there are cases in which what you might call a new variant or a light-touch TPIM has been made. The courts have yet to say that those are not an acceptable way of proceeding, so it seems to me that there are options already on the table.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q Beyond the example that the right hon. Member for New Forest East raised on the Floor of the House on Second Reading about somebody who has been in Syria for a few years—you have dealt with that—have you been given any other example of a case in which the protection of the public has been hampered by the existing standard of proof?

Jonathan Hall:

No. What has been communicated to me is that this is something for the future. There is a phrase that counter-terrorism officials like to use: “having a tool in the toolbox”. You could probably summarise this by saying that it will be another tool in the toolbox. They cannot necessarily say when they would use it, but it might be beneficial in the future.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Q What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.

Jonathan Hall:

I should start by saying that when the control order regime was in force, and the standard was reasonable grounds to suspect, that was not found to be unlawful. I cannot and do not put forward the suggestion that this change would be unlawful; it is a legislative choice.

As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor, which would be an option for Parliament, is to say that if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.

Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject. Again, I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.

Jonathan Hall:

As things currently stand, yes.

Photo of Sarah Dines Sarah Dines Conservative, Derbyshire Dales

It is my first time serving under your chairmanship, Mr Robertson, and it is a pleasure.Q

Mr Hall, thank you for the very thorough online report. It is over 200 pages, and it is obviously a very thorough piece of work. I want to ask a general question from the perspective of one of my constituents. Looking at the overall measures that the Bill would bring in, you must agree that they will make the average citizen safer.

Jonathan Hall:

I think some measures certainly will. For some measures, I am less clear in my mind that they will. It would be going too far to say that some of them would have a negative effect, although there is always a question about whether people being in prison for longer will make them safer when they come out.

Something that I was struck by, when I started doing this job, was that most terrorism sentences are quite short. The reason for that is that counter-terrorism police want to go in early and stop attack planning. They may go in when they have intelligence, but before the evidence is really there. They may have secret sources that they cannot use in court. That often results in finding things on phones or computers, which results in lots of convictions for having attack manuals, but not many convictions for attack planning. In practice, that means that most people convicted of terrorism offences will come out after a period of time.

The police and MI5 are always thinking, “How can we make the risk as low as possible when that person eventually comes out?” Obviously, one of the issues that one has to confront is that prisons do not always end up making people more safe. Extending their time in custody for a bit makes someone safer in the sense that they are off the streets for that period of time, but it does not necessarily mean that they are safer when they come out.

All I would say is, yes, there are some bits that are definitely to be welcomed. Anything that allows additional monitoring, that increases licences and that allows the police more monitoring powers is to be welcomed. Some of the things I am less sure about.

Photo of Sarah Dines Sarah Dines Conservative, Derbyshire Dales

Q Which provision, in your professional view, will have the biggest effect on making our citizens safer?

Jonathan Hall:

I think it is the provision that allows a judge to say that any offence, if he or she finds that it is connected to terrorism, is a terrorism offence. That means that the police have a statutory ability to monitor that person for 10, 15 or up to 30 years. That is a really welcome change, which makes people safer.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

It is a pleasure to serve under your chairmanship, Mr Robertson. Thank you, Mr Hall, for your comprehensive notes and the briefing that you provided to the Opposition in advance of the Bill. I have some specific questions following my colleagues’ earlier comments.Q

TPIMs are not widely in use. You have said that the system works okay—I think that was the phrase you used in this evidence session. Is there a concern that these proposals not only do not make the operation of TPIMs more effective, but actually make them less effective, not just in an operational sense but, given the speculative commentary about their being used as an alternative to prosecution or to deradicalisation strategies, in terms of public perception, which undermines their wider use?

Jonathan Hall:

It is quite difficult. I am always cautious about talking about public perception, because I do not have a crystal ball. What one can say is that the best counter-terrorism response, the one that has the most common legitimacy, is criminal prosecution. One should continue to strain to prosecute terrorists. It is fairer, it means the public can see what is being done to protect them, and it results in stronger, tougher disposals.

To pick up on the point that you made, I think I mentioned in my notes that from my consideration of TPIMs, I was not entirely convinced that there was enough scrutiny by the Secretary of State and by officials of the evidential case against individuals. There certainly is consideration by the police and the Crown Prosecution Service, but there is the risk that, once a TPIM has been made and someone has been identified as a risk, that takes priority—in other words, the TPIM is the best way of protecting the public—over trying to get criminal evidence to prosecute, which would be preferable from a public perception point of view.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

Q Given that there has been no example of where a TPIM has been unable to proceed on the basis of the current standard of proof, would you, if the Bill passes, look very carefully to ensure that there is not an immediate spike in the use of TPIMs? In November 2019 there were five in use. Is that something that you would see as a measure of whether this is a practical measure introduced to aid law enforcement or counter-terrorism, or whether it is being used as an alternative to prosecution?

Jonathan Hall:

I do not have a sense that there is an intention to spike suddenly, which is why I go back to the question: what exactly is the purpose served by changing the standard of proof?

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

Q I understand that. I have some sympathy with the Government on statutory renewal being on the basis of new evidence of terrorism, but I have some concerns about what is called, rather bizarrely, “indefinite renewal”—I think your term “enduring TPIMs” is more palatable and makes more sense. Is there a logical compromise on this so that, after a certain period, there must be evidence of continuing involvement in terrorism or a lack of repudiation of terrorism, rather than the onus being on finding new evidence? Might that assuage some of the safeguarding concerns about indefinite sentencing?

Jonathan Hall:

If there is evidence of continuing terrorism, that would meet the current law and allow a new TPIM to be imposed. So far as repudiation is concerned, I expect that, if the law is changed in this way, that is how these matters will be framed. It will be said that there was evidence of somebody being involved in terrorist-related activity, that they have not repudiated their views, and that therefore they remain a risk. I would not venture to suggest that one could amend the law as to how risk should be proven. I think one should leave that reasonably open.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

Q One could argue that that is exactly what the whole thrust of the Bill is doing in relation to the standard of proof.

When relocation orders were used before, one in six were overturned in court. Are you concerned that this is rather a dubious way to proceed, if you are going to undermine not just the legislation that you are creating but the wider counter-terrorism strategy? A not insignificant proportion of the people subject to relocation orders as part of control orders in the past were able to overturn them in court.

Jonathan Hall:

Relocation is an important power. It is regrettable, in the sense that it is a very strong measure and causes a lot of disruption, but I am quite satisfied that in a small number of cases it is needed. You are right to pick up on that when one looks at the enduring TPIM. The combination of lowering the standard of proof, plus the ability for TPIMs to endure forever and the power of the measures, including relocation, means that someone could be forced to live away from their family for up to, say, a decade, on the basis that they only “may” be a terrorist. A possible safeguard is to say that if one is going to do that, one at least ought to be satisfied on the balance of probabilities.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

Q Is it your understanding, looking at the package of measures being introduced, that you could conceivably have someone who has been convicted of a terrorism offence being free from constraints before someone who has been placed on an enduring TPIM?

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

We have three Members still to ask questions, so we need to be very brief.

Photo of Laura Trott Laura Trott Conservative, Sevenoaks

It is a pleasure to serve under your chairmanship, Mr Robertson. I have a clarification question, following the Minister’s questions about TPIMs. You said that there is a gap between the two, which can be managed. Can you give us more detail on how that will be done without the powers present through TPIMs?Q

Jonathan Hall:

This is the covert world. I will slightly fudge my answer, because this is more of a technical thing—you might want to ask the next witness. Obviously, the police and MI5 have ways of monitoring and managing people, even if they are not subject to a TPIM. It is something that the authorities have to wrestle with. Some people who have been convicted are on licence, which gives you a way to manage their risk. Some people are on TPIMs. Unfortunately, there are quite a lot of people who are neither on a TPIM nor on licence, and who the authorities have to measure. They have real expertise in dealing with it. It is slightly sensitive to go into details. Your question is probably one for the next witness.

Photo of Laura Trott Laura Trott Conservative, Sevenoaks

Q Would it not be better if those individuals were on TPIMs?

Jonathan Hall:

It would be easier for the police.

Photo of Rob Butler Rob Butler Conservative, Aylesbury

It is a pleasure to serve under your chairmanship, Mr Robertson.Q

Mr Hall, can I address the young adult age group? It has also been referred to by the Opposition. If we accept that there are different questions of maturity, do you also accept that the 18 to 20 age group can be incredibly dangerous?

Jonathan Hall:

Yes, and it is not only people who are over 18. It seems to be a phenomenon at the moment. If you think about what is available on the internet, and if you bring in issues such as mental health, young people can be very dangerous. As you know, there was the so-called Anzac Day plot involving a very young person.

Photo of Rob Butler Rob Butler Conservative, Aylesbury

Q I was on the Youth Justice Board at the time, so I am very familiar with that case. You note that there is provision in the Bill for the under-18s, as judges will have more discretion on sentencing. You have expressed some reservations about the young adult age group—either 18 to 20, or 18 to 24, depending on how one decides to define maturity. As you have highlighted, there is some debate about what that age group should be. What would be an appropriate balance between safeguarding the possibility of people maturing out of offending while still ensuring the safety of the general public?

Jonathan Hall:

A sceptical Parole Board. Sometimes people look at the Parole Board and see early release. It is certainly correct that the Parole Board would have the power to grant early release, but it often does not release people.

Photo of Rob Butler Rob Butler Conservative, Aylesbury

Q So are you suggesting an exceptional case for that young adult cohort—that they should be eligible for Parole Board consideration where older adults are not? That is what I am trying to clarify.

Jonathan Hall:

Yes, I think that would be a legitimate policy choice for Parliament. Can I just clarify one thing? You have the serious terrorism sentence, where the judge’s power is to pass one of these only for people who are 18 or over. In my notes, I have made some points about the 18 to 21 age group. You also have people who are not subject to those orders, but who are dangerous and have been convicted of offences that carry a maximum of life. For those people, including people below the age of 18, the Parole Board role disappears. One choice would be to say that if people are under 18, the Parole Board ought to retain a role.

Photo of Julie Marson Julie Marson Conservative, Hertford and Stortford

It is a pleasure to serve under your chairmanship, Mr Robertson.Q

Thank you for all your evidence, Mr Hall. On sentencing, we have talked about rehabilitation and risk management quite a lot. The other purposes of sentencing are deterrence, protection of the public and punishment. Do you agree that those purposes are well served by the changes in sentencing that are contained in the Bill?

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

We have come to the end of the session. Mr Hall, thank you very much indeed.