Examination of witness

Counter-Terrorism and Sentencing Bill – in a Public Bill Committee at 2:30 pm on 25th June 2020.

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Michael P. Clancy OBE gave evidence.

Michael Clancy:

Good afternoon, Chair; good afternoon everyone.

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

Q Thank you for joining us; we very much appreciate you taking the time to give the Committee the benefit of your opinion. The purpose of the Bill is to protect the public from serious terrorist offenders. Do you agree that the Bill achieves that purpose by and large, and is it therefore a piece of legislation that, in broad terms, the Law Society of Scotland supports?

Michael Clancy:

Thank you, Mr Philp. To answer about projecting what the effect of legislation will be on protecting the public and making people safer is quite difficult, because for me, as an individual, it would certainly be speculation to say that the Bill would protect people. Legislation has limited effect in terms of it being passed; it really has to be brought into effect and made to work through enforcement for the real impact to be felt. That is part of the issue about whether or not people would be protected by the Bill. It may be some time before we can turn around and do adequate research on the implementation of the measures in order to assume that people have, since its enactment, been better protected than they were before. It is difficult for me to comment on that.

That having been said, I know that sociologists and criminologists have been looking at this kind of things. In one article I picked up latterly, entitled “Does Terrorism Dominate Citizens’ Hearts or Minds? The Relationship between Fear of Terrorism and Trust in Government” by Ramon van der Does. He came to the conclusion that

“Despite its well-known effects on public health, safety, and finances, we still know little about how fear of terrorism can be mitigated.”

That might go some way to edging to an answer to the Minister’s question. Every Bill is good in parts, and has good parts, parts that can be improved by amendment during its passage and parts that, in some instances, should not be legislated at all. So, as you can tell from the Law Society of Scotland’s memorandum on the Bill, we take very much that kind of view.

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

Q On the question of public protection, which you were kindly commenting on just then, one key element of the Bill is that there will be a minimum 14-year prison sentence for the most serious terrorist offenders, and for that cohort and some other serious terrorist offenders, all the sentence will be served in prison. Given the evidence we heard earlier today about how difficult it is to rehabilitate terrorist offenders and to predict whether they have been rehabilitated, do you agree that simply ensuring that they are unable to harm our fellow citizens by keeping them in prison for a longer period is the only certain way of keeping the public safe?

Michael Clancy:

I certainly agree that, for those who are convicted of serious terrorist offences, keeping them in prison for a longer time means that they are not at liberty to commit other terrorist offences. Whether that actually means that they have no influence on others in the commission of terrorist offences—either those they meet in prison who are on their way towards release, or those with whom they can communicate outside prison while they are serving their sentence—is another matter.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q Your counterpart, the Law Society of England and Wales, said in its written evidence that it does not agree that the polygraph condition should be placed on individuals released on licence, and it goes on to say that a negative polygraph reading on its own should not be sufficient to justify a recall to prison. Do you share that view?

Michael Clancy:

I have great respect for the Law Society of England and Wales’s positions most of the time. As you will have seen from our memorandum of comments, we have reservations about the use of polygraphs. In particular, we think that there is an issue about the reliability of polygraphs. They have been used in England and Wales, but they have not been used in Scotland. One point that I would like to pick up on is that the adaptation of Scottish criminal procedure through the Bill to provide for polygraphs is something we would have liked to see further consultation on, with greater explanation of how this would work before it is fully imported into the legal system in Scotland. I know that considerable advances have been made in neuroscientific technologies, such as the use of polygraphs, but in many instances in the United States—I draw your attention to the Supreme Court case of US v. Scheffer in 1998—there were considerable concerns about the reliability of polygraphs. That concern has persisted since that time, to such an extent that we have to be quite careful about citing American jurisdictions, because some of them do not allow for any—

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q Okay, we can leave that one there and move on to a question about parole. As you know, the Parole Board does not have a role where somebody has been given a determinate sentence. Do you have any concerns about the fact that the Parole Board has been taken out of the equation and will not have a role with those particular offenders?

Michael Clancy:

Of course, the Parole Board for Scotland is not referred to much in the Bill—only in a couple of instances. We would need to take a further look at exactly how the implications of the Bill work for the Parole Board for Scotland, which has its own particular arrangements. I will therefore pass on that question as to its effects on the Parole Board for England and Wales.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

Q Finally, the provisions are the same for young people as they are for adults. Do you have a view on that?

Michael Clancy:

As you will have seen from other evidence that has been submitted, the aspect of children and young persons is quite significant for Scotland. I refer in particular to paragraphs 21 to 27 of the submission by Jonathan Hall, the Independent Reviewer of Terrorism Legislation, which clearly discuss the effects on children and young people in Scotland. He says:

“The proposed application of the serious terrorism sentence to offenders aged 18 to 21 in Scotland raises starkly the question of whether there is a bright line between offenders above and below…18. This is because the Scottish Sentencing Council is currently consulting on its third draft guideline, ‘Sentencing Young People’ and proposes that special sentencing principles should apply to offenders up to the age of 25.”

For all who are interested in the Bill, it would be helpful to know the extent to which the Government have been able to consult with the Scottish Sentencing Council about the provisions affecting children and young people in Scotland, particularly as they are carrying out the current review.

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

Q Good afternoon, Mr Clancy. Can I follow up on your reference to Jonathan Hall’s notes? You will have seen that Jonathan Hall has also prepared a note—his third—on the implications for sentencing in Northern Ireland and Scotland, which I think you referred to in the written evidence you lodged. That is correct, is it not?

Michael Clancy:

Yes, I believe so.

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

Q We have heard evidence from Mr Hall today about the concerns he has expressed regarding the interaction between the proposed new sentence and the existing sentence of an order for lifelong restriction, which is available in the Scottish courts for the sentencing of offenders who pose a serious risk to the safety of the public. Do you share Mr Hall’s concerns about the interplay between what is proposed in this Bill, particularly in clause 6, and the existing sentence of an order for lifelong restriction?

Michael Clancy:

I found Mr Hall’s analysis of the issue of orders for lifelong restriction very compelling. As he points out, this is a unique type of sentence, imposed

“for serious violent offences if certain risk criteria are met”— for example,

“where the offender would otherwise seriously endanger the lives, or physical or psychological wellbeing, of members of the public at large.”

Therefore, I think we should view Mr Hall’s evidence carefully. He points out in his note:

“An Order for Lifelong Restriction is an indeterminate sentence comprising a stated period of detention or imprisonment (called a punishment part) during which the offender cannot be considered for release, followed by the continued incarceration of the offender unless and until the Parole Board for Scotland is satisfied that the offender no longer” carries such a risk. That implies a paradox: the 14-year sentence plus the extended sentence might be a shorter period in prison than one under an order for lifelong restriction, so we have to be careful about weighing Jonathan Hall’s evidence against the provisions in the Bill. I hope that answers your question.

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

Q Yes, it does; thank you very much. You have already talked about the implications of clause 33 of the Bill for Scotland, where polygraphs are not currently in use. You have explained that they are not currently used in Scotland because, as far as you understand, there is still a question mark over their reliability. Is that right?

Michael Clancy:

Yes. Well, I do not pretend to know the mind of Scottish Ministers as to why they have not introduced polygraphs in Scotland. I suspect that they think the jury is out on that question, because of the variable opinions about the value of polygraphs.

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

Q They are not used for anything in Scotland. I understand that they are currently used for sex offenders in England, but they are not used for sex offenders in Scotland, are they?

Michael Clancy:

That is true: they are not.

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

Q You say in your written evidence that if they were introduced, that would be “a significant step”, and that it would raise various issues regarding

“responsibility, organisation, funding, monitoring and training”.

Can you elaborate on that?

Michael Clancy:

It would be a significant step, because there has been no prior consultation to discuss the appropriateness of the use of polygraphs, how that would be implemented and whose responsibility it would be to arrange for polygraphs to be used in Scotland. Those are the kinds of issues that need to be explored quite carefully. It would also be important to know how they will be resourced. We are going to enter into a period of extraordinary public expenditure difficulty in the next few months and years, so introducing something that would be a significant expense in terms of their usage, the training of the operators and such, would be something one would want to look at very carefully.

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

Q Can I move now to TPIMs? What is the Law Society of Scotland’s view on the proposal to change the standard of proof from the balance of probabilities to reasonable grounds for suspecting? What is your view of that, and what are the reasons for that view?

Michael Clancy:

Before I answer that, could I add a small coda to the provisions about polygraphs? Under clause 33, a new section is inserted into the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides that

Scottish Ministers may…specify a polygraph condition”.

The emphasis of that discretion in the Bill is an acknowledgement that this matter would be within the devolved competence of Scottish Ministers to be talking about and implementing legislation for. It would therefore be a question to ask Scottish Ministers, as to what their views are about the implementation of polygraphs in Scotland.

Going back to the standard of proof—

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

Q Just to interrupt there to pick up on that last point about polygraphs, as a matter of law, a legislative consent motion will be required for this Bill in so far as it impinges on devolved matters. Is that right?

Michael Clancy:

Yes, that is correct.

Michael Clancy:

Again, we set out some views in our memorandum. Moving from a position where it was on the balance of probabilities to a reasonable suspicion is a significant drop. It is even a drop from reasonable belief, which was a prior standard used in the old control orders that preceded TPIMs. We take that as being something that is problematic. It certainly indicates a lower standard, but that is about as far as I would put it at the moment. It is within the range of civil contemplation. We have got to be cautious about what we actually mean by reasonable suspicion. The balance of probabilities means satisfaction on the evidence that the occurrence is more likely than not. Reasonable suspicion is simply, “Have I got any basis for thinking that this is the case?”

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Order. I think we are going to move on to Sarah Dines.

Photo of Sarah Dines Sarah Dines Conservative, Derbyshire Dales

Q I am looking at your written evidence. Towards the end of the document in the TPIMs section, you roundly reject the proposed changes sought to be brought through by the Government. I want to ask two things. In your final summary, you say:

“What is needed is to tackle the basic causes of these terrorist incidents”.

There are two parts to the first question: what do you say are the basic causes of crime, and why are the proposals that are being put forward not good enough? Secondly, what alternatives should be put forward? What are the causes, and what would you do, in rejecting these proposals?

Michael Clancy:

These are very big questions. Explaining the causes of crime might just be a little bit beyond my competence in the time I am allowed to talk for. But, clearly, when we are dealing with a cohort that is inclined to terrorist offences, the issue is the achievement of some political or social aim through the use of violence, rather than through any democratic change, and that is roundly to be condemned by anyone who has any sense of democratic responsibility.

I do not for a moment underestimate the extent to which those who engage in such terrorist offences may have motivations that most other people would find difficult to understand. With any type of instance when terrorism has occurred, sometimes we can just think to ourselves, “How could someone do this to other people?” But I cannot reach into the psychology of terrorist offenders to be able to answer your question completely.

In our analysis of terrorist prevention and investigation measures, we have taken a view on the components of that—for example, the removal of the two-year limit on the length of time that a TPIM can be imposed, so it is now available under the terms of the Bill for indefinite renewal and no subsequent judicial review. We think that removing judicial review is a significant departure, and making the provision of the TPIM unlimited can be problematic. That probably engages certain provisions of the European convention on human rights. For example, in terms of the lack of a judicial review, there is no independent oversight of that. We would suggest that, given the small number of TPIMs there have been in the past, if that is going to be replicated, having some form of judicial review may allow for a contemplation about the extent to which article 8—the right to a private life—might be impacted by the provision of the TPIM as it is currently anticipated to be.

We would also refer to the variation of the relocation measures in the same kind of way, under clause 39. The extension of residence measures, so that any house or residence can be applied under clause 39, is something that we thought was potentially in conflict with article 8. We have already talked about the polygraph measures. I am less worried about the drug testing measures, because drug testing measures are in common currency in the tools that can be employed to make sure that people are not contravening the Misuse of Drugs Act, with the impact that that has on someone’s thinking and what they might want to do in a state where they are under the influence of drugs.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Order. I think I am going to ask you to let me move on, Mr Clancy, because a few other people are indicating that time is moving on. Is there anyone else waiting to come in? No. In that case, I call Laura Trott.

Photo of Laura Trott Laura Trott Conservative, Sevenoaks

Thank you, Mr McCabe. It is a pleasure to serve under your chairmanship.Q

I was pleased to see in your evidence the point that an increased sentence offers an increased opportunity for greater rehabilitation while someone is in prison. Do you have any views on what form that rehabilitation should take?

Michael Clancy:

I am not a penologist. Therefore, I would rather leave that to experts in rehabilitation theory than make up some layman’s version of it, if you do not mind.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Minister, I think you wanted to make another point.

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

Q I have a couple of follow-up questions on the TPIM matter that you spoke about, Mr Clancy. In your oral evidence a few moments ago, you described the change in the burden of proof as problematic. I am not sure whether you heard the evidence we received this morning, but an assistant chief constable from counter-terror policing, speaking on his own behalf but also on behalf of the security services, said that lowering the standard of proof to reasonable suspicion would result in the public being better protected. He went on to lay out three potential circumstances in which that might be the case. One was rapidly changing threat levels from an individual; another was an individual returning from overseas; and there was a third circumstance as well. Given the evidence by counter-terror police on behalf of them and the security services that our citizens in the whole United Kingdom are safer with this measure, could I ask you to reconsider your description of it as problematic?

Michael Clancy:

Of course you can ask me, Minister. That is certainly something I will take back and think about, because I was not aware that that evidence had been given this morning. I should say that this is, of course, a civil law provision, not a criminal law provision, in terms of the standard of proof. Of course we have to take into account the views of the counter-terrorism police experts and weigh them very heavily, but it is a different environment, in one sense, from the environment that the police are used to operating in—namely, beyond reasonable doubt. But I take your point and will give that some further thought.

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

Q I am extremely grateful to you for the undertaking to think about it further. That shows very commendable flexibility in response to the clear evidence.

To give you further reassurance perhaps, the lower burden of proof, reasonable suspicion, is of course not a new burden of proof, because the old control orders, in force from 2005—they were introduced by the then Labour Government—and carrying on until 2012, had the same lower burden of proof, reasonable suspicion. This morning, I asked Jonathan Hall, the independent reviewer, whether he was aware of any problems that occurred during that seven-year period, 2005 to 2012, when that lower burden of proof was in force, and he was unaware of any issues caused by it. Does that give you further reassurance?

Michael Clancy:

It does. Of course, set against that is the fact that very few of these orders were in place at that time. I think that, in doing some reading in advance of this session, I saw numbers in the mid-40s—46 orders or something like that. If they are going to be used at that kind of level of exercise, it is clearly going to impact on a smaller group of people. Small does not mean insignificant, in this circumstance, but we will just have to wait and see what the evidence of their use produces.

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

Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.

I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?

Michael Clancy:

Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.

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

The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?Q

Michael Clancy:

I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.

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

Q You have already said that if there is such clear evidence, you would be happy to consider it. Is that correct?

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

Q Is it also fair to say that the concerns expressed by the Law Society of Scotland about dropping the burden of proof are those that are widely held, including by the current independent reviewer of terrorism legislation and his predecessor, David Anderson QC?

Michael Clancy:

As far as I know. I have not actually seen a statement by Jonathan Hall about the burden of proof, but I am sure that you are leading me to the conclusion that there is one.

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

Yes. He has given us evidence this morning and provided a note to that effect, but, as always, you are being scrupulously fair.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Absolutely. Are there any further questions? In that case, Mr Clancy, thank you very much for giving your evidence today.

Michael Clancy:

Thank you, Mr Chairman. It has been a pleasure, a rather disembodied pleasure, but a pleasure none the less.