Minimum term order for serious terrorism offenders: England and Wales

Counter-Terrorism and Sentencing Bill – in a Public Bill Committee at 11:30 am on 2nd July 2020.

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Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice) 11:30 am, 2nd July 2020

I beg to move amendment 39, in clause 11, page 12, line 42, at end insert—

“(7) Before this section comes into force, the Government must publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences.

(8) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Government to publish an analysis of the impact of the minimum terms on sentencing for related offences.

It is good to see you in the Chair again, Mr McCabe. The Labour party is not in principle against a minimum 14-year sentence for those convicted of serious terrorist offences. We are aware that it is a particularly small cohort who have been found guilty of some absolutely heinous crimes in order to find themselves in this category of offender. Indeed, the Ministry of Justice’s own impact assessment sets out that as few as 50 offenders could fall into this category, although, as I have said time and again, the Ministry of Justice can provide no evidence to back up that figure. None the less, as I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence, and the amendment would do just that.

The amendment would require the Government to publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences, and to lay a copy of the analysis before Parliament prior to this section coming into force. The impact assessment estimates that the potential impact of measures increasing minimum terms for terrorist offenders given life sentences

“may result in fewer than 50 additional prisoners…annually”.

I am not entirely convinced by that assessment and ask that the Government conduct an analysis of the measures on wider sentencing practice.

In Tuesday’s sitting, the Minister was at pains to stress the figure of 50 additional prisoners caught up by his new proposals, with only a handful of them being under the age of 21, and said he would provide the rationale behind the numbers. Nothing arrived in my inbox yesterday, so I assume it is still a work in progress for the Minister. I would have thought it perfectly easy for him to support his numbers with evidence before now, but perhaps he will provide that full explanation in his response.

I have outlined in previous sittings my concern about the impact of the creation of new offences with a terrorist connection. We all need to be satisfied that the Government have got the numbers right, because if they have not the ramifications will be considerable.

As I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence. We need to know whether minimum terms are working effectively. Have they made our country safer? Are they really a valuable tool in working with offenders? As I have spoken about at length, our justice system does not treat everyone fairly, even if it is our intention to do so. Given that it does not treat everyone fairly, we must consider the impact of our decisions on all groups, particularly those with protected characteristics. We as lawmakers need to obtain and understand evidence that increasing the length of time that individuals spend in custody leads to significant gains in public protection beyond delaying the possibility of an offence being committed.

In its written evidence, the Prison Reform Trust stated that increasing the length of the custodial period could undermine public protection by eroding protective factors. A key example is family contact associated with a reduced risk of reoffending on release. Perhaps the Minister can answer that challenge from the Prison Reform Trust. It is of course only right that the Minister talks about the number of offenders who will be caught up in his proposed new laws, because it is important to understand how many will be subject to additional impediments to their attempts to live anywhere near a normal life when they are released on a licence of up to 25 years.

The Government’s own impact assessment specifically sets out that the MOJ is aware that separating offenders, especially younger ones, from their families will negatively impact on their rehabilitation. We need answers from the Minister on that point. Yet we face a situation where the MOJ does not know the total number of offenders who will be caught up in this cohort. In addition, the MOJ does not know how many of those offenders will be young adults or under-18s, and it cannot provide any evidence-based reason for introducing the minimum sentence. The only thing that the MOJ seems sure of is that removing protective factors can impact on rehabilitation. It is important that the Minister gets those numbers right, because they have a major impact on how offenders are managed within the system and on whether or not the system will be properly equipped to deal with them.

I believe that the Government have said that the cost of these new measures will be around £60 million a year, but how has that figure been arrived at? The Minister holds tight to his figure of £50 million a year, but even if he is right, that is £50 million every single year and the number will build up to around 700 terrorist offenders in the prison system, all of them needing particular management in an already stretched service, which so many people tell us is under-resourced, lacks the expertise it needs and has rehabilitation programmes for terrorist offenders that, at best, need considerable improvement.

The need for analysis is probably even more important for us to understand the effects on young people and the potential impact of the determinate sentences. When he spoke on Tuesday against our amendment to have specific pre-sentencing reports that take age into consideration, the Minister made much of the fact that only a very small number of young people will be caught by his new measures. I do not want to repeat myself too often, but we still await an explanation as to where the Minister gets his estimates from, even if it is a very small number of people who will be affected.

For the sake of argument, let us say that the Minister is right, and for the sake of illustration, let us assume that it is eight young people a year who will be affected. Before a young person sentenced under the Minister’s new law is released, there are likely to be more than 100 people in the prison system who have been convicted of an offence with a terrorist connection. We really need to understand what that means for the offenders, for the Prison Service and for society.

Photo of Julie Marson Julie Marson Conservative, Hertford and Stortford

Does the hon. Gentleman agree that we can be assured that the Bill will have a disproportionate impact on a certain sector of people—namely, those convicted of plotting or executing mass maiming and murder?

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

The hon. Lady is right up to a point, but some of the people under discussion will not have been responsible for killing people. A lot of them are covered by the charge of plotting, and there is the new range of terrorist offences. The crimes to which she refers are already covered by legislation. People who commit such terrible crimes are already subject to a life sentence, so in this particular situation we are talking about a different category of people.

I was saying that we need to understand what these changes mean for offenders, the Prison Service and society. For example, does the necessary amount of specialist prison provision required to incarcerate these offenders actually exist? That is not just about the number of prison places; it is about having the expertise available to manage and engage these offenders. We heard a lot of evidence from Mark Fairhurst about the need for proper provision and the fact that, at the moment, we have only one centre to deal with these particular terrorists. We are supposed to have three such centres, but we do not yet know when the Government will come forward and tell us when the new centres will be up and running.

What are the Minister’s proposals for housing younger offenders? Again, we need the prison places, but we also need the support services. Do they already exist, or is he proposing to develop more of them? If he is going to develop more of them, when will they be available? Even in the next two or three years, based on the Minister’s numbers, perhaps 20 or 30 young people will need specialist accommodation. They need specialist support services. Where are those services coming from? They do not exist at the moment, as I hope that the Minister will acknowledge, so will he ensure that they will in future so that we can for and deal with these people appropriately? We must not have a situation in which younger offenders—albeit among the most serious ones, as described by the hon. Lady—end up in the adult prison system because there is nowhere else for them to go.

I would welcome a specific comment on the issue when the Minister responds. I know that he has some tidying-up amendments for later in the development of the Bill, but I want to understand specifically what will happen with younger offenders and whether it is possible that some of them will end up in the adult estate.

It should be clear to the Minister why he should not be shy about commissioning analysis better to understand the issues that we face. Everyone talks about the importance of data and making decisions based on evidence. The amendment provides the Minister with an opportunity to do just that, and the Opposition are pleased to offer the Minister our assistance.

Also, if the Minister had the analysis, it would be easy for him to demonstrate to the House that he had got his decisions right. When he faced challenges from the Opposition on the success or failure of his new measures, he would have the analysis at his fingertips. I know that, financially, the Justice Department is skint. It has suffered heavy cuts disproportionate to those for other Departments during the past 10 years or so, and we have seen the results of that. The latest figures show that the number of criminal cases yet to reach the courts has now exceeded half a million, with hundreds of thousands more tribunal cases also outstanding. Perhaps it is the lack of resources that has meant that the Lord Chancellor cannot crack on and plan Nightingale courts to go alongside the Nightingale hospitals—the money to do so simply is not available. He did write to me yesterday, telling me that some additional money will be available. But it is a very small amount of money compared with the challenge that the system faces. This Minister’s accepting the amendment might result in the use of some resources, but the right action in this respect could save considerable sums in the longer term, and as I have made clear, the Justice Department really needs the resources.

Our ask is simple. We believe that there are real benefits for the Government in carrying out the analysis described in the amendment. Let us have in Parliament the evidence suggesting that these measures are a necessity and actually keep the public safe. I hope that the Minister will take these points and accept that longer sentences do not necessarily reduce the risk of reoffending. Several of our witnesses made that clear and even suggested that minimum sentences may in fact be counterproductive. The Minister might be reluctant to adopt the amendment—I will be surprised if he is not—but I look to him to come up with answers to the real issues that it covers.

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

Good morning. It is good to see you in the Chair again, Mr McCabe. Let me start by responding specifically to the amendment, and then I will try to pick up one or two of the more general points that the shadow Minister, the hon. Member for Stockton North, raised in his speech.

Amendment 39 does not propose any very wide form of analysis, aspects of which the hon. Gentleman referred to. It in fact proposes a very specific form of analysis, which is an impact assessment on the effect of these minimum term orders on other offences. It asks us to do an analysis that says, “If we introduce a minimum 14-year term to be served by those with life sentences, what effect will it have on unrelated offences? What effect will the minimum terms have on unrelated offences in relation to non-terrorist crimes?” If I may respectfully say so, given that the Bill is about terrorist offences and nothing in the Bill has any impact at all on non-terrorist offences, I do not think that the analysis proposed by amendment 39 is particularly germane. The Bill will not make any difference at all to any other, non-terrorist offences, so I do not think that analysis would have any results or effect.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice) 11:45 am, 2nd July 2020

I appreciate the Minister giving way so early in his speech. The Bill creates a host of new offences, which will capture more people. It is important that he addresses the effect on other offences, which could all of a sudden become terrorism-related offences and therefore be subject to a very different sentencing decision by a judge in a court.

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

My reading of the term “other offences” in line 3 the hon. Gentleman’s amendment is offences not caught by the scope of the Bill.

Let me turn to the questions that the hon. Gentleman asked and the numbers he raised. We have published an impact assessment and equalities assessment, as we discussed at some length in the previous sitting. He asked where I got the numbers of younger offenders from. I now have some information about the under-18 cohort, which he and other Members are concerned about. Currently, there are only three terrorist offenders in prison under the age of 18. I hope that illustrates the very small numbers involved.

On the question of whether we are unreasonably widening the scope of what constitutes a terrorist offence, my judgment is that most terrorist offences would be caught under the existing list of terrorist offences. It would be relatively unusual for a terrorist act to be committed outside the current list of offences, and for it to be necessary to make the terrorist connection. It could happen, and we are rightly legislating for that, but the existing list of terrorist offences is relatively comprehensive, so I do not think that the scope increase that the hon. Gentleman is referring to will have a dramatic impact on what are already small numbers. It is of course important that we give the judge the opportunity—the power—to make that connection where somebody commits an offence not on the current list; it is logically conceivable that that could happen.

Let me turn to the number—the 50. We can extrapolate how many of those 50 are aged between 18 and 21, as we discussed in the previous sitting. I do not think that number is the annual flow or the number of convictions per year. As I understand it, it is the impact on the total prison population. Given that these sentences are quite long, one would expect that the annual flow into the system affected by these serious terrorism sentence provisions would be somewhat lower than that.

Those numbers illustrate powerfully that we are talking about an extremely small number of people. As my hon. Friend the Member for Hertford and Stortford said in her well-pitched intervention, we are talking about people who have committed a serious terrorist offence and have been found to be dangerous—in other words, the judge thinks that they pose an ongoing, serious risk to the public. Their actions either caused or were likely to cause multiple deaths, and, in the context of clause 11, the judge views the offence as so serious that a life sentence is appropriate. I hope that gives the Committee a clear sense that these numbers are extremely small and, thankfully, particularly small in relation to young people. We should take this opportunity to pay tribute to the tremendous work that our counter-terror police and the security services do to keep those numbers so very small.

Other remarks were made about funding. That is probably outside the scope of the clause, but I will address it very briefly, if I may have your indulgence for one minute, Mr McCabe. I am sure that if I stretch the bounds of your indulgence, you will call me to order. Counter-terrorism funding rightly increased substantially earlier this year in response to the enhanced level of threat. Spending on Her Majesty's Prison and Probation Service of course includes work on rehabilitation, and that also received a significant funding increase in the spending review in September 2019. I am sure that everyone here would welcome that increase in expenditure.

The shadow Minister mentioned a number of outstanding cases in the legal system. I think the number he quoted relates to magistrates courts. Of course we are in the middle of—hopefully coming towards the end of—a serious pandemic, which inhibited the operation of the courts system. Prior to the coronavirus epidemic, waiting times in the magistrates court were about eight weeks. The outstanding case load in the Crown court was certainly a great deal lower than it was in 2010. Obviously, coronavirus has caused an increase in the outstanding case load. We are working hard to address that with the new Nightingale courts. There are, I believe, 10 sites working on extending sitting hours. By the end of July every court in the country will be back up and running, and we are rolling out the cloud video platform, so that hearings can take place by video. I commend to the Committee the court recovery plan that was published two or three days ago. I hope that that demonstrates the herculean national effort currently under way to reduce the outstanding case load that has built up during the coronavirus epidemic.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

I most certainly welcome the increased expenditure in the area in question. It is essential that the Government look to increasing it further, because there is no doubt, from the evidence the Committee received, that the system is not adequate to receive the people who will be caught up in the range of new laws. It was good to hear the Minister try to clarify some of the numbers. The figure of only three people aged under 18 is significant. However, according to the analysis, there would be up to 50 people a year, over a long period. Does the Minister want to correct me?

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

I will double check that number, but my understanding, which I will check, is that as a consequence of the measures the total prison population will increase by 50, which is different from an extra 50 people extra flowing in each year. However, I will come back to the hon. Gentleman on that.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

I appreciate that, but I thought I read it was 50 per year. I may of course be mistaken, but I look forward to the Minister clarifying that.

If the vast majority of criminal offences are committed under existing legislation, I wonder why we are here, other than to increase the determinate sentence to 14 years. Perhaps in a later speech the Minister will return to the matter. We may well return to it in future, but for the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

Clause 11, as we have been discussing, amends section 323 of the sentencing code, which makes provision for the setting of a minimum term—a tariff—for discretionary life sentences. It will make sure that, where a life sentence is handed down to an adult offender who is convicted of a serious terrorist offence—which can be considered as a serious terrorism case—for the purpose of setting a minimum term, the provisions of this clause will apply.

The minimum term in a discretionary life sentence is the period that must be served in custody before an offender can be considered for release by the Parole Board. Offenders who are subject to a discretionary life sentence are subject to a life licence following the release. Clause 11 adjusts section 323 of the code so that, where the court considers an offender who requires a life sentence for their offending and has committed a serious terrorism offence, as found in schedule 17A to the sentencing code, an equivalent consideration is made to that for the serious terrorism sentence by requiring the court to consider it as a serious terrorism case.

A serious terrorism case is one where an adult offender has committed a serious terrorism offence and meets the criteria that we discussed previously for a serious terrorism sentence—that is, the court considers them dangerous; they present a serious future risk of harm, which in this context means the prospect of death or serious personal injury resulting; and in the opinion of the court they meet the risk of multiple death condition, which we discussed earlier in connection with serious terrorism sentences. The clause therefore requires the courts to set a minimum term of 14 years, unless exceptional circumstances apply.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.