Counter-Terrorism and Sentencing Bill — House of Lords, 2021-01-26
Topic: Law and Crime
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, in opening this debate, on the first day of Committee on this Bill, it might be sensible for me to outline our approach. This is particularly so, because I was not able to be present for the Second Reading debate on 21 September—for which I apologise but I was involved in a court hearing All on these Benches—and, I believe, all across the House—regard terrorist offences as particularly serious and deserving of the highest condemnation. This Bill was a response to two appalling terrorist attacks. The first was the attack in and outside Fishmongers’ Hall in November 2019, when Usman Khan, who had been released on licence after serving half of a 16-year sentence for terrorist offences the previous December, stabbed five people, killing two of them, after attending a prisoner rehabilitation programme, before being shot dead by police. The second was the attack on Streatham High Road in February last year, when Sudesh Amman, a terrorist who was under surveillance and had been released a month or so previously from a three year and four month prison sentence for disseminating terrorist material, stabbed and injured two people before being shot dead by police. As the noble Lord, Lord Parkinson of Whitley Bay, rightly pointed out at Second Reading, both of those attacks were carried out by offenders who had been released half way through their sentences. The central feature of Part 1 of this responsive Bill is to make the sentencing regime tougher, both for offences that are considered by their nature to be terrorist offences and for offences deemed to have a terrorist connection Our concern, in considering this Bill at Committee stage, is to ensure that damage is not done, by the perceived requirement to respond severely to terrorist offences, to consistent and long-held principles of our criminal law. Clause 1, broadly, extends the range of offences that can be deemed to have a terrorist connection to include any offence, committed after the Act comes into force, that is punishable with imprisonment for more than two years. The terrorist connection need not be determined by the judge in the case of a number of specific terrorist offences listed in Schedule A1, effectively because it is presumed. Otherwise, it is for the judge to determine and state in open court that an offence has such a connection. A finding that an offence does have a terrorist connection, requires a sentencing judge to treat that terrorist connection as an aggravating factor when imposing sentence by reason of Section 69 of the Sentencing Code. For the purpose of that section, an offence has a terrorist connection if the offence "is, or takes place in the course of, an act of terrorism; or … is committed for the purposes of terrorism." I note in passing that the code does not require that the offender was a knowing party to the planning, objectives or implementation of the act of terrorism, actual or intended, that was in fact committed. Furthermore—and this is our central point on Clause 1 —the decision that the offence has a terrorist connection is to be taken by the court at the sentencing stage, even though such a decision inevitably fundamentally changes the nature of the offence for which the offender has been convicted. The decision that is then made involves a factual determination of great significance to the criminality of the defendant and of the offence, yet it is taken by the judge alone without the involvement of a jury. Because the category of offences that may give rise to such a finding is so wide—that is, any offence that carries a maximum prison sentence of more than two years—the offences include a very wide range, such as causing criminal damage over £5,000, assault occasioning actual bodily harm, theft and many others, some of which would often be quite minor if committed without a terrorist connection Terrorism as an aggravating factor in sentencing was introduced by the Counter-Terrorism Act 2008. By Section 30 of that Act, where a person was found guilty of an offence listed in Schedule 2 to that Act and the court found that the offence had a terrorist connection, the judge was bound to treat the terrorist connection as an aggravating factor. The mechanism was the same as is proposed under this legislation, but the Schedule 2 offences under the 2008 Act were of the utmost severity. They included murder, kidnapping, Section 18 wounding with intent to cause grievous bodily harm, a number of serious explosives offences, hijacking, biological weapons offences, hostage taking and serious aviation offences A determination that an offence has terrorist connections has implications beyond sentencing, as it also triggers a number of forfeiture provisions and the terrorism notification requirements that apply. Under the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation we passed last year to prevent terrorist offenders being released after serving half their sentences—any offender whose offence came under the prescribed list of serious offences, and had been determined by a judge to have a terrorist connection, was subject to the rules in that legislation against release at the halfway point but, again, that Act involved a list of serious prescribed offences.