Sentencing, Early Release, TPIMs, and Prevent Strategy
Review of the Counter-Terrorism & Sentencing Bill 2020
The Counter-Terrorism and Sentencing Bill 2020 (hereinafter “the Bill”), was first introduced in the House of Commons on 20th May and is due to be ratified on 1st October. The stated policy objective of the Bill is to better protect the public from terrorism by strengthening the law which governs the sentencing, release and monitoring of terrorism offenders. This is broken down into two discrete aims: (1) To ensure that serious and dangerous terrorism offenders will spend longer in custody to better protect the public; and (2) To provide more time in which to support the offender’s disengagement and rehabilitation through the range of tailored interventions available while in custody.
In our view, this Bill is unnecessary and disproportionate. Current legislation provides sufficient powers for the authorities to address terrorism. The inability to prevent recent attacks was not due to a lack of powers, but due to the current powers being used ineffectively. The granting of further powers and widening the application of current powers will only perpetuate current failings and amount to an unjustifiable infringement of civil liberties.
Part 1 of the Counter-Terrorism and Sentencing Bill deals with sentencing of terrorist and other offenders. For offences with a terrorist connection, a minimum term of 14 years immediate custody may be imposed. Thus, perversely an offender convicted of a non-terrorism offence could serve a harsher, terrorism sentence without the Prosecution having to prove all the elements of a terrorism offence. There is no reason why the prosecution of offences that best match the evidence cannot continue as it always has.
The Bill proposes increasing sentences: serious terrorism sentences, discretionary life sentences and increased maximum sentences. The current sentencing regime affords judges sufficient powers to address terrorism offences. Examples where the Courts have recently imposed high sentences include R v Ali (Khalid)  1 WLR 402 (life imprisonment with a minimum term of 40 years); and R v Boular  2 Cr. App. R (S) 41 (life imprisonment with a minimum term of 16 years for Rizlaine Boular, and 11 years for Safaa Boular (a minor at the time of the offences) for offences contrary to section 5.
Operating on the assumption that even offenders sentenced to the 14-year minimum will one day be released, greater focus should be dedicated to improving rehabilitative programmes for terrorist offenders rather than simply enhancing custodial terms.
Part 2 of the Counter-Terrorism and Sentencing Bill removes the early release provision for prisoners and therefore eliminates the incentive for reform, and in particular, engagement in deradicalization programmes. Thus, the stated objective of rehabilitating such offenders will be comprehensively undermined. The Bill further introduces the unreliable method of polygraph testing to manage risk. An unfortunate consequence of such a measure will be a waste of resources and energy on individuals that are mistakenly deemed to pose a risk and a failure to manage those that actually pose a risk but ‘beat’ the test.
Part 3 of the Counter-Terrorism and Sentencing Bill proposes various amendments to TPIMs. There is no obvious justification for reviewing TPIMs in response to recent attacks. The proposed reforms suggest measures that are more draconian than the discredited Control Order regime.
The attackers at both Fishmonger’s Hall and Streatham were not subject to TPIMs – they would have had strict licence conditions imposed. In our experience, the license conditions imposed on released individuals are frequently not dissimilar to those Measures imposed under TPIMs. In some cases, they can be harsher, but without the safeguards of a TPIM. Thus, in practical terms, there are already sufficient powers for authorities to utilise to deal with those that may pose a national security threat – via the license conditions and/ or the current TPIM regime.
Finally, the proposed Bill effectively removes the time limit for an independent review of the Prevent strategy. A formal government review is urgently required so that the Prevent strategy can be reviewed, the failings identified and then ultimately addressed. Removal of the time limit for the review will result in a loss of faith in the justice system for those who have been failed by the Prevent strategy.
In our view, the proposals in the Bill are unnecessary and disproportionate. By failing to tackle the root causes of behaviour that pose a threat to national security and instead providing ‘the emperor with new clothes’ will detract from the real issues. Ironically, it may lead to a weakening of the authorities’ actual ability to protect the public and rehabilitate those that pose a real risk to national security.
This pdf document (on the right) sets out a summary of each part of the Bill and a detailed commentary upon the proposed provisions.