A ‘cliff-edge’ approach to managing terror risk

Terrorists serving fixed sentences will spend longer in prison as a result of legislation passed last week. The Terrorist Offenders (Restriction of Early Release) Act 2020 may well survive scrutiny in the courts. But the chances are it won’t make us any safer. 

The new law applies to offenders who receive standard determinate sentences for offences such as training for terrorism, membership of a proscribed organisation and the dissemination of terrorist publications – as well as those currently serving sentences for these offences. Until last week, they would have been released on licence halfway through their sentences. Now, they must spend two-thirds of their sentences in prison before their cases are reviewed by the Parole Board. They will be freed only if the board decides that keeping them behind bars is no longer necessary to protect the public.

It follows that a terrorist sentenced to three years, who had been expecting release after 18 months, will serve at least two years and – if assessed as dangerous – the full sentence passed by the court.

Is that lawful? There is a common law presumption against retrospectivity, though it can be displaced by clear statutory language. And article 7 of the human rights convention prevents a ‘heavier penalty’ being imposed on an offender ‘than the one that was applicable at the time the criminal offence was committed’.

The government’s answer to the human rights point is that ‘penalty’ refers to the term of years passed by the court, not the half-sentence that the prisoner was expecting to serve under administrative concessions. Ministers rely on a case called Uttley, decided in 2004, in which David Pannick QC, for the secretary of state, persuaded the law lords that ‘applicable’ meant ‘permitted by law’. Last November, in a case called Abedin, the human rights court confirmed that ‘a change in the regime for early release… does not form part of the penalty’.

We wait to see whether any of the 50 or so terrorist prisoners affected by the reform will challenge it in court. The best they could hope for would be a declaration that the new legislation is incompatible with article 7. And that would be largely academic by the time the courts delivered their final ruling: most prisoners whose release had been delayed would have been dealt with by the Parole Board in the meantime. No doubt there are some in government who would welcome a judgment that they could portray as judges sticking up for terrorists. I suspect the courts will deny them that pleasure.

When the legislation was debated in the House of Lords last week, a number of distinguished lawyers asked why the government was making existing prisoners wait until the two-thirds point before their sentences were reviewed. Some prisoners will surely be detained for longer than is necessary to protect the public. These concerns were shared by the Bingham Centre for the Rule of Law and the Lords Constitution Committee.

No doubt there are some in government who would welcome a judgment that they could portray as judges sticking up for terrorists. I suspect the courts will deny them that pleasure

Although the government justifies moving the goalposts to protect the public and achieve consistency with extended determinate sentences, the real reason seems to be practical. Some prisoners were due for release this week and Lord Keen QC, a justice minister, suggested that the Parole Board needed ‘breathing space’ to arrange hearings and compile the dossier of reports that each panel of members must consider.

That is true – but in some cases it could have been a lot shorter. The Parole Board could have been given a discretion to direct a prisoner’s release between the halfway point of a sentence and two-thirds.

You might think that keeping terrorists in prison longer would make us all safer. But that depends on whether prisoners become more or less radicalised in custody. Keen spoke approvingly of a ‘desistance and disengagement programme that provides a range of intensive tailored interventions… to tackle the drivers of extremism’. But Lord Carlile QC told him that prisoners on the programme were implicated in the ‘attempted beheading’ of staff at Whitemoor prison in Cambridgeshire recently.

What concerns Jonathan Hall QC, the independent reviewer of terrorism legislation, is that all prisoners affected by the reforms will spend less time on licence in the community and those who are denied parole will move straight from custody to unsupervised freedom – what Hall calls a ‘cliff-edge’ approach to managing risk. In the laconic words of the government’s impact assessment, this ‘could impact on the likelihood of affected offenders reoffending’.

One of Hall’s predecessors, Lord Anderson of Ipswich QC, suggested that the answer was to ensure that released terrorists were given TPIMs – tailored restrictions that replaced control orders. But only three such measures are thought to be in force at present, apparently because they are very resource-intensive.

Keeping terrorists in prison longer may well delay the next attack. But when it comes, it could be worse.

joshua@rozenberg.net