BLOG: Fishmonger’s Hall and Streatham Hill: Effective reform of the law on terror or political soundbites?

Gerard Hillman and Sarah Day focus on whether the new terrorism sentencing legislation has succeeded in achieving the government’s aim of being tough on terrorists or whether it was political posturing.  In particular, both prior to and following the election, there was little or no discussion of the impact of the amendments on sentences for children and young people who were convicted of specified offences under the terrorism legislation.  This article will therefore include consideration of this apparent lacuna.

Background

In the run up to the general election on 12 December 2019, Usman Khan’s attack at Fishmongers’ Hall in London on 29 November 2019 resulted in one of the most debated issues, aside from Brexit, prior to voters arriving at the polling stations.  Usman Khan was on licence following his release from a sentence in 2012 for a terrorism offence when he committed this horrendous act.  This was followed on 2 February 2020 by Sudesh Amman’s attack in Streatham Hill.  The new Tory government’s reaction was blunt and designed to give the impression that this administration was going to be tough on terrorists.  
 
On 26 February 2020, the Terrorist Offenders (Restriction of Early Release) Act 2020 came into force.  This introduced section 247A of the Criminal Justice Act 2003, requiring all “fixed-term prisoners” (both current and future) serving sentences for specified offences under the terrorism legislation to serve two-thirds of their sentence before being considered for release (increased from one half).  
 
 The Catalyst

On 29 November 2019, Usman Khan was on licence following his release from a sentence in 2012, for plotting to carry out terror attacks in London and set up a terror training camp in Pakistan, when he was attending an offender rehabilitation conference held at Fishmongers’ Hall.  It is now clear that Khan attended for very different reasons to everyone else.  Khan almost certainly saw this as a perfect opportunity to carry out the murder of others in London as he had presumably been intending for years.  Under the terms of his release from his prison sentence, Khan was banned from entering London.  In order to attend the conference, he had been granted a one-day exemption.  He used that exemption to stab five people, two fatally.  He was shot dead at the scene. The attack at Fishmonger’s Hall led to a cessation in election campaigning as a mark of respect to the two young Cambridge University students who were murdered that day.  The cessation lasted until it became part and parcel of the Conservative government’s narrative of the need to be tough on terrorists, with the Prime Minister stating that very day “I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.” (1)

On 2 February 2020, Sudesh Amman, recently released from a prison sentence of 3 years and 4 months for possessing and distributing terrorist documents, injured three people in the Streatham Hill terrorist attack.  

The following day, 3 February 2020, the Terrorist Offenders (Restriction of Early Release) Bill was introduced into Parliament under the emergency legislation provisions.  The Explanatory Notes of the Bill state “The incidents at Fishmongers Hall on 30 November 2019 and in Streatham on 2 February 2020 demonstrate that the United Kingdom faces an unpredictable risk to public safety from released terrorist prisoners. Following the incident in Streatham on 2 February the government decided to take immediate action to end the automatic release of terrorist offenders before the end of their sentence. This Bill will apply to all serving prisoners, as well as those sentenced in the future.” (2)

On 26th February 2020 the Bill received Royal Assent and was introduced into law as section 247A of the Criminal Justice Act 2003 requiring all “fixed-term prisoners”(both current and future) serving sentences for specified offences under the terrorism legislation to serve two-thirds of their sentence before being considered for release (increased from one half).  Those specified offences are to be found in Schedule 19ZA CJA 2003.  The amended legislation also requires that relevant prisoners are only released following an assessment of risk by the Parole Board.

What’s Changed?

On any basis this was a generalised reaction for the stated purpose of avoiding the type of events witnessed on 29 November 2019 and 2 February 2020.   However, would this blunt change in the law have the desired effect?  That is, of course, not known, it being far too early to tell.  However, it is difficult to see how this will achieve the stated aim and far easier to see how it was part of an election pledge to be tough on terrorists.

That is clear, firstly, from detailed consideration of Khan.  The history of Usman Khan’s case is not entirely straightforward and has been the subject of inaccurate reports. On 31 January 2012, aged 20, Khan pleaded guilty to an offence of engaging in conduct for preparation of acts of terrorism, contrary to s5(1) Terrorism Act 2006.  This offence carries a maximum sentence of life imprisonment.  He was determined to be a dangerous offender and was sentenced to detention for public protection with a minimum custodial term of 8 years.  

On appeal, Khan’s sentence was varied to an extended sentence of 21 years with a custodial term of 16 years’ imprisonment and 5 years extended licence (known as an extended sentence for public protection “EPP”).  The full reasons for this are set out in the Court of Appeal judgment.(3)  In practice, Khan’s extended sentence meant he would automatically be released at the halfway point of his custodial term, i.e. after 8 years, with the following 13 years to be spent on licence. 

The regime Khan was sentenced under had originally been introduced in 2005, before being amended in 2008.(4) In 2008, largely due to issues with prison overcrowding, extended sentences were altered to mean that prisoners would be automatically released at the halfway point of the custodial sentence with no Parole Board oversight.  It must be noted that EPP’s were replaced with Extended Determinate Sentences (“EDS”) in December 2012 by the Legal Aid Sentencing and Punishment of Offenders Act 2012. From 2012 to 2015, this operated with a distinction between those serving a sentence of less than 10 years (who would be automatically released at the two thirds stage unless for an offence specified in Schedule 15B CJA 2003) and those serving a sentence of more than 10 years or for an offence specified in Schedule 15B (eligible to apply for parole at the two thirds stage). (5)   Following amendment in April 2015, that distinction fell away and those serving an EDS sentence of any length are not subject to automatic release at the two thirds stage, but become eligible to apply to the Parole Board for release. (6) 

What’s the point of this exploration of the sentencing provisions?They mean that if Khan had been sentenced to an EDS as it operated either from December 2012 or as it currently operates, he would not have been automatically released at the half-way stage, but would only have been eligible to apply for parole after serving two thirds of his 16-year term of imprisonment.  If refused parole, automatic release would not have been until the full 16-year term of imprisonment was complete.  S247A CJA 2003 would therefore have no effect on a case such as Khan’s.

What about Sudesh Amman?  As Amman was given a sentence of less than 4 years, he is an example of a terrorist offender who could not be sentenced to an EDS.  He was serving a standard determinate sentence and was therefore automatically released having served half the custodial term.  Under s247A, Amman would have to serve two thirds of his sentence of 3 years and 4 months and, if not deemed suitable for release by the Parole Board, may indeed have to serve the full term.  However, with a sentence of such a length, what is really to be gained by a few more months, even an additional year in custody?  Are we really to believe that this is all that would be necessary to prevent individuals such as Amman acting as he did upon his release?  Surely not.

The legislation was drafted to apply to prisoners currently serving prison sentences who have not already been released on licence.  It was estimated that the change in the law would alter the release date of approximately 50 serving prisoners, some of whom were close to their release date at the half-way point.  

The first of these was Mohammed Zahir Khan from Sunderland who was sentenced to 4 years and 6 months in May 2018 for 9 counts of sharing Islamist material on social media and calling for the death of Shia Muslims.  Mohammed Zahir Khan was due for release on 28 February 2020.  

When introducing the Bill, it was accompanied by an ECHR Memorandum stating that “on introduction in the House of Commons, Minister Buckland made a statement under section 19(1)(a) of the Human Rights Act 1998 (“HRA 1998”) that in his view the provisions of the Bill are compatible with Convention rights”. (7)

It remains to be seen whether those impacted by the retrospective change to the law (and therefore their release date from prison) will challenge the compatibility with the Human Rights Act.  It is of note that the 2012 provisions were not applied retrospectively. Hence Khan was sentenced under the 2008 regime even though his appeal was heard in 2013.  One might assume from this that the government’s belief in 2012 was that retrospective amendments to the operation of sentences would have been incompatible with the Human Rights Act, otherwise why wouldn’t they make their changes retrospective?

The Gap:

That the government’s reforms were knee-jerk and reactionary, is perhaps aptly demonstrated by the fact an entire group has not even been considered: children and young people. The fact that Usman Khan and Sudesh Amman were both treated as adults by the criminal justice system is likely to have been the reason for this.  The Explanatory Notes of the Bill are revealing, paying lip-service to consideration of the position: “the changes will apply to offenders currently serving a custodial sentence for terrorist offences, as well as to future terrorist offenders who receive a standard determinate sentence or (in England and Wales) sentence for offenders of particular concern (SOPC). This will include terrorist offenders aged under 18 who have been, or in the future will be, sentenced under section 91 of the Powers of Criminal Courts Sentencing Act 2000”. (8)

Quite properly, children and young people are governed by different sentencing principles and a different sentencing regime to adult offenders. The principle aim of the youth justice system is to rehabilitate rather than to punish. (9) In general, young people cannot be given a sentence greater than a two year detention and training order (“DTO”) unless they are considered to be dangerous  under s229 CJA 2003, or fall to be sentenced for a grave crime under s91 PCCSA 2000.  A grave crime is, in general, one punishable with 14 years’ imprisonment or more for an adult, but also includes some child sex offences and a number of specified offences in relation to firearms, ammunition and weapons which are subject to a minimum term.  

Just because an offence falls within this category does not mean a young person has to be sentenced under s91.  For example, robbery is a grave crime that will in many cases remain in the youth courts for trial and sentence.  As a reminder, a DTO is the only custodial sentence available to youth courts, and it is not considered to be a determinate prison sentence. (10)  DTOs can only be given in specific increments up to a maximum of 24 months and the young person spends half of the sentence in detention. (11)  There has been no alteration to the legal framework governing DTOs following the introduction of s247A CJA 2003. There is therefore no legal basis for a youth sentenced to a DTO to spend two-thirds of the sentence in custody subject to an assessment by the Parole Board in accordance with the provisions of s247A CJA 2003.

Consider, for example, a young person charged with an offence of membership of a proscribed organisation under s11 Terrorism Act 2000.  This offence carries a maximum sentence for an adult of 10 years and is therefore not a grave crime for the purpose of sentencing young people.  Following s247A CJA 2003, an adult given a standard determinate sentence for a s11 offence will now be required to serve at least two thirds of that sentence.  This is an adult not given an extended sentence, either because they are not considered to pose a significant risk to the public of further specified offences or are sentenced to less than 4 years.  Bear in mind that it may be that adult is not considered to pose a significant risk as they have already demonstrably turned away from a particular ideology or group.  Nonetheless, the legislation will require them to spend that additional time in custody.  

By contrast, if they are not considered to be dangerous, a young person convicted of the same charge will face a maximum sentence of a 24-month DTO, with no change to the 12-month period of detention, even if they have not been deterred from that same ideology or group.  There seems little logic to the approach. Why is it that the tools available to the courts to assess the future risk from a young person are considered to be sufficient, but not those that are in place to assess adult offenders?  What can be the utility in requiring those who have already rehabilitated themselves serving additional time in custody?  

The situation seems even murkier if you consider the offender who committed a s11 offence aged 16 but has been convicted and sentenced aged 18 or older, therefore falling to be sentenced as an adult.  The relevant principles to consider are set out in section 6 of the Sentencing Council’s document entitled “Sentencing Children and Young People: Definitive Guideline”.  At the start of the section the overarching sentencing principles for those defendants “crossing a significant age threshold between commission of offence and sentence” are set out.  Considering the s11 offence example, the following provisions would be relevant:

“6.1 There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old).

6.2 In such situations the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is:
•    the punishment of offenders;
•    the reduction of crime (including its reduction by deterrence);
•    the reform and rehabilitation of offenders;
•    the protection of the public; and
•    the making of reparation by offenders to persons affected by their offences.

6.3 When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate.”

Paragraph 6.2 enshrines the principle to be found in Regina v Ghafoor [2003] 1 Cr App R (S) 428.   As held in Ghafoor, there would have to be good reasons to depart from the starting point (i.e. the likely sentence the defendant would have received if sentenced on the date of commission of the offence).  The Court of Appeal in Ghafoor explained: “justice required there to be a good reason to pass a sentence higher than would have been passed at the date of the commission of the offence” and “it would rarely be necessary for a court to consider passing a sentence that was more severe than the maximum that it would have had jurisdiction to pass at the date of the commission of the offence”. The fact that the court had not departed from the starting point in any of the cases cited in Ghafoor “served to demonstrate how powerful a factor the starting point was”.  
In our hypothetical scenario, a logical interpretation of paragraph 6.3 requires there to be an unusual feature of the case to be present before a sentence can be increased from that which the court would have imposed on the offender when aged 16. Unless there were such a feature or the offender were determined to be “dangerous”, the maximum sentence available to the court when the offender has turned 18, would be restricted to 2 years’ imprisonment.  

Nonetheless, those crossing a significant age threshold so they are adults by the time of conviction and sentence will be caught by s247A, though they would not have been if sentenced at the age they had committed the offence.  This is by no means to advocate for increased periods of detention for young people convicted of terrorist offences, but rather to expose the lack of logic and careful thought given to s247A.  

Effective Reform or Political Soundbite?

So, was this an effective change in the law on terror or a play to the political gallery by the new administration?  Sudesh Amman’s case is an example of where the change in law would have made a practical difference.  He would have spent more time in custody before his release than was the case.  On a superficial level, there is certainly an argument that the change in the law has therefore had an effect on some terrorist offenders.  However, was this change effective?  The answer must be that to be effective, the change must succeed in addressing the test set out by the government in the explanatory note to the Terrorist Offenders (Restriction of Early Release) Bill that was introduced on 3rd February 2020, namely to reduce the “unpredictable risk to public safety from released terrorist prisoners”.  Does the change in the law address this “unpredictable risk”?  It is impossible to assess with the change having been introduced so recently and, even in time, it is equally difficult to see how one will be able to test whether the additional time in custody has stopped an individual from engaging in further acts of terror.  With such entrenched views, many commentators have questioned how keeping someone in prison for extra periods, some relatively short, will successfully address the government’s self-imposed test.

Any meaningful objective assessment of the change in the law would have required the change to be driven by empirical research that supports the change.  The government did not refer to any such research. What evidence is there to suggest that if Mr Amman was imprisoned for an extra 12 (or even 18) months that he would not have committed similar acts on his release?  Without meaningful intervention and support, it is simply illogical to think that Amman would have acted differently with a relatively short additional period in custody.  The lack of empirical research to support the government’s change in the law in this area makes it difficult to see how the Tory administration can claim this change in the law was anything other than a political soundbite to give the impression that they were being tough on terrorists.  

There is some empirical data we can turn to that contextualises the scope of the problem concerning the re-conviction rates of terrorists. Of the 196 offenders released from custody having served sentences for terrorism offences between January 2013 and December 2019, by 11th February 2020 only 6 have gone onto commit further offences: a re-conviction rate of 3.06%.(12) It would be interesting to know whether those 6 individuals who re-offended were released at the half-way point of their sentences.  Given that this information was available to the government by 11 February 2020, one might suggest that the underlying figures did not support the government’s argument, or we doubtless would have heard about it at the time of the release of the 6 terrorists from their initial sentences.

The government’s objective was stated in their note to the Bill, to eliminate the “unpredictable risk to public safety from released terrorist prisoners”.  It can be argued that this data provides greater incentive to spend on focused rehabilitation of the few, rather than the blunt headline-grabbing longer prison sentences of the majority of those imprisoned for terrorism-related offences.  Any considered approach to this (and other) areas of sentencing law must surely require investment in the rehabilitation of individuals as opposed to further periods of imprisonment.  But how would that advice have been received by the PR conscious government?  What would be the reaction to the Lord Chancellor suggesting “rather than spending money on longer sentences Mr Johnson, let’s put the money to increasing resources to those rehabilitating terrorist offenders”.  A cynical analyst might conclude that a PR-conscious government could not allow themselves to be seen to be going soft on terrorists in this way.

We know that the change in the law would not have had any effect on the sentence faced by Mr Khan if he had been sentenced under the 2015 regime, a point that was not made clear by the government when the high-profile change was announced.  Neither was the lacuna for those youths convicted of several scheduled offences under the new law given any consideration.  That youths would not be likely to spend two-thirds of their sentence behind bars, and only be released at that point if assessed as being rehabilitated by the Parole Board, is another area that the public were not made aware of.  After all, extremist ideology, whether committed by fundamentalists on the far right or Islamists, tends to exploit and draw in the young. One might have expected that consideration would therefore have been given to youth sentencing in this area.  

Another factor that one might have expected a government looking to prevent further re-offending to have considered is that, against the blunt tool of longer prison sentences, there has been no consideration of those offenders who commit less serious forms of terrorist offences, yet by the time they are arrested have already rehabilitated themselves such that they do not follow the extremist views they once held.  How can an extended period of imprisonment do anything other than throw these often-vulnerable individuals into the hands of more sophisticated recidivists for longer periods?  It is difficult to see how this change in sentencing policy assists in the undoubted aim of reducing re-offending.  There is considerable weight in the argument that the reverse could be true – that the change in the law could increase criminality due to the increased periods of incarceration.

In reality, it appears the Terrorist Offenders (Restriction of Early Release) Act 2020 is little more than a poorly thought through play to the political gallery, having limited impact on the those facing the most serious terrorism charges, such as Khan, and serving no substantial use beyond incarcerating individuals for a few more months when they are similar to the case of Amman.  Political soundbite indeed.

***

Footnotes: 

(1) https://news.sky.com/story/london-bridge-police-dealing-with-incident-amid-reports-of-gunshots-11873515

(2) https://publications.parliament.uk/pa/bills/cbill/58-01/0088/en/20088en03.htm

(3) R v Khan, 2013 WL 618129 (2013)

(4) Sentences under s227 and s228 CJA 2003.

(5) A useful summary of the reforms to extended sentences since 2005, can be found on the Prison Reform Trust website: http:// www.prisonreformtrust.org.uk/Portals/0/Extended%20sentences%20information%20sheet.pdf

(6) S246A Criminal Justice Act 2003 as amended by Criminal Justice and Courts Act 2015.

(7) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864909/to-echr-memo.pdf

(8) https://publications.parliament.uk/pa/bills/cbill/58-01/0088/en/20088en03.htm

(9) https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/sentencing-children-and-young-people/

(10) Clear from the wording of s101(12A) PCCSA 2000.

(11) S101 and s102 PCCSA 2000.

(12)   This is data provided in answer to a written question by Lord Keen of Elie on 11th February 2020 (Advocate General of Scotland and MoJ spokesman in the House of Lords).  https://ctc.usma.edu/overblown-exploring-the-gap-between-the-fear-of-terrorist-recidivism-and-the-evidence/