The Terrorist Offenders (Restriction of Early Release) Act 2020 came into force on the 26 February 2020. It is an emergency measure introduced by the government in response to the public alarm provoked by two separate terrorist attacks on the streets of London in less than three months. A key feature in each was that the attacker had already served a custodial sentence for a previous terrorist offence and, in accordance with the law at the time, had been released before serving the full custodial term of his sentence. The new Act restricts the availability of early release for offenders sentenced to imprisonment for a terrorist offence.
As is often the case with emergency legislation introduced in response to the latest atrocity, the new Act might be criticised as a knee-jerk reaction driven by the political expediency of conveying the impression of resolute remedial action by the government. The case for a measured response tailored to deal proportionately and effectively with the underlying problem tends to get lost in the rush. The emergency remedy often ends up perpetuating the problem. This is the lesson that should have been learned and never forgotten from the experience of emergency legislation in Northern Ireland.
UK sentencing law provides for a number of different types of custodial sentence. Three are of particular relevance to the application of the 2020 Act. The first is the standard determinate sentence in which the offender serves fifty percent of the custodial term imposed by the judge, followed by automatic release on licence for the remainder of the term. Typically, the licence will be subject to specified conditions supervised by the probation service. Failure to comply with the conditions can result in the offender being recalled to prison to serve the remainder of the custodial term.
The second type concerns sentences for offenders of particular concern (SOPC). At the half-way point of their custodial term, they are referred to the Parole Board for consideration for release on licence. Unless granted conditional release at that point or later, they will serve out their full custodial term before being released subject to a period of post release supervision.
The third type is the extended determinate sentence (EDS) for offenders assessed by the court as dangerous. These offenders are only considered for conditional release by the Parole Board when they have served two thirds of their custodial term. Unless granted conditional release at that point or later, they will serve out their full term subject to a lengthy period of post-release supervision.
The new law
The new provisions introduced by the 2020 Act apply only to offenders sentenced to a custodial term for a terrorist or terrorist related offence. There are two core changes. The first is that those sentenced to a standard determinate sentence no longer have a legal entitlement to release on licence having served fifty percent of their custodial term. The second core change is that all terrorist offenders serving a determinate custodial sentence will now have to serve two thirds of the custodial term imposed by the judge before they are eligible to apply to the Parole Board for conditional release. Whether they are released before the completion of their full custodial term will be a matter for the discretion of the Parole Board.
The Parole Board can only grant release on licence in any of these cases where it is satisfied that the continued incarceration of the offender in question is no longer necessary for the protection of the public. In making this decision, the Board considers whether the individual presents a risk to life and limb. An offender can present such a risk indirectly, even if he or she is not likely to carry out a terrorist attack such as that on London Bridge in November 2019 or in Streatham in February 2020. It may be, for example, that he or she merely presents a risk of inspiring others to carry out such attacks. In that sense the new measures are by no means confined to terrorist offenders who present a direct risk of violence post-release.
The message being projected by government is that these measures will result in terrorist offenders serving a greater portion of their custodial sentences in prison than under the pre-existing law, and that the public will be safer as a result. However, there are reasons to question the substance of these claims. Equally, there are grounds to argue that the new measures are an unnecessary, disproportionate and counter-productive attack on basic concepts of fairness in criminal justice.
Appearance over substance?
Superficially, the biggest change effected by the new measures concerns terrorist offenders sentenced to a standard determinate sentence. It is they who will lose the most in that their legal entitlement to release at the half way point is pushed forward to the two thirds point, and then converted into a mere possibility of release between that point and the expiry of their full custodial term. They will be kept in prison for longer than they could have expected at the time of being sentenced. This could be interpreted as evidence of a new tougher approach by government.
The reality is that most terrorist offenders sentenced to a custodial term since April 2019 will receive a SOPC or an EDS. In other words, they already lack an entitlement to automatic release at any point in the course of their custodial term. Moreover, many of them (the EDSs) are not even eligible for conditional release until they have served two thirds of their custodial term. It follows that for these offenders, and those who would otherwise have been sentenced in the future under the pre-existing law, the new measures will have little tangible effect. It is at least arguable, therefore, that the government’s rhetoric is not matched by the substance.
Perhaps the most pernicious and disturbing feature of the new measures is that they apply retrospectively to prisoners serving custodial sentences handed down under the pre-existing law. The result is that many of these prisoners will have to serve a longer custodial term than that which applied under the law at the time they were sentenced. Those already serving a standard determinate sentence imposed before the measures came into effect have been summarily denied the legitimate expectation that they will be released, as a matter of law, on a pre-determined date in the future.
The date of their release has been pushed further out by the direct operation of emergency law rushed through by a government keen to be seen to be responding uncompromisingly to the latest terrorist incident. That law can be interpreted as punishing them not for an offence that they have actually committed, but for possible offences that they may (or may not) commit in the future during their period of early release. Apart from the inherent moral unfairness of such a policy, there has to be serious doubt over its compatibility with basic human rights standards enshrined in the European Convention on Human Rights (ECHR).
The government’s case for asserting that the retroactive application of the Act is human rights compatible seems particularly thin. It argues, for example, that the measures do not infringe the Article 7 ECHR prohibition on retroactive criminal law, as they do not retrospectively increase the length of a full custodial term handed down by a court. They are concerned only with the administration of a custodial sentence. To this end, the government relies on jurisprudence from the UK courts and the European Court of Human Rights which distinguishes between the penalty (full custodial term) imposed by a court, and measures concerned with the execution or enforcement of the penalty in this context. The government argues that the measures in the 2020 Act are concerned with the latter rather than the former and, as such, are not caught by the Article 7 prohibition on retroactive penal laws.
It is submitted, however, that it is by no means clear from the jurisprudence that the changes effected by the 2020 Act would be interpreted as changes in the enforcement of a penalty, as distinct from changes in the penalty itself. The European jurisprudence, in particular, seems to weigh against the government’s position. Critically, the increase in the length of the sentence that must be served by a prisoner, who has already been sentenced to a definite custodial term, is effected directly by the terms of the 2020 Act which were not reasonably foreseeable at the time the offence was committed. This is not a situation in which, for example, a prisoner released on licence is recalled to prison as a result of changes effected to the ‘release on licence’ regime after he committed the offence.
It can be expected, therefore, that existing prisoners prejudiced by the new measures will challenge them in the courts; possibly all the way to the European Court of Human Rights. In the meantime, of course, they will be left to serve out their sentences under the new more draconian and, it is submitted, unjust regime. As terrorist offenders, their plight may not generate much public sympathy in an environment where terrorism presents a real and potent threat to life and the effects of past terrorist atrocities are still keenly felt.
It is important to remember, however, that there is an important principle of law and justice at stake here; and it is one that affects us all. The State must not be allowed to punish a person for conduct that was not punishable under the law in force at the time he or she engaged in it. Changes in the law which seek to punish acts that were lawful at the time they were committed, or which seek to apply more severe punishment than that applicable under the law at the time, have no place in a society based on the rule of law and respect for human rights. This principle applies equally (arguably more acutely) to retrospective changes in the law which directly increase the severity of punishment already handed down to an offender.
Separately, it is no secret that the retrospective aspect of the legislation was framed and rushed through to catch a small number of current prisoners who would otherwise be due for imminent release under the pre-existing law. It is unsettling, and surely unprecedented in modern times, for the full legislative power of Parliament to be harnessed against a small number of identifiable individuals.
Protecting the public?
On a more pragmatic level, it is important to recall that the government introduced the new measures in the discharge of its primary duty to protect the public. Obviously, if a terrorist offender is kept in prison for a longer period than that applicable at the time he or she was sentenced, any threat he or she may pose to the public is largely removed for that extra period. The value of any such protection, however, is clearly limited in time. It is also difficult to quantify the benefit, as not all terrorist offenders who have served their time will continue to pose a real and persistent threat to the public.
Indeed, it is possible that the new measures could even increase the threat. Most terrorist offenders have been sentenced to imprisonment for non-violent offences. In the year ending September 2019, for example, the most common offences were possessing information likely to be useful to a terrorist (20%), dissemination of terrorist publications (17%), membership (15%) and fundraising (15%). Typically, these attracted custodial sentences of between one and four years. None of them are inherently violent offences and, in some instances, might be interpreted as mere expressions of opinion.
It is easy to imagine the alienating effect that a retrospective increase in the custodial term to be served would have on these individuals. It may just be sufficient to make them more committed to the terrorist enterprise than they might otherwise have been. To this must be added the known radicalising effect that imprisonment can have on terrorist prisoners. Keeping them in prison for a longer term than had been provided for in the law at the time of their sentencing is likely to enhance that effect. It is possible, therefore, that the new measures may actually increase the threat to the public rather than diminish it.
The 2020 Act applies to England and Wales and to Scotland. It contains specific provision to accommodate minor contextual changes in the relevant Scots law. A notable omission is Northern Ireland. Given the long and continuing legacy of terrorism and emergency legislation in Northern Ireland, it might be considered ironic that it is the sole jurisdiction in the UK where this emergency legislation does not apply at all. Also intriguing is that there is virtually no mention of Northern Ireland in the background papers to the legislation. Certainly, there is no express explanation as to why Northern Ireland has been excluded from its provisions.
There may, of course, be an objective justification for the Northern Ireland exclusion. The official position seems to be that the manner in which a sentence is constructed by the courts there is so different to that in the rest of the UK that it would be too complex to extend the Act to Northern Ireland. That position has been challenged by the Justice Minister in the devolved administration in Northern Ireland. In any event, the mere fact that the Act does not extend to that part of the United Kingdom, which has experienced the fear and reality of terrorism more than any other, must raise some doubt over the need for its application to the other parts.
It must be questioned whether the 2020 Act is an effective and appropriate response to the threat of terrorist offenders committing violent terrorist acts after being released early from prison.
Changing the law to increase retrospectively the length of custodial term that a terrorist offender must serve is at best a limited (arguably token) response to the perceived threat it is meant to address. At worst, it will accentuate that threat by converting more fringe non-violent sympathisers into hardened violent terrorists.
Equally, it is difficult to see the justification for requiring terrorist offenders of all classes to serve longer portions of their custodial terms than non-terrorist offenders. The argument that they are more likely to re-offend violently if released before the expiry of their full custodial term has not been supported by any credible empirical base. Moreover, there are other categories of offender who may be considered to pose n equally significant risk of re-offending.
It is easy to understand why a government would want to be seen to be taking tough and resolute action to reassure the public in the wake of violent incidents that provoke public alarm. Nevertheless, emergency criminal justice measures, that often prove to be permanent, are rarely a wise or effective solution. Not only do they frequently fail to eliminate the perceived threat, but they often prove to be counterproductive. They carry a risk of inflicting long-term (perhaps irreparable) damage on rule of law and justice values hammered out on the anvil of liberal democracy and enlightened jurisprudence over several centuries. Perversely, they can even be seen as a victory of sorts for terrorists.
A more constructive response would begin with addressing why prison, and the rehabilitation potential it offers, is not working more effectively to divert terrorist offenders from their cause. It also needs to be complemented by targeted programmes and investments designed to work with communities and individuals to defuse the tensions and frustrations that provoke terrorist sympathies. Admittedly, this approach will be multi-faceted and time consuming. It will lack the dramatics and (false) quick fix solution of emergency legislation. On the other hand, it just might deliver more effective long-term benefits.