The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.
Recently, England saw two attacks on its population in London over a period of three months by two individuals previously, in 2012 and 2018, convicted of terrorism offenses. These offenders had been automatically released at the halfway point of their sentence, without any involvement of the Parole Board, in accordance with the provisions of the Criminal Justice Act 2003. This automatic release applied even in cases where “an offender continue[d] to display concerning behaviour”. The first attack, the London Bridge Attack, also referred to as the Fishmonger’s Hall Attack, occurred on November 30, 2019, and resulted in the offender killing two people before the police shot and killed him. The Streatham Attack occurred on February 2, 2020, and resulted in the offender injuring two people before the police shot and killed him. The two incidents were described as
highlight[ing] an unpredictable risk to public safety from known terrorist offenders being released early from custody, by automatic process of law, without a risk assessment or the ability to keep them detained if they cannot be safely managed in the community.
It was reported in December 2019, that 74 individuals had been automatically released at the halfway point of their sentence and were being supervised in the community. A number of individuals imprisoned for terrorist offenses “who present a particular risk to the public” were due for release at the halfway point of their sentence at the end of February. The government was reported as stating:
We cannot have the situation … where an offender – a known risk to innocent members of the public – is released early by automatic process of law without any oversight by the Parole Board. We will be doing everything we can to protect the public, that is our primary duty. We will, therefore, introduce emergency legislation to ensure an end to terrorist offenders getting released automatically having served half of their sentence with no check or review. The underlying principle has to be that offenders will no longer be released early automatically and that any release before the end of their sentence will be dependent on risk assessment by the Parole Board.
As a result of the two incidents above and the threat posed by the impending release of additional offenders, the government introduced the Terrorist Offenders (Restriction of Early Release) Act as an emergency bill on February 11, 2020. The bill received Royal Assent on February 26, 2020, with the aim of the Act being to protect the public and enhance public confidence in the justice system. The Act works to stop individuals convicted of terrorist offenses, or offenses with a terrorist connection, sentenced to a determined period of time of imprisonment from being automatically released prior to the end of their sentence. Such offenders continue to remain eligible for early release, but must apply to the Parole Board for conditional release two thirds of the way through their sentence. The Parole Board must then examine the case and has the discretion to release the offender on license if it is satisfied, after conducting a risk assessment, that the offender’s incarceration is no longer necessary to protect the public.
The government has stated that moving the release point to two-thirds of the way through the sentence is “consistent with other release points for similar types of offenders and provides a greater period of incapacitation (one of the underlying reasons for terrorist sentencing).” The new law will cover a wide variety of terrorist offenses, including training for terrorism, encouraging acts of terrorism, the dissemination of terrorist publications and membership of a proscribed organization. There are a number of methods of sentencing offenders across Britain and the provisions of the 2020 Act apply to terrorist offenders who have received:
- A standard sentence for a determined period of time for a terrorist, or terror-related, criminal offense. The law previously enabled offenders to be automatically released from custody upon completion of half of their sentence, and to serve the rest of the sentence in the community on license, under the supervision of the probation services.
- A sentence for offenders of particular concern (SOPCs). The law previously provided that the offender was considered for conditional release halfway through their sentence by the Parole Board. If the Parole Board did not recommend their release, the offender was required to complete their sentence in prison and then would be released subject to supervision. These offenders will have to serve at least two-thirds of their sentence in prison before the Parole Board will consider their case for release on license.
- An extended determinate sentence (EDS). Terrorist offenders are sentenced to EDS if they have committed one or more specified offenses and the courts assess them as dangerous. Offenders are considered for conditional release by the Parole Board two-thirds of the way through their sentence and “must not release [the offender] unless the Secretary of State is satisfied that it is not necessary for the protection of the public that P should remain in prison.” If the Parole Board does not recommend their release, they are required to serve out their entire sentence behind bars, and then are subject to an extended period of supervision after their release. Those who were sentenced prior to 2015 were automatically released either halfway through or two thirds of the way through their sentence.
The Act amends the law by disapplying the provisions applying to the automatic release of any person sentenced to certain terrorist offenses. Instead, it creates a new regime for the release of such offenders, requiring them to be referred to the Parole Board two thirds of the way through their sentence. The Parole Board must then conduct an assessment of the risk posed by such offenders prior to their release. If the Parole Board deems that the offender continues to pose a risk to the public, they will complete the rest of their sentence in prison. The Act also enables the Secretary of State to attach conditions to the license at the end of the offenders’ custodial term.
The Act excludes minor offenses, defined as those carrying a maximum penalty of less than two years, although the government has noted “[d]ata indicates that prosecution and conviction for these are rare – there is little to no risk that these low-level offences are charged where there is insufficient evidence to charge for a more serious offence.”
It is estimated that the changes in the law will increase the prison population by less than fifty terrorist offenders, which, combined with any new additional prisoners held under these provisions, will add an additional cost to the prison service of approximately £1.8 million (approximately US$2.25 million) annually.
The legislation has been criticized, with some stating that the legislation was rushed through Parliament. Others believe that it “breaches the norms governing retrospective legislation,” specifically the prohibition contained in article 7 of the European Convention on Human Rights that prohibits the retroactive imposition of criminal penalties and that, as a result, it is likely the Act will be subject to a legal challenge. Clare Collier, advocacy director at human rights organization Library stated “[t]he government’s response to recent terror attacks is a cause of increasing concern for our civil liberties. . . . [C]ontinuing to introduce measures without review or evidence is dangerous and will create more problems than it solves. It’s clear the UK’s counter-terror system is in chaos and desperately needs proper scrutiny and review.”
The government has stated that the Act does not retroactively alter the length or type of sentence that may be imposed by the courts, rather it relates to the administration of sentences and amends the point in time at which such offenders may be released, along with preventing the release of such offenders without a risk assessment by the Parole Board. The Act immediately applied to approximately fifty people jailed for terrorist, and terror-related, offenses serving a standard determinate sentence.
The government also announced plans to introduce a Counter Terrorism Sentencing Bill later in the year that will increase the sentences for serious terrorist offenders, provide a fourteen year minimum term, remove the possibility of early release for terrorist offenders who receive an Extended Determinate Sentence, increase the amount of time a terrorist will be on license following release, and strengthen supervision requirements and enable polygraph testing of offenders released on license.