My Lords, Clause 9 amends provisions in the Criminal Justice Act 2003, which, among other things, enables a criminal court in England and Wales to impose extended sentences of imprisonment and
sentences for offenders of particular concern. Clause 9 adds further terrorism offences to the list of offences for which the court can impose these sentences. Similarly, Clauses 10 and 11 make analogous changes to the equivalent extended sentences provided for in Scotland and Northern Ireland. I should point out, however, that neither jurisdiction has the equivalent of sentences for offenders of particular concern.
To put the provisions of these clauses in context, it may assist the Committee if I first explain, as briefly and clearly as I can, the nature of these extended sentences as they operate in England and Wales. There are two types of sentence relevant here. The first is the extended sentence of imprisonment, usually known as an extended determinate sentence. The second is a special custodial sentence for certain offenders of particular concern. Taking the extended determinate sentence first, these sentences are available in respect of the sexual and violent offences listed in Schedule 15 to the 2003 Act. The sentence can however be imposed only if certain statutory conditions are met. The court must consider the offender “dangerous”, under a test set out in the 2003 Act. That test requires the court to find that the offender presents a significant risk of causing serious harm to the public through committing further specified offences.
If the offender commits one of the specific offences and is considered dangerous, the court may impose an extended determinate sentence. An extended determinate sentence is a custodial term which has two parts. The first is the appropriate custodial term commensurate with the seriousness of the offence, and the second is an extended licence period on supervision in the community. Under current provisions of the 2003 Act, the court may impose this extended licence for up to five years for a violent offence and up to eight years for a sexual offence.
The 2003 Act also makes particular provision about the release on licence of offenders serving an extended determinate sentence. Offenders will be considered for release on licence by the Parole Board once the offender has served two-thirds of the appropriate custodial term. This should be compared with the automatic release at the halfway point in sentence for standard determinate sentences. The offender will be released automatically at the end of the appropriate custodial term if the Parole Board has not already directed release. On release, the offender will be subject to an extended period of supervision on licence.
If a court does not find that an offender is dangerous to the point where it imposes a life sentence or an extended determinate sentence, it must impose a sentence for offenders of particular concern. This sentence must be imposed if the offender is convicted of an offence listed in Schedule 18A to the 2003 Act. The list of offences in Schedule 18A reflects why sentences for offenders of particular concern were created: to remove automatic release for terrorism and child sex offences, which would have applied to a standard determinate sentence.
A sentence for an offender of particular concern, similar to an extended determinate sentence, has two parts: first, the appropriate custodial term, and secondly, the licence period. The effect of a sentence for an
offender of particular concern is that the release point set at half way through the sentence is not automatic, but is at the discretion of the Parole Board. If not released at the halfway point, the offender may serve all of their sentence in custody, and on release must serve a minimum of 12 months on licence. That is a brief but—I hope noble Lords will agree—necessary summary of the current sentences.
I turn now to how Clause 9 amends those sentences. Currently, the list of relevant violent offences for which an extended determinate sentence can be imposed—set out in Part 1 of Schedule 15 to the 2003 Act—includes a number of terrorism offences. Clause 9(5) takes those offences from Part 1 of Schedule 15 to the 2003 Act and places them in a new Part 3, created to deal specifically with terrorism offences.
As well as shifting the existing terrorism offences into a new terrorism category, Clause 9 adds additional terrorist offences to the list. These are:
“membership of a proscribed organisation”,
covered by Section 11 of the 2000 Act;
“inviting support for a proscribed organisation”,
under Section 12 of the 2000 Act; wearing the uniform of or displaying an article associated with a proscribed organisation, under Section 13 of the 2000 Act; collection of information useful to a terrorist, under Section 58 of the 2000 Act;
“publishing information about members of the armed forces etc”,
under Section 58A of the 2000 Act; encouragement of terrorism, under Section 1 of the 2006 Act; dissemination of terrorist publications, under Section 2 of the 2006 Act; and,
“attendance at a place used for terrorist training”,
under Section 8 of the 2006 Act. Clause 9 also applies an eight-year maximum extended licence period for terrorism offences. This is an increase from the five-year maximum available for violent offences but is now in line with the eight-year maximum period for sexual offences.
In summary, for extended determinate sentences, Clause 9 creates a new specific list of applicable terrorism offences, adds new terrorism offences to that list, and increases the maximum extended licence period from five to eight years.
For the sentences of particular concern, Clause 9 adds the same eight additional terrorist offences to the list in Schedule 18A to the 2003 Act, meaning that the court, if it does not impose an extended determinate sentence, must impose a sentence for an offender of particular concern.
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I turn to why we are making these changes. The noble Lord, Lord Marks, made a mild criticism of the Explanatory Notes in so far as they do not justify these provisions. I should just pick him up on that point. The Explanatory Notes are essentially a parliamentary publication, albeit written by the Home Office, and as such they are not usually the place to justify the Bill; their purpose is rather to explain what it means. Having said that, I am happy to explain now why we think these provisions are important and necessary.
In keeping with the other parts of the Bill, this clause reflects the changing nature of the terrorist threat. As with the proposals to increase maximum penalties for offences, adding new offences to these extended sentences reflects the seriousness of these crimes. I stress that extended determinate sentences already cover terrorism offences, and that sentences for offenders of particular concern were specifically created to cover terrorism offences—along with child sex offences. We are not therefore creating new sentences or changing the way the courts consider these sentences, but simply adding to the list of existing terrorism offences and bolstering the powers of the court to deal appropriately with these offenders.
The focus of extended determinate sentences and sentences for offenders of particular concerns is public protection. We have seen understandable public concern in recent weeks about the release of Anjem Choudary half way through his sentence following his conviction for a Section 12 offence. These extended sentences are designed to ensure that offenders are not automatically released from prison without the Parole Board having considered them safe to release. They are also designed to ensure that offenders can be supervised in the community for appropriate periods, including by returning them to custody if they breach the terms of their licence.
The changes in Clauses 9 to 11 therefore build on the existing provisions, are a proportionate and measured response, and give our courts additional powers which they can exercise in appropriate cases. On those grounds, I strongly commend the clauses to the Committee.
As the noble Lord, Lord Carlile, explained, it is common practice for government to consult the senior judiciary before bringing forward sentencing legislation. We followed that practice here but, as I am sure noble Lords will understand, it is not appropriate to say more than that. It is of course for this House to determine whether these clauses are appropriate; we firmly believe that they are.