My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.
First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.
It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism
rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.
As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.
A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.
The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.
I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.
Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of
the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.
The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.
I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.
Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.
I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.