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Counter-Terrorism And Sentencing Act 2021

Contents

Legal background

Sentencing and release

  1. Sentences of imprisonment are generally served part in prison and part in the community. Under current legislation, determinate sentenced prisoners in England and Wales must be released in accordance with the provisions contained in Chapter 6 of Part 12 of the Criminal Justice Act 2003 ("the 2003 Act") which includes the legacy release provisions of the Criminal Justice Act 1991 which are restated in Schedule 20B of the 2003 Act, and indeterminate sentenced prisoners in accordance with Part 2 of the Crime (Sentencing) Act 1997. In Scotland, prisoners must be released in accordance with the terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). In Northern Ireland, prisoners sentenced after April 2009 are released pursuant to the Criminal Justice (Northern Ireland) Order 2008 ("the 2008 Order").
  2. The following sentences (expanded upon below), which can currently be applied to those who have committed a terrorist or terror-related offence, are subject to changes by the Act:
    • Sentences for Offenders of Particular Concern (England and Wales) where a terrorist offender is eligible to be considered for release by the Parole Board at the two-thirds point of the custodial term, and will be subject to an extra 12-month licence period at the end of their custodial term.
    • Extended Determinate Sentences (England and Wales) where a terrorist offender is currently eligible to be considered for release by the Parole Board at the two-thirds point of the custodial term and will be subject to an extended licence period at the end of their custodial term.
    • Discretionary Life Sentences (England and Wales) where a terrorist offender is guilty of an offence which has a maximum punishment of life imprisonment, but where the judge has discretion to set the minimum term (tariff) to be spent in custody, after which they are eligible for release by the Parole Board. The subsequent licence period lasts for life.
    • Extended Sentences (Scotland) where a terrorist offender is currently eligible to be considered for release by the Parole Board at the two-thirds point of the custodial term and will be subject to an extended licence period on release.
    • Indeterminate Sentences (Scotland) where a terrorist offender is serving a sentence with no set end point, such as a life sentence. Release is discretionary by the Parole Board for Scotland after the minimum custodial term set by the Court is served. Once released, offenders are subject to licence conditions for life.
    • Determinate Custodial Sentences (Northern Ireland) where all offenders are currently released automatically on licence at the halfway point of the sentence.
    • Extended Custodial Sentences (Northern Ireland) where all offenders are currently eligible to be considered for release by the Parole Commissioners at the halfway point of the custodial term and will be subject to an extended licence period after the custodial term ends.
    • Indeterminate Custodial Sentences (Northern Ireland) where offenders are given an indeterminate sentence and become eligible to be considered for release by the Parole Commissioners after the minimum term or "tariff" has expired. These prisoners are subject to a licence for their lifetime unless revoked.
  1. Prisoners who are transferred on an unrestricted basis between the jurisdictions of the United Kingdom are, by virtue of Schedule 1 paragraph 15(2) of the Crime (Sentences) Act 1997, treated for "relevant purposes" (which include detention, release, supervision and recall) as if the person had been sentenced to an equivalent sentence in the receiving jurisdiction.

Sentencing and release: England and Wales

  1. The sentencing provisions in the Act for England and Wales have been drafted in line with those in the Sentencing Act 2020 (known as the Sentencing Code). Accordingly, statutory references within these explanatory notes for those sentencing provisions for England and Wales have been expressed in line with the Sentencing Code, where relevant.
  2. The Sentencing Act 2020 consolidates the law governing sentencing procedure in England and Wales into a Sentencing Code. The Sentencing Code includes procedural provisions which sentencing courts need to rely upon during the sentencing process, including sentences which a court may impose. It re-enacted law in force at the time, and did not alter its substance or effect. It does not include the types of sentence courts in Scotland and Northern Ireland may impose, as sentencing procedure is a devolved matter in those jurisdictions, nor does it include release provisions, which will remain in Chapter 6 of Part 12 of the 2003 Act and Part 2 of the Crime (Sentences) Act 1997.

Extended Determinate Sentence

  1. The EDS, comprising a custodial term and an extension period to be served on licence in the community, is available to the courts for specified violent, sexual or terrorism offences, contained in sections 254, 266 and 279 of the Sentencing Code. Where the offender meets particular criteria, including committing a specified offence, they have been deemed to pose a significant risk of harm, and where the court is not required to impose a life sentence, the court may impose an extended sentence.
  2. Part 10, Chapter 6 of the Sentencing Code defines the meaning of a specified offence which may attract an extended sentence in the case of offenders deemed to be "dangerous", and defines how the assessment of dangerousness is made.
  3. The current maximum length of the extended licence period is eight years for specified terrorist offences. The combined length of the custodial term and the extended licence period must be within the maximum penalty for the offence committed. All offenders, including terrorist offenders, must be released at the end of their custodial term but the Parole Board has the discretion to release from the two-thirds point if satisfied that the offender’s detention is no longer necessary for the protection of the public.
  4. The EDS was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, under sections 226A of the 2003 Act for adults and section 226B of the 2003 Act for under 18s. It replaced the previous extended sentence under sections 227 and 228 of the 2003 Act. An EDS may be imposed where an adult or child offender has committed a specified violent, sexual or terrorist offence (as listed in Schedule 18 to the Sentencing Code) and the courts find the offender to be ‘dangerous’. As enacted, and prior to 13 April 2015, if the custodial term of an EDS was for a period of less than 10 years, and the offence was not listed in Schedule 15B to the 2003 Act, release was automatic at the two-thirds point – with no Parole Board consideration. This was amended by the Criminal Justice and Court Act 2015 which provided for Parole Board consideration of the release of all EDS sentenced offenders sentenced after that Act came into force, and further amended by the TORER Act 2020 provisions to bring the release of all prior determinate sentences for terrorism offences into line.

Sentence for Offenders of Particular Concern

  1. The SOPC was introduced in the Criminal Justice and Courts Act 2015 in England and Wales and must be imposed upon offenders aged over 18 who have committed a terrorist or sexual offence specified in Schedule 13 of the Sentencing Code, in circumstances where the court finds that neither the seriousness threshold for applying a life sentence, nor the dangerousness threshold for applying an EDS, have been met (section 278 of the Sentencing Code).
  2. Under section 244A of the 2003 Act, all non-terrorist offenders serving a SOPC are considered for early release by the Board from the half-way point. The release provisions for SOPCs for terrorist offenders were amended by the TORER Act 2020 so they cannot be considered for release before the two-thirds point of their custodial sentence. All SOPC offenders, whether terrorist or non-terrorist, must be released at the end of their custodial term and are subject to a further 12-month licence period to manage the assessed risk the offender poses.

Discretionary Life Sentences

  1. Life Sentences for offences excluding murder must be imposed in the following circumstances, using the discretion of the court to decide if a life sentence should apply:
    • Under sections 258 and 285 of the Sentencing Code; a life sentence should be imposed where an offence falls under section 19 of the Sentencing Code and the courts finds a significant risk to the public of serious harm on the commission of further offending.
    • From a conviction for a second listed offence, known as "automatic life" under sections 283 and 284 of the Sentencing Code.
  1. Discretionary Life Sentences are available to courts where an offender is guilty of an offence which has a maximum punishment of life imprisonment.
  2. For all life sentences the sentencing judge has discretion to set the minimum term (tariff) to be spent in custody, after which the prisoner is eligible for release by the Parole Board if they are no longer considered to be a risk to the public. For Mandatory Life Sentences, starting points for minimum terms are set out in statute (sections 269-277 and Schedules 21 of the Sentencing Code).

Sentencing and release: Scotland

Extended Sentences
  1. In Scotland, extended sentences can be imposed by the court to those who have committed a terrorist or terror-related offence. Prisoners who are serving this sentence for an offence in Schedule 1A to the 1993 Act must be released at the end of their custodial term but are eligible to be considered for release by the Parole Board from the two-thirds point. Extended sentences were introduced under the Crime and Disorder Act 1998 which inserted section 210A into the Criminal Procedure (Scotland) Act 1995 ("1995 Act"). Under section 210A the court may impose an extended sentence if it is intending to pass a determinate sentence in relation to a sexual offence of any length, or a violent or terrorism offence of four years or more, and considers that the terms of a standard sentence would not be adequate for the purpose of protecting the public from serious harm from the offender.
  2. An extended sentence is made up of a custodial term and an extended licence period set by the court (up to 10 years). Terrorist prisoners subject to an extended sentence are eligible for release by the Scottish Ministers on a recommendation from the Parole Board for Scotland at the two-thirds point. As enacted, all prisoners serving an extended sentence were entitled to automatic release at the two-thirds point. The Prisoners (Control of Release) Scotland Act 2015 on 1 February 2016 amended this so that all prisoners serving this sentence were entitled to be considered for release by the Parole Board for Scotland from the mid-way point of the custodial term, with automatic release at the end of the custodial term. The TORER Act 2020 further amended this so that prisoners who have received an extended sentence for a terrorist offence listed in Schedule 1A to the 1993 Act are not considered for release by the Parole Board for Scotland until the two-thirds point of their custodial term. Automatic release for these prisoners remains at the end of their custodial term.
Indeterminate sentences
  1. These are sentences that do not have a set end point, such as a life sentence. The court will set a "punishment part" for such sentences which is the minimum time an offender must spend in prison. 'Discretionary’ life is the statutory term introduced under the 1993 Act to distinguish prisoners sentenced by the court to life from those whose life sentence for murder is mandatory, being fixed by law.
  2. A mandatory life sentence must be given for murder whereas a discretionary life sentence can be given for other extremely serious offences at the discretion of the court. For both these types of life sentence, the court sets the minimum custodial punishment time. After that minimum time, offenders will remain in prison unless the Parole Board for Scotland decides that they are safe to be released into the community under lifelong conditions.
Order for Lifelong Restriction
  1. Orders for Lifelong Restriction were implemented by the Criminal Justice (Scotland) Act 2003, and provide a type of life sentence to be imposed where an offender has been convicted of a serious violent offence other than murder, a serious sexual offence, an offence which endangers life, or an offence which indicates a tendency to serious violent, sexual or life-endangering offending. The court sets the punishment part of the sentence, which is the minimum term to be served in custody. The Parole Board for Scotland will consider release at the end of this tariff period, and on release the offender will remain under intensive supervision, treatment and monitoring by a criminal justice social worker.

Sentencing and release: Northern Ireland

Determinate Custodial Sentences (DCS)
  1. DCS for adult offenders are provided for by Article 8 of the 2008 Order. The court sets the sentence length based on the seriousness of the offending, then calculates a supervision period, and deducts that from the sentence, with what’s left amounting to the custodial term (which cannot exceed half of the overall sentence). Once the custodial term of the sentence has been served, the offender is automatically released on licence.
Detention in a Young Offenders Centre
  1. Detention in a Young Offenders Centre is provided for by section 5 of the Treatment of Offenders Act (Northern Ireland) 1968. This sentence is available for offenders aged 16 to 20 where they have been convicted of an offence which is punishable with imprisonment in the case of someone aged 21 years or over. The sentence will either be the maximum term of imprisonment which the court could impose for the offence in the case of a person aged 21 years or over, or 4 years, whichever is the lesser. Up to half of the sentence is served in custody, with the rest served on licence.
Extended Custodial Sentence (ECS)
  1. The ECS was introduced for adult and child offenders by Article 14 of the 2008 Order. It is a public protection sentence which can be imposed for certain violent or sexual offences listed in Schedule 2 of the 2008 Order, committed on or after commencement, if the court believes that the offender is likely to commit further similar offences in the future. This sentence mandates at least one year in custody and a period under licence. ECS prisoners are referred to the Parole Commissioners for Northern Ireland (PCNI) six months before the midpoint of their sentence. The extended licence period can be up to five years for violent offences and eight years for sexual offences.
Indeterminate Custodial Sentences (ICS)
  1. ICS were introduced in their current form for adult and child offenders by Article 13 of the 2008 Order. These are used in cases where a life sentence is not suitable for a person convicted of a serious sexual or violent offence, but an ECS is not considered sufficient to protect the public. No release date is given, rather they will be given a "tariff" date which is the earliest date that they may become eligible for consideration by the Parole Commissioners Northern Ireland (PCNI). The tariff must be a minimum of two years. A referral will be made to PCNI by the Department of Justice (DoJ) or the Secretary of State (where matters of national security are involved) to consider release around six months before the tariff expiry date.

Licence Conditions: Polygraph

  1. The power to polygraph test offenders on licence in England and Wales was created by the Offender Management Act 2007 ("the 2007 Act"). It applies to persons aged over 18, serving a relevant custodial sentence (defined in section 28 of the 2007 Act) for specified sexual offences.
  2. Evidence gained from polygraph tests cannot be used in criminal proceedings against a released person, and various provisions for regulating polygraph procedure and administration are controlled by the Secretary of State via the 2007 Act and the Polygraph Rules 2009. The power was piloted in relation to nine police areas by the Offender Management Act 2007 (Commencement No.3) Order 2009 between 19 January 2009 and 31 March 2012. Following this successful pilot, the power to impose mandatory polygraph testing licence conditions on certain sex offenders on licence was commenced on 6th January 2014.

Statutory sentencing aggravating factor for a terrorist connection

  1. Section 69 of the Sentencing Code requires that a court in England and Wales considering an offender’s sentence for certain offences, must, if it appears that there is or may have been a terrorist connection, make a finding (on the criminal standard of proof) as to whether there is such a connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing, that is the trial evidence or evidence heard at a Newton hearing (if necessary), and taking account of any representations made by the prosecution or the defence. A Newton hearing is where the judge hears evidence from both the prosecution and the defence and comes to his or her own conclusion on the facts (because the facts as set out by the prosecution are disputed by the defendant), applying the criminal standard of proof.
  2. Prior to amendment by this Act, a court was only expressly required to consider whether there was a terrorist connection, in respect of those limited offences specified in Schedule 1 to the Sentencing Code (for England and Wales) and Schedule 2 of the 2008 Act (for Northern Ireland and Scotland). If a court determined that there was a terrorist connection in relation to these specified offences, it must treat that as an aggravating factor when sentencing the offender. The presence of an aggravating factor will result in a higher sentence (within the statutory maximum) than would otherwise be the case. In addition, by virtue of section 42 of the 2008 Act the offence will fall within the scope of the notification requirements that apply to terrorist offences under Part 4 of the Act. Furthermore, these offences will also fall within the scope of the forfeiture provisions under section 23A of the Terrorism Act 2000 and engage the restriction of early release provisions in the TORER Act.

Registered Terrorist Offender notification requirements

  1. Registered Terrorist Offender notification requirements were introduced in the 2008 Act for specified terrorist offences and apply to those aged 16 and above. Part 4 of the 2008 Act makes provision about the notification of information to the police by certain individuals convicted of relevant terrorism offences or offences committed with a terrorist connection. The notification requirements apply to a person who:
    • is convicted of a relevant offence and receives a sentence of imprisonment or detention for a period or term of 12 months or more in relation to that offence; or
    • is found to have done the act charged against them in respect of such an offence and is made subject in respect of the offence to a hospital order. This applies where the person is:
      • convicted of a relevant offence carrying a maximum term of imprisonment of 12 months or more or
      • Found not guilty by reason of insanity of such an offence, or
      • Found to be under a disability.
  1. When in the community, such individuals must provide the police with certain personal information, notify any changes to this information, confirm its accuracy periodically and notify any foreign travel. The periods for which the notification requirements apply vary depending on the length of the sentence triggering the requirements.
  2. The lists of terrorism offences to which these notification requirements apply are in section 41 (terrorism offences) and section 42 (offences having a terrorist connection) of the 2008 Act.

Serious Crime Prevention Orders

  1. Serious Crime Prevention Orders (SCPO) were introduced in the Serious Crime Act 2007 and apply to adults only. A SCPO is a type of civil injunctive order which is aimed at preventing serious crime. If a person breaches an order they commit a criminal offence. Section 8 of the Act states that a serious crime prevention order may be made only on an application by the Director of Public Prosecutions (England and Wales); the Director of the Serious Fraud Office (England and Wales); the Lord Advocate (Scotland); or the Director of Public Prosecutions for Northern Ireland (Northern Ireland).

Terrorism Prevention and Investigation Measures

  1. Terrorism prevention and investigation measures (TPIMs) are preventative civil measures imposed under the Terrorism Prevention and Investigation Measures Act 2011 (TPIMA 2011). They are designed to protect members of the public from the risk of terrorism by imposing restraints on those suspected of involvement in terrorism-related activity.
  2. TPIMs replaced control orders. Control orders were another type of civil measure aimed at imposing restrictions on individuals to restrict their involvement in terrorism-related activity. Control orders were governed by the Prevention of Terrorism Act 2005, which was repealed in its entirety and replaced by TPIMA 2011. Significant differences between control orders and TPIMs included the following:
    • The standard of proof for imposing a control order was "reasonable suspicion"; the standard of proof for imposing a TPIM, when TPIMA was enacted in 2011, was "reasonable belief" (this standard was later raised to "balance of probabilities" by the Counter-Terrorism and Security Act 2015 ("CTSA 2015"));
    • Control orders lasted for one year, but were capable of indefinite extension; under TPIMA 2011, there is a 2-year limit on the duration of a TPIM;
    • Control orders contained a power of relocation. When TPIMA was enacted in 2011, there was no power of relocation (although this was subsequently reintroduced by CTSA 2015);
    • Control orders contained an unlimited power of curfew (although this was limited in practice by caselaw); TPIMA 2011 expressly restricted the curfew power to "overnight".
  1. At the same time as TPIMA 2011 was progressing through Parliament, the Government published a draft Enhanced Terrorism Prevention and Investigation Measures (ETPIM) Bill. The ETPIM Bill is draft emergency legislation containing more stringent measures than TPIMA 2011, ready for introduction should the need arise. The draft bill has not been introduced to date.
  2. TPIMA 2011 was amended by the CTSA 2015. Amongst other things, CTSA 2015 raised the standard of proof for imposing a TPIM to "balance of probabilities"; reintroduced the power to relocate a TPIM subject (subject to a 200-mile restriction); and introduced a power to mandate attendance at appointments.
  3. TPIMA 2011 was amended most recently by the CTBSA 2019, which made amendments to the biometrics provisions for TPIM subjects (fingerprints and samples).

Counter-Terrorism Border and Security Act 2019

  1. The CTBSA 2019 committed the government to commission an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism (Prevent). Subsections 8 to 10 of section 20 of this Act state the review must be established within six months of Royal Assent and the report of the review and any recommendations, together with the Government response, must be published within 18 months of Royal Assent. The CTBSA 2019 gained Royal Assent on 12 February of that year, making the statutory deadline for the government to publish the report and response 12 August 2020.

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