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Counter-Terrorism And Sentencing Act 2021

Contents

Schedules

Schedule 1: Offences where terrorist connection not required to be considered

  1. Schedule 1 Part 1 lists, for England and Wales and service offences, the offences the court need not consider whether they have a terrorist connection as they are terrorism offences. It inserts this list as Schedule A1 to the Sentencing Code.
  2. Schedule 1 Part 2 inserts Schedule 1A into the 2008 Act, listing offences that Northern Irish and Scottish courts need not consider whether they have a terrorist connection, as they are terrorism offences.

Schedule 2: Serious terrorism offences: England and Wales

  1. Schedule 2 inserts the list of offences that are serious terrorism offences into the Sentencing Code as Schedule 17A. The offences listed are those which have a maximum penalty of life imprisonment.

Schedule 3: Terrorist offences: Northern Ireland

  1. Schedule 3 sets out the list of relevant terrorist offences in Northern Ireland, to be inserted as Schedule 2A to the Criminal Justice (Northern Ireland) 2008 Order. This covers both those offences which bring eligibility for the serious terrorism offence and those offences which bring eligibility for the other sentences in this Act, as well as eligibility for the new restricted release regimes introduced by the Act.

Schedule 4: Serious terrorism offences: Scotland

  1. As Schedule 2 does for England & Wales, Schedule 4 inserts the list of offences that are serious terrorism offences into the relevant Scottish legislation as Schedule 5ZA to the Criminal Procedure (Scotland) Act 1995.

Schedule 5: Terrorism offences attracting extended sentence: Scotland

  1. Schedule 5 inserts, as Schedule 5ZC to the Criminal Procedure (Scotland) Act 1995, the list of offences attracting the extended sentence for Scotland. Part 1 lists the terrorist offences which will attract an extended sentence. Part 2 lists those sentences which will now attract an extended sentence, where they are found to have a terrorist connection, in line with those set out in section 15 of this Act for England and Wales.

Schedule 6: Offences attracting special custodial sentence for offenders of particular concern: England and Wales

  1. This Schedule replaces Schedule 13 of the Sentencing Code with a new list of offences which require the imposition of a SOPC, where an extended sentence or life sentence is not imposed. This will bring a wider number of offences into the SOPC regime, removing the possibility of them being eligible for a standard determinate sentence. Part 1 sets out the relevant terrorist offences, while Part 2 reproduces the list of sexual offences which can attract a SOPC, which this Act makes no change to.

Schedule 7: Terrorism sentence with fixed licence period: Scotland

  1. This inserts, as Schedule 5ZB to the Criminal Procedure (Scotland) Act 1995, the list of terrorist offences which attract the terrorism sentence with fixed licence period (defined in section 23 of this Act), including both terrorist offences and those found to have a terrorist connection.

Schedule 8: Corresponding sentence provision under service law

  1. Schedule 8 amends the Armed Forces Act 2006 to create equivalents for the serious terrorism sentence for those aged 18 and over, and the special custodial sentence for terrorist offenders of particular concern aged under 18.

Schedule 9: Offences attracting restricted eligibility of terrorist prisoners for release on licence: England and Wales

  1. This Schedule inserts a replacement Schedule 19ZA into the 2003 Act. Part 1 covers all offences for which a serious terrorism sentence may be imposed. Part 2 covers all offences for which a serious terrorism sentence may not be imposed but are considered terrorist offences with restricted early release. Part 3 covers all offences for which a serious terrorism sentence may be imposed further to the finding of a terrorism connection. Parts 1 and 3 also list the offences which qualify specified extended sentenced prisoners for the removal of early release regime in section 27.

Schedule 10: Offences attracting restricted eligibility of terrorist prisoners for release on licence: Scotland

  1. This Schedule makes the corresponding changes to Schedule 9 for Scotland, by amending Schedule 1A to the 1993 Act. Part 1 covers all offences for which a serious terrorism sentence may be imposed. Part 2 covers all offences for which a serious terrorism sentence may not be imposed but are considered terrorist offences with restricted early release. Part 3 covers all offences for which a serious terrorism sentence may be imposed further to the finding of a terrorism connection. Parts 1 and 3 also list the offences which qualify specified extended sentenced prisoners for the removal of early release regime in section 28.

Schedule 11: Release on licence of terrorist prisoners repatriated to the United Kingdom

  1. This Schedule provides for terrorist and terror related prisoners repatriated to the UK to be treated in respect of release provisions in the same way as such prisoners sentenced in the UK. It does this through amending the Repatriation of Prisoners Act 1984 in the following way:
  2. Paragraph (2) inserts text into the Schedule of the 1984 Act that applies in relation to prisoners repatriated to England and Wales. The effect of the insertion is that if an offence committed by a repatriated prisoner corresponds to a terrorist offence specified in Part 1 of Schedule 19ZA to the 2003 Act, or to an offence found to have a terrorist connection by definition in new sub-paragraph (3E), and the warrant is annotated to that effect, the offender will be subject to the release provisions in section 247A of the 2003 Act (for extended sentences for offences which carry a maximum penalty of life imprisonment, release will be at the end of the full custodial term; for all other sentences release will be at the discretion of the Parole Board from the two-thirds point of the custodial term). These offenders will also be subject to section 28 of the Offender Management Act 2007, meaning polygraph conditions can be imposed as part of their licence conditions when released from custody. New sub-paragraph (3F) gives the Secretary of State the power to amend a warrant (whether issued before or after commencement of this Act and whether or not the relevant transfer has taken place).
  3. Paragraphs (3) and (4) insert text to the Schedule that applies equivalent provisions for prisoners repatriated to Scotland, both as it applies in relation to certain prisoners repatriated to Scotland on or after 27 June 2003 in accordance with section 33(2) of the Criminal Justice (Scotland) Act 2003 and otherwise. Prisoners who have committed an offence corresponding to a terrorist offence specified in Schedule 1A to the 1993 Act or a terror-related offence as defined in new sub-paragraph (3D), and the warrant is annotated to that effect, will be subject to the release provisions in section 1AB of the 1993 Act. New sub-paragraph (3E) of the inserted text gives Scottish Ministers the power to amend a warrant (whether issued before or after commencement of this Act the provisions in this section come into force and whether or not the relevant transfer the warrant authorises has taken place).Paragraph (5) inserts text into the Schedule of the Act that applies in relation to prisoners repatriated to Northern Ireland, amending paragraph 2A of the 1984 Act. It sets out that those who have committed relevant equivalent overseas offences will fall under the provisions of this Act.

Schedule 12: Serious Crime Prevention Orders: Power for the police to apply in terrorism-related cases

  1. SCPOs are orders intended to be used against those involved in serious crime, with the terms attached to an order designed to protect the public by preventing, restricting or disrupting involvement in serious crime.
  2. Schedule 12 amends the Serious Crime Act 2007 to expand the range of applicant authorities able to apply for an SCPO to include chief officers of police. The functions of chief officers of police are limited to applying in civil courts for SCPOs in terrorism-related cases, and only where they have consulted the relevant prosecuting authority prior to making the application.
  3. The inclusion of chief officers of police as an applicant authority does not alter the power of other applicant authorities from also applying for an SCPO in terrorism-related cases.
  4. An SCPO may be made by the Crown Court (in Scotland, the High Court of Justiciary or the sheriff) where it is sentencing a person who has been convicted of a serious offence (including when sentencing a person convicted of such an offence in a magistrates’ court but committed to the Crown Court for sentencing). Orders may also be made by the High Court (in Scotland, the Court of Session or a sheriff) where it is satisfied that a person has been involved in serious crime, whether that involvement was in England and Wales, Scotland or Northern Ireland (as the case may be), or elsewhere, and where it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales, Scotland or Northern Ireland (as the case may be). A serious offence is one which is listed in Schedule 1 to the 2007 Act, or an offence which is sufficiently serious that the court considers it should be treated as it were on the list.

Schedule 13: Consequential and related amendments

  1. Part 1 amends a series of Acts to reflect the provision made under this Act to require the Court, in cases where it appears that any non-terrorism offence with a maximum penalty of over two years was committed in the course of an act of terrorism, or for the purposes of terrorism, to actively consider whether the offence was committed with a terrorist connection and should be aggravated as such.
  2. Part 1, paragraph 1 amends the Terrorism Act 2000 to ensure all offences for which terrorism is an aggravating factor can be subject to forfeiture orders.
  3. Part 1, paragraph 2 amends the Counter-Terrorism Act 2008 to remove the power to amend the list of offences where a terrorist connection is to be considered, as this is no longer needed. It also updates other references to offences where a terrorism connection is to be considered to reflect the provisions of this Act.
  4. Part 1, paragraph 3 amends the Counter-Terrorism and Security Act 2015 to ensure that the Independent Reviewer of Terrorism Legislation has oversight of the new Schedule A1 of the Sentencing Act – which lists terrorism offences for which a terrorist connection is not required to be considered.
  5. Part 1, paragraph 4 amends the Space Industry Act 2018 to remove references to the list of offences where a terrorist connection is to be considered.
  6. Part 1, paragraph 5 amends the Counter-Terrorism and Border Security Act (CTBSA) 2019 so that changes made through section 8 of the CTBSA 2019 to the terrorist connection provisions no longer apply only in relation to an offence committed on or after the day on which the amendment comes into force. Section 8 of the CTBSA 2019 amends section 30 of the 2008 Act to require courts in Northern Ireland to consider whether specified offences have a terrorist connection and to extend the list of offences where such a connection must be considered in England and Wales, and Scotland. Part 1, paragraph 6 updates section 160(2) the Sentencing Act 2020 to reflect changes to offences which can be found to have a terrorist connection made by this Act. It updates Schedule 1 of the Sentencing Code to reflect changes made to offences found to have a terrorist connection. It also amends Schedule 23 of the Sentencing Act to remove the ability of the Secretary of State to amend the list of offences where a terrorist connection to be considered by regulations.
  7. Part 2 amends the Criminal Justice Act 2003, Offender Management Act 2007 and Sentencing Act 2020 to ensure references are consistent with the new serious terrorism sentence. It also amends section 32 of the Criminal Justice Act 1982 to exclude the serious terrorism sentence in England and Wales from the power of the Secretary of State to release certain prisoners early in emergency circumstances; and section 37 of the Mental Health Act 1983 to provide that a requirement on a court to impose a serious terrorism sentence does not preclude it from ordering the offender’s detention in hospital in cases where the offender has been determined to be suffering from a mental disorder.
  8. Part 2, paragraph 9 makes changes to the Criminal Justice Act 2003. Paragraph 9(7) and (8) amend section 255C and 258 of the 2003 Act to ensure the correct release provisions apply to the new serious terrorism sentence. Paragraph 9(3) amends section 240ZA so that remand time is counted against the sentence. Paragraph 9(5) amends section 250 so that licence conditions can be added on release. Paragraph 9(6) and (7) amend sections 255A and C so that automatic release following recall does not apply. Paragraph 9 (9) and (10) amend sections 263 and 264(7) so that calculations for consecutive and concurrent sentences where other sentences are in the mix appropriately apply. Amendment to section 28 of the Offender Management Act 2007 in Part 2, paragraph 10 allows for the imposition of a polygraph licence condition.
  9. Part 2 also makes several amendments to the Sentencing Code consequential to the introduction of the new serious terrorism sentence in England and Wales. Paragraph 11(2) and (3) of Part 2 amend section 15 so that if the case were tried summarily, it can be committed to the Crown Court for sentencing. Paragraph 11(3) amends section 59(2) of the Sentencing Code, which sets out the general duty of the court to follow any sentencing guideline to include reference to the serious terrorism sentence. This will require the court to impose it where the conditions are met, as a mandatory minimum sentence. Part 2, paragraph 11(4) amends section 61 so that, where a serious terrorism sentence is required, the court must consider the sentencing guidelines to set the appropriate custodial term in the same way it would when determining a sentence, when considering an appropriate custodial term above the mandatory minimum of 14 years. Paragraph 11(18) amends section 399 of the Sentencing Code to ensure reference to the serious terrorism sentence as a mandatory sentence. Paragraph 11(5) amends section 120(2)(a) which provides exceptions to the general power to fine offenders convicted on indictment so that a Court cannot impose a fine instead of a serious terrorism sentence. Paragraph 11(9) amends section 262(3) to remind the court of its obligation to impose a serious terrorism sentence for 18 to 20 year olds, where the court is required to impose a sentence of detention in a young offender institution for offenders of this age, and the relevant conditions for the sentence are met. Paragraph 11 also amends relevant sections of the Sentencing Code to add the serious terrorism sentence to the types of sentence which must be considered before applying an extended sentence of detention in a young offender institution, SOPC or extended sentence.
  10. Part 3 amends the Sentencing Code to update references in light of the new offences attracting the SOPC in England and Wales.
  11. Part 4 amends a series of Acts and statutory instruments to ensure the new special sentence of detention for terrorist offenders of particular concern for offenders aged under 18 can operate within existing legislative frameworks. Amendments include changes to the Magistrates Courts Act 1980 to allow for committal for sentence (in respect of the new sentence) where the offender is convicted following a summary trial of a terrorist offence; the Mental Health Act 1983 to allow for committal to the Crown Court unless a hospital order is more appropriate; the Crime and Disorder Act 1998 to allow for committal to the Crown Court and to require the provision of local justice services in relation to the new sentence; the Proceeds of Crime Act 2002 to reflect amendments to the committal powers in relation to the new sentence; the Criminal Justice and Court Services Act 2000 governing the imposition of electronic monitoring and drug testing; the Sexual Offences Act 2003 to ensure existing notification requirements apply to the new sentence; the Domestic Violence, Crime and Victims Act 2004 to ensure victims’ rights in relation to licence conditions apply to the new sentence where a person is convicted of a sexual offence with a terrorist connection ; and consequential amendments to the Criminal Justice Act 2003 and the Sentencing Code to apply the necessary sentencing and release and recall provisions to the new special sentence of detention for terrorist offenders of particular concern aged under 18. Part 4 also makes amendments to the Rehabilitation of Offenders Act 1974 to align the periods of rehabilitation for those sentenced to the new special sentence of detention for terrorist offenders of particular concern aged under 18 with those specified for the sentence for grave crimes. Other amendments are made to ensure the provisions relating to child benefit and support allowance in the Children (Secure Accommodation) Regulations 1991 and Employment and Support Allowance Regulations 2008 apply to the new sentence; to ensure that children detained under the new special sentence for terrorism offenders of particular concern aged under 18 are not placed in secure accommodation under the Children (Secure Accommodation) (Wales) Regulations 2015, which is consistent with the approach taken in relation to detention with those sentenced to detention for grave crimes.
  12. Part 4 also ensures that the new special sentence of detention for terrorist offenders of particular concern aged under 18 is available in the military service court for those aged under 18 in the same way as it is in a civilian court.
  13. Part 5 makes consequential changes to legislation relating to sentencing to take account of the changes being made to sentencing in the service courts by Schedule 8 to the Act. Schedule 8 amends the Armed Forces Act 2006 to give service courts the same sentencing powers as civilian courts will have as a result of this Act. This is being done to maintain parity between civilian courts and service courts as the service courts can deal with criminal conduct (however serious) by a service person or person subject to service discipline and have much the same sentencing powers as the Crown Court.
  14. This part ensures that where legislation on matters such as rehabilitation periods, post-release supervision, notification requirements already refers to sentences imposed by the service courts, it will refer where appropriate to sentences imposed under the new sentencing powers in this Act. It also makes similar changes to the main legislation on sentencing in the service and civilian courts, i.e. the Armed Forces Act 2006 and the Sentencing Act.
  15. Part 6 makes consequential amendments to apply the TORER Act release provisions for specified terrorist offenders. It amends section 247A(2) of the 2003 Act, and inserts a new section 247A(7A), to enable the restriction on early release provisions in section 247A to apply to offenders who have been convicted of any offence that has been found to have a terrorist connection, including corresponding service offences. It inserts new subsection 247A(10A) which enables subsections (9) and (10) to instead be read in relation to commencement of this paragraph for the offenders who will be caught by the new additions. Part 6 also makes supplementary amendments to section 247A and provisions which allow it to function correctly and removes Part 2 from Schedule 19ZA of the 2003 Act (which has been replaced with the new section 247A(7A)). Paragraph 21 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in light of changes to eligibility for discretionary release made in this Act.
  16. Part 7 makes the equivalent consequential amendments to Scottish legislation. This includes necessary amendments to the Rehabilitation of Offenders Act 1974, expanding offences that can be found to have a terrorist connection, from those defined in Part 2 of Schedule 1A to the Prisoners and Criminal Proceedings (Scotland) Act 1993, to any non-terrorist offence that is found to have a terrorist connection per the definition in this Act, and provisions to allow section 1AB of the 1993 Act to function correctly (including removing some provision made in the TORER Act 2020 which is no longer necessary). Part 7 also makes consequential amendments to sections 6 and 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 to ensure existing provisions on the detention, transfer and release of offenders will apply to children and young offenders made subject to the new terrorism sentences.
  17. Within Part 7, new section 1B is inserted into the 1993 Act relating to the issue of "single terming". Unlike in the rest of the UK, in Scotland, multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date, referred to as single terming. In England and Wales, those serving concurrent sentences can only be released for one of these sentences when they are eligible to be released for all of them. For consecutive sentences, an individual can only be released when they have served the aggregate of their custodial periods for each of the sentences. New section 1B makes provision for sentence calculation for consecutive sentences where at least one sentence is imposed for a terrorism offence in Scotland, for current and future sentences. This ensures that it is clear when an offender should be released, and makes provision to aggregate multiple terrorism sentences whilst also preserving the operation of single terming in respect of non-terrorism sentences.
  18. Part 7 also provides that within new section 205ZB, as set out in section 12, the minimum punishment part of a life sentence (including an Order for Lifelong restriction) will override existing requirements as set out under sections 2A and 2B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 to ensure the relevant cohort of offenders will be captured by the 14-year mandatory minimum provision.
  19. The rest of the sections in this Part update other legislation with references to section 1AB and the Prisoners (Scotland) Act 1989 and 1995 Act to include reference to the serious terrorism sentence and terrorism sentence with fixed licence period for certain terrorist offenders. Part 7 also makes consequential amendments to legislation which includes the Sexual Offences Act 2003 and the Counter-Terrorism Act 2008, in their application to Scotland.
  20. Parts 8, 9 and 10 make the equivalent consequential amendments to the Northern Irish legislation, including the Treatment of Offenders Act (Northern Ireland) 1968, Rehabilitation of Offenders (Northern Ireland) Order 1978, Mental Health (Northern Ireland) Order 1986, Criminal Justice (Northern Ireland) Order 1996, Sexual Offences Act 2003, 2008 Order, and the Counter-Terrorism Act 2008. Part 8 updates sentencing references to include references to the new serious terrorism sentence, Part 9 does likewise for the Sentence for Terrorist Offenders of Particular Concern, and Part 10 disapplies various existing release provisions in Northern Irish law which apply to prisoners who will be released under Article 20A and which would otherwise result in automatic early release. It also disapplies section 55 of the Justice Act (Northern Ireland) 2016 so that terrorist prisoners subject to the new release restrictions will not be released early and deported from the UK under the Early Removal Scheme. Part 9 also ensures that offenders who will be newly eligible for Parole Commissioner considered release through the provision of this Act in Northern Ireland are done so in accordance with the Parole Commissioners’ Rules (Northern Ireland) 2009. Additionally, it inserts a new paragraph (3A) into Article 16 of the 2008 Order, which defines offences designated as having a terrorist connection, and a new paragraph (3B), defining relevant service offences as the same as in section 95 of the 2008 Act. This change mirrors that in paragraph 47(2) for Scotland and 43(2) for England and Wales.

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