Last week the UK Government outlined its plan to pass emergency legislation in order to manage terrorism offenders more rigorously following the attacks of Usman Khan and Sudesh Amman. The most stringent of the proposed provisions require the end of automatic early release at the half-way point for those on ‘standard determinant sentences.’ If passed, prisoners convicted of a terror related offence will need to serve at least two-thirds of their sentence before a parole board will be allowed to consider their release. Those that do not receive parole board approval will remain in custody for their entire sentence. According to government figures, there are 224 TACT offenders currently in prison, and the new legislation will mean that approximately 50 will see their custodial time extended.
No doubt, there will be legal challenges to follow which may alter certain elements of the legislation, but it is expected to receive parliamentary approval. Other aspects of the proposal include increasing prison ‘deradicalisation’ schemes, increasing sentencing guidelines to 14 years for more serious offenses, and imposing more restrictive management plans once individuals are released. Some of the provisions are arguably well past due but others risk making the problem worse.
The idea that individuals who are clearly violent or who encourage others to be violent are eligible for early release is clearly not in the public’s best interest. Although some with extended sentences are already required to obtain parole board approval before they are considered for release, limiting that consideration solely based on the type of conviction is arguably a dangerous practice. The clear example here is Sudesh Amman who was convicted of possessing documents containing terrorist information and for disseminating terrorist publications. Amman was known to the authorities to advocate violence and justifiably required 24-hour surveillance by the police and secret service upon his release. In cases such as his, the government should have the authority to keep individuals in prison until they are determined not to pose a threat, including the whole of their sentence if necessary. However, the picture is much less clear for those who have not advocated violence and are serving custodial sentences for offences that did not involve or promote violence.
Within the government’s proposal “only a handful of minor offences – where there is a maximum penalty of 2 years or below – will be excluded. E.g. relating to ‘tipping off’ in relation to investigation in the regulated sector, wearing a uniform or displaying an article of a proscribed organisation or parking in contravention of a prohibition, and as such are low level offences.” Taking such a broad-brush approach to all but the most minor offences raises numerous questions about the longer-term effects of ‘exceptualising’ terror offenders compared to ‘ordinary criminals’ and the impacts of such an action. Without question, the attacks by Khan and Amman were horrific for the individuals and families involved, but those attacks should more correctly be viewed as outliers rather than representing an emerging trend or immanent threat.
Support for the conclusion above is found in David Anderson’s query to Parliament regarding the re-offending rates for terrorism offenders. The government’s response confirmed that between January 2013 and January 2019, only six individuals representing 3.06% of all terror offenders released from prison re-offended. Making that figure even more stark is that the recidivism rates for ‘ordinary criminals’ in the UK continues to hover around 48%. Although the figures from Anderson’s query are illuminating, they don’t tell the entire story.
Mr Anderson’s query only asked for the rate of recidivism and government did not provide any additional detail regarding the nature of the offences. Of key relevance here is whether the six individuals who re-offended were subsequently convicted of charges relating to violence. If so, then a more arguable position could be established that despite the low numbers, a trend is developing that more are turning to violence on release. Conversely, if the data demonstrated that the six individuals who re-offended were then convicted of offences that were not associated with violence, then the opposite conclusion could be held. Unfortunately, that information is not available in the public domain so no current assessment can be made.
The second missing element is to consider the trend of terrorism related convictions. If more individuals were being convicted of violence related offences, then one could argue that there is a need to take proactive measures to deal with the risk posed by those individuals. However, a review of the government’s published data that charts the conviction rates of terror related offenders and their offences through 2019 shows that not only are violence related convictions declining, the overall conviction rate for terrorism (TACT) and non-terrorism (Non-TACT) is at a four year low. Thus, while not all of the data is available, the data that is does not immediately support the government’s position that emergency legislation is warranted, nor does it support the idea that legislation is needed to interrupt an emerging trend.
As the government’s proposal confirms, the new regulation will only exclude those convicted of the most minor offences. For everyone else, their release will be predicated on receiving parole board approval. However, in an environment that has become more and more risk averse, that seems unlikely. A protocol already exists to ensure that parole boards have the information they need to make an informed risk analysis regarding the most violent offenders and that plan will surely be applied to all terror offenders. However, within that plan exists the power of parole boards to withhold sensitive information and to hear evidence in closed hearings. Additionally, there is little incentive by parole boards to take any chances on releasing terror offenders when their actions will only be judged in hindsight when something goes wrong.
The combination of increased jail time, treating those convicted of terror related crime differently than all other prisoners (violent or not), and allowing the fate of those individuals to be decided by a parole board who are not required to disclose the evidence they consider, be challenge-able in their decision, and have little incentive to release anyone will unquestionably foment greater resentment towards the government by the individuals affected, their families, their friends, and the wider community. For non-violent offenders, the best possible outcome will be that they remain unchanged. However, for some it will harden their position and make violence a more palatable option.
For those closest to the offender, his/her family and friends will surely challenge the fairness of such action and further bring the legitimacy of government into question. Given the government/community relationship is already under strain in some areas, the loss of additional political capital will simply provide opportunity for more radicalised political thought to take hold. Finally, there is no evidence to suggest that increased prison time is going to have a positive effect on risk. It simply defers the problem to a later date.
Although some government action is arguably warranted, it would be best applied with precision rather than too broadly. Not only does the data not support more aggressive action, being too aggressive may set in motion rebound effects that could have been anticipated and avoided. In short, careful consideration is needed as there is potentially far more to lose than there is to gain.