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Ill thought out, unlawful and unlikely to work – The Government’s Emergency Counter-Terrorism Legislation

Today (11 February 2020), the Government puts forward its emergency counter terrorism legislation. This legislation has been fast tracked in light of the London Bridge and Streatham terrorist attacks, where the perpetrators were released shortly before the attacks.

The legislation will seek to end the automatic release provisions for terrorist offenders, instead indicating release at the 2/3 mark of the sentence – and only then if the Parole Board authorises release.

Most controversially, the proposals will apply to offenders that have already been sentenced. Therefore, their sentences are being altered retrospectively.

The latter proposals will, no doubt be challenged in the courts. At the conclusion of their case, defendants are told in open court, the effect of their sentence. They have a “legitimate expectation” that they will be dealt with in this way. Any changes to that expectation, bar changes to their individual circumstances, will make the new sentences challengeable in the courts. Moreover, the changes risk contravening Article 7 of the European Convention on Human Rights.
Under Article 7, an offender has to be aware of the consequences of their crime at the time that they commit it.

Therefore, you cannot create a new offence after an act has been committed, and you cannot impose a higher penalty than would have been imposed at the time that the offence was committed. So, no punishment can be retrospective.

The legal question is whether a change in the licensing regime falls within this ambit. The argument would be that such a change means, in effect, a heavier penalty being imposed than the one that was applicable at the time that the criminal offence was committed. The contrary argument is that a change in the licensing regime is simply a change in a discretionary regime about when to be released, rather than a change in the penalty.

If the courts say it is the former and within Article 7, they will refuse to impose these sentences and the legislation itself could be incompatible with the European Convention on Human Rights.

It is of note that the Prime Minister, speaking in December, had said that the changes would not apply to existing prisoners as the legislation could not be applied retrospectively. It is not clear what, legally, has changed.

However, the legal incompetence of the legislation is insignificant as compared to the policy failure. This legislation can, at best, delay an offender’s release. However, there is no commitment to dealing with rehabilitation and the core problem. For example, the London Bridge bomber would have been released in a matter of months under these proposals. An atrocity deferred is not an atrocity averted.

It is of note that the Government’s own counter terrorism strategy acknowledged that offenders are often vulnerable and exploited by others. The answer is: deal with these underlying issues instead of the knee-jerk reaction we got.

In light of two attacks in two months, the Government has panicked and sought to brandish its tough approach. Had it paused and thought about it more, it might have considered alternative and more effective ways to keep us all safe.