The Terrorist Offenders (Restriction of Early Release) Bill was introduced into Parliament on the 3rd February 2020, as ‘emergency legislation’ in response to the Streatham Hill terrorist attack that took place on 2nd February 2020. This terrorist incident followed two other attacks by men who had also been convicted of terrorism offences and had recently been released from prison. 

Mr Buckland QC, the Lord Chancellor, is reported to have stated “We cannot have the situation, as we saw tragically in yesterday’s case, where an offender – a known risk to innocent members of the public – is released early by automatic process of law without any oversight by the Parole Board… Because we face an unprecedented situation of severe gravity, the legislation will also apply to serving prisoners.”[1]

There are currently 224 Terrorism Act offenders serving prison sentences. Around 50 offenders are serving “standard determinate sentences”, i.e. due to be released at the standard half-way point and will now see their early automatic release halted. [2]

Rosalind Comyn, Policy and Campaigns Officer at Liberty has said “Knee-jerk laws like these not only chip away at our civil liberties, they also don’t make us any safer. We need counter-terror measures that are evidence-based and designed with the freedom and safety of our communities at their heart.” [3]

Jonathan Hall QC, the independent reviewer of terrorism legislation, said that inmates could be exposed to “worse influences” behind bars than if they were released. The warning comes amid fears that criminals are being radicalised in prisons. [4]

The ‘Factsheet’ published on the government website explains the Terrorist Offenders (Restriction of Early Release) Bill, as follows: 

“Protecting the public is a primary duty of government and the most recent incident in Streatham highlighted a need for immediate action to end the automatic release of terrorist offenders before the end of their sentence and introduce Parole Board oversight where it did not already exist.

Terrorist offenders can receive a variety of sentences depending on the offence committed, and the court’s assessment of their dangerousness. The very worst offenders will receive a life sentence. Those assessed by the courts as dangerous may receive an extended determinate sentence, under which they may be considered for release by the Parole Board once they have served two-thirds of their sentence. This Bill will not change their arrangements. 

Many terrorist offenders receive a standard determinate sentence, where offenders are currently automatically released from custody once they have served one half of their sentence. They continue to serve the remainder of their sentence on licence in the community, under probation supervision. Others may receive a sentence for offenders of particular concern (SOPC), under which prisoners are currently referred for consideration for release on licence by the Parole Board once they have served one half of their sentence. 

What are the proposed changes?
The purpose of the Terrorist Offenders (Restriction of Early Release) Bill is to ensure terrorist offenders are not automatically released before the end of their sentence (or custodial term). 

The provisions in the Bill standardise the first eligible release point for offenders who have committed a relevant terrorist offence or an offence with a terrorist connection to the two-thirds point of their sentence. Moving the release point to two-thirds is consistent with other release points for similar types of offenders and provides a greater period of incapacitation (one of the underlying reasons for terrorist sentencing). 

The Bill also introduces a requirement for the release of all such offenders before the end of their sentence (or custodial term) to be decided by the Parole Board based on an assessment of risk. 

The Bill will apply to relevant offenders currently serving a custodial sentence for an applicable terrorist or terror-related offence, as well as future terrorist offenders who receive a standard determinate sentence or SOPC. It does not fundamentally alter the length or type of sentence imposed by the courts. They amend the release point which relates to the administration of the sentence, rather than impose any additional penalty.” [5]

The Bill amends the Criminal Justice Act 2007, to insert a new section 247A 

“Restricted eligibility for release on licence of terrorist prisoners”. This applies to a “terrorist prisoner”, if they have been convicted of an offence listed in Section 2: 

“An offence is within this subsection (whether it was committed before or after this section comes into force) if—

(a) it is specified in Part 1 of Schedule 19ZA (offences under counter-terrorism legislation)

(b) it is specified in Part 2 of that Schedule and was determined by the court to have had a terrorist connection under section 30 or (in the case of a person sentenced in Scotland but now subject to the provisions of this Chapter) section 31 of the Counter-Terrorism Act 2008 (sentences for certain offences with a terrorist connection), or

(c) it is a service offence as respects which the corresponding civil offence is an offence specified in Part 2 of that Schedule and was determined by the service court to have had a terrorist connection under section 32 of that Act (sentences for certain offences with a terrorist connection: armed forces).”

The effects of this legislation will therefore be wide-reaching and will require legal professionals to advise clients that if they are convicted of one of these offences, that they will no longer be eligible for release at the half-way point of their sentence, but after having served two-thirds, and then only if the Parole board considers them suitable for release. 

The Bill received Royal Assent on the 26th February 2020 and is now an Act of Parliament. This occurred just in time to prevent a number of serving prisoners from being released half-way through their sentences. 

It is stated in the “ECHR Memorandum” which accompanies the Bill, “On introduction in the House of Commons, Minister Buckland made a statement under section 19(1)(a) of the Human Rights Act 1998 that in his view the provisions of the Bill are compatible with Convention rights.” [6] The Memorandum recognises that the Convention rights at issue in the Bill are: liberty and security (Article 5); retrospective criminal laws (Article 7); private and family life (Article 8) and discrimination (Article 14). 

It remains to be seen whether the legal representatives for those prisoners affected by these retrospective changes to the law, will challenge the compatibility with the Human Rights Act. If they do, it has the potential to go all the way to the Supreme Court and could cause another constitutional stir, if the Justices of the Supreme Court rule against the Government again. 

This article is written by Stephanie Painter. To discuss Stephanie’s practice further please don’t hesitate to contact our clerking team.

1. https://www.bbc.co.uk/news/uk-51364047 
2. https://www.gov.uk/government/news/end-to-automatic-early-release-of-terrorists
3. https://www.libertyhumanrights.org.uk/news/press-releases-and-statements/liberty-responds-emergency-counter-terror-legislation 
4. https://www.thetimes.co.uk/article/extending-terrorist-jail-terms-could-increase-risk-warns-jonathan-hall-qc-2glcvsbj0
5. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864907/to-bill-factsheet.pdf

6. Terrorist Offenders (Restriction of Early Release) Bill 2020