Terrorist Offenders (Restriction of Early Release) Bill

Explanatory Notes

Commentary on provisions of Bill/Act

Clause 1: Eligibility for release on licence of terrorist prisoners: England and Wales

32. The release on licence of offenders serving fixed-term sentences is governed by provisions contained in Chapter 6 of Part 12 of the Criminal Justice Act 2003. Clause 1(2) creates a new release provision, section 247A, applying to all relevant terrorist offenders, standardising their first eligible release point to the two-thirds point of their sentence (or the custodial element of it in the case of an SOPC or extended sentence), and referring all such offenders to the Parole Board for consideration of whether they are safe to release after that point.

33. New section 247A(1) applies the new release provision to relevant terrorist offenders serving a fixed term sentence. New section 247A(2) provides that a relevant offence is a counter-terrorism offence specified in the new Schedule 19ZA, or any other offence specified in that Schedule where the court found a terrorist connection under section 30 or section 31 (for Scotland) or section 32 (for armed services offences) of the Counter-Terrorism Act 2008, whilst also making it clear that the changes apply to both existing and future sentences, during the custodial period. It will not apply to those already released.

34. New section 247A(3) places a duty on the Secretary of State to refer relevant offenders to the Parole Board and specifies that reviews must take place at the two-thirds point (for extended sentences and SOPCs this is two-thirds of the custodial part of the sentence imposed by the court), and then at least every two years where the Board’s decision is not to release the offender.

35. New section 247A(4) requires that the prisoner may only be released from the two-thirds point of the custodial period, and only once the Parole Board has directed it. New section 247A(5) makes it clear this can only take place once referral has been made and the Board has determined that the prisoner is safe to be released.

36. For adult and youth offenders serving an extended determinate sentence, an extended sentence for public protection or a SOPC, new section 247A(6) and (7) place a duty on the Secretary of State to release these offenders on licence at the end of their custodial term if discretionary release is not directed by the Parole Board before that point.

37. New section 247A(8) contains definitions of the relevant periods. New section 247A(8)(c) ensures that the new release requirement for the relevant sentence is carried through and applied when the prisoner is also serving another sentence, whether concurrently or consecutively. New section 247A(9) provides for relevant offenders who have already begun their parole review process before commencement of the Bill, bringing them into the scope of the provisions for subsequent referrals to the Board. New section 247A(10) makes it clear that those offenders who have already received a release direction from the Board, who remain in prison for reasons such as awaiting a place in an Approved Premises, are unaffected by the Bill provisions.

38. Subsection (3) of clause 1 inserts Schedule 19ZA to the 2003 Act. Schedule 19ZA lists the terrorist and terrorist connection offences which the new provisions apply to.

Clause 2: Disapplication of existing release provisions: England and Wales

39. This clause makes changes to existing legislation to ensure that other provisions function as they should, where they rely on reference to the release provisions in Chapter 6 of Part 12 of the 2003 Act.

40. Subsections (2), (3), (4),(6) and (7) disapply the current release provision regime for those terrorist prisoners who will now be released under section 247A.

41. Subsection (5) excludes such terrorist prisoners from being released early on Home Detention Curfew.

Clause 3: Eligibility for release on licence of terrorist prisoners: Scotland

42. Clause 3 sets the same parameters for release of terrorist offenders in Scotland, via amendment to the Criminal Proceedings (Scotland) Act 1993. For specified terrorist offences it places a duty on the Scottish Ministers to refer offenders to the Parole Board from the two thirds point of their sentence

43. Subsection (2) inserts a new section 1AB into the 1993 Act, setting out that where a prisoner (other than one serving a life sentence) is serving a sentence in respect of terrorist and terrorist-related offences set out in new Schedule 1A (inserted by subsection (3)), the Scottish Ministers must refer them to the Parole Board from the two thirds point of the sentence or, where they have previously been referred, no later than two years following the last such reference.

Clause 4: Disapplication of existing release provisions: Scotland

44. Clause 4 makes changes to other provisions in the 1993 Act to disapply various existing release provisions in Scottish law which apply to prisoners who will be released under section 1AB and which would otherwise result in automatic release.

Clause 5: Setting of licence conditions for terrorist prisoners: England and Wales

45. The effect of clause 5 is to transfer responsibility for setting licence conditions to the Secretary of State when the automatic release point is reached at the end of the custodial term of a SOPC or extended sentence in England and Wales.

Clause 6: Consequential amendments relating to transitional cases: England and Wales

46. Clause 6 amends the transitional provisions of Schedule 20B to the Criminal Justice Act 2003. Schedule 20B preserves applicable release provisions for those sentences which have been repealed, but still apply to prisoners serving their sentences.

47. Paragraphs 5 and 6 of Schedule 20B save the Parole Board discretionary release point at halfway and provide for automatic release at two-third point of the sentence. The amendments in subsections (2) and (3) of clause 6 carve out those terrorist prisoners now subject to release under section 247A so that paragraphs 5 and 6 of Schedule 20B no longer apply to those prisoners and they will be released in accordance with the new section 247A.

48. Subsection (2)(b) reframes the terms used in extended sentences to describe the custodial part of the sentence to apply for this cohort of offenders consistently with the rest of section 247A.

49. Subsections (4) and (5) preserve the current licence arrangements for those previously subject to the release arrangements of paragraphs 5 and 6 of Schedule 20B, but who now will be released under section 247A and possibly at a point after the licence would have ended.

50. Subsection (6) ensures that for offenders serving an extended sentence under section 85 of the Powers of the Criminal Courts Sentencing Act 2000, the full extended licence period will be served if a prisoner is released under section 247A after the three-quarter point of the sentence.

Clause 7: Other consequential amendments: England and Wales

51. Subsection (1) preserves the two-thirds release point and Parole Board referral for offenders serving sentences subject to release under section 247Aat the same time as a youth detention and training order.

52. Subsections (3) and (4) exclude this cohort of terrorist offenders from the post-sentence supervision regime.

53. Subsection (5) excludes this cohort of prisoners from the early removal scheme for foreign national offenders.

54. Subsection (6) ensures an offender who has already been removed from the UK for deportation purposes who would have fallen into scope of section 247A if they had not been removed is subject to new section 247A provision if they return before the end of the sentence.

55. Subsection (7) ensures that where a prisoner is serving multiple sentences consecutively the two-thirds point referral to the Parole Board is preserved for sentences subject to section 247A release.

56. Subsection (8) re-establishes the definition of ‘requisite custodial period’ for this cohort of offenders in the Interpretation provision for Chapter 6 of the 2003 Act.

57. Subsection (9) adds section 247A to section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which allows for all parole release test provisions in Chapter 6 of Part 12 of the 2003 Act to be altered by secondary legislation.

Clause 8: Transitional provision for terrorist prisoners subject to supervised release orders: Scotland

58. This clause provides for the situation where a Court has imposed a Supervised Release Order (SRO) under section 209 of the 1995 Act on a prisoner currently serving a sentence for terrorist offence.

59. Where a terrorist offender is currently due to serve such an order on release, subsection (2) provides that, if the offender is released only at the end of the sentence, the SRO will be revoked. Under subsections (3) and (4) if the prisoner is released before the end of their sentence, the SRO will come into effect upon release but not extend beyond the end of the custodial sentence in line with section 209(7) of the 1995 Act.

Clause 9: Consequential amendments: Scotland

60. Clause 9 makes consequential provision so that the licence period of a short-term prisoner released under new section 1AB lasts until the end of their sentence.

Clause 10: Extent, commencement, transitory provision and short title

61. Subsections (1) to (3) of clause 10 set out the territorial extent of the Bill.

62. Subsection (4) sets out that the Act comes into force upon Royal Assent. Subsection (5) clarifies that any references to paragraphs of Schedule 4 to the Space Industry Act 2018 are not to come into force until those provisions do.

Schedule 1: Terrorist Offences Carrying Restricted eligibility for release on licence

63. Schedule 1 inserts Schedule 19ZA into the 2003 Act. New Schedule 19ZA lists the offences which identify an offender as a "terrorist offender", thereby bringing them into the provisions of the Bill. Part 1 lists the relevant offences under counter-terrorism legislation, in the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001, the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorism Prevention and Investigation Measures Act 2011, and the Counter-Terrorism and Security Act 2015. Paragraph 7 expands paragraphs 1 to 6 offences to include attempt, conspiracy, aiding and abetting etc, of those offences. Paragraph 8 includes equivalent historic terrorist offences.

64. Part 2 lists relevant offences that may be considered to have a terrorist connection under section 30 or 32 of the Counter-Terrorism Act 2008.

Schedule 2: Terrorist offences carrying restricted eligibility for release on licence: Scotland

65. Schedule 2 inserts Schedule 1A into the 1993 Act. New Schedule 1A lists the offences which identify an offender as a "terrorist offender", thereby bringing them into the provisions of the Bill. Part 1 lists the relevant offences under counter-terrorism legislation, in the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001, the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorism Prevention and Investigation Measures Act 2011, and the Counter-Terrorism and Security Act 2015. Paragraph 7 expands paragraphs 1 to 6 offences to include attempt, conspiracy, aiding and abetting etc, of those offences. Paragraph 8 includes equivalent historic terrorist offences.

66. Part 2 lists relevant offences that may be considered to have a terrorist connection under section 31 or 32 of the Counter-Terrorism Act 2008.

 

Prepared 10th February 2020