Clause
29
Sentences
for offences with a terrorist connection: England and
Wales
Mr.
McNulty:
I beg to move amendment No. 76, in
page 20, line 32, after ‘If’
insert
‘having regard to the
material before it for the purposes of
sentencing’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 27, in
page 20, line 33, leave out
‘court’ and insert
‘jury’.
No.
128, in page 20, line 34, after
‘and’, insert ‘the
jury’.
No. 129,
in page 20, line 37, leave out first
‘court’ and insert
‘jury’.
No.
28, in page 20, line 37, leave out
‘determines’ and insert ‘is satisfied beyond
reasonable
doubt’.
Mr.
McNulty:
The amendment seeks to make it even clearer that
a court in England and Wales, when considering whether an offence
listed in schedule 2 is connected to terrorism, must do so only on the
basis of open evidence presented by the prosecution and defence. That
is the evidence that a court usually has before it for sentencing. The
defendant will be able to challenge any evidence on which a terrorist
determination is made, either during the trial or, if there is a guilty
plea and the judge holds a Newton hearing where the defence and
prosecution dispute facts of the case which would affect sentences, so
as to decide the matter at that hearing.
It was always
intended for that to be the case. There was never any suggestion in the
Government’s proposal that a determination could be made on the
basis of intelligence, or evidence withheld from the defence due to PII
or other, lesser-status information, such as that contained in a
pre-sentence report. However, we felt that we should make a slight
amendment to the drafting so as to put the matter even more beyond
doubt than it already was. That is the substance behind the
amendment.
For
completeness, it may be appropriate if I leave others to move their
subsequent amendments, and I will reply to them all in due
course.
The
Chairman:
Other hon. Members do not move amendments at
this stage, but they can speak to them as they are part of the same
group.
3.15
pm
Mr.
Grieve:
I thank the Minister for his introduction and for
his amendment, which was welcome. It did not cross my mind that it was
intended for a judge to be asked to make his decisions without having
any facts in front of him, but the amendment clarifies that point
beyond any doubt.
These are probing amendments
designed to look at the same issue, albeit in a slightly wider context.
The Government said that the judge would make a determination. That
determination may be made either in the course of the trial, because it
would be the basis of the conviction, or it may be made on the basis of
a guilty plea, in which case there may be the possibility
of
a Newton hearing. That raises two issues. The first is what would happen
if, during the course of a hearing, the Crown’s case alleges
that something is an aggravated offence because it is connected to
terrorism. If that issue is in contention, are we to assume that, in
certain circumstances, juries will be asked to return special verdicts
indicating whether or not they consider it to be terrorist
connected? Secondly, as the Minister will
be aware, currently, the judge on his own determines if there is to be
a Newton hearing. No jury is empanelled to decide whether there is a
terrorist connection; it follows very normally in a pattern of
determinations made by judges sitting on their own. I have participated
in many Newton hearings. The judge hears evidence and submissions such
as the prosecution and defence wish to put forward and makes up his
mind about the matter. Moreover, I recollect that he makes up his mind
effectively on the balance of probabilities and not beyond reasonable
doubt.
On the whole,
the Newton system has worked perfectly well. Equally, I have
participated in trials where a major issue of fact has been resolved by
the judge asking a special question of the jury when it comes to return
its verdict—“Is it on basis A or basis B?” Judges,
on the whole, do not like doing it but if they are forced to do it,
they will do
it.
One
of the issues that we must consider here is that the introduction of a
terrorist element is making not some minor difference but a colossal
difference to sentencing. One only has to look at the sentences now
being imposed, very properly, on individuals who although they have not
killed anybody, have nevertheless been engaged in conspiracies with a
view to killing people—although often conspiracies in a very
early stage—to see that they have ended up with discretionary
life sentences and 40-year terms being prescribed. Therefore,
particularly with the way that the Government are widening the scope of
the aggravated offence, it is possible to envisage circumstances where
somebody coming before the court on the sort of offence that might
first appear to be very minor indeed—the sort of thing that
might attract six months’ imprisonment—might go to prison
for five, six or more years, once the terrorist connection is
established.
The
Committee has to consider how we reach the decision in such cases and
whether the decision should be given to juries in the Newton hearing
and not to the judge on his own. Alternatively, how will juries be
asked to deal with these issues, if there is the possibility of them
returning a verdict that might be “Yes, he is guilty of this but
it has no terrorist connection” or “He is guilty and
there is.”
Mr.
Hogg:
I am trying to identify my hon. and learned
Friend’s position. Let us take a plea of guilty that is to be
dealt with by the single judge—the jury not having been
empanelled. Is my hon. and learned Friend suggesting that in such a
case a jury should be empanelled, as it were, on a Newton hearing to
determine whether or not the offence is terrorist
related?
Mr.
Grieve:
These are probing amendments, but yes. If we were
to have a jury on a Newton hearing, we would have to empanel the jury
in rather the same way
as one empanels a jury to decide if somebody is insane—in order
to determine on the facts whether it was a terrorist-related matter.
That is one issue. I was raising another issue, which is about the
mechanism in a jury trial where an allegation is being made of a
terrorist connection. How does one go about dealing with that in terms
of the jury being able to indicate if it concludes, having heard all
the evidence, that there is no terrorist
connection?
Mr.
Heath:
I am listening carefully to the hon. and learned
Gentleman’s arguments, which, as he knows, are similar to the
ones that we had hoped to deploy in this group. In the circumstances
where he envisages a jury establishing whether there is a terrorism
connection, what standard of proof does he believe would be
appropriate? I notice that he has added his name to our amendment No.
27 but not to our amendment No. 28. Does that suggest that he is happy
with a balance-of-probability test on the part of the jury in that
instance?
Mr.
Grieve:
I am rather open-minded about it. This is a
Committee stage and I have some doubts in my mind as to the best way to
proceed. Being conservative with a small “c”, a strong
argument commends itself to me—if the current system has worked
well dealing with such issues of fact in the past, should we be getting
too worried? There is a good argument for saying, “Let us leave
the current situation as it is.” Judges have always been able to
deal with the issue and ask the jury a supplementary question if a real
issue arises in a trial about the facts on which the ultimate
sentencing will take place. So far as a Newton hearing is concerned,
where there is a guilty plea, the judiciary in my experience have
managed fairly well to come to conclusions when the facts are placed in
front of them. They usually listen very carefully to the evidence put
before them.
That is
one argument. The alternative argument is to say that that is all very
well in the context of the sort of decisions that used to have to be
taken. However, the anxiety is about the growing consequence of the
aggravated offence, which would start to create penalties that bear
little relation to what one would expect to be imposed if the offence
was not aggravated. That is what I would ask the Committee to consider.
I await the Minister’s response with interest—but before
I hear from the Minister, I give
way.
Mr.
Hogg:
I am sorry on the whole to be sounding a note of
caution when I hear my hon. and learned Friend speaking on the matter.
He will remember and keep well in mind the provisions of the Criminal
Justice Act 2003, where we have tariffs for murder. It is for the judge
to determine where within the tariff the appropriate sentence lies.
However, I have never heard it suggested—I have certainly never
seen it done—that the jury should determine the class of
homicide as prescribed in the schedule to the Act. I would be very
cautious about giving juries a role in sentencing, which is what my
hon. and learned Friend is in reality
about.
Mr.
Grieve:
I am cautious. If we were dealing only with
homicide, I do not think that I would be particularly bothered.
However, the issue is that we
now have aggravated terrorist offences that can be almost anything.
Using a credit card to carry out some fraudulent activity with a
terrorist connection may attract a sentence much higher up the scale
than one would normally expect from the sums involved. I thought that
the issue ought to be brought before the Committee, although I share my
right hon. and learned Friend’s caution. That is why my
amendments are probing. I do not have a concluding viewpoint. I am
interested to hear the Minister’s view and what degree of
consultation has taken place. Based on what the Minister tells me, I am
minded to go away and reflect on whether I want to do anything else
about
it.
Mr.
Llwyd:
I am listening with great care to the debate and
understand both sides of the argument, but I want to throw one thing
in: the Homicide Act 1957. On a plea of diminished responsibility that
is not accepted by the Crown, the decision then goes to the jury. That
supports the hon. and learned Gentleman’s contention, I think. I
also throw in the point that, for many years, lay magistrates have been
very comfortable with their role in determining facts in Newton
hearings in magistrates
courts.
Mr.
Grieve:
The hon. Gentleman makes a good point. As I said,
I cannot amplify my views further, because they have not crystallised.
I make no apology for that. I am open to persuasion either way, but I
would be interested to know the Government’s position and the
views of any member of the Committee who might have
them.
Tom
Brake (Carshalton and Wallington) (LD): I thank the
Minister, for clarifying the purpose of the Government’s
amendment, and the hon. and learned Member for Beaconsfield, for
speaking to the grouped amendments. The first amendment in the string
was our amendment, which I am pleased that the Conservatives put their
name to, as did the hon. Member for Meirionnydd Nant Conwy. I thank the
hon. and learned Gentleman for opening the debate and for being able to
set out, perhaps slightly more convincingly than I might have been able
to do, the strengths and merits of our amendments Nos. 27 and
28.
Clearly, we
are talking about the need for greater safeguards, because the
terrorist component of an offence is making that offence so much more
aggravated. Hence the need for a jury and hence, possibly, the need for
a criminal standard of proof. Again, I follow the lead of the hon. and
learned Member for Beaconsfield in saying that these are probing
amendments, so that we can hear what the Government have to say about
this matter, given that we are talking about perhaps much more
substantial and lengthy sentences, and so a need for greater
safeguards, as well as a jury or a criminal standard of
proof.
We would not
seek to press the amendments but wish to listen to what the Minister
has to say in response, before perhaps formulating further views later
on.
Mr.
Hogg:
My hon. and learned Friend the Member for
Beaconsfield invited members of the Committee to express a view; mind
you, we could not stop them doing so. None the less, it was very
gracious of him.
I am bound to say that I
approach this issue with considerable caution. I myself have always
taken the view that sentence was very much a matter for the trial
judge. I have always resisted suggestions that the jury should be
involved in the sentencing process. In reality, that is what the
suggestion by my hon. and learned Friend would amount to.
There is logic in what my hon.
and learned Friend says, but I can anticipate quite a lot of other
circumstances where the same sort of case arises. Where, for example,
there is a racially aggravated assault, is the sentence for that crime
to be put to the jury by way of a special verdict? Alternatively, take
the point that I adverted to in the intervention, where one is dealing
with a homicide case. We all know that there is a range of starting
points for the tariff: the starting point is 15 years but it can go to
whole life in certain circumstances and it can fall to about 12 years
in others. It depends on the balance of the mitigating and aggravating
factors, which are specified in the schedule. I would be sorry to see
juries being asked to state, by way of special verdict or otherwise,
where within the schedule the person convicted of murder stood. Once we
go down the road that my hon. and learned Friend outlined, we will get
into precisely this sort of world. I am against it, I
think.
Mr.
Heath:
I am, of course, listening very carefully to what
the right hon. and learned Gentleman has to say and I understand the
point that he is making. However, does he accept that there is a bigger
difference in consequence in this? There is a very much bigger
difference between the consequence on what can be a relatively minor
offence carrying a very small tariff and the consequence of a terrorist
offence with a heavy sentence tariff, forfeiture orders and
notification procedures consequent on that. That is what gives some of
us cause for concern.
Mr.
Hogg:
Yes, I understand the logic in that, and the hon.
Gentleman and my hon. and learned Friend the Member for Beaconsfield
have a point. However, we must ask where the principle is. I take the
fact that there is a distinction; within homicide, the range is from
whole life to 12 years, which is a big gap. That is also a huge
difference. At the end of it, however, I think that I want to leave
sentence to judges; I do not think that I want to involve
juries.
One of the
reasons that I do not want to involve juries is that one would get
oneself into the world of unintended consequences. For example, juries
are reluctant to convict in certain classes of offence because of the
consequences to the defendant that they can envisage. Furthermore, if
juries found it difficult to answer the question in the
negative—is this a terrorist offence?—they might very
well acquit in circumstances where they should not acquit.
I think that this matter is
best left to judges. If there is to be further consultation, I am sure
that members of this Committee would wish to reflect further on it, but
I am very cautious about
it.
Mr.
Llwyd:
We have had a very interesting debate. For once, I
disagree with the right hon. and learned Member and my reason for that
is, first, I do not
believe that what is being proposed brings the jury into sentencing.
Clearly, the jury should have no role in sentencing; we all agree on
that, I am sure.
I
mentioned the Homicide Act 1957 in passing. We entrust the jury, albeit
with specialist medical evidence and so on, as well as requiring them
to look at the circumstances of the offence, with deciding, “Is
this a case of murder, or do we accept this person’s plea of
manslaughter based on diminished responsibility?” That we
do.
3.30
pm
Let us say, for
example, that the jury come back—I, and other people, have seen
it in court—and say, “We accept the plea of diminished
responsibility, therefore we find that he is guilty of
manslaughter.” If we follow the argument of the right hon. and
learned Member, the jury take part in sentencing, because what is open
to the judge is severely limited, compared with what was open to the
judge when the offence was murder.
Mr.
Hogg:
I wonder whether the hon. Gentleman is entirely
right, because he will keep in mind that for manslaughter, which is
what the verdict would be if there was diminished responsibility, there
is a penalty that ranges from life to a non-custodial sentence. The
sentence is at large; it is for the judge to impose any sentence within
that bracket.
Mr.
Llwyd:
I understand that point, but does not my point
undermine the idea that in terrorist offences, juries might find it
easier to go for the softer option and so on? I fully accept what the
right hon. and learned Gentleman says: we need to keep juries away from
sentencing. I have no doubt about that. But there is a huge difference
between an offence involving terrorism and an offence presumably not
involving terrorism, and on that basis alone, the jury should have a
say in that determination. Then, of course, it will be entirely open to
the judge to decide, if one can imagine, and I use the phrase
advisedly, a minor terrorist offence: one on that side of the scale, as
opposed to one at the very top. There is good sense in the amendment
and it is worth having the debate, but I must confess that, as the
right hon. and learned Gentleman said, we need to be cautious with it.
It should not, however, be dismissed out of
hand.
Mr.
McNulty:
We are in danger of confusing what clause 29 is
about with the previous debate about clause 27 and
jurisdictional issues. Clause 29 relates directly to a specific set of
serious offences and no others. We shall come on to discuss schedule 2,
but the offences are outlined in it. In substance, clause 29 merely
formalises the current situation. I shall pursue the example from the
hon. Member for Meirionnydd Nant Conwy, whereby the jury says,
“manslaughter”, rather than “homicide”,
which is perfectly reasonable. I am no lawyer and I do not want to jump
into a catfight between three significant lawyers, but it is perfectly
wrong to say that the jury are influencing a sentence. They are not;
they have determined the offence. As the right hon. and learned Member
for Sleaford and North Hykeham says, it is then entirely up to the
judge, having got a manslaughter result, to decide
the mitigating and other circumstances and whether the sentence should
be non-custodial or life—as manslaughter rather than as
homicide. That is rightly and properly the purview of the judge, not of
the jury. To pursue the analogy, no one in that case would think it
right or proper for the judge then to say to the jury,
“You’ve said manslaughter. Where do you think the
sentence should lie in this whole range from non-custodial to
life?” When, perfectly properly, the prosecution authorities
say, as they have done, “This is a terrorist offence,” it
will be perfectly in order for the judge to take it—once the
outcome has been determined—as a mitigating circumstance prior
to sentencing, as he would any other. That is all the provision will
do.
To be perfectly
fair, I think—again, I am no lawyer—that if we were to
accept the amendment, we would drive Herbert Morrison’s
proverbial “coach and ‘orses” all the way through
the principle that it is for the judge to determine a sentence, not for
the jury. Let us look at schedule 2. I do not think that the judge
would give, in every circumstance, the impression of a huge, whopping,
decade-related sentence because the offence happened to have
“terrorist” connected to it. The minor offences are not
in schedule 2. We have moved on from the jurisdiction; we are now on to
those schedule 2 offences that are appropriate for enhanced sentencing.
We must regard the matter in that context, and again, as a non-lawyer,
I should say that, in those circumstances, to ask the jury to play a
role would be perverse in our current system.
The hon.
and learned Member for Beaconsfield asked a perfectly fair question
about consultation. He will know that we have had five months’
consultation on this, including discussions with prosecutors and the
judiciary, who did not think the measure was necessary at all—he
is free to come back to that with a Mandy Rice-Davies comment and say,
“Well, they would, wouldn’t they?” Some legal
organisations did think it appropriate for the jury to make the
decisions—principally, Liberty and Justice. He will know that
there is a summation of views. Opinion was
split.
Mr.
Grieve:
The Minister has fairly pointed out that the
judiciary did not think that this section of the Bill was required.
That point of view commends itself to me because the judiciary would
simply say that the provision is just not necessary because it can take
account of the facts in relation to aggravating circumstances without
it having to be spelt out in statute. So why have the Government put
the provision in the
Bill?
Mr.
McNulty:
Purely to formalise that which has prevailed thus
far, and because it is right and appropriate to do so. First, doing so
will formalise the range of offences for which it is appropriate; those
offences are outlined in schedule 2. Secondly, as I have said, the
provision will formalise the position that has prevailed in some
terrorist cases up to now. It is perfectly proper for the judge to
determine whether it is a terrorist offence or otherwise where the
principal charge was clearly a non-terrorist offence. It is also
perfectly proper for the judge to reflect that in the enhanced
sentencing.
Mr.
Grieve:
To come back to the Minister’s point about
these being serious offences, I agree that the vast majority are.
However, I dare say it will come as a
salutary shock to the average yob who has caused a disturbance on the
aeroplane while flying back from Ayia Napa to the United Kingdom to
find that the judge sentencing him must consider whether he has a
terrorist
connection.
Mr.
McNulty:
I have never been to Ayia Napa, so I shall let
that lie. I recently went to Cyprus for the first time, but happily I
was nowhere near Ayia Napa. I stayed at a lovely little hotel called
the Anassa—the surrounding countryside was miserable as sin, but
the hotel was lovely. However, that is by the bye. It is clear that
these are, in principle, serious offences and will be taken as serious
in a case with a terrorist overlay to it. The hon. and learned
Gentleman knows that entirely. I am minded to remind
him—although I do not want to go there—that,
among other things, noxious substances and noxious things are included.
During our deliberations, he reminded me, or informed me rather, that
Mosquitoes—not the nasty little bug, but the antisocial
behaviour devices that emit UHF sounds to put off teenagers—are
also a noxious thing. So far, we have two noxious things: pathogens and
potentially Mosquitoes.
The
formalisation of what has already prevailed is appropriate. The
explanation of what schedule 2 offences should be—and we will
come on to schedule 2—is equally appropriate. Notwithstanding
our amendment, we have set out the appropriate way to go forward.
Before enhancing sentences, the judge rather than the jury should
properly consider what is essentially on one level, as I have
suggested, a mitigating circumstance. I just do not think doing
otherwise is reasonable.
I am told reliably that the
point made about beyond reasonable doubt in amendment No. 28 is
principally already the case—certainly in terms of including the
aggravation in sections 145 and 146 of the Criminal Justice Act 2003
that covers race, religion, disability and sexual orientation
aggravation. There is no provision in that Act to spell out that the
standard is beyond reasonable doubt and similarly it is not necessary
to spell it out in the Bill because it is already the case that the
court will apply the criminal standard and there is no suggestion that
it would do otherwise. In that context, clause 29—suitably
amended by me—should stand and the other amendment should be
withdrawn.
Amendment agreed
to.
Mr.
Grieve:
I have decided not to move amendment No.
169.
Clause 29, as
amended, ordered to stand part of the
Bill.
Clauses 30 and 31
ordered to stand part of the
Bill.
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