Clause
40
Exclusion
of Offences dealt with by Service
Courts
Question
proposed, That the clause stand part of the
Bill.
Mr.
Heath:
I can see what the clause says
and can conceive of circumstances in which someone could be before a
service court for an offence with a terrorist connection, particularly
with the training of individuals or supply of armaments—the army
rifle off the back of a lorry syndrome. I would be interested to know
why it was felt necessary to have this specific
exclusion.
Mr.
McNulty:
Notification requirements would apply only to
those convicted of terrorism or terrorism-related offences, as the rest
of the clauses make clear. It is not anticipated that a terrorism or
terrorism-related offence would ever be dealt with exclusively by a
service court because a terrorism-related case would be transferred to
a civilian court, given its seriousness. Almost without reservation, I
do not think there is any ambiguity there. As such, it is not necessary
for these notification requirements to be made to work for offences
dealt with by service courts, and so these are excluded from this part
of the Bill. The clause defines service courts, in subsections (2) and
(3), both in their present guise, and when the relevant provisions of
the Armed Forces Act 2006—already passed—come into force.
I think it is relatively straightforward. It was a perfectly reasonable
question, but I beg to move that clause 40 stand part of the
Bill.
Mr.
Blunt:
I have limited experience of service courts in
Germany, and I think it is a question of jurisdiction here. I am not
sure that a serviceman under a status of forces agreement in Germany
who is then charged with an offence under this would either have a
choice of being dealt with by a service court or being dealt with by a
German court, and that is where the jurisdictional debate would lie. I
am not entirely sure that there is the option then of bringing someone
back to a civil court in the United Kingdom in those
circumstances.
Mr.
McNulty:
The broad sweep of this terrorism legislation and
others already on the books do make, as I understand it, for the
jurisdiction issue of UK citizens to run nationally and
internationally. I do not think that case would prevail. The broader
point, about whether to be tried in a German or UK court for serious
terrorism offences, does not tie in to the point the hon. Member for
Somerton and Frome made about service courts being excluded. There
might be issues there but I do not think that is germane to the point
made by the hon.
Gentleman.
Mr.
Heath:
I am most grateful to the Minister. Of course I
understand that, in almost all circumstances, a case of this kind would
be transferred to a normal criminal jurisdiction. I just cannot
entirely see why it is necessary to exclude a service court for the odd
circumstance of perhaps late evidence in the progress of a trial in a
service court, which has led to a suggestion of an aggravated offence
by reason of connection with terrorism—why should the case then
have to be abandoned in order to put it before an ordinary criminal
court? I do not understand why the service court needs to be excluded,
if the circumstances are such that it simply would not
apply.
Question put
and agreed to.
Clause 40 ordered to stand
part of the Bill.
Clause
41
Offences
dealt with before
commencement
Mr.
McNulty:
I beg to move amendment No. 143, in
page 30, line 1, leave out paragraph (b)
and insert—
‘(b) immediately
before the commencement of this Part the
person—
(i) is
imprisoned or detained in pursuance of the sentence passed or order
made in respect of the
offence,
(ii) would be so
imprisoned or detained but for being unlawfully at large, absent
without leave, on temporary leave or leave of absence, or on bail
pending an appeal, or
(iii) has
been released on licence, having served the whole or part of a sentence
of imprisonment in respect of the
offence.’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 144 to 146 and
157.
Mr.
McNulty:
Amendment Nos. 143, 145, 146
and 157 mean that on commencement, notification requirements apply to
offenders who would be imprisoned or detained
for a trigger offence at that time but for exceptional
circumstances—for example, they are on temporary leave of
absence or on bail pending an appeal on the day of commencement. This
would make the clause consistent with section 81(6) of the Sexual
Offences Act 2003—which refers to retrospective application of
notification requirements for sex
offenders.
Amendments
Nos. 143 and 146 make it clear that, on commencement, the notification
requirements apply only to those released on licence if they are on
licence for a terrorism offence for which they received a sentence of
more than 12
months.
Amendment No.
144 is a minor amendment to clause 41 to remove the reference to a
“finding” from subsection (2)(a).
These
are—I would tell the Committee if they were
otherwise—simply tidying-up and technical amendments as befits
Government amendments at Committee stage, and I commend them
wholeheartedly to the
House.
Amendment
agreed to.
Amendment made: No. 144,
in page 30, line 8, leave out ‘,
order or finding’ and insert ‘or
order’.—[Mr.
McNulty.]
Clause
41, as amended, ordered to stand part of the
Bill.
Clause
42
Sentences
or orders triggering notification
requirements
11.15
am
Mr.
Heath:
I beg to move amendment No. 35, in
page 30, leave out lines 33 to
34.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 33, in page 30, leave out lines
42 to 44.
No. 37, in
page 31, leave out lines 4 to
8.
No. 38, in
page 31, leave out lines 14 to
19.
No. 36, in
page 31, leave out lines 27 to
32.
No. 34, in
page 31, leave out lines 38 to
40.
Mr.
Heath:
This is a series of probing
amendments to secure the response of the Minister on two principal
points. We have not sought to argue against the notification procedure
as a whole on the grounds of the utility of the procedure. We
understand that this is a matter to ensure public safety, rather than
an extra punitive measure on the part of the state against the accused.
This is not part of the sentence; this is to ensure public safety
following the expiry of the sentence. It is a principle that has been
used before in the case of sex offenders and violent offenders. I have
a concern that we have a proliferation of registers and notification
procedures and an increasingly complex system, but I am not proposing
to investigate or further dissect that matter
now.
This series of
amendments deals with two specific issues—first, how we deal
with juveniles and secondly, how we deal with the insane and whether it
is appropriate to use this notification procedure for those two classes
of offenders, or whether there are more appropriate ways of dealing with
them. I fully accept that simply because someone is young does not make
them any less dangerous if they have a propensity to terrorist
offences. I accept also that if someone is insane and has a propensity
to terrorist offences, one must be aware of that, but I do think that
there are regimes that may be more appropriate than the notification
process before us today for dealing with those two classes of
offender. In the case
of juveniles, one must hope that a young person who gets involved with
terrorist connections and finds himself accused and convicted of
terrorist offences is capable of rehabilitation and education and that
that person has the opportunity not to pursue that course in their
future life following any sentence that he may serve. It may be more
difficult in the case of an adult, but we have always based our legal
system upon a clear principle of rehabilitation of young offenders.
That is particularly the case where there is a degree of idealism in
the young that might be misplaced and inappropriately expressed in the
form of support for terrorist activities, or indeed where there may be
a coercive element, in the case of a young person who was in contact
with people who are conspiring to commit terrorist offences. My only
question is the appropriateness of this procedure to those two classes
of offenders where I suspect that there is a better and more
supportive, more appropriate way of dealing with them to ensure they do
not re-offend and that the public safety is ensured. This is a rather
bureaucratic and onerous process—the fact that it is onerous is
not necessarily an argument against—but this process may not be
the most effective way of dealing with
them.
Mr.
Grieve:
I sympathise with the points
made by the hon. Member for Somerton and Frome, and the amendment that
I have tabled that comes next in sequence is very similar in intention.
It is a probing amendment looking at the question of whether the court
should have any discretion as to whether notification should be
required.
We
will consider this, I suppose, when we come to the related section on
duration in clause 51, which states that anybody sentenced to a period
of more than five years is required to submit to notification for the
rest of their lives. On any showing, that is a fairly onerous
requirement. While it is certainly not intended to be punitive, it is
nevertheless a considerable intrusion on a person’s private and
family life, particularly because, in addition to the explicit
requirements laid down in clause 51, it is clear that it will be
possible for the Secretary of State to make by affirmative order
further requirements—the nature of which we currently do not
know—in respect of notification. That is something we will come
back to and can perhaps debate further later this
morning.
One
should not lose sight of the fact that, while notification is a very
important requirement and one which may well be for public protection,
we are widening the scope of intrusive state powers and removing the
old principle that when a person had finished serving their sentence
they were, effectively, on the way to rehabilitation and, apart from
the requirements of the Rehabilitation of Offenders Act 1974 for
notification in getting a job, were free to do what they
like.
The
justification always advanced for including sex offenders in a
notification system was that they appeared to have a propensity to
commit such offences and were not amenable to rehabilitation, and that
under no circumstances was rehabilitation justified because in truth we
could have little confidence that it was ever going to be possible.
That is rather different from terrorist offences. In this country, at
the moment, there are previously convicted terrorists serving in
Government in Northern Ireland, and we appear to have accepted that it
is possible for them to change their ways.
Indeed, if we
are to beat the current menace of terrorism in this country, I have
absolutely no doubt that it will come about only by virtue of the fact
that some people who are attracted to terrorism at present will decide
to abandon it, and may well turn out to be rather important citizens.
There are already one or two examples of people who have been lured
into this area already and are now writing books about their
experiences.
Mr.
Hogg:
My hon. Friend makes a very valuable point here, and
I wonder whether his anxieties would be reduced if there were a
provision in the Bill that would enable a person to apply to the court
to vary or to revoke a restriction order. So far as I can see, there is
no such provision in the Bill as it stands. I may be wrong about
that.
Mr.
Grieve:
I agree with my right hon. and
learned Friend. This is a subject which, I confess, has troubled me in
other contexts. I have made speeches in the past about my view that it
is generally very difficult in this country to be fully rehabilitated
for criminal offences, even extraordinarily minor offences. In one case
in my constituency, a lady employed as a matron or senior carer in a
care home who had a conviction for shoplifting some 20 years before in
circumstances clearly linked to her psychological state at the time and
the breakdown of her marriage, and who had no other previous
convictions, found that she was never able to obtain senior employment
again because of the provisions of the Rehabilitation of Offenders Act
1974 and the fact that she had to make a disclosure. More relevantly,
the fact that no allowance seemed to be made by anyone for the
circumstances surrounding the offence meant that a taint remained with
her, which was as damaging to her as I suspect it was unproductive, in
the long run, for the community. This subject has long been of concern
to me.
Through these
notification requirements, we are adding, albeit in a slightly
different way, to the control architecture. I can see that that has
compelling justifications, and I do not disagree with it in principle,
in view of the seriousness of terrorism offences. However, I agree with
my right hon. and learned Friend that a system could be created in
which, in 25 or 30 years’ time, individuals sentenced to more
than five years for a connection with terrorism could be completely
rehabilitated—and even turn out in the long term to be
campaigners against terrorism—but would still find themselves
subject to such requirements at a certain amount of public expense and
to no great public benefit. Perhaps we ought to consider whether a
mechanism exists to allow people to make an application along the lines
that my right hon. and learned Friend
suggested.
Mr.
McNulty:
This short debate has been quite interesting and
of some value. The regime is not particularly onerous, but I do take
the point made by the hon. Member for
Somerton and Frome that it might be worth exploring elsewhere the
proliferation of registers, all of which are important on their own
terms. There may be some discussion to be had about getting them all in
one place as a kind of public safety register. I do not agree that
being on the register and having to notify is excessive or
onerous.
I do not
think that the hon. Gentleman intended it, but there was a touch of a
counsel of despair in his view that those on the list who are under 18
will never be rehabilitated. Being on the register is not, in this
context or in others, an anti-rehabilitation measure, although I take
his point in that regard. In terms of the specifics of his
amendments—regarding the insane, temporarily or otherwise, and
under-18s—we have simply sought to reflect the sex offenders
register. That relates to his other point: if there is to be a
proliferation of such registers, let us at least have them within the
same architecture and framework. That is a fair point. In that context,
I would resist his
amendments.
As
in the case of the Sex Offenders Act 1997, I am fairly confident about
the universality of the notification criteria—that, over 12
months, it will capture everybody. I share some of the discomfort and,
perhaps, disappointment about there being further flexibility down the
line. That might be worthy of further exploration, though not
necessarily here.
I take the
point about those sentenced to five years. I accept the broad sweep of
the point that we need to take risks in this area: in relation to whom
we engage with, on what level and with what degree of sincerity, given
their past. There are some excellent ex-Hizb ut-Tahrir people around
whom I take entirely at face value and who do some very good work in
the broad areas of prevention, rehabilitation and other work to which
the amendment refers. I cannot go into too much detail, but I have also
met another chap who has supposedly seen the light and no longer
indulges in such activities—that might or might not be the case;
he might still be “at it”, for want of a better phrase.
The matter is not quite sub judice, but it is certainly sensitive at
the moment, so it is not for me to go into any detail. None the less,
it is perfectly right and fair to meet him, because if we can learn
from such individuals about rehabilitating others—whether on the
fringe or in the middle of Hizb ut-Tahrir or of violent extremism and
jihadism—it would be irresponsible not to do so.
I take the broad point about
rehabilitation and someone not necessarily always being that which they
were convicted for being in the first place. We need to have regard to
that, but it is not achieved in any way, shape or form by the
amendments. I am comfortable with the universal nature of the
register—for it to be effective, anyone who is convicted for 12
months or more must be on it. Some interesting points were made about
what should happen further down the line that I am happy to take away
and explore, but not in the broad thrust of the current context because
that is not
appropriate.
11.30
am
Going
on the register is not the be-all and end-all for sex offenders, as the
hon. Member for Somerton and Frome will know. For the more serious,
there are multi-agency public protection
arrangements—MAPPA—and other elements in place, not in
this Bill but in the
broader prevention work with local government and the police. Some chief
constables have been quite forthcoming on this and do see the potential
radicalisation of the very young as a child protection matter, in the
same way as guns, gangs and other issues. The more enlightened police
forces are exploring that as well. I know that the hon. Gentleman
was not putting forward a counsel of despair—that if the
under-18s are included then, Lord Almighty, that is rehabilitation out
the window for them—and I accept the sincerity with which he
makes his argument, but this clause, Bill and amendment are not the
place to make his perfectly proper points. I am happy to have a broader
discussion on MAPPA arrangements, child protection and other matters,
but I will not give in on the universal nature of notification and
people on the
register.
Mr.
Heath:
That was a very useful exchange all round. I was
not advocating a counsel of despair—I had this argument with the
Under-Secretary of State for the Home Department, the hon. Member for
Gedling in the context of the Criminal Justice and Immigration Bill,
and considerable progress was made during the course of that Bill, now
an Act. I am grateful to him for the way in which he responded to some
of the concerns that I raised in that context.
The issue of light at the end of
the tunnel, particularly for young people, is important. I know that
the notification procedure is not the most onerous, but it is a
genuinely onerous responsibility and it does tend to discourage,
particularly a young person who is carried away with an enthusiasm
which he or she might completely foreswear later. We know that young
people have immensely strong enthusiasms for causes, for religions, and
for all manner of convictions which they later find to be completely
wrongly based. We therefore need to be very careful to make it clear
that there is light at the end of the tunnel. That is partly for
exactly the reasons that the Minister gave: it is not only for the
rehabilitation of the individual, but because those who have seen the
issue from the other side, recanted and said, “No, this is
wrong, this is misguided and not a position that I want any other young
person to find themselves in ever again,” can be the most
valuable advocates on behalf of decent society that we could ever
have.
For that reason
alone, as the right hon. and learned Member for Sleaford and North
Hykeham said, we need to consider a process by which such arrangements
can be lifted on application, if nothing else, so that somebody who
quite clearly no longer represents a threat to the public is not
treated as though they do.
Mr.
Hogg:
I may have misunderstood what the Minister said, but
my understanding was that while he was sympathetic to the proposition
that there should be a process whereby people could apply to the courts
to vary or discharge a restriction order, he was not minded to include
such a provision in the Bill. If that was the correct understanding of
what the Minister said, does the hon. Gentleman share my dismay that we
are not taking the opportunity to do that which in principle is
desirable? It could be done on Report or in the other place, but it
should be done in this
Bill.
Mr.
Heath:
I am grateful for that. The Minister can speak for
himself. I am not sure that I did interpret his comments in that way.
He made it quite clear that he
was not prepared to accept the amendments or the principle that there
would be a different notification regime from those already in place
elsewhere. He wanted simplicity in the notification regime. He can
correct me if I have misinterpreted him, but I am not sure that he
entirely shut the door to further consideration of whether there should
be some process of variation or
discharge.
Mr.
McNulty:
I do not think that I did. My main concern also
relates to the next amendment: at the front end, the criteria for
notification on the register should be mandatory. I made it clear that
I am happy to go away and reflect on what degree of flexibility might
be afforded in this Bill or elsewhere further down the line. However,
not least because of the read-over into the sex offenders register and
all the legal architecture behind that, the mandatory element at the
front, whatever the criteria, must be sacrosanct.
I do take the broad sweep of the
points about what happens subsequently and further down the line, and I
have committed to going away and reflecting on that and coming back
with a provision, if appropriate, for this Bill, or at least coming
back and saying that I have reflected on that but am not sure that it
is
desirable.
Mr.
Heath:
I am grateful to the Minister. He has confirmed my
interpretation of what he said. That is a positive outcome of this
brief debate. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Grieve:
In the circumstances, I shall not move amendment
No. 94, because the debating intention was identical to that of the
earlier
amendment.
Clause
42 ordered to stand part of the
Bill.
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