A rupture in the Counter-Terrorism and Sentencing Act 2021

Cathál MacPartholán considers counter-terrorism sentencing legislation and new NI Court of Appeal precedent on human rights

The Counter-Terrorism and Sentencing Act 2021, which received Royal Assent on 29 April 2021, gives the courts, security services and police more powers relating to sentencing of offences convicted of terrorism offences. This latest anti-terror legislation ends the prospect of early release for those convicted of a serious terror offence. Thus, they must serve their whole tariff. On this point, many former suspects convicted of terrorism offences have renounced their involvement in terrorist-related activity, while serving their sentences. One must speculate, if the Counter-Terrorism and Sentencing Act 2021 (CTSA 2021) shapes to impede the rehabilitation of suspects, while serving lengthy sentences – and if so, to what ends?

The background

The 2021 Act follows from the emergency Terrorist Offenders (Restriction of Early Release) Act 2020 (TO(RER)A 2020), after the incidents at Fishmongers’ Hall by Usman Khan on 29 November 2019 and at Streatham, London by Sudesh Amman on 2 February 2020. Even with nine covert officers tracking his every move, Amman still managed to carry out the attack. In fact, the transcripts of Amman reveal the day before in Mitcham police station on an early morning briefing, the surveillance team were informed to expect Amman to attack (https://www.sudeshammaninquest.org/wp-content/uploads/2021/08/Transcript-of-Hearing-on-10-August-2021-Jury-In-Only.pdf).

At the later inquests into both attacks, it came to light that both suspects had been released on licence for earlier terrorist offences. Due to this early release, the 2021 Act was formed on the emergency legislation passed in February 2020, following those terrorist incidents, which retrospectively ended automatic early release for terrorists serving standard determinate sentence.

In a twist of irony even the proponents the emergency TO(RER)A 2020 and the later CTSA 2021, could not have foretold, a convicted murderer, Steven Gallant, who was serving a life sentence, stopped to tackle Usman Khan during the attack. He was on day release to attend a prisoner rehabilitation conference. Gallant was jailed for 17 years in 2005, for the killing of Barrie Jackson in Hull. Following this act of selflessness by Gallant, the Prime Minister Boris Johnson praised him in the House of Commons, who said he was “lost in admiration of his bravery” and subsequently granted a Royal Pardon by the Queen to be considered for parole and release from prison 10 months early. Additionally, this high praise was recognised in a ceremony in London’s Guildhall on 29 October 2021 by Commissioner Cressida Dick, who awarded commendations alongside City of London Police Commissioner Ian Dyson, for the heroism of members of the public who responded to and stopped the Fishmongers’ Hall attacker.

The Act

The CTSA 2021’s Part 2 ends the prospect of early release for anyone convicted of a serious terror offence. The new Act goes further from previous related legislation. An example is ss.11-14, life or indeterminate sentences for serious terrorism offences for the most dangerous offenders, such as those found guilty of preparing or carrying out acts of terrorism where lives were lost or at risk, now face a minimum of 14 years in prison (and up to 25 years on licence, with stricter supervision).

This key measure is further strengthened in Part 3 of the Act, relating to Terrorism Prevention and Investigation Measures (TPIMs). Thus, s.3(1) of the TPIMs 2011 is amended accordingly from “is satisfied, on the balance of probabilities” substituted with, “reasonably believes”.  Similarly, s.5 (two-year limit for TPIM notices), in subsection (3)(b), for only “one occasion” substitute “up to four occasions”. Additionally, the Act, in ss.15-20, can extend the sentence of a suspect, furthermore ensuring a minimum period of 12 months on licence for all terror offenders as well as requiring adult offenders to take polygraph tests.

Security agencies argued during the Bill stages of the 2021 Act that the enhancing of TPIMs was crucial to enhances the tools to counter-terrorism. An example is the management of risk posed by terror suspects and other individuals of concern outside of custody. Thus, this widens the list of suspects that can be classed as terror-connected and trigger Registered Terrorists Offender notification requirements. Likewise, it becomes easier for the police to apply for Serious Crime Prevention Orders (SCPOs) in alleged terrorism cases.

Sentencing and surveillance

The consequences of the CTSA 2021 were a revision and consultation of four sentencing guidelines for terrorism offences in England and Wales, to reflect changes brought in by the 2021 Act. The consultation by the Sentencing Council ran from 20 October 2021 to 11 January 2022. This consultation applies to adult offenders and proposes changes to the guidelines below, to bring them in line with the new legislation:

• Preparation of terrorist acts (Terrorism Act 2006, s.5).
• Explosive substances (terrorism only) (Explosive Substances Act 1883, s.2 and 3).
• Proscribed organisations – membership (Terrorism Act 2000, s.11).
• Proscribed organisations – support (Terrorism Act 2000, s.12).

The Sentencing Council sought views on the draft guidelines from judges, magistrates and other related vested interest agencies, with additional consultations on further revisions to the Preparation of Terrorist Acts and Explosive Substances (Terrorism Only) Guidelines, to provide additional guidance to assist judges sentencing cases, which include the involvement of law enforcement authorities through surveillance or infiltration. The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (CHIS(CC)A 2021) amends s26 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000), regarding permission for authorisation of criminal conduct. The CHIS(CC)A 2021 does not enlighten the reader as to terrorism-specific authorisation. Historically, the infiltration of prescribed organisations has been a murky world. The myopia of the agents careens from the absurd too illegal. The raison d’être is often lost among the sardonic legal safeguards for the use of agents. The obvious imponderables fall over the cliff of silence, and righteous indignation is often directed at those who seek to oversee a legal framework to this barely regulated area of state operations.   

Recent books by former military intelligence agents in Northern Ireland, such as Nicolas Davies’ Ten-Thirty-Three, give some insight into the world of espionage and secret surveillance. More recently, case law judgements such as Gallagher’s Application [2021] NIQB 85 has approximately 300 paragraphs of legal controversies with the paradigm example of Convention rights being considered, demonstrating the Convention narrated arguments on the legislation. It could be argued this juxtaposition of Gallagher arrives with an added pugnacious streak to the discussion for many observers.

Morgan in the NI CoA

However, the new anti-terror legislation, which pushes back prison release dates for suspects, was, on 22 December 2021, rebutted by the Court of Appeal in Northern Ireland. The 2021 Act was applied following pursuit of Continuity IRA members in an MI5 undercover operation in 2014. Those suspects were subsequently sentenced to lengthy prison terms. Under the terms of the 2021 Act, brought in amid a public outcry over the attacks at Fishmongers’ Hall and Streatham, offenders in Northern Ireland must now also serve two thirds of their term behind bars. The new legislation impacted on one of the seven-member group in the MI5 operation. Seamus Morgan, aged 65, is serving a three-year sentence for belonging to a proscribed organisation, in connection with secret recordings in 2014. Mr Morgan was told he would serve 18 months in custody and 18 months on licence. Originally set for release in June 2021, that date has been put back by at least six months. Furthermore, three of the other men jailed for offences connected to the MI5 operation sought the same declaration that the Act violates their human rights.

Delivering judgment in the appeal, Maguire LJ held the Act to be in breach of Article 7 of the European Convention on Human Rights 1950 (ECHR 1950), which states there can be no punishment without law. This position arrives from the legal interpretation only the law can define a crime and prescribe a penalty. ECHR Guide to Article 7 of the ECHR updated on 30 September 2021, outlines the principle to no punishment without law: https://www.echr.coe.int/Documents/Guide_Art_7_ENG.pdf. Maguire LJ said arrangements governing the sentencing process for the four men had been “subverted”, with penalties imposed by the trial judge redefined or modified. In a reference to Article 7, the judge stated: "This provision is about the rule of law and is there to protect against arbitrary action, not just from measures which appear to have limited logical appeal but also from measures which offend the article despite otherwise appearing rational and purposeful”. The judgment, yet to be published in the law reports, is outlined here: irishnews.com/news/northernirelandnews/2021/12/23/news/anti-terror-legislation-breaches-human-rights-court-rules-2542567

Conclusion

In conclusion, the fanfare of the CTSA 2021, claimed to be a requirement to protect the public and prevent early release of suspects in terrorism or related activity, was dealt a blow with the recent appeal in the case of Morgan and the other four applicants, as it faced its first big case law obstacle and failed.

As cathartic the Sentencing Council’s review, to reflect changes brought in by the CTSA 2021, shall be, at the current juncture, despite having been pronounced incompatible with the European Convention on Human Rights (ECHR), the Act remains in force.

Mr Cathál MacPartholán FRSA is a Lecturer in Criminal Law, Evidence, and International Criminal Law at Bangor University, and Academic Door Tenant with Holborn Chambers: https://orcid.org/0000-0001-5645-7999; bangor.ac.uk/law; holbornchambers.co.uk