New “terrorism” legislation receives backlash

On 28 November 2019, the London Bridge terror attack shook the country, taking the lives of two and wounding three.The attacker was 28-year-old Usman Khan, who was released on licence in 2018 after making it half-way through a 16-year sentence on terror charges.

This was followed by a double stabbing on 2 February 2020 in Streatham, committed by Sudesh Amman who had been released 11 days earlier. He had served 20 months of a 40 month sentence for possessing documents which contained terrorist information and disseminating terrorist publications. Mr Amman was reportedly radicalised while serving time in high-security Belmarsh prison.

In the months following the attacks, Home Secretary Priti Patel said the government was being forced to face some “hard truths” about how it dealt with terrorists. The Conservative government went on to pledge a tightening of terror laws.

Now, in addition to ending the automatic release of terrorist offenders midway through their sentence, the Counter Terrorism and Sentencing Bill has brought forward its pledge. The proposed legislation supports the use of TPIMs (Terrorism Prevention and Investigation Measures) and would mean that terrorist suspects would face expanded surveillance measures without conviction.

Critics have said that these new measures “roll-back the years,” while civil rights groups have said that the proposed legislation poses a “threat to fundamental pillars of our justice system”.

Failing counter-terrorism strategy

As the UK government moves to introduce further draconian counter-terrorism measures, it has been argued that it should first address why the current counter-terrorism strategy has failed.

Some have pointed to the lack of funding allocated to deradicalisation programs, like the one Usman Khan underwent. This is something which can be attributed to the 40% cut to the Ministry of Justice budget.

Programs like the Healthy Identity Intervention (HII) programme, function on a one-to-one basis with a psychologist and reportedly “encourages and empowers participants to disengage from an extremist group, cause or ideology”. And, there is some evidence that suggests it can work.

In 2018, the prison service commissioned an analysis of the program. It found that the prisoners who were on the program found it “helped them gain an understanding of their motivations for offending and develop strategies to facilitate desistance”. However, lack of funding means that many prisoners find it difficult to get onto these courses before their release.

Subsequently, due to prisoners’ lack of access to these essential services, it has been said that instead of deradicalising terrorists, prisons, “in some cases, [risk] creating [terrorists]”. This is especially true in situations where prisoners convicted on terrorist charges are moved from high security prisons to category B and C prisons before their release.

Mick Pimblett, Assistant General Secretary of the Prison Officers’ Association, has said that while prison officers are more “clued up” when dealing with these prisoners in high security settings, those in category B and C prisons lack training. Speaking to The Independent he said that new officers in these prisons are only given one day of training on extremism.

On top of this, further issues stem from a high prisoner to officer ratio. Spreading officers too thinly means they are unable to effectively manage prisoners, especially ones that require considerable attention like terrorist offenders.

Subsequently, when officers are unable to successfully intervene, these prisons become a breeding ground for extremist ideology. Speaking about the dangers of this, a prison guard told The Independent: “You’ve got someone who is in for five or six years, an ordinary criminal, and all of a sudden they are radicalised into hating anything about the west”. He added: “There are lots of people who are more of a threat when they leave than when they come in”.

Ian Acheson, a former prison governor agreed. He said that when terrorist prisoners are kept outside of separation units, they can freely associate with other prisoners. According to Mr Acheson, this leads to “abundant opportunities for networking and radicalisation” due to the fact that these prisoners have access to “often highly violent and vulnerable young men” who are looking for “meaning and excitement”.

On the other hand, the Labour party have argued that the most recent terror attacks happened, in part, due to the Conservative government’s budget cuts. The party said that this had led to the government “[missing] chances to intervene,” and instead released prisoners early. In 2019, 74 people convicted on terrorist charges were released early.

Meanwhile, Liberal Democrat Peer, Baroness Hussein-Ece has said that the government should look to other prisoner programs in the Netherlands, France and Spain. These countries have implemented strategies which see extremist prisoners separated from the prison’s general population, which reportedly enables more effective targeted counter-radicalisation interventions.

Others have argued that isolating those with extremist views is counter-intuitive, and instead could lead to consolidation of these beliefs. Further to this, isolation may allow extremist groups to “strengthen their hierarchical structures and organisational capacity”.

Indefinite restrictions

At present, there is a two-year limit on TPIMs. These measures monitor terror suspects who officials deem cannot be charged or deported. The measures enforce:

• Electronic tagging,
• Regularly reporting to police
• Prevention of travel overseas
• Tightly defined exclusion from particular places, and
• Suspects residing in their own homes, and remaining there at night

The new legislation would remove this two-year limit indefinitely. The burden of proof required to impose them would be lowered too. Currently, the standard for proof of terrorist activities is “balance of probabilities”. Under the new legislation, this will be changed to “reasonable grounds”. The legislation may also add further control measures, including mandatory drug-testing and attendance of drug-treatment programmes.

Accompanying these proposals is the potential introduction of a new “Serious Terrorism Sentence”. This would mean that those considered most dangerous would serve a minimum term of 14 years in prison. They would also carry a further 25 years on licence. Meanwhile, for lesser offences the maximum term served would be increased from 10 to 14 years.

The legislation would also widen the list of offences classed as “terror related,” which would mean more offences would carry “tougher sentences”. Speaking about these changes, Justice Secretary and Lord Chancellor Robert Buckland said: “Terrorists and their hateful ideologies have no place on our streets. They can now expect to go to prison for longer and face tougher controls on release”. He added: “This government is pursuing every option available to tackle this threat and keep communities safe.”

Lack of rational basis and violation of rights

The new measures have received criticism on multiple fronts, denouncing both their effectiveness and ethics. Jonathan Hall QC independent reviewer of the terrorism legislation, expressed concerns relating to the erosion of prisoner rights. He said: “I think what parliament will want to consider is: what is the operational case for these changes?” Adding: “I’m going to release some technical analysis of the changes over the coming days, but overall, I am uncomfortable with getting rid of protections for individual rights that don’t appear to have caused any real problems for the authorities to date.”

Mr Hall is right to question the rationale of these measures. Figures show that of the 196 convicted terrorists released between January 2013 and December 2019, only six went on to reoffend. That’s 3.06%. With Usman Khan and Sudesh Amman included, this figure rises to just 4%.

On top of this, Fahad Ansari Principal Solicitor and Director of Riverway Law, a UK firm specialising in immigration and nationality law, raises a salient point. He says studies have shown that more time spent in prison, actually increases the likelihood of a prisoner going on to commit a violent crime. Mr Ansari states that this is due to “systemic problems in prioritising rehabilitation over punishment within the prison system”. Longer prison sentences also lead to prisoners experiencing increased feelings of marginalisation, injustice and division, which a study by The Youth Empowerment and Innovation Project found, leads to acts of political violence. So, the evidence shows that the measures will potentially be counter-productive.

Meanwhile, civil rights groups have highlighted that the new measures also count as a threat to justice and infringe on the human rights of prisoners. Speaking about the introduction of the new measures Amnesty International UK’s Legal Expert said: “It was never right to drastically curtail people’s liberty on the basis of secret, untested evidence using control orders or TPIMs – and we seem to be diving headlong into that territory where the standard of proof is extremely flimsy and people’s liberties can be curtailed on an indefinite basis”. They added: “Rushing this bill out while Parliament is still operating under COVID-19 constraints suggests the Government could be trying to minimise scrutiny for significant legal changes”.

Rosalind Comyn, Liberty’s Policy and Campaigns Officer, has also expressed concerns: “Control orders allow people to be placed on indefinite house arrest without trial and this can happen based on suspicion rather than charges, evidence and proof. Control orders were abolished by the coalition government as a stain on our human rights record and that’s where they should remain. This bill also threatens our safety. Without an evidence-based approach, the government is failing to address the root causes of these incidents and therefore failing to stop them.” She also raised issue with the timing of the bill: “The fact this bill is being issued during a pandemic, when parliament is not operating at full capacity or able to deliver normal levels of scrutiny, should be a cause of concern for all who care about the future of our democracy and justice”.

Announcing the plan, Home Secretary Priti Patel said: “We promised to act and today we are delivering on that promise”. However, the consequences of this knee-jerk legislation could be grave and sets an extremely dangerous precedent. In response, Amnesty International UK, have pledged to assess the bill rigorously, especially in relation to TPIMs. The group’s legal expert commented: “We’ll scrutinise the bill in full as soon as possible, and we’ll be urging the Government to adhere to the tried and tested principle that people reasonably suspected of involvement in terrorism-related activities should – if the evidence is there – be prosecuted in a court of law.”