Yet more laws won’t help address the threat posed by terrorist offenders, suggests Emily Winterbotham.
WILL KEEPING terrorists in jail longer help the UK’s counter-terrorism efforts? This is the objective underpinning the UK’s new Counter-Terrorism and Sentencing Bill 2019–21, which if passed represents a significant shake up of the legislative system for those convicted or suspected of terrorism offences.
The Bill was introduced on 20 May, following the attacks at Fishmongers Hall in November 2019 and in Streatham on 2 February this year. The measures (detailed below) might sound appealing to voters, and arguably serve the demand for retributive justice. Yet a harder punitive approach is unlikely to reduce the threat of terrorism without accompanying efforts to rehabilitate terrorists.
Programmes to tackle disengagement (a behavioural change process, such as leaving a group, which requires relinquishing the objective of achieving change through violence) and deradicalisation (a social and psychological process, which implies a fundamental change in understanding or belief) are poorly understood and lack credible evaluation. Prisons and local authorities are also woefully underfunded.
It is therefore unlikely that another Bill will help address the threat of terrorism.
Terror attacks carried out ‘on licence’
On 29 November 2019, Usman Khan launched an attack at Fishmongers Hall. Saskia Jones, 23, and Jack Merritt, 25, were killed in the attack. Khan had been released from jail on licence in 2018, half-way through a 16-year sentence for terrorism offences. Less than three months later, on 2 February 2020, three people were injured by Sudesh Amman who had recently been released from prison, after serving half of his three year sentence for terror offences.
That each attack was committed by a known terrorist offender who had been automatically released from custody at the halfway point of their sentence raised questions about the efficacy of the sentencing, release and payroll conditions handed to terrorist prisoners.
The attacks prompted the passing of emergency legislation, the Terrorist Offenders (Restriction of Early Release) Act 2020. This strengthened reforms made under the coalition government in 2012, ending the automatic early release of terrorist offenders on an Extended Determinate Sentence, forcing them to spend a minimum two-thirds of their term behind bars.
This marked the start of the UK government’s legislative response to the attacks. The new Counter-Terrorism and Sentencing Bill is the next step: intended to “better protect the public from terrorism by strengthening the law which governs the sentencing, release and monitoring of terrorism offenders.”
Presenting the Bill in Parliament on 20 May, Home Secretary, Priti Patel said:
“The shocking attacks at Fishmongers’ Hall and Streatham revealed serious flaws in the way terrorist offenders are dealt with… We promised to act and today we are delivering on that promise.”
Yet what that promise actually entails and whether it might be delivered is worth exploring in more detail.
Will longer prison sentences actually reduce terrorism?
If passed, the Government says that the Bill will “ensure that serious and dangerous terrorism offenders will spend longer in custody, properly reflecting the seriousness of the offences they have committed.”
Clauses extending prison sentences include the introduction of the “serious terrorism sentence”, which delivers a 14-year minimum sentence and up to 25-year period of extended licence for the most dangerous offenders; plus the ending of automatic release for those serving Extended Determinate Sentences.
(These latter sentences were introduced to provide extra protection to the public in cases where the court found that the offender was dangerous and an extended licence period was required to protect the public from risk of harm. The judge determines the length of prison sentence.)
The maximum sentence available for being a member of, inviting or expressing support for a proscribed organisation, and attendance at a place used for terrorist training, will be increased from 10 to 14 years. As such, the Bill delivers on the political promise to keep terrorists off the street for longer.
Sentencing, though, is only one part of the battle to tackle terrorism (unless one can keep terrorists locked up indefinitely). The other part is what goes on within prisons and with prisoners. There are currently about 220 terrorist prisoners in custody in the UK, with 77% holding Islamist views and 17% far-right views.
The reoffending rate for these prisoners is actually far lower (estimated to be around three percent in England and Wales, rather than 50%) than for other offenders. This does not mean, however, that people will voluntarily change their beliefs and behaviour.
The Government claims the Bill ensures that terrorists will have longer to participate in disengagement and rehabilitation interventions in prison. On the surface, there is nothing particularly wrong with that statement. Efforts to disengage, deradicalise and rehabilitate terrorists are notoriously complex.
The real issue is that behind this rhetoric lies little to no reporting about the effectiveness of the UK’s disengagement and deradicalisation programmes. The UK is not alone in its lack of overall reporting. In fact, it is closer to the norm rather than the exception.
The issue is that this means the government has limited – though admittedly growing – knowledge about how to manage the risk posed by extremists.
Do offender management programmes work?
The first offender behaviour programmes to be delivered to convicted extremists were piloted in 2010 and 2011.
The Motivational and Engagement Intervention (MEI) and the Healthy Identity Intervention (HII) programmes aimed to encourage and facilitate desistance and disengagement from extremist offending, regardless of a person’s particular ideological background during one on one tailored sessions.
In December 2018, a prison strand of the Desistance and Disengagement Programme (DDP) was established for individuals convicted of terrorism related offences, or identified as exhibiting extremist behaviour.
To date, there has been no independent evaluation to test whether these programmes prevent reoffending or successfully tackle extremist behaviour (a short-term outcome evaluation of the HII programme is reportedly underway). In 2018 the Ministry of Justice published the findings of an evaluation into the pilot project which found it was “viewed positively” by participants and facilitators who attended and ran the course.
This evaluation was based on research conducted during the pilot in 2010 and 2011. There is no way of knowing whether the project is still viewed positively in 2020. This was also a process evaluation designed to assess the effectiveness of the implementation and the outputs of the project, not the actual impact on terrorism. The failure to properly evaluate impact is a serious shortcoming.
Former prison governors report that prisoners know how to “game the system” while Usman Khan is known to have taken part in a HII course. Convicted terrorists are also reportedly refusing to participate in these programmes, while others are facing waiting lists to join the scheme. A possible consequence of the 40% cut to the Ministry of Justice budget is that some prisoners who are willing to go on a programme find they cannot get on it before their release date.
That said, it is impossible to reduce the risk to zero and instances of prisoners reoffending do not mean the intervention is useless or ineffective in the majority of cases. In fact, some experts suggest that it is actually a much better intervention than it gets credit for.
Meanwhile, while considering the needs inside prisons, in January this year there was a terror attack on prison staff at a maximum-security wing in HMP Whitemoor, Cambridgeshire. Four officers and a nurse were injured in the attack by two inmates wielding bladed weapons and wearing fake suicide vests.
Longer prison sentences are unlikely to help in these cases.
Will stronger monitoring powers help prevent an attack?
The second area of change focuses on the monitoring and disruptions toolkit available to counter-terrorism policing and the Security Service.
The Bill strengthens the Terrorism Prevention and Investigation Measures (TPIMs) on those suspected of involvement in terrorism. A TPIM is an exceptional administrative measure, enabling restrictions to be placed on individuals outside the criminal process on the basis of risk to national security.
Clause 37 of the Bill lowers the standard of proof for imposing a TPIM notice. It will now be sufficient for the Secretary of State to have “reasonable grounds for suspecting” that an individual was or had been involved in terrorism rather than, as previously, “satisfied, on the balance of probabilities.” Further clauses direct that offenders will be sent to approved premises for longer after release, subject to stricter monitoring and electronically tagged to monitor their location.
Yet the intelligence services are already relatively effective at monitoring potential or released terrorists. And the Independent Reviewer of Terrorism Legislation has raised concerns that lowering the standard of proof could increase the possibility that an individual placed on a TPIM may be innocent.
The standard of proof was previously raised by the Counter-Terrorism and Security Act 2015 on the recommendation of the Independent Reviewer of Terrorism Legislation (then Lord Anderson QC) who had concluded that the standard of proof could and should be higher.
If TPIMs are wrongly enforced this could actually fuel violent extremism. There is also evidence that being viewed as an “enduring risk” is a source of frustration, which creates a sense of injustice and actually diminishes the legitimacy of the authority and control to which prisoners are subject.
In cases where terrorists are released from prison (as with the Fishmongers Hall and Streatham attackers) their involvement in terrorist activity is not in doubt in any case. The Streatham attacker was already under active police surveillance at the time he committed the attack, being considered a serious risk. Meanwhile, it is not possible to monitor everyone nor to prevent every attack.
Terrorism is known to be an individualised and non-linear process. Regardless of the mechanism, it is hard to be definitive about whether an individual no longer presents a risk of committing an offence, though the Government is improving in this area.
Longer sentences may keep terrorists off the street for longer and make for good government sound bites. Yet without substantial investment in the prison and probation service and in the UK’s broader prevention efforts, a legislative approach is not only meaningless but simply defers the problem to a later date, while potentially alienating those deemed most ‘at risk’ of radicalisation to terrorism.
Emily Winterbotham is director of the Terrorism & Conflict Research Group at RUSI | @EmsWinterbotham