The Counter-Terrorism and Sentencing Bill: A threat to the Justice System

The Government recently unveiled the Counter-Terrorism and Sentencing Bill, saying that it: “will ensure that the sentences served by terrorists reflects the severity of offending and will strengthen the tools for monitoring them in the community.”

However, the new bill has been met with much criticism from rights groups across the country, who claim it is a severe curtailment of liberty, and threatens to undermine the foundations upon which the justice system rests.

The new bill presents some potentially serious shortfalls within the UK’s criminal justice system and is indicative of wider problems that are endemic within the UK’s strategy in responding to terrorism.

Through this bill, the Government is proposing to renege on its legal requirement to publish its report on an independent review into the controversial PREVENT strategy by August 2020.

This legal obligation to conclude such a review by the prescribed date arose following a cross-party amendment to the bill that would eventually become the Counter-Terrorism and Border Security Act that was passed in 2019.

However, the Counter-Terrorism and Sentencing Bill contains a clause which proposes a removal of the current August 2020 statutory deadline, instead stating that the “aim” is to now complete the review by August 2021, a full year later.

Christine Jardin, The Liberal Democrats’ Home Affairs Spokesperson said, in a press release responding to the provisions on the bill, that: “It’s bad enough the Conservative Government had to be forced by Parliament into a review of the Prevent Strategy, but the way Ministers have dragged their feet is appalling.

“The Liberal Democrats share the widespread and serious concerns about the impact of Prevent on minority communities, and especially Muslim communities. An independent review should be a vital opportunity to understand these concerns and address them.

“Having failed to consult properly with the communities affected by Prevent about who should lead the review and what its terms of reference should be, Conservative Ministers are now trying to wriggle out of their legal duty and delay this badly needed review.”

In a statement about the search for a new Independent Reviewer for PREVENT the Government put out in April, it sought to reassure the public of the new reviewer’s independence. Nevertheless, the very same statement cast doubt upon whether the review as a whole is indeed independent.

James Brokenshire, the Security Minister, stated that: “PREVENT gives vulnerable people the support they need to protect them from terrorist recruiters…we are always looking at how we can make the programme more effective.”

From the wording of this statement, it can be inferred that the default position of this review is that the PREVENT strategy will remain in existence. This was the foundation of concerns raised about the original terms of reference which were published during Lord Carlisle’s short tenure as independent reviewer, before he was removed following legal action brought against the Government in light of his lack of independence.

This seemingly negates any possibility that the strategy will be repealed, as many organisations have called for due to its detrimental impacts on human rights and discriminatory application towards Muslim communities. For this review to truly be independent, the Government must be open to fully investigating all the flaws at every level of the program’s development, training, and application, including the possibility of repealing PREVENT in its entirety.

Another worrying proposal in the bill is that suggesting the burden of proof be weakened and reduced for “Terrorism Prevention and Investigation Measures” – or, TPIMS for short – to be placed upon those suspected of terrorist activity, and also remove the current two-year cap on their use. TPIMS impose restrictions on people’s movements and actions, limiting where they can go and what they can do, for up to two years. They have been the subject of controversy because they impose severe restrictions on the liberty of a suspect rather than someone who has actually been convicted and are, in the words of Green Party MP Caroline Lucas, “imposed by the Executive – not by a court of law.” This suggests that rather than these powers being based on legal necessity, they are capable of being deployed politically, and so risks undermining the principle of fair and impartial justice.

As the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, stated in his annual report, such measures which carry restrictive criteria are also usually based on secret intelligence. Relying on secret intelligence in a person’s prosecution – which they are not allowed to see – can often deprive the accused and their legal team of the ability to challenge it. The admission of Jonathan Hall QC is, therefore, a significant one in terms of the extent to which these measures risk undermining another cornerstone of our justice system, namely the right to a fair trial.

Furthermore, if a person is found to be in breach of any TPIM measure, it is regarded as a criminal offence and the breaching party can be punished with a prison term – the maximum length is currently two years, but the bill proposes removing this limit, and subsequently paves the path for it to be renewed indefinitely.

By lowering the burden of proof to prove guilt for the commission of such a crime, and consequently imposing what are regarded as restrictive measures on the breaching party, the bill demonstrates a worrying disregard for the principles of liberty, a fair trial, and presumed innocence.

This is the latest development in a series of shortfalls surrounding the Government’s approach to combating terrorism. MEND, therefore, urges the Government to commit to conducting a truly independent review of all counterterrorism legislation enacted since 2000 with a view to curbing the encroachment of counter-terrorism policies on civil liberties.