UK Government plans to restrict the early release of those in prison for terrorist offences raise rule of law and human rights issues as respects prisoners already serving their sentences, according to a report published today.

The report, by the Bingham Centre for the Rule of Law, analyses the Terrorist Offenders (Restriction of Early Release) Bill ahead of its consideration by the House of Commons later today. The bill has been introduced as an emergency measure and will complete all its Commons stages in a single day.

The bill, introduced in response to the two recent terrorist attacks in London, both committed by individuals soon after being given automatic early release, would ensure that terrorist offenders are not automatically released before the end of their custodial term without the Parole Board’s agreement. It would also prevent the release of such offenders until two thirds, rather than half, of their sentence had been served, and then only after their being referred to the Parole Board. These changes would be given retrospective effect by being applied to offenders currently serving a custodial sentence as well as those to be sentenced in future. 

 

In the wake of the two terrorism-inspired knife attacks, the report states, the Government is right to consider the adequacy of the current legal framework protecting the public from individuals who are known to pose a terrorist threat, and to bring forward legislation to improve that protection where it is found wanting. That legislation, however, must itself be compatible with the rule of law. 

Ending automatic early release and introducing a requirement of Parole Board review for future offenders does not raise any rule of law issues, the report states. However, applying the changes to serving offenders does raise the significant rule of law issue of whether it is consistent with the long established general principle against the retrospectivity of criminal laws and, specifically, the prohibition on imposing a heavier penalty than the one applicable at the time the offence was committed. 

The answer to this question is "not straightforward", the report continues. considers the legal arguments both for and against. On the one hand, the Government is correct that there is an established body of case-law, both in the UK and Strasbourg, to the effect that changes to early release provisions concern the "administration" of a sentence and do not amount to an additional penalty, or an increase of the scope of the penalty, for the purposes of article 7 ECHR.

On the other hand, in Del Rio Prada v Spain (2013), the court found a breach of article 7(1) because new rules for calculating remission were considered to affect the scope of the penalty, not merely its administration. Central to the court’s reasoning was the reasonable foreseeability of the change in the sentencing regime, and the legitimate expectation of the offender. The Government acknowledges that the changes introduced by the present bill will interfere with expectations relating to release, but its human rights memorandum does not seek to explain why the Del Rio Prada reasoning does not apply. 

Further, the change is "a blanket and automatic increase for all affected offenders, regardless of whether they are dangerous to the public. By effectively overturning judicial decisions about sentencing the bill also comes uncomfortably close to legislative interference with the judicial function". 

Introducing a requirement of Parole Board review for serving offenders, however, is more in the nature of a change in the way the sentence is administered, rather than a change in the scope of the penalty, and "could be considered to be reasonably foreseeable to offenders at the time they were sentenced. It allows for individuated consideration of risk to the public. It is therefore not inconsistent with the prohibition on retrospectivity".

The report therefore recommends that the bill should be amended so that the provisions extending from halfway to two thirds the period in custody before an offender is eligible for release do not apply to serving offenders. This approach was recently taken in a statutory instrument amending the automatic release point for those convicted of a relevant violent or sexual offence and sentenced to a determinate sentence of seven years or more. "The report sees no reason in principle why the approach should be prospective in one context and retrospective in the other."

It also considers whether the Government has demonstrated sufficient justification for fast-tracking the bill. "This is a rule of law matter because the quality of democratic law-making procedures ultimately determines whether Parliament is supreme over the executive, as the rule of law requires, or vice versa."

While the Government asserts that the legislation is needed urgently to put appropriate safeguards in place before further terrorist offenders are released from prison, Parliament will wish to test this "by probing the claim that the risk to public safety is so great that it could not be managed for the length of time it would take for a prioritised bill to complete its passage on a timetable which provides a proper opportunity for meaningful parliamentary scrutiny and debate". 

This applies more particularly since none of the relevant parliamentary committees that would normally scrutinise the bill have yet been set up in the new Parliament. 

Click here to view the report.