The British parliament passed emergency legislation to stop those convicted of terrorism from being automatically released halfway through their sentences.
The UK government put forward The Terrorist Offenders (Restriction of Early Release) Act 2020 following a knife attack by convicted terrorist Sudesh Amman who had been released halfway through his sentence just two weeks before the attack. The new legislation, which has retrospective effect, will postpone the release of 50 convicted terrorists currently serving sentences; however, the law is set to be challenged in the courts as a breach of article 7 of the European Convention on Human Rights (ECHR). The new legislation also stipulates that a terrorist offender’s early release is contingent on parole board approval. The role of the parole board is controversial, but it has the potential to be part of a more rehabilitation-focused approach to dealing with terrorist offenders, as it has been in other countries.
EFFECT OF THE NEW LEGISLATION
Under the Criminal Justice Act 2003, certain prisoners serving fixed-term sentences are released on parole automatically after serving half of their sentences. Prisoners serving extended fixed-term sentences for violent or sexual offences, though, required the approval of the parole board before they could be released. The subsequent Criminal Justice and Immigration Act 2008 removed this step.
The Terrorist Offenders Acts reinstates the requirement for parole board approval for any prisoners sentenced for terrorist offences. Further, the legislation requires such prisoners to serve at least two-thirds of their sentence before being eligible for parole.
CHALLENGES TO THE LAW UNDER ARTICLE 7 OF THE ECHR
Human rights experts have criticised the retrospective aspect of The Terrorist Offenders Act as a breach of article 7 of the ECHR. Article 7 provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (emphasis added)
In Del Rio Prada v Spain [1], the European Court of Human Rights (ECtHR) held that retrospectively depriving a prisoner of the opportunity for early release constituted a breach of article 7. Thus, the extension of prisoners’ minimum time to be served appears to be incompatible with the article as well. It is unclear, however, whether the courts will necessarily find the reinstatement of parole board approval to be a per se violation of the ECHR, since the law does not explicitly impose a heavier penalty. In practice, though, this legislation will lead to many prisoners serving longer terms in prison than they otherwise might have.
OPPORTUNITIES FOR REHABILITATION
This Terrorist Offenders Act also prompts concerns in some about both the role of the parole board and the British government’s broader policy for rehabilitating terrorists. During the debate on the new legislation, former Prime Minister Theresa May commented that “terrorist offenders will still be released at some point” and stressed “[t]hat is why the issue of rehabilitation, the work that is done both in prison and when they are out of prison is so important”. May acknowledged, though, that the UK had not been very successful at rehabilitating terrorist offenders so far.
In contrast, The Netherlands has improved its probation services for terrorists with an eye toward ongoing rehabilitation. Convicted terrorists released on parole are monitored by the Terrorists, Extremists and Radicals (TER) branch of the probation service. In the case of Islamic terrorists, TER staff work with Islamic theologians to promote behavioural and ideological changes in offenders. These efforts are combined with GPS tracking of parolees by intelligence services.
Meanwhile, France has begun separating radicalised prisoners, including convicted terrorists, from the main prison population during incarceration, allowing social workers to engage with them one-to-one. After their prison terms, the courts can send such persons to one of four de-radicalisation centres where they receive additional intensive and individualised support from tutors, psychologists, and religious advisors. While France established a physical deradicalisation center a few years ago, the effort failed for many reasons, including its emphasis of secularism over the participants’ religion. France’s justice ministry, though, has embraced a renewed rehabilitation and deradicalisation approach in its policy.
Saudi Arabia has also experimented with rehabilitation centres for jihadists using art, cultural, and sport therapy successfully, with purportedly around 80-85% of inmates not returning to violence after release.
WHAT’S NEXT?
The Terrorist Offenders Act 2020 may buy time during which prisoners are kept behind bars, but it does not eradicate the potential threat posed by convicted terrorists upon their eventual release from prison. Whatever the fallout from the court battles over article 7, the British government should use the current appetite for reform to improve its rehabilitation programme for convicted terrorists. A government review of the successes and failures of strategies undertaken elsewhere in the world would be a productive first step.
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Legal citations
[1] (app no. 42759/09) ECtHR, 21 October 2013
Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.