10th February 2020

In May 2018 Mohammed Khan, a shopkeeper from Sunderland, was sentenced to 4 ½ years imprisonment after his conviction for terrorist offences relating to the distribution of ISIS propaganda online.  He is due for release on 28th  February 2020 in line with current sentencing guidelines which require most prisoners to be released automatically after serving half of the prison tariff (full jail term) imposed by the sentencing judge.

The current Justice Secretary, Robert Buckland, is planning to introduce urgent legislation in an attempt to delay the release of Mr Khan and other prisoners like him who have been convicted of terrorist offences. The proposed changes in legislation follow the recent stabbings in South London perpetrated by a prisoner who was automatically released in line with current sentencing provisions. The government have expressed their intention to introduce emergency legislation to stop terrorist offenders being released without risk assessments first being carried out by the parole board. It seems that the proposals will seek to delay any such releases until offenders have served at least two thirds of their sentence.

Whilst few are likely to have sympathy for any offenders who may have their release date delayed as a result of proposed changes, the question remains as to whether the government proposals will be lawful.

The most obvious potential obstacle to the new proposals is the retrospective nature of the changes on serving prisoners. Changing the law so that future offenders are sentenced in a way which either increases their overall tariff or determines that they should no longer be released at the halfway mark, if approved by Parliament, would be difficult to challenge.

In cases such as Mr Khan’s, however, the offenders have been sentenced in line with sentencing guidelines which require the authorities to automatically release them after they have served half of their prison sentence. Arguments countering the government’s proposals will no doubt seek to argue that it is unjust and unlawful to effectively resentence offenders based on a political decision made after their sentence terms have already been imposed.

The UK remains a signatory to the European Convention of Human Rights (ECHR) and it is likely that challenges to the government’s proposals will seek to argue that these clash with the guidelines enshrined in Article 7 ECHR in relation to retrospective changes in the law.  Art 7 states “….Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

It is worth remembering that the ECHR is separate to the EU and the UK remains a member of it.

Art 15 ECHR allows a State to derogate or depart from its obligations under the Convention in limited circumstances such as in the time of war or other public emergency threatening the life of the nation. The Justice Secretary does not, however, appear to argue this derogation as justification and in any event the changes envisaged will do little other than to delay the release of Mr Khan and others.  These offenders will be released at some point into the community and will in the normal way at that point be subject to licence conditions and post sentence supervision for a limited time.

Indeterminate sentences of Imprisonment for Public Protection (IPP) were introduced by a previous UK administration in 2003. Under these provisions serious offenders who were perceived to be a risk to the public would be given a tariff period, as in all cases, however these IPP prisoners could be kept in prison indefinitely as long as the Parole Board still believed that they posed a threat. These sentences were abolished in 2012 by the Coalition government after a European Court ruling that they violated human rights. Ironically the abolition of that sentencing regime wasn’t retrospective and there remain around 3,500 serving prisoners without a release date.

It seems that there are no plans by the current UK government to re-introduce indeterminate sentences even for terrorism offences and so it is arguable that the publicity around the current emergency proposals may have more to do with a political response to recent events than a determination to keep terrorist offenders in prison for an indefinite period.

Blog by Ian Cassidy, Partner

Ian was interviewed by Look North on 6 February 2020 about this issue: