Televising sentencing remarks is a gimmick that has not been thought through

As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.

The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.

So why am I concerned?

There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.

But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.

The problem is that I don’t think it will do that.

The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.

However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.

There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.

And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.

And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles [2019] EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:

  • There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly. 
  • The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 
  • On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it. 
  • The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
  • Findings of fact should be announced without, in most cases, supporting narrative.
  • If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course. 
  • Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.

For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.

Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?

And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.

We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.

A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.

10 things you should know about the London Bridge attacker and “early release”

No time can be afforded in 2019 to respect the dead. Not when there’s an election at stake, and the tantalising prospect of scoring cheap political points winks coyly at you from a special advisor’s email. So it is that, within 24 hours after the killings by Usman Khan at London Bridge, politicians have lined up in descending order of deplorability to exploit the tragedy for their own ends. The Prime Minister obviously went first, leaping in front of Sky cameras last night to claim:

” I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.”

This, one presumes, is a nod to his well-publicised manifesto pledges to “toughen up sentences”, although (as we shall see) it is well worth reminding Mr Johnson, as he seems to have forgotten, that absolutely nothing in his manifesto would have made the slightest difference to the sentence or release in a case like that of Usman Khan. There followed a dash to ascribe culpability for the fact that Mr Khan had been released from prison after serving 8 years of a 16 year custodial term for a terrorism offence; it was the Parole Board, then the judges who had passed sentence on Khan, then, somehow, the EU, then, in perhaps Twitter’s lowest moment today, Khan’s blameless lawyers. This afternoon, Labour and Conservative figures took turns to cast blame, each frantically trying to plunge the hands of the other into the victims’ blood before it dried, notwithstanding the pleas of victims’ families not to make political capital out of lost lives.

Amid all the shouting and, in the case of the government, outright lying, the truth about how and why Khan was sentenced as he was has barely had a look in. So it is worth taking a quick look at ten things we actually know.

 

1. What was Usman Khan convicted and sentenced for?

Usman Khan, then aged 20, pleaded guilty on 31st January 2012 to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. This is an offence carrying a maximum sentence of life imprisonment. Although widely reported as relating to a plan to bomb the London Stock Exchange, the full facts (reported here) are worth reading, as the reality is more complicated. Khan, then aged 19, was part of a group based in Stoke who in November and December 2010 were engaged in a well-developed plan to raise funds to build a madrassa in Kashmir to train terrorists. While they had contemplated that some of those trained might return to the UK and involve themselves in terrorism, the basis on which they were convicted was that although they had discussed perpetrating a terror act in Stoke, they did not intend to participate in an act of terrorism in the UK in the immediate future. What they did do, however, was liaise with other groups in London and Cardiff, who were actively planning to leave an explosive device in the Stock Exchange. The groups, including Khan, had meetings and discussed common interests, such as how to make a pipe bomb, but by the time of conviction, the prosecution and defence had agreed that the Stoke group were not in fact involved in the Stock Exchange plot, and the guilty pleas that were entered by the various defendants reflected this, as they were pleas to different counts on the indictment.

Nervtheless, Khan was an obviously dangerous individual. He demonstrated “a serious long term attitude to establishing, funding and recruiting British Muslims to attend the madrassa and to then be available to commit terrorism abroad and at home.” And for that reason, on 9th February 2012, he was sentenced as a dangerous offender to detention for public protection (“DPP”) with a minimum custodial term of 8 years (minus time served on remand).

2. What is “detention for public protection”?

Detention for Public Protection (DPP) is a relative of the slightly more famous Imprisonment for Public Protection (IPP). Someone aged between 18 and 21 is sentenced to detention, rather than imprisonment, but the sentences are substantially the same. They were introduced in 2005, and where a defendant convicted of certain serious offences was assessed by a court as dangerous – meaning they posed a significant risk of serious harm to the public – but the seriousness of the offence they had committed did not justify a life sentence, IPP (or DPP) could be imposed instead. The effect was similar to a life sentence. The Crown Court would set a minimum term (tariff) which a defendant would have to spend in prison. After serving the minimum term, he would have to satisfy the Parole Board that his imprisonment was no longer necessary for the protection of the public. If he did so, he would be released on licence for at least 10 years. If he couldn’t, he would stay in prison until he could, potentially forever.

The minimum term was half of the equivalent sentence that a defendant would have received if he’d been sentenced to a standard determinate sentence. Why half? Because (as we’ll see below), since 2005 defendants serving determinate sentences have been automatically released at the halfway point. So in theory, if a dangerous offender fully rehabilitated himself in prison, he could be out at the same time as if he hadn’t been assessed dangerous in the first place.

So in Khan’s case, the sentencing judge found that, taking into account Khan’s young age and his guilty plea, the appropriate determinate sentence would have been 16 years, meaning the minimum term was 8 years.

3. So why was Khan’s sentence reduced by the Court of Appeal?

As ever, the best explanation is in the full judgment, which I’d urge you to read. Boiling the appeal down to its barest bones, the argument made on behalf of Khan was this. The London defendants – the ones who had planned to bomb the Stock Exchange – were deemed by the sentencing judge to be less dangerous than the Stoke defendants. This was because, although their criminality was, to quote the prosecution, “equally serious”, the Stoke defendants, including Khan, demonstrated a level of sophistication that made them more dangerous. The Court of Appeal, having heard arguments from the prosecution and the appellants, reached the conclusion that the judge was wrong to distinguish between the groups in this way. “If the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal [the Stoke lot] than those who were far closer to doing so [the London Stock Exchange lot],” in the word of Lord Justice Leveson.

Accordingly, the Court of Appeal gave Khan and his Stoke associates the same type of sentence as the London group received – an extended sentence. They disagreed with Khan’s argument that the custodial term of 16 years should be reduced.

4. What is an “Extended Sentence”?

This is where things get messy. Because we have had a lot of versions of Extended Sentences over the past 15 years, as governments have battled to secure headlines by tweaking and amending the various regimes on numerous occasions. The best summary is in this document by the Prison Reform Trust. In simple terms, if a defendant was found to be dangerous (as defined above), and a determinate sentence could not manage his risk, the court had to consider whether an Extended Sentence would do; if not, it would be IPP or life imprisonment. An Extended Sentence involved a custodial term (the same as would have been imposed for the offence for a “normal” defendant), with an extended period of licence of up to 5 years (for a violent offence) or 8 years (for a sexual offence).

So when the Court of Appeal passed an Extended Sentence on Khan, his custodial term was 16 years (as the sentencing judge thought it should be) and his period of extended licence was 5 years (the maximum).

5. When is somebody released from an Extended Sentence?

This is why it’s complicated. Successive governments changed the law governing release on multiple occasions. The full history is in the Prison Reform Trust document above, but suffice to say that in 2012, when Khan was sentenced, prisoners serving Extended Sentences were released automatically at the halfway stage of their custodial term, just like determinate prisoners. It therefore looks as if Khan was automatically released having served 8 years of the 16 year custodial term, and would have been on licence for the remaining 8 years, plus the extension of 5 years.

6. A dangerous offender being released automatically? That doesn’t sound very safe

No. It wasn’t, really. “EPPs” as they were called (Extended Sentences for Public Protection) were introduced alongside IPPs in 2005. Up until 2008, an EPP prisoner would be referred to the Parole Board at the halfway point of their custodial term. If they satisfied the Parole Board that their imprisonment was no longer necessary, they would be released on licence. If not, they would serve the full custodial term. In 2008, the law changed so that at the halfway point offenders were automatically released – no Parole Board input. This was in large part because the way in which the existing legislation required courts to treat dangerous offenders meant that the prison population had spiralled to uncontrollable levels. People were being given IPPs for relatively minor offences and finding themselves stuck in prison years after their minimum terms had expired. The prisons were unable to provide the courses that dangerous offenders needed to satisfy the Parole Board that their risk had reduced, and so many EPP prisoners were serving their full terms. The Criminal Justice and Immigration Act 2008 tweaked the law to give judges greater discretion as to when to pass an IPP, and also sought to introduce a release valve by automatically releasing EPP prisoners.

As for why we have automatic release at all, it’s worth addressing this briefly, as there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). There are various reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, or breach the conditions of their licence, they can be recalled to serve the remainder of their sentence. Automatic early release has varied throughout the years. The Conservatives in 1991 introduced the framework for the modern system, but it was in 2005 that the Labour government introduced automatic halfway release for all determinate sentences (as well as the IPP and EPP sentences) – more detail here. Worth remembering whenever one party accuses the other of being to “blame” for automatic release that all parties have at one time or another thought it a jolly good idea.

7. So at the time Khan was sentenced to an EPP, he would have been eligible for automatic release with no Parole Board oversight?

This now becomes even messier, because Khan’s appeal was heard after EPPs had been replaced by EDS, albeit he was originally sentenced when EPPs were in force. The Parole Board has emphasised that it had no part to play, but there has been much confusion over this, due in part to the BBC’s decision in its 2013 news report of the appeal to quote a part of the judgment completely out of context. The BBC reported this:

“Lord Justice Leveson said: “There is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous.

“There is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the Parole Board for consideration proximate in time to the date when release becomes possible.””

This sounds very much as if Leveson LJ is imposing a sentence that involves the Parole Board, right? Well put in its proper context, my interpretation is that, to the contrary, he was simply weighing up the competing arguments before concluding that an EPP, even though it meant automatic release, was appropriate:

Dealing first with the question of dangerousness, at the time that these appellants were sentenced, in our judgment there is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation: that includes Hussain and Latif to whom we refer below. Furthermore, given that it is difficult to identify the extent to which those who have been radicalised (perhaps as a result of immaturity or otherwise) will have modified their views having served a substantial term of imprisonment and there is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the parole board for consideration proximate in time to the date when release becomes possible.

On the other hand, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk (however apparently determined) is relevant to the risk posed by the offender and the need to protect the public. The judge certainly concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary and although we recognise that training terrorists in the use of firearms could only lead to potential loss of life, whereas the intention of the London defendants did not encompass death or serious injury (while recognising the serious risk that such would result), on any showing, the fulfilment of that goal was further removed and there were other obstacles (not least as a consequence of the fact that their activities had come to the attention of the security services in Pakistan). Furthermore, there is no suggestion that any of the Stoke defendants had, in fact, been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built, however keen they might have been to do so and however much they might have talked up their prospects between themselves or to others whom they sought to influence.

Notwithstanding the considerable respect that the conclusion reached by Wilkie J merits, we have come to the conclusion that if, as he concluded, the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal than those who were far closer to doing so.

So it appears as if the Court of Appeal understood that it was imposing an old-style EPP, which makes sense given that the Court of Appeal’s powers on allowing an appeal against sentence are to “pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence. This would have meant that the Court of Appeal imposed the same type of old-style Extended Sentence as was passed on the London co-defendants, and that therefore, as it has confirmed, the Parole Board had no role to play in Khan’s release.

8. Are dangerous offenders still automatically released at the halfway stage of their sentence?

A lot has changed since 2008. IPPs have now gone. The failure of the prison system to make available to prisoners the rehabilitative programmes they needed to take to secure their release, due to the horrendous overcrowding, was a genuine Kafkaesque nightmare, which the European Court of Human Rights in 2012 declared was unlawful.  The coalition government responded by abolishing IPPs in 2012 (although not for prisoners still serving those sentences), and introducing new Extended Determinate Sentences. It is worth emphasising, to rebut nonsense published by Breitbart contributors today, that the ECtHR ruling on IPPs had nothing whatsoever to do with the Court of Appeal decision in Khan’s case. The Court of Appeal could have lawfully upheld the IPP if it wanted. It was not forced, either by government or by the ECtHR, to change the sentence.

These new Extended Determinate Sentences (EDS) worked like old EPPs, except that you would be automatically released at the two thirds stage of your sentence if your custodial term was under 10 years, and would go before the Parole Board at the two thirds stage if your custodial term was 10 years or more or you were convicted of certain specified offences.

9. So the coalition government were still automatically releasing dangerous offenders?

Yes. They were being kept in for slightly longer, but there was still no Parole Board oversight, except for the most dangerous of dangerous offenders. This changed in 2015, when all EDS prisoners were required to secure Parole Board approval for release at the two thirds stage. That remains the position today.

10. What is the government proposing to do?

To listen to the Prime Minister’s rhetoric, plenty. To read his manifesto, nothing. The changes that are proposed to release provisions relate specifically to offenders who do not receive EDS – the government wants to make it so that a tiny handful of defendants who are possibly a bit-sort-of-dangerous-but-maybe-not will serve two thirds of their sentence before automatic release. So they are not proposing to introduce any further Parole Board oversight of these prisoners – simply to keep them in a bit longer so that Johnson can boast about increasing sentences.

Much of what has been said today by government ministers is completely false. Priti Patel claimed:

This is a lie. The courts had several options to deal with “dangerous terrorists” that would have avoided automatic release. The reason for Khan’s sentence was that the Court of Appeal ruled (to be proved tragically wrong) that Khan’s risk did not require the input of the Parole Board that an IPP would have guaranteed.

Brandon Lewis said, in response to Yvette Cooper getting bogged down in confusion over Leveson’s comment about the Parole Board:

This is a lie. Nowhere has the government proposed in its manifesto to “ensure that people serve their full term”. Likewise Ms Cooper spread misinformation when she suggested that the government’s 2012 reforms had a bearing on the sentence. This, as we’ve seen, is simply untrue.

And, of course, the Prime Minister:

Repeating Lewis’ claim, if this is something Johnson has “long said”, one might ask why ensuring defendants serve the full term of their sentence is not mentioned in the manifesto. If this is such an obvious failing, why not promise to remedy it? Heaven forfend this is ad-hoc, evidence-free electioneering.

11. So where does the blame lie?

Blame is rarely helpful, as with almost all of these cases, the tragedy is multi-causal. Labour introduced automatic release for EPP prisoners in response to its own prisons crisis (caused by its own “tough on crime” rhetoric), but the Coalition government was responsible for the statutory regime at the time of Khan’s case. It’s nonsense to suggest that Labour’s changes in 2005 prevented judges from passing adequate sentences on dangerous offenders; for one, the government had plenty of time until 2012 to amend the sentencing regime it inherited from Labour if it considered it to be so inadequate. The Court of Appeal finds itself in the unusual position of being criticised for being too lenient; almost every criminal law practitioner would tell you that the Court of Appeal is (in)famous for its reluctance to interfere with convictions and sentences, finding sometimes ingenious/disingenuous ways of upholding Crown Court decisions. The judgment appears well-reasoned given the known facts, but hindsight casts it in obvious doubt. For what it’s worth, the Sentencing Guidelines that now exist for terror offences would, on my interpretation of the facts, be likely to lead to a life sentence for Khan were he being sentenced today. And something that has been missed is that since 2015 nobody imprisoned for a terrorism offence is automatically released; in the unlikely event that he is not sentenced to EDS or life imprisonment, the court is required to order him “an offender of particular concern”, meaning that at the halfway point of his sentence he has to apply to the Parole Board for release.

Perhaps the focus, rather than on “tougher sentences”, ought be trained a little closer to the less tabloid-friendly dimension of criminal justice: Prisons and probation have been ravaged by huge cuts and disastrous reforms, meaning that Khan would have likely received little meaningful rehabilitation while in custody. If I were directing an inquest, I’d start there.

***

UPDATE: Overnight, the Prime Minister’s posturing has crystallised into hastily scrawled new policies, announced in op-eds in the Sunday tabloids repeating various untruths dealt with above, including falsely suggesting that we still have the same system as in 2008 and claiming that he has been talking about “abolishing automatic early release” for “four months”, despite not devoting a single word to this is his manifesto, nor making any effort to include this change in the recently enacted Counter Terrorism and Border Security Act 2019, a flagship piece of anti-terror legislation which focussed specifically on sentencing for terrorism offences. He also claimed, with characteristic fidelity to accuracy, that Khan was “sentenced 11 years ago”. Anyway, the overnight brainwave will apparently now herald a minimum 14 year sentence for defendants convicted of (unspecified) terrorism offences, with a suggestion that they will be required to “serve every day of their sentence, with no exceptions.”

As this is likely to run and run today, forgive me if I repeat this: In 2019, no terrorist sentenced to a term of imprisonment is subject to automatic early release. The Prime Minister’s attempts to suggest that we have the same system as applied at the time of Usman Khan’s sentence, and that he is the man to fix it, are dishonest, cynical and exploitative.

“Life means life for child killers” – the truth behind the headlines

There used to be a time, once Chris Grayling had hung up his butcher’s apron at the Ministry of Justice and Theresa May ushered in a quieter, more respectful justice strategy of wanton neglect, that I wrote about something other than Boris Johnson. Unfortunately, the Prime Minister keeps booting the justice football around the pitch with the swagger and fervour he usually reserves for tackling small children, so I feel that the decision is being taken largely out of my hands.

Today, in advance of tonight’s first leadership debate, a raft of Tuff On Crime initiatives have been peppered across the bulletins. We woke up to whole life sentences for child killers, and are ushering in twilight with a guarantee of immediate arrest, charge and court appearance for those carrying knives. Short, snappy policy snackettes that have the advantage of electoral delectability and tabloid acclaim, and only the minor drawback of being entirely pointless and/or unworkable.

As with so many recent announcements on criminal justice, there is a risk that fact-checking the substance only serves to amplify unreliable headlines, but it is worth looking closer at exactly what this “life really will mean life” for “child killers” policy means.

What is the headline policy?

The appeal is obvious. Monsters who murder children should be put away for a very long time indeed. As Justice Secretary Robert Buckland says today, writing in The Sun:

“Any adult who commits the crime of killing a child should spend the rest of his or her life behind bars. It is as simple as that.”

But is it?

Before considering what the Conservatives are actually proposing, let’s look firstly at how the law currently works.

 

What is murder?

The first point to note is that despite the false claim by the Conservative spin machine that the proposed policy targets “child killers”, it doesn’t. It targets child murderers. There are, unpleasant as it undoubtedly is to dwell on, many ways in which people can be unlawfully killed. Unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, causing death by dangerous or careless driving, infanticide, causing or allowing a child or vulnerable adult to die, and murder. These are all discrete legal concepts.

Murder is the most serious. Murder, in law, is where a person unlawfully (i.e. not in self-defence or for any other lawful purpose) kills another person, intending either to kill them or to cause grievous bodily harm (really serious harm, is how it’s explained to juries). That may surprise you. You can be convicted of murder even if you didn’t intend to kill someone.

It follows, in case the point needs making, that, while all murders are serious, some are more serious than others. A distraught mother struggling with severe depression who shakes her child intending to cause really serious harm and unintentionally causes death is in a different category to a predatory paedophile who abducts, tortures and intentionally kills a toddler. Likewise a man who acts in genuine self-defence when attacked but goes overboard and, using unreasonable force, unintentionally kills a burglar is to be distinguished from a gangster who guns down a rival drug dealer. Forgive me labouring the point, but when politicians demand blanket “whole life” sentences for all people convicted of certain broad categories of murder, it is necessary to highlight the obvious injustice that would follow.

And this truism is reflected in how murder is currently sentenced.

 

What is the sentence for murder?

While all offences of murder carry a mandatory life sentence, what a life sentence means can vary. This is because a court has to firstly identify a “minimum term”, which is the minimum period that the defendant will spend in prison before becoming eligible for parole. If a person is deemed safe for release by the Parole Board (the test being whether the Board is satisfied that imprisonment is no longer necessary for the protection of the public), they will be released on “life licence”, with conditions. If at any time it is considered that they are a risk to the public, they can be recalled to prison.

How is the minimum term calculated? Judges must have regard to principles set out in Schedule 21 of the Criminal Justice Act 2003. This provides starting points, and the judge can then move up or down from the starting point to reflect further aggravating or mitigating features.

It’s worth a brief look at the different categories.

 

Whole life orders

We can see that if the court considers that the seriousness of the offence is exceptionally high,and the offender was aged 21 or over, the appropriate starting point is a whole life order – in other words, no prospect of release. There is then a non-exhaustive list of examples of cases that would normally fall within this category, including, multiple sadistic or sexually motivated murders, terrorism, murder of a serving police or prison officer, and, significantly for our purposes, the murder of a child if involving abduction or sexual or sadistic motivation.

30 year starting point

If a defendant is aged 18 or over and the seriousness is not exceptionally high, it may fall into the next bracket down, which provides for a 30 year starting point:

25 year starting point

This category covers cases where the offender took a knife or other weapon (not a firearm – this goes into the 30-year bracket) to the scene of the murder and used it.

15 year starting point

For all murders that do not fall within the other categories, the starting point is 15 years. Unless the defendant is under 18, in which case the starting point is 12 years.

The court then considers the aggravating or mitigating factors which may result in the starting point moving up or down. Critically, the legislation allows for a “minimum term of any length (whatever the starting point), or in the making of a whole life order”  – in other words, even if a murder is not specifically included as an example of a whole life order, the judge still has a discretion if she thinks the seriousness is exceptionally high.

So that, put crudely, is the existing framework. What does the Conservative Party want to do?

 

What does the Conservative Party want to do?

Notwithstanding Robert Buckland’s boast to The Sun above, or his widely reported assertion that:

“any murderer who denies a young, innocent child the right to life surrenders their own right to liberty. They do so permanently, and they do so without exception.”

the truth is that there are a number of exceptions to this new policy, as admitted in the press release. For one, as we have already seen, it applies only to crimes of murder, not to all “child killers”. Many homicide offences which capture public attention do not in fact involve murder, and will not be affected. Secondly, whole life orders will still only be available for offenders aged 21 and over. Thirdly, although Schedule 21 defines a child as a person under 18, this new policy would be more restrictive, applying only to children under 16. Fourthly, only murders which are “premeditated” are caught by the policy. Fifthly, the press release concludes by stating that “the sentencing decision will continue to rest with the judge”. At its height, this policy appears to introduce a presumption that qualifying cases will be met by a whole life order, but this is by no means the automatic, life-means-life that has been sold to the tabloids.

On this final point, it appears that the government has majestically failed to understand how the current system works, as the press release claims, falsely, that:

“The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.”

As we have seen, this is not what Schedule 21 says at all. It in fact expressly states the opposite – just because a type of murder is not listed in the examples of appropriate “whole life” cases does not stop a judge imposing a whole life order if she thinks the seriousness is exceptionally high. So the worst cases of the murder of children, say where an adult defendant commits a premeditated murder of a very young child, are already eligible for whole life orders.

In summary therefore, the Conservative Party either doesn’t understand (or is lying about) the law, and is pushing a policy to give judges a discretion to impose a sentence they can already impose.

 

How many cases will actually be affected?

Perhaps the most important question that has still not been answered by the government is how many cases this policy will actually affect.

The Office of National Statistics has been quoted in news reports as calculating a figure of 67 relevant cases involving the killing of children in 2018, but closer inspection suggests the true figure is much, much smaller. This figure of 67 includes offences of manslaughter and infanticide, not just murder. It includes the terrorist attack in Manchester. It also appears to includes child-on-child killings, which are regrettably common in inner-city inter-gang warfare. There is no apparent way of ascertaining how many of these 67 were murders, how many involved defendants over 21, and how many were premeditated. Nor can the government tell us how many of the cases which did involve the premeditated murder of children by adults in fact resulted in a whole life order anyway, and how many resulted in a minimum term which was unacceptably low.

The actual answer may well be in single figures, if not zero.

Don’t fall for Boris Johnson’s criminal justice con tricks

Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.

The assault on Jack Grealish – is 14 weeks’ imprisonment the right sentence?

I fired off a quick thread last night offering my rough take on yesterday’s conviction and sentence of Paul Mitchell, the Birmingham City supporter who ran onto the pitch during Sunday’s match between Birmingham and Aston Villa and assaulted Villa footballer Jack Grealish. Below are my provisional thoughts.

What were the charges?

Paul Mitchell was charged with battery, contrary to s39 Criminal Justice Act 1988. He was also charged with an offence of encroaching onto a football pitch (presumably s4 Football Offences Act 1991). He pleaded guilty to both offences at his first appearance today before Birmingham Magistrates’ Court, the offences having been committed yesterday. A good live account of today’s court proceedings can be found here.

Why was the case dealt with so quickly?

Many people have remarked on how quickly this case was processed – barely 24 hours between offence and sentence. But this is not unusual where a defendant is arrested, charged with a summary offence (one that can only be tried at the magistrates’ court) and refused police bail. The police have the power to charge this type of battery without needing the Crown Prosecution Service to authorise the charge (see the Director’s Guidance on Charging), so the process is quicker. A defendant charged and kept in police custody will be produced at the magistrates’ court the next day. If a defendant pleads guilty, the court will usually require a Pre-Sentence Report to be prepared by the Probation Service, to make recommendations as to how best deal with the offender. It’s now common for this to be done the same day. Given that the offence was captured from multiple angles by high-definition television cameras, there was little choice but to plead guilty.

What about the sentence? How did the court arrive at 14 weeks? 

Mr Mitchell received 14 weeks’ imprisonment, as well as a 10-year football banning order. He was ordered to pay £100 in compensation to Mr Grealish, £135 in prosecution costs and a mandatory £150 Victim Surcharge.

When assessing sentence, the magistrates are required to follow the Sentencing Guideline for Assault. Here it is:

The maximum sentence for battery is 6 months’ imprisonment. (If injury had been caused, it would likely be charged as causing actual bodily harm, which carries a maximum sentence of 5 years). The maximum sentence for going onto the playing area is a fine.

A defendant who pleads guilty at the earliest opportunity – i.e. at his first appearance – is entitled to one third off his sentence. That applies to all defendants, even where, as in this case, the evidence is overwhelming.

This means that the maximum sentence the magistrates could have passed was 17 weeks.

14 weeks is therefore almost as high as they could go.

Looking at the Guidelines, in order to reach this sentence, the magistrates must have put this case in Category 1. This requires a finding of “Greater Harm” and “Higher Culpability”. On its face, it’s not easy to see how they did this (and without full sentencing remarks, we are somewhat in the dark).

There was no injury, and it was a single blow (rather than a sustained or repeated attack), so the only possible feature of Greater Harm was the particular vulnerability of the victim. It might be argued that as a man going about his job surrounded by tens of thousands of excitable spectators and relatively limited security, Mr Grealish qualifies as particularly vulnerable, although it’s a bit of a stretch.

Similarly, the features of “Higher Culpability” don’t immediately recommend themselves. Arguably there was an intention to cause greater harm than was in fact caused, but a single blow without a weapon makes this a tricky argument. Significant premeditation? Doesn’t look like it, unless Mitchell had told others in advance of his plans. Again, we may be left trying to characterise Mr Grealish as vulnerable to get this box ticked.

As for the other aggravating and mitigating features, there hasn’t been a lot of detail provided. The location and timing of the offence are aggravating features (the victim’s place of work in front of a national audience). We don’t know what the Pre-Sentence Report said about Mr Mitchell’s personal circumstances. We know that he had previous convictions for non-violent offences, but it’s not clear what they were and how relevant they were (whether, for example, they related to football). We know that his solicitor expressed remorse on his behalf, and that Mr Mitchell was a father of one with a second child on the way. How these were all balanced is unclear without knowing the magistrates’ full reasons.

I’m loath to draw any firm conclusions without knowing the magistrates’ reasoning, but on its face, it looks as if there would have had to be a fair bit of creative interpretation to get Mr Mitchell into Category 1 and towards the top end.

There is an alternative explanation. The magistrates made clear the need for deterrent sentencing for this kind of offence, and it may be that they held that, even though the offence would ordinarily fall within Category 2 or 3, the circumstances were such that it was in the interests of justice to move outside the category range on the Guideline and into Category 1. This, I’d guess, would be how they would justify the sentence.

The potential for widespread public disorder, as others have pointed out, may well have been a factor which the court treated as seriously aggravating. Context is everything. Those saying “he wouldn’t have got this for a punch in the street” miss the point. This wasn’t the street. It was a deliberate assault involving trespass onto a playing area, calculated to hurt and humiliate a man lawfully going about his job in front of a stadium of thousands and a television audience of millions. I have little doubt that Mr Mitchell has been treated particularly severely because this was a high profile assault; but he deliberately chose to make it high profile. He selected the location and the occasion. Those are aggravating features.

As ever, this whole exercise involves a fair bit of guesswork, because our justice system still struggles to do basic things such as providing a copy of the sentencing remarks in cases of enormous public interest. But that’s my rough take. A stiff sentence, but probably justifiable.

 

How does this compare to other cases of football spectator violence?

It is difficult and somewhat artificial to compare sentences, but one I’ll mention (because I’ve commented on it before) is the racially aggravated assault on Raheem Sterling. While  taking place outside the training ground rather than on the football pitch, this offence involved a much more serious assault, with repeated kicking (characterised by the Guidelines as using a weapon) which caused bruising, and the use of racist language. The offender was sentenced to 16 weeks’ imprisonment (the maximum sentence for racially aggravated battery is 2 years). I wrote at the time that I thought this sentence, based on the reported facts, was lenient, and this case arguably casts it into even starker relief.

Why is the dangerous Anjem Choudary being released onto our streets?

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.