Usman Khan and sentencing terror offences
On Friday 29 November 2019 a terrorist attack took place on London Bridge in which two people were killed. The attacker, subsequently identified as Usman Khan, was also shot dead at the scene by the Metropolitan Police.
In the aftermath of the attack it emerged that Khan had a previous conviction for offences relating to terrorism. This has led to debate over how people in the UK are sentenced for terror offences and in particular over how the previous sentencing of Khan himself was handled.
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Khan, along with eight others, was arrested in December 2010. Some in the group were implicated in a plan to blow up the London Stock Exchange, but a case against Khan relating to that plot was never pursued.
In January 2012 Khan pleaded guilty to “engaging in conduct in preparation for acts of terrorism”. He and three others admitted to planning to build a madrasah in Kashmir, making it available to men who wished to fight and providing firearms training. They said they “did not intend to participate in an act of terrorism in the UK in the immediate future”, although they admitted that some of the men trained in Kashmir might wish to return to the UK.
In February he was then sentenced to Detention for Public Protection (known as a DPP). DPPs (the youth equivalent of something known as Imprisonment for Public Protection—or IPP) were introduced in 2005 following the Criminal Justice Act of 2003, under the Labour government. They are a type of sentence known as an “indeterminate sentence”. Under these sentences a prisoner in England and Wales can be held indefinitely until the Parole Board is satisfied that they can be safely managed in the community.
Under this type of sentence he received a minimum prison term of eight years. Any time he’d spent on remand since 2010 was counted towards this sentence. He, along with the eight others, would then have had to make sure the police were kept regularly informed of where they were staying and whether or not they left the country after release for a period of 30 years from sentencing.
So it’s incorrect to say as Boris Johnson does in an article in the Daily Mail that Khan was sentenced 11 years ago under 2008 legislation. He was sentenced over seven years ago under laws first passed in 2003 (and which came into force in 2005).
There were criticisms of the system, including that it led to overcrowding in prisons, putting pressure on the prison system and the Parole Board, and that the provisions were too broad meaning less serious offenders were caught up in it as well as more serious ones. The European Court of Human Rights also found that IPPs were a violation of the right to liberty and security.
Following this and other legal actions, IPPs and DPPs were effectively abolished by the Coalition government in 2012. The abolition did not take retrospective effect, so offenders who had been previously sentenced under the old laws, including Khan, continued to serve the old type of sentence they were given.
Khan, along with all the others found guilty, appealed against his sentence in April 2013. He and several others appealed primarily because when they were originally sentenced the judge decided that they were more of a risk to the public than those in the group who had planned to blow up the London Stock Exchange.
On this basis the appeal judges decided that, rather than imposing an indeterminate sentence, those not involved in the Stock Exchange plan should be sentenced on the same grounds as the others and receive determinate sentences (in other words, that they could not be held indefinitely).
Following this appeal, Khan received an extended sentence of 21 years with a custodial term of 16 years and an extended licence of 5 years (the maximum that could be given).
Extended sentences typically include a custodial sentence (time spent in prison) and a period on licence in the community. The different types of extended sentences available have changed a lot over the years. Khan received the version that would have been available to the judge at the time of his conviction in 2012, rather than the one available during his appeal in 2013. This was an Extended Sentence for Public Protection (an EPP, also introduced in 2005 following 2003 legislation).
Khan was then released on licence in December 2018.
This was at the halfway point of his sentence (including time spent on remand before his conviction in 2012). Under an EPP (if you were sentenced after 14 July 2008) you can be released automatically after serving half your sentence in custody, the rest is then added to the time spent on licence. EPP sentences were themselves abolished for people convicted on or after 3 December 2012.
The Parole Board themselves released a statement saying: “The Parole Board can confirm it had no involvement with the release of the individual identified as the attacker, who appears to have been released automatically on licence (as required by law), without ever being referred to the Board.”
It has been claimed by Home Secretary Priti Patel that the Parole Board played no role due to the fact the Labour party changed the law in 2008.
It is correct that the requirement to have the Parole Board sign off on the release of prisoners serving an extended sentence once they reach the halfway point was abolished in 2008 when Labour were in government.
She was incorrect to suggest in another tweet that this 2008 change meant that all “dangerous terrorists had to be automatically released after half of their jail term”. This change only related to extended sentences, rather than the indeterminate sentence which Khan previously received. Both the original judge and the appeal judges had the option of giving Khan a sentence that would not have seen him automatically released at the halfway point, as indeed the original judge did.
Some, including Labour’s Yvette Cooper, have said that the appeal judges said the Parole Board should be involved in the decision to release Khan. In summarising Khan’s previous sentence on appeal the judge did say:
“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.”
But it has been argued by some, such as the Secret Barrister blog, that the judge was weighing up the competing arguments for different sentences before settling on an EPP.
What’s happened to the law since?
On the Andrew Marr show, Shami Chakrabati claimed that life sentences are still available for those convicted of terrorist offences. That’s correct, it is possible to receive a life sentence for some convictions relating to terrorism.
As we’ve already mentioned the type of sentences Khan received have since been abolished. The government introduced Extended Determinate Sentences in December 2012. Under these types of sentence an offender can only be released once two thirds of the sentence had been served. They can also be given a certain period of time on licence afterwards—up to eight years depending on the type of offence.
If the sentence was for less than 10 years in prison and began before 13 April 2015 then this release can be automatic. If it was for more than 10 years or the offender was sentenced after that date then it is the decision of the Parole Board whether you are released or not, someone in that situation would only be automatically released at the end of their custodial sentence.
If this all sounds complicated, it’s because it is. The Law Commission, the independent body charged with making sure that the law is “as fair, modern, simple and as cost-effective as possible” has reported that: “The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers.” They say that: “This undermines public confidence in sentencing and costs a great deal of public money to rectify on appeal.”
We would like to thank Harry O'Sullivan, a barrister at Goldsmith Chambers, for his help in reviewing this article. Full Fact is responsible for the final text.
Correction 9 January 2020
We corrected the spelling of Harry O'Sullivan's surname.