Some human rights lawyers have warned that emergency legislation to prevent automatic early release of convicted terrorists – confirmed by Boris Johnson at Prime Minister’s Questions today – may be unlawful and will be challenged in the courts. But the warning should not deter Parliament from enacting this legislation. It is for Parliament, not the courts, to decide how best to protect the public and how to treat convicted terrorists fairly.
In the wake of Sunday’s terrorist attack in Streatham, attention has rightly turned to the scandal of automatic early release of highly dangerous terrorists. Sudesh Amman, the Streatham attacker, had been released from custody in late January, having served half his sentence of three years and four months. While known to be highly dangerous, the Criminal Justice Act 2003 required his automatic early release; neither the parole board nor the government were able to prevent it.
The proposed legislation would ensure that this is a thing of the past and that convicted terrorists are not released automatically on expiry of half their sentence. Instead, they would be required to serve two-thirds of their sentence, at which point they will be eligible for parole. Convicted terrorists would be released before serving the full term of their sentence only if the parole board determines they pose no risk to the public. This change is intended to apply to terrorists already convicted and sentenced but yet to be released. This is vital, the government says, to protect the public from further attacks.
Ending automatic early release, including for terrorists otherwise soon to be released, is obviously sensible. But where lies the risk of legal challenge?
The claim is that changing the law to prevent automatic release of convicted terrorists is retrospective punishment, which is contrary to common law principle and, especially, to Article seven of the European Convention on Human Rights (ECHR).