Sentencing Guidelines

Following on from the last two Monday articles about dealing with terrorism, this week Michael J. Booth QC considers how sentencing should be used as part of the fight against this threat

Strong sentences

As explained in the last two articles, it is counter-productive to a campaign against terrorists to imprison suspects without charge. However, that makes it all the more important to pursue harsh (but not inhumane) sentences against convicted terrorists. This pursues four purposes. They may be a deterrent. One might wonder why prison would be a deterrent for someone who intended killing themselves anyway, but those who believe that martyrdom will take them instantly to Paradise will find that prospect much more glamorous than spending the rest of their days in prison away from the limelight. Strong sentences are more likely to satisfy the public . There is less chance of a public backlash against the wider Muslim population if outrage about terrorist attacks is assuaged by strong sentences on those responsible. It is no answer to say that such backlash would be wrong, however obvious that point. The point is that it might happen and therefore if steps can be taken to avoid that they should be taken. Such sentences must make it impossible for those imprisoned to capitalise on their status or run networks from prison. There must also be potentially substantial discounts for those who provide evidence or information for prosecuting authorities, or whose relatives or friends provide such information with a view to that particular sentence being reduced.

Guidelines

Recent guidelines were given in Regina v Barot, (a case where the defendant planned but did not cause explosions and where his plans as they stood would probably not have caused a severe a loss of life as he wished for). There the Court of Appeal reduced the trial judge's minimum sentence recommendation on a life sentence from 40 years to 30 years. The court took the view that the public was protected when a life sentence was imposed and therefore protection of the public should not influence the length of the minimum term. With respect that is a non sequitur. Fanatical terrorists can still plan and give effect to outrages decades after they are originally sentenced. For terrorist explosions causing loss of life the starting point should be life without parole. For those planning such offences but not actually implementing them a minimum period to be served of 50 years should be the starting point.

Reductions

Mitigating factors in terms of co-operation with the authorities should lead to substantial reductions. For example, before a plot is executed informing on the fellow plotters should lead to a sentence of less than 1/5 that the others will serve. Substantial reduction should also be used to encourage relatives to inform. For example, if you inform on a plot involving your son, your son can expect to serve rather less than half the sentence he would otherwise receive. There should be no real public protection issue here, because people who have informed on others, or whose family have done so, will probably find it difficult to make further terrorist contacts on their release.

Isolation

There should also be strict controls regarding these people even in prison. Mafia convicts would not be allowed to take centre stage during Catholic Mass. The same should apply to convicted so-called religious terrorists. They should be allowed to worship, but not with fellow convicts. Anything which allows them to influence others by example or communication should be prevented. Communications with the outside world would have to be monitored. Whilst this would undoubtedly require derogation from human rights legislation, it is more humane than capital punishment and necessary for the protection of the public. Such prisoners have to understand that so far from being glorious figureheads in prison they will be isolated. Such infringement of civil rights as occurs will be for a small and convicted minority. Well worth it as the price of avoiding widespread imprisonment of people who have not actually been convicted of anything, and the likely backlash against all civil rights which could follow from a massive terrorist outrage.

Like when the Bank of England raises interest rates, a small amount of harsh medicine now will hopefully avoid bucketfuls of the stuff later.

Michael J. Booth QC