Monday, 2 December 2019

Usman Khan and Extended sentences

Friday 29 November 2019, on London Bridge, Usman Khan (28) was shot dead by a Police Officer - BBC News 1 December 2019.  Khan was sentenced in 2013 for a Terrorism Offence but was released on licence from prison.

Khan killed two young people - Jack Merritt and Saskia Jones - who were both graduates of the Cambridge University Institute of Criminology . They were attending a conference at Fishmonger's Hall.  

Usman Khan's sentences:

The first sentence - 

On 9 February 2012, at the Crown Court at Woolwich,
Usman Khan (then aged 20) was sentenced by Mr Justice Wilkie for an offence under the Terrorism Act 2006 s.5(1) the maximum sentence for which is life imprisonment. The conduct constituting the offence took place in 2010.

Khan had pleaded guilty to the offence and was sentenced to Detention for Public Protection with a minimum term of 8 years less 408 days on remand - See Wilkie J's sentencing remarks.  (The term Detention was used because Khan was under 21 at the time of sentencing).  A Terrorism notification period of 30 years was applied. (Note: Terrorism notification provisions are in Part 4 of the Counter-Terrorism Act 2008).

Imprisonment (or detention) for Public Protection (IPP) was introduced by the Criminal Justice Act 2003 and was abolished, but not retrospectively, by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Release from this type of sentence was possible after the minimum term but only if the Parole Board considered it to be appropriate. As at 11 November 2019, 2223 prisoners are still serving IPP and nine in 10 of them passed their tariff expiry date. - see Prison Reform Trust 11 November 2019

Second sentence - Court of Appeal -

In March 2013, Khan (and others) appealed their sentences. The appeal was heard by a Court of Appeal comprising Lord Justice Leveson, Mr Justice Mitting and Mr Justice Sweeney - see the Judgment [2013] EWCA Crim 468 as published on Bailii.  For reasons set out in detail in that judgment, the Court of Appeal quashed Khan's earlier sentence and substituted an Extended Sentence of 21 years made up of a custodial term of 16 years and an extension period of 5 years.  (The Terrorism Notification of 30 years was retained). Under this sentence, Khan was released on licence at the halfway point of the custodial term and, at the time, there was no legal requirement for Parole Board involvement - see their Statement. The release on licence - (with appropriate conditions) - was for a period made up of the remainder of the custodial term plus the extension period.

Extended Sentences:

Extended sentences were introduced in April 2005 by Part 5 (Dangerous Offenders) of the Criminal Justice Act 2003 - (see sections 227 and 228 of the the original Act).   Under section 247 of the original CJA 2003 early release involved the Parole Board.

The Criminal Justice and Immigration Act 2008 s.25 altered early release provisions for prisoners on extended sentences.  This was done by amending CJA 2003 s247 so as to remove Parole Board involvement. Release was to be at half the custodial term. This took effect on 14 July 2008.

The Legal Aid, Sentencing and Punishment of Offenders 2012 repealed the original sections 227 and 228 and replaced them with a new form of Extended Determinate Sentence (EDS) to be found in sections 226A and 226B of the Criminal Justice Act 2003 as amended.  This change to the law took effect on 3 December 2012.  [Further changes to s226A and s226B were made by the Counter-Terrorism and Border Security Act 2019 s.9].

Early release in relation to those serving EDS is governed by the Criminal Justice Act 2003 s.246A. This section was inserted into the Criminal Justice Act 2003 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Release involves the Parole Board. The link to s246A appears to be up to date and includes changes made since 2012 - e.g. by the Courts and Justice Act 2015).

Comment:

The Usman Khan case resulted in politicians seeking to place "blame" on their political opponents for the fact that Khan was released - BBC 1 December. It was an unseemly episode when viewed in the light of the deaths of two young people who were dedicating themselves to criminal justice and offender rehabilitation.

Sentencing has become an increasingly complex matter even for those legal professionals versed in navigating the dense undergrowth of statutory provisions. The Law Commission has proposed a Sentencing Code and, prior to the dissolution of Parliament, a Bill was making some progress

The analysis above shows that, after the Court of Appeal decision in 2013, Khan was subject to an Extended sentence from which he could be released without Parole Board involvement. He was able to benefit from the 2008 change in the law which removed Parole Board involvement in this type of sentence. The Parole Board is back in the release process after the 2012 changes.

That does not mean that things will never go wrong. There can be no guarantee that someone released will not re-offend. The best thing politicians could do is ensure that work done with prisoners whilst they are in prison (House of Commons 14 April 2016) and supervision of offenders on licence are as robust as possible.

2 December 2019

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