Jonathan Hall KC gave evidence.

We will now hear oral evidence from Jonathan Hall, the independent reviewer of terrorism legislation, who is joining us via Zoom. For this panel we have until 4.10 pm, so could Members keep an eye on the clock?

Q Good afternoon, Jonathan. We have exchanged questions and answers a few times on Bills in recent years. What measures in this Bill will make our country safer from terrorists?

Jonathan Hall:

There is only one measure that deals with counter-terrorism. It has to do with allowing released terrorist offenders of a certain category to be subject to polygraph measures. In principle, I suggest that polygraph measures for released terrorist offenders are a good thing; there was an evaluation by the Ministry of Justice in October that tends to support that. However, there are some significant reservations about the way the provision is being put before Parliament, which involves—impermissibly, I think—giving the Secretary of State powers that should belong to judges. This is a slightly technical point, but if you will give me a moment, I would like to explain it.

Q I think you expressed reservations about a similar set of circumstances when we were considering another Bill a couple of years ago. Are you saying that the provisions in clause 31, subsections (4) to (6), are insufficient?

Jonathan Hall:

What I am saying is that normally it is for judges to decide whether a person is a terrorist. That is what they do: either someone is convicted of or pleads guilty to a terrorism offence, or the judge makes a special determination that their offence, which could be something like robbery or assault, was done either in the course of terrorism or for the purposes of terrorism. But this clause would allow the Secretary of State to do that exact exercise in relation to people who were convicted pre-2009. You might well have someone coming up for release who went to prison having been convicted of a non-terrorism offence, but now finds themselves converted into a terrorist offender by a decision of the Secretary of State. The view I take is that that is really a function of judges.

In fact, if you look at the wording of the Bill, the Secretary of State will be allowed to be “satisfied”—not beyond reasonable doubt, just satisfied—on exactly the same test that currently applies to judges. There is obviously a fundamental issue there, which I can expand on, but there is also a really practical issue, because what is a terrorism offence is not always very obvious. Can I give you an example, so that this does not sound pie-in-the-sky and theoretical?

Yes, please.

Jonathan Hall:

I do not know whether the Committee recalls the Liverpool Women’s Hospital bombing, but there was a gentleman in 2020 who blew himself up in a taxi, and it looked like a classic terrorist attack. He was a Muslim, although it appeared that he had converted to Christianity, and he had a suicide vest packed with explosives. The police did a two-year investigation—he killed himself, so there was no prosecution—and they concluded that in fact it was not terrorism at all. He was simply affected by a grievance to do with not being granted asylum.

That shows you how difficult it is. I would be really wary about the Secretary of State being allowed to go back in time to look at all these old offences and say, “I decide that this was a terrorism offence.” The Bill does not give a right to be heard to the person who is going to find his conviction converted into a terrorism offence. It does not give the prosecution a right to be heard, which is actually quite important because the prosecution will often understand these things very well. It would allow the Secretary of State, I think, to act on the basis of intelligence that is not even shown. In principle, it seems to me wrong.

This issue has arisen before. I do not know whether the Committee is aware, but you will have people who were convicted of terrorism offences abroad; if they are British nationals, they will perhaps be deported to the UK after they have served their imprisonment. There is a provision in the Counter-Terrorism Act 2008 that allows the chief officer to go to a judge and say, “Look: we think that this person was convicted of a terrorism offence that is the same as a terrorism offence in this country. Can you please certify that that is the case, or can you certify that the offence was committed in the course of terrorism?” If the judge says yes, that allows all the post-release measures—such as polygraph measures, with which this clause is concerned—to be applied. So there is a model that already exists for old foreign offences. Slightly ironically, the power that Parliament is being asked to create here would make the protections available to a domestic offender less than those that apply to a foreign offender.

Q So it may even be challengeable under the law at some future stage. I am looking forward to our line-by-line discussions in Committee, after the evidence that you have just given. Finally, do we need to add any new measures to better manage terrorist offenders on release?

Jonathan Hall:

No, I do not think so at the moment. I am in constant contact with counter-terrorism police and the Home Office. I am not aware that the Government are looking for yet further types of measure; if they were, I think they would have sought to bring them in within this Criminal Justice Bill. All that this particular measure does is allow an existing measure, polygraphs, to be applied to a wider range of people. My beef with that is that it allows it to be applied to people who have never been convicted of terrorism, without it going in front of a judge. So I think that the answer is no.

Q You have made some very important points about cohort and how that is determined, and obviously the risk of a borderline case—or a case where, in fact, a judge may not have found a terrorism offence—being brought into scope. More widely, what is your view on the efficacy of polygraph testing? How useful a tool is it in the detection of risk?

Jonathan Hall:

I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.

Q Can I just stop you there? That intimates that you are suggesting them as a sort of risk assessment tool. How would that have worked as a matter of practice? What flows from this provision that would prevent another Fishmongers’ Hall?

Jonathan Hall:

Let us say that someone is in the community. They could be asked about their daily routine. The most likely outcome is that someone who is subject to a polygraph measure would feel that they have to tell the truth, and the evidence is that people who are subject to polygraphs make admissions. You could say, “Are you in touch with the well-known terrorist Jonathan Hall?”, and the effect of polygraphs tends to be that people go, “Actually, I am,” because they are worried about giving it away through the polygraph measure. That would give counter-terrorism police an amazing source of information to show that, contrary to what that person had been telling his probation officer, he was still in touch with the dangerous terrorist Jonathan Hall. That would allow new licence conditions, for example: if Jonathan Hall lived in a certain part of Birmingham, a licence condition could be imposed that prevented that person from going there.

Q I see. So they accurately temper behaviour, not only in the way the individual responds to the fact of polygraph testing, but in terms of what the police glean from questions that may not go directly to the nature of the offending?

Jonathan Hall:

Yes. You are completely right. This is not about extracting evidence that can be used in a criminal trial; it is about extracting information that is relevant to the management of offenders. If you think about a released terrorist offender who is now serving their sentence in the community, what you want to know is what their pattern of life is, who they are meeting, where they are going and what their objectives are. Are they visiting shops that sell knives, for example? Usman Khan must have gone to a shop to buy knives and tape to create the weapons used to kill two people. There are lots of factual matters that they can be asked about.

One of the benefits of the polygraph, I suppose, is that ultimately it is not covert. While MI5 and the police may have covert monitoring, it would be quite hard for them to put that information to the suspect. If the suspect has made an admission—“Yes, I am going to meet Jonathan Hall, the well-known terrorist,” or “Yes, I am going to visit knife shops”—that can be put to the offender, and you can work on rehabilitating the offender.

That is very helpful. Thank you.

As there are no further questions, I would like to thank the witness for giving evidence.

Sitting suspended.