Newsletters Criminal Defence 7th Dec 2017

‘Greater Threats to Society’ – The New Draft Guidelines for Terrorism Offences

On 17 October this year the Sentencing Council published both a consultation and new draft guidelines for the sentencing of terrorism offences. The draft comes just over 18 months after the Lord Chief Justice provided detailed guidance for offences under s. 5 of the Terrorism Act 2006 (preparation for terrorist acts) in R v Kahar & Others.

The new draft guidelines deal with nine offences and may provide welcome consistency and clarity to sentencing in terrorism cases. They also mark a shift in attitude towards the preparation of terrorist acts.

In the language of the Sentencing Council’s consultation on the topic, the new guidelines are designed to meet ‘a change from the types of case that were considered… in Kahar’. Kahar dealt with the threat posed by so-called ‘big plot’ cases involving cells of offenders and sophisticated planning. The new guidelines seek to deal with offending seen over the last year, involving ‘far less sophisticated methods, many using motor vehicles, or knives, with devastating effects’.

The guidelines are also intended to offer a new approach to ‘less serious’ offences under s.5 of the 2006 Act; those offences where the offender has offered low level assistance to others, or where a plan to commit an act of terrorism has little or no chance of succeeding.

The consultation sets out in terms that the new guidelines treat this genre of offence as more serious than before – ‘…these offences are more serious then they have previously been perceived. The council believes that our proposals take account of the need to punish and incapacitate to a greater extent in light of the emergence of greater threats to society’.

 The stand-out changes proposed by the draft guidelines are to those s. 5 offences that appeared on the bottom of the scale in Kahar. Kahar identified six levels of offender. The sixth was one ‘who never sets out’ to join a terrorist group or who ‘sets out, but the circumstances are such where it is unlikely that he will go very far, or returns without going far, or has a minor role in relation to intended acts at the lowest end of seriousness in the UK’. Under the guidance in Kahar, an offender at this level would face a range of 21 months to 5 years.

The Sentencing Council’s draft does not precisely fit the levels set out in Kahar. Harm is calculated by reference to whether life is endangered, or the plan involves damage to the economy or ‘civic infrastructure’. Culpability ranges over four levels. At the lowest end of the scale are offenders who have ‘engaged in very limited preparation of terrorist activity’, or offered acts of ‘limited assistance or encouragement to others(s)’. Those offenders will face a higher range of sentence than before: with a starting point of 4 years and a range of 3 to 6 years.

In fact, the new guidelines may amount to a harsher regime than appears at first blush. Level 6 in Kahar considers the position of an offender who intends to join a terrorist group abroad. Under the new guidelines, the lowest category for culpability does not refer to intention to join a terrorist group abroad – that is reserved for a higher bracket.

The lowest category for harm is only engaged where the intended acts do not involve serious damage to property or civic infrastructure. Notwithstanding the fact that it is difficult to imagine a planned act of terrorism that does not involve that type of harm – a Kahar level 6 offender would not be sentenced at the bottom of the new guidelines. Instead, if he had a plan to leave the country and join a terrorist group, however unrealistic that plan was, he might face a significantly higher sentence under the new regime. Indeed, if he had been ‘traveling abroad for terrorist purposes’ he would face sentence under culpability B, which even at the lowest level of harm prescribes a sentence between 8 and 16 years.

At the top end of the scale, the guidance does not change the range prescribed by the Lord Chief. The maximum remains life imprisonment with a minimum term of 40 years. What has changed is the focus on sophistication. The new guidelines do not refer to organisation or complexity. Culpability is phrased instead in terms of how close to fruition the planned acts were. At the top of the range are those plans where ‘preparations are complete or almost complete’. The new guidelines do not explicitly distinguish between a plan made over the course of a few days by someone acting alone, and a sophisticated plot by a terrorist cell.

The draft guidelines respond explicitly to the spate of attacks on British soil over the last year. It is perhaps no surprise that they prescribe a tougher regime.

Rob Dacre

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