Newsletters Criminal Defence 13th Apr 2018

Sentencing Guideline: Terrorism Offences

In July 2005, following the murder of 52 people on the London Underground, the then Prime Minister Tony Blair, declared that the “rules of the game” were to change. Over a decade later and following the implementation of numerous pieces of anti-terrorism legislation to meet the increasingly varied nature of offences, the Sentencing Council has finally published definitive guidelines for the sentencing of terrorism offences.

Sentencing Council Chairman Lord Justice Treacy stated, “Terrorist offences are among the most serious offences that come before the courts. Offending can include an extremist cell plotting a deadly attack on the public, someone trying to make a bomb or another recruiting for a terrorist organisation. As well as the threat to people’s lives, terrorist activity threatens the way our society operates. These threats have evolved and we are ensuring that courts have comprehensive guidance to help them sentence offenders appropriately so that they are properly punished and their activities are disrupted”.

The guidelines apply to all offenders aged 18 and older who are sentenced on or after 27 April 2018, regardless of the date of the offence. The comprehensive guidelines recognise the changing nature of the terrorist threat. They cover a wide range of terrorism offences including the preparation of terrorist attacks, causing or attempting to cause an explosion, collecting or sharing extremist material, raising funds for terrorism, glorifying terrorist attacks, failing to disclose information about terrorist acts and joining or supporting a banned organisation.

In the absence of definitive guidelines, sentencing courts have sought guidance from the Court of Appeal guideline case of R v Kahar (Mohammed Abdul) and others [2016] EWCA Crim 568. The case concerned the consolidated appeals against sentence of individuals convicted of offences contrary to section 5 of the Terrorism Act 2006. The appeals were heard by a five-judge court including the then Lord Chief Justice, Lord Thomas. In broad terms the 5 levels of offending categories identified by the Court are reflected in the Definitive Guideline. However, given that Kahar dealt primarily with the sentencing of offences contrary to section 5 of the Terrorism Act 2006 (preparation of terrorist acts), any guidance extrapolated from Kahar was inevitably limited.

As a consequence, there has been a lack of consistency and transparency in the sentences imposed for terrorist offences. In particular, offences involving the encouragement of terrorism (contrary to section 1 of the Terrorism Act 2006) and dissemination (contrary to section 2 of the Terrorism Act 2006), have to date resulted in significant disparities of sentence. Whilst the maximum sentence for these particular offences is 7 years, the Definitive Guideline now affords all parties to the sentencing exercise clearly defined parameters within which to focus submissions and frame the evidential matrix.

In so far as the overall impact on sentencing levels is concerned, the likelihood is that, in relation to some offences, such as those concerned with the preparation of terrorist acts and building explosive devices, there will be significant increases in sentence for relatively low-level involvement. These are the kind of circumstances where preparations may not be well advanced or an offender may be offering a small amount of assistance to others. This approach reflects the current concern that terrorist acts can be planned in a very short time period using readily available items (such as vehicles as weapons) combined with online extremist material providing encouragement and inspiration. In the wake of both the Westminster and London Bridge attacks, the Council has plainly taken the view that even relatively low-level involvement must be viewed as being serious, thereby attracting a greater sentence.

The new sentencing regime ushered in by the publishing of the Guideline offers no great surprises. The sentencing framework reflects public concern of the perceived terrorist threat and, in the wake of attacks such as that at the Manchester Arena, affords the court powers to impose greater sentences for offences that were hitherto perceived as being relatively low-level. More importantly, the Guideline will now allow those who act in such cases to advise with greater certainty as to the likely sentence that will be imposed. In short, the clarity is to be welcomed and the sentencing regime will be harsher.

Naeem Mian QC

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