Last month the sentencing council published revised sentencing guidelines (for consultation only at this stage) to reflect changes brought in by the Counter-Terrorism and Sentencing Act 2021.
Whilst the revised guidelines are not yet in force during the consultation period, I would expect them to take effect shortly thereafter, not least in light of recent events at Liverpool airport and at the constituency surgery of an MP, and the fact that the terrorist threat has been raised to ‘severe’.
The main change brought in by the new 2021 Act was the creation of a serious terrorism sentence. The act provides that where the criteria for a serious terrorism sentence are met the court must impose the serious terrorism sentence of a minimum of 14 years imprisonment unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
The guideline consultation focuses on 4 offences, of which the most serious is the Preparation of Terrorist Acts (Terrorism Act 2006, section 5)
As with all sentencing exercises, the court will be required to determine the offence category by assessing culpability and harm.
Culpability A
This is the highest level of culpability. It would include an offender acting alone, or in a leading role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out.
Culpability B
This covers the situation where an offender was acting alone, or in a leading role, in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out. It might also reflect a Significant role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out. It would also cover situations where the offender has co-ordinated others to take part in terrorist activity, whether in the UK or abroad.
Culpability C
This would cover those said to occupy a leading role in terrorist activity where preparations were not far advanced or a Significant role in terrorist activity where preparations were advanced and, but for apprehension, the activity was likely to have been carried out or Lesser role in terrorist activity where preparations were complete or were so close to completion that, but for apprehension, the activity was very likely to have been carried out.
It would also cover the offender who acquires training or skills for purpose of terrorist activity where the offender provides acts of significant assistance or encouragement of other(s).
Culpability D
This is at the lower end of seriousness where the offender has engaged in very limited preparation for terrorist activity
Harm
Category 1
Caters for the scenario where multiple deaths are risked and very likely to be caused.
Category 2
Where multiple deaths risked but not very likely to be caused but where any death risked and very likely to be caused.
Category 3
Where any death risked but not very likely to be caused, where there is a risk of widespread or serious damage to property or economic interests, where there is a risk of ‘substantial impact upon civic infrastructure’.
The guidelines are presented in tabular form to assist in the sentencing exercise and can be found on the sentencing council website.
For those at the absolute highest end of the sliding scale (Cat 1 Culpability A), the revised guideline sets sentences of Life imprisonment with a range of a minimum term of 30- 40 years.
For those deemed to fall into the criteria for a serious terrorism sentence regime, even those said to be Cat 1 Culpability D (where the range is 10-20 years) under the new provisions, a minimum term of 14 years would apply unless there were exceptional circumstances.
For those at the very lowest end of the sliding scale for this offence, Cat 3D offenders may receive a sentence as low as between 3-6 years custody.
In short, the revised guidelines provide much scope to assist the sentencing Judge reach the correct sentence for each individual offender.
Of course the process is complicated by the fact that many of the terrorism offences are also qualifying offences under the sentencing code which provides for minimum sentences, extended sentences and the like. The court will also be required to consider issues of dangerousness in the usual way.
As with any sentencing exercise, before deciding on the appropriate tariff, the Judge has to consider statutory aggravating factors such as previous convictions, whether the offence was committed whilst on bail, whether the offence was motivated by, or demonstrating hostility based on the victim’s religion, race, disability, sexual orientation or transgender identity. Further aggravating factors might include possession of extremist material, communication with other extremists, use of encrypted devices to assist in the commission of the offence or to avoid detection, attempting to disguise identity to prevent detection, indoctrinating others, failing to respond to warnings or lack of compliance with current court orders or the offence committed on licence.
For balance the Judge also considers any mitigating factors such as previous good character, where the offender was involved through coercion, intimidation or exploitation, where there is evidence of a change of mind set prior to arrest, where the offender’s responsibility is reduced by mental disorder or learning disability, or a lack of maturity where it affects the responsibility of the offender.
The revised guidelines subject to consultation also deals with offences committed under:
- Explosive substances (terrorism only) (Explosive Substances Act 1883, section 2 and section 3)
- Proscribed organisations – membership (Terrorism Act 2000, section 11)
- Proscribed organisations – support (Terrorism Act 2000, section 12)
The consultation period ends on 11 January and I anticipate that the guidelines will be approved and adopted.
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Article written by Matthew Corn
