The Sentencing Council is consulting on revised sentencing guidelines for several terrorism offences. This is on the face of it a surprising move given that a definitive guideline was only recently implemented.
The main legislative changes impacting the guidelines include increases to the statutory maximum sentences for some offences, and an expansion of some offences.
As a result of the increases to statutory maximum sentences, the Council is proposing consequential increases for the most serious examples of offending.
The main changes
The main changes include:
- Amendment to the culpability factors in the Proscribed Organisations – Support (section 12 Terrorism Act 2000) guideline to provide for offenders convicted of the new section 12(1A) offence of expressing supportive views for a proscribed organisation, reckless as to whether others will be encouraged to support it;
- Amendment to the culpability factors in the Collection of Terrorist Information (section 58 Terrorism Act 2000) guideline to provide for offenders convicted of the new offence of viewing/streaming terrorist information over the internet;
- Changes to the sentencing tables in the Encouragement of Terrorism (ss1 and 2 Terrorism Act 2006); Failure to Disclose Information About Acts of Terrorism (s38B Terrorism Act 2000), and Collection of Terrorist Information (s58 Terrorism Act 2000) guidelines to reflect the changes to the statutory maximum sentences;
- Additional guidance added to the Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Membership (section 11 Terrorism Act 2000); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as Terrorism offences guideline, consultation 2 these offences now fall within scope for sentences for offenders of particular concern;
- Additional guidance added to the Preparation of Terrorist Act (s5 Terrorism Act 2006); Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as the new legislation made these ‘specified terrorism offences’ for which extended determinate sentences would apply.
In addition, the Council has chosen to make some minor changes to the Funding guideline to assist Judges to sentence cases where either the offender had knowledge that the money or property would or may be used for terrorism, or where the offender did not know or suspect that the money would or may be used for terrorism. This is an issue that has been raised in case law recently and so the Council has chosen to take this opportunity to assist sentencers by providing greater guidance.
What will be the impact on sentence length?
Overall, under the draft guideline, sentences are anticipated to increase in some cases, however any increase in sentence lengths will be a result of the recent legislative changes, rather than the guideline. The revised sentencing guideline therefore aims to ensure that future sentencing for terrorism offences is in line with the intention of Parliament when it increased the maximum penalties for some of these offences, while at the same time ensuring consistency of sentencing for these offences.
As ever, we will remain vigilant and ensure that all guidance is properly adhered to. As the sentencing process becomes ever more complex our advocates are careful to guard against inadvertent error.
The new guidelines are expected to come in to force around April 2020.
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The Manchester Arena bombing, the London Bridge attack, Shamima Begum. These are some examples of terrorism headlines in the past few years.
The Counter-Terrorism and Border Security Act 2019 is the Government’s latest answer to curbing and punishing terrorist activity. The Act creates new terrorism offences, changes some old ones, and increases the maximum sentence for many existing ones. The new provisions came in to force on 12 April 2019. They apply to offences committed on or after that date.
Expression of Support for Proscribed Organisations
This new offence covers a situation where a person expresses an opinion or belief that supports a proscribed organisation and is reckless as to whether the person listening will be encouraged to support it.
This is explained as plugging a gap expressed by the Court of Appeal in Anjem Choudary’s case; that it was not unlawful to support a proscribed organisation, or to express those views.
It was an offence to actually and intentionally invite support for them.
Doubtless there will be free speech challenges to this new provision under Article 10 of the European Convention on Human Rights. The Court in Choudary ruled that the existing offence of inviting support did not breach Article 10. This was because it did not restrict the expression of views.
Publication of Images and Seizure of Articles
This creates an offence of publishing images, including videos, of prohibited clothing/articles (usually flags or banners) in circumstance where it arouses a reasonable suspicion that the person is a member of a prohibited group.
It covers situations where the image itself may be very good evidence of the person wearing or displaying an article, but no offence is committed because they are not in a public place in the photograph.
The photograph itself can reach a wide audience (for example via social media) similar to being in a public place. However, this was not an offence up to now.
Obtaining or Viewing Material over the Internet
This makes it an offence to simply view, on top of actually download/record, information likely to be useful to a terrorist attack. It also clarifies that the existing provisions do indeed include downloading information.
There is a defence if a person can show a reasonable excuse, for example a journalist researching a story.
This offence may also face legal challenge based on free speech and freedom of expression.
Entering or Remaining in a Designated Area
This section is expressly to deal with “foreign fighters” that leave the UK for places such as Syria in order to fight for proscribed organisations such as IS.
The Secretary of State can make regulations designating areas outside the UK, where he is satisfied it is necessary in order to protect the public from threats of terrorism.
It would then become an offence for UK nationals or residents to go to, or remain in, any of those designated places, subject to a one-month grace period and exceptions for people such as diplomats or armed forces, and other reasons such international aid work or to visit a terminally ill relative.
It is also a defence to enter involuntarily.
The Secretary of State must keep any designation under review, and in any event a designation lapses after three years.
Encouraging Terrorism and Dissemination of Terrorist Publications
This section amends the current sections 1 and 2 of the Terrorism Act 2006.
It removes the requirement that statements or publications made are likely to be understood by those at whom they are directed. Instead, the test is whether they are likely to be understood by the reasonable person.
This means that the offence will now cover situations where statements or publications are made towards children or those who do not have the capacity to understand the remarks made.
Sentences for Terrorism Offences
The maximum sentence for some terrorism offences are increased. They are:
- Failure to disclose information about terrorism: doubled to ten years.
- Collection of information likely to be useful to a terrorist: increased from ten to 15 years.
- Eliciting, collecting or publishing information about the armed forces likely to be useful to a terrorist: increased from ten to 15 years.
- Encouragement of terrorism: more than doubled from seven to 15 years.
- Dissemination of terrorist publications: more than doubled from seven to 15 years.
Existing sentencing guidance will need to be reviewed in light of these changes.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch with. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.Read More