The Sentencing Council has recently published new guidelines that courts must take into regard when they go through the procedure of sentencing for a range of terrorism offences.
Who will be affected by the new guidelines?
The new guidelines shall apply to all offenders over the age of 18 and cover the following offences:
- Section 5 (Preparation of Terrorist Acts) Terrorism Act 2006
- Section 2 (Causing explosion likely to endanger life or property) Explosive Substances Act 1883
- Section 3 (Attempt to cause explosion, or making or keeping explosive with intent to endanger life or property) Explosive Substances Act 1883
- Section 1 (Encouragement of Terrorism) Terrorism Act 2006
- Section 2 (Dissemination of Terrorist Publication) Terrorism Act 2006
- Section 11 (Membership of proscribed organisation) Terrorism Act 2000
- Section 12 Support for a proscribed organisation) Terrorism Act 2000
- Section 15 (Fundraising) Terrorism Act 2000
- Section 16 (Use and Possession) Terrorism Act 2000
- Section 17 (Funding Arrangements) Terrorism Act 2000
- Section 18 (Money Laundering) Terrorism Act 2000
- Section 38 B (Information about Acts of Terrorism) Terrorism Act 2000
- Section 57 (Possession for Terrorist Purposes) Terrorism Act 2000
- Section 58 (Collection of Terrorist Information) Terrorism Act 2000
When does the guideline come in to force?
These new guidelines will be coming into force in courts on 27 April 2018 and will apply to any case sentenced on or after that date.
Why has a new guideline been issued?
Courts have received limited guidance on the sentencing of these offences up until now, with the majority of it coming from the Court of Appeal in 2016 in respect to sentencing for terrorist act preparation. This guidance has worked well for sentencing preparation offences in the past, but the changing nature of crime necessitates a rethinking of the guidance and the creation of a complete set of standards to address a broader range of offences.
The rules take into account how the terrorist danger is evolving. Terrorist attacks in recent years have used significantly less sophisticated means than in the past.
Motor cars and knives were used in attacks in 2017, which is a departure from the more complex situations addressed by the Court of Appeal when it issued its recommendations for courts. Furthermore, the policy reflects growing worry over the availability of extremist content on the internet, which can lead to people becoming self-radicalized.
The Council had begun work on these guidelines prior to the terrorist attacks of 2017, but due to the evolving nature of the terrorist threat and the growing need for comprehensive guidelines, the process was accelerated.
A public consultation on the draught guidelines was held, and as a result of the feedback received, a number of changes were made. These include :
- Adding high level community orders as an option for the least serious offences within the Encouragement of Terrorism; Membership; Support; Funding; Failure to Disclose Information; and Collection guidelines. This was included after feedback from a number of respondents who suggested that more of the guidelines should include non-custodial sentencing options at the lower end of seriousness, as community based interventions may be more appropriate than short custodial sentences and may better rehabilitate offenders.
- Reducing the top of the sentence range in the Funding and Failure to Disclose Information guidelines to ensure there is ‘headroom’, for a sentencer to sentence outside of the guideline in an exceptional case.
- Adding the aggravating factor of “Deliberate use of encrypted communications or similar technologies to facilitate the commission of the offence and / or avoid or impede detection to several of the guidelines.
- In addition, the Council made a number of changes to each individual guideline. These changes included a change to the harm model of the Preparation of Terrorist Acts, Explosive Substances, Possession for Terrorist Purposes and Collection of Terrorist Information guidelines to include consideration of the likelihood of harm. This change was made in response to a number of comments that the initial draft harm models were too simplistic.
Will sentences increase?
In terms of the influence on sentencing levels, it is likely that some lower-level offences, such as preparing terrorist attacks and making explosive devices, may see increased sentences. These are the types of situations where preparations may be lacking or where an offender may be providing minor assistance to others. The Council determined that, in light of the current climate, where a terrorist act can be planned in a matter of hours, using readily available items such as vehicles as weapons, and online extremist material providing encouragement and inspiration, these lower-level offences are more serious than previously thought.
How we can assist
The sentencing procedure is becoming increasingly complex, but our experienced staff at Levy & Co has a thorough understanding of it.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact our team of criminal defence specialists on: 01376 511819