The Sentencing Council has today published new guidelines that courts must have regard to when sentencing for a range of terrorism offences.
Who Will Be Affected by the New Guidelines?
The guidelines 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
• Section11 (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 38B (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 into Force?
The guidelines will come 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?
Up until now, courts have had limited guidance on the sentencing of these offences, mainly comprising guidance issued by the Court of Appeal in 2016 in relation to sentencing for the preparation of terrorist acts. This guidance has worked effectively for sentencing preparation offences up until now, but the changing nature of offending requires that the guidance be reconsidered, and that a comprehensive package of guidelines be produced to cover a wider number of offences.
The guidelines reflect the developing nature of the terrorist threat. Some of the acts of terrorism seen in recent times have involved far less sophisticated methods than has previously been the case.
Attacks in 2017 involved motor vehicles and knives, which mark a change from the more complex kinds of cases that were considered by the Court of Appeal when it produced its guidance for courts. As well as this, the guideline reflects increasing concern about the availability of extremist material online, which can lead to people becoming self-radicalised.
The Council had already started work started on developing these guidelines before the terrorist attacks that took place in 2017, but due to the changing nature of the terrorist threat and the increasing need for comprehensive guidelines, production of the guidelines was accelerated.
The draft guidelines were subject to a public consultation and a number of changes were made as a result of the feedback received. 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 impact on sentencing levels, it is likely that in relation to some offences, such as the offences of preparing terrorist acts and building explosive devices, there will be increases in sentence for lower level offences. These are the kinds of situations where preparations might not be as well developed or an offender may be offering a small amount of assistance to others. The Council decided that, when considering these actions in the current climate, where a terrorist act could 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, these lower-level offences are more serious than they have previously been perceived.
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