Overview

The Need for Further Changes to the Terrorism Guidelines

In March 2018 the Sentencing Council published the first package of terrorism sentencing guidelines. They came into force on 27 April 2018 and covered the following offences:

• Preparation of Terrorist Acts (Terrorism Act 2006, section 5)
• Explosive Substances (Terrorism Only) (Explosive Substances Act 1883, section 2 and section 3)
• Encouragement of Terrorism (Terrorism Act 2006, sections 1 and 2)
• Proscribed Organisations – Membership (Terrorism Act 2000, section 11)
• Proscribed Organisations – Support (Terrorism Act 2000, section 12)
• Funding Terrorism (Terrorism Act 2000, sections 15 - 18)
• Failure to Disclose Information about Acts (Terrorism Act 2000, section 38B)
• Possession for Terrorist Purposes (Terrorism Act 2000, section 57)
• Collection of Terrorist Information (Terrorism Act 2000, section 58)

On 12 February 2019, less than a year after the new guidelines came into effect, the Counter - terrorism and Border Security Act 2019 received Royal Assent. This Act made significant changes to terrorism legislation, some of which affected the guidelines listed above. The Council therefore sought to amend the relevant guidelines to ensure that they took account of the new legislation.

2019 Consultation

In October 2019 the Council published a consultation paper seeking views on amendments to some of the guidelines to reflect the new legislation. The changes were as follows:

• Changes to the culpability factors within the Proscribed Organisations – Support (Terrorism Act 2000, section 12) guideline to provide for a new offence (section 12A), of expressing an opinion or belief supportive of a proscribed organisation, reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.

• Changes to the wording in the culpability factors of the Collection of Terrorist Information (Terrorism Act 2000, section 58) guideline to account for changes in legislation which ensure that offenders who stream terrorist material (as opposed to downloading or physically being in possession of it) would be captured by the offence.

• In addition, changes were proposed to the sentence levels within the following guidelines to reflect an increase to the statutory maximum sentences:

• Collection of Terrorist Information (Terrorism Act 2000, section 58). From 10 years to 15 years.
• Encouragement of Terrorism (Terrorism Act 2006, sections 1 and 2). From 7 years to 15 years.
• Failure to Disclose Information About Acts of Terrorism (Terrorism Act 2000, section 38B). From 5 years to 10 years.

• Finally, an additional aggravating and mitigating factor was added to the funding guideline, not as a result of a change in legislation but as a result of case law. The new factors were aimed at addressing the extent to which an offender knew or suspected that the funds would or may be used for terrorist purposes.

The Terrorism (revised guidelines) consultation closed on 3 December 2019. 13 responses were received. The Council considered the issues from consultation in December 2019 and again in March 2020 and drafted some further changes in light of the responses received.

However, the Council was by this time aware that further terrorism legislation was about to be introduced which would have a significant impact on the guidelines. For this reason, the Council chose to pause the publication of the revised guidelines to await this new legislation.

In May 2020 the Counter–Terrorism and Sentencing Bill was introduced. At the end of April 2021, the Bill received Royal Assent and subsequently came into force.   

It is proposed that the 2019 revised guidelines will be published alongside the revisions made under this consultation process.

The Current Project

The Council has now had the opportunity to consider the Counter–Terrorism and Sentencing Act 2021 and how it affects the terrorism sentencing guidelines.

This consultation proposes changes to accommodate the legislation and seeks views on those proposals. The consultation makes proposals for changes to the following guidelines:

• Preparation of Terrorist Acts (Terrorism Act 2006, section 5)
• 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)

In addition, the Council is seeking views on two further areas:

• Proposed changes to the Preparation of Terrorist Acts and Explosive Substances guidelines to provide assistance to judges in assessing the culpability and harm of a case that has Law Enforcement Authority involvement to the extent that the terrorist act was unlikely to ever take place.
• Whether the life sentence minimum terms that are included in the existing sentence table of the Preparation of Terrorist Acts and Explosive Substance (terrorism only) guidelines are compatible with case law and any forthcoming legislation.

Publication of All Guidelines

It is proposed that at the conclusion of this consultation, the Council will consider the responses and make any further changes required to this package of guidelines. Once that work is completed a package of up to date terrorism guidelines will be published which will incorporate both the 2019 revisions and the revisions made under this consultation process.

A consultation response document will also be published alongside the guidelines which will incorporate both the 2019 changes and these changes.

What happens next

Following the conclusion of this consultation exercise, a response will be published at: www.sentencingcouncil.org.uk