Sentencing for TPIM Breach: Harm is Inherently “Very Serious” and Culpability Turns on the Breach, Not Ideology

1. Introduction

Case: TPD, R. v [2026] EWCA Crim 16 (Court of Appeal (Criminal Division), 20 January 2026).
Parties: The appellant (“TPD”) v The Crown.
Context: The appellant pleaded guilty to four counts of breaching a Terrorism Prevention and Investigation Measures (“TPIM”) notice. He appealed both sentence and the imposition of a Serious Crime Prevention Order (“SCPO”).

The case arose against a background of the appellant’s earlier terrorism-related convictions (committed as a teenager), his later release, and the imposition (and renewal) of a TPIM notice with strict measures including residence at approved premises, monitored/limited communications and internet use, GPS monitoring, daily reporting, and (critically for these offences) a prohibition on meeting others without advance Home Office notification except for truly chance encounters that must not be prolonged.

The breaches consisted of four separate meetings (January–February 2025) with two men (O and H), including prolonged walking/talking, viewing content on phones, exchanging phone numbers, and sitting together in a hotel. After the last meeting, the appellant emailed the Home Office seeking to add the two men to his “approved” list, but he did not disclose that multiple meetings had already occurred. The appellant’s father was terminally ill during this period, and the appellant’s applications to spend more time with his family were refused; his father died while the appellant was on remand.

Key issues on appeal: (i) how to assess culpability and harm when sentencing for breach of a TPIM notice in the absence of a specific guideline; (ii) the relevance (if any) of “deradicalisation” or theological mentor progress to culpability/harm; (iii) the treatment of mental health evidence; (iv) whether an SCPO was necessary and proportionate and the scope of appellate review.

2. Summary of the Judgment

The Court of Appeal granted leave but dismissed both appeals. It upheld:

• The sentencing judge’s approach of using the analogous “the CBO guideline” (breach of Criminal Behaviour Order) in the absence of a TPIM-breach guideline;
• The categorisation of the offending as high culpability (repeated/persistent breaches) and high harm (risk of harm assessed as very serious);
• The sentencing judge’s evaluation of psychological evidence, accepting only a limited connection between anxiety/depression and the offending;
• The decision to impose a 3-year SCPO, and confirmed that appellate powers are limited to a review of the Crown Court’s decision under the relevant statutory scheme.

The Court’s central contribution is a structured explanation of why, as a matter of principle, harm/risk of harm from any breach of a TPIM notice must be treated as inherently “very serious” (given the statutory preconditions for issuing/maintaining a TPIM and the sentencing court’s inability to see CLOSED security material), and why culpability is assessed by the nature and persistence of the breach itself rather than by ideological “progress” evidence.

3. Analysis

3.1. Precedents Cited (and Other Authorities Relied Upon)

The judgment did not turn on earlier appellate “case precedents” in the conventional sense; its reasoning is principally anchored in statutory structure and sentencing-guideline methodology. The authorities it expressly relied upon were:

• Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”):
  • Section 2: authority for the Secretary of State to issue a TPIM notice;
  • Section 3: conditions A–E, including Condition C (necessity to protect the public from a risk of terrorism) and Condition D (necessity to prevent/restrict involvement in terrorism-related activity);
  • Section 6(3)(a): the ex parte permission stage test (screening for “obvious flaws”);
  • Section 5: duration/renewal (up to 5 years);
  • Section 11: continuing duty on the Secretary of State to keep Conditions C and D under review.

  Influence: These provisions were used to justify the Court’s core sentencing principle: because TPIMs can only exist while Conditions C/D are reasonably considered necessary (and must be kept under review), any breach occurs in a context where restrictions are maintained to prevent terrorism risk—so sentencing harm/risk is inherently grave.

• “the CBO guideline” (used as an analogy for TPIM-breach sentencing):

  Influence: Provided the framework for assessing culpability and harm where no TPIM-breach guideline exists, including the concept that harm is “caused or was at risk of being caused.”

• Sentencing Council’s General Guideline: Overarching Principles (“the General guideline”):

  Influence: Raised by the appellant to argue that “risk of harm” with no actual harm should normally move down a harm category. The Court rejected applying that approach in the protective-order context.

• Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments (“the Mental Disorders guideline”):

  Influence: Used to frame the limited way in which anxiety/depression could reduce culpability and/or operate as mitigation, depending on the evidence.

• Serious Crime Act 2007, section 24(11), and Serious Crime Act (Appeals under s.24) Order 2008:

  Influence: Defined the appellate standard for SCPO challenges as a restricted “review” (rather than a full merits re-hearing), requiring the appellant to show the Crown Court decision was “wrong” or “unjust because of a serious procedural or other irregularity.”

3.2. Legal Reasoning

(A) The Court’s method: sentencing in the absence of a TPIM-breach guideline

The sentencing judge adopted an analogy to the offence of breach of a Criminal Behaviour Order (same maximum penalty of 5 years). The Court of Appeal endorsed this approach: for “protective order” breaches, culpability and harm can be translated across because the wrongdoing consists in defying court/State-imposed restrictions designed to prevent future serious harm.

(B) Culpability: determined by the breach conduct—not by ideological “progress”

The Court drew a sharp line between:

• Culpability: assessed by the nature of the breach—whether brief/one-off/near reasonable excuse versus repeated/persistent.
• Mitigation: reasons for breach and surrounding personal circumstances (which may reduce sentence even where culpability is high).

Critically, the Court rejected the submission that theological progress (e.g., positive reports from a Theological Intervention Provider) can reduce culpability for breach. The Court reasoned that the offence is the deliberate breach of a known restriction. The “relevant intention” is an intent to breach the order, not an intent to commit terrorist acts. Progress evidence may inform mitigation (character, prospects, context), but it does not change whether the breaches were deliberate and repeated.

(C) Mental health evidence: limited nexus, fact-sensitive, and not exculpatory

The Court approved the sentencing judge’s conclusion that there was “some, albeit limited” connection between the appellant’s depression/anxiety and the offending. The decisive points were:

• The expert evidence did not suggest the appellant failed to understand the TPIM requirements or lacked capacity to appreciate that meeting O/H breached them;
• The appellant’s later email to the Home Office (seeking approval) demonstrated understanding of the notification requirement—supporting the inference that the breaches were not driven by incapacity to comprehend the rules.

(D) Harm: any TPIM breach inherently exposes the public to a “very serious” terrorism risk

This is the judgment’s most significant point of principle.

The Court reasoned as follows:

1. A TPIM notice can only be issued if the statutory conditions are met—especially Condition C (necessary to protect the public from a risk of terrorism) and Condition D (necessary to prevent/restrict involvement in terrorism-related activity).
2. While the TPIM is in force, the Secretary of State must continuously review whether Conditions C/D remain met (section 11).
3. Therefore, at the time of any breach during the notice’s operation, the legal premise must be that the notice and its measures are being maintained because they remain necessary to address terrorism risk.
4. A sentencing court will not see the OPEN and especially the CLOSED material underpinning the TPIM decision, and cannot “grade” terrorism risk with any confidence.
5. Accordingly, sentencing courts must proceed on the basis that any breach of a TPIM measure exposes the public to a risk of terrorist activity, and thus the harm/risk of harm is “bound to be very serious.”

On that footing, the Court also rejected reliance on the “risk vs actual harm” passage in the General guideline to move down a harm category. For protective orders, the raison d’être is preventing anticipated harm, and the analogous breach guidelines explicitly treat harm as what “was at risk of being caused” as well as what was caused. The Court added a practical point: if actual harm had occurred, a substantive offence would likely have been charged.

(E) Theological mentor reports and harm: not a backdoor TPIM review

The Court held that theological intervention evidence does not influence the sentencing court’s assessment of harm in TPIM breach. To do so would risk converting sentencing into an indirect merits review of the Secretary of State’s TPIM decision—yet TPIM review is for the High Court, on judicial review grounds, with access to OPEN/CLOSED material. While such reports may be relevant to the Secretary of State’s continuing review duty under section 11, they do not enable a sentencing court to discount the inherently serious risk that the TPIM regime presupposes.

(F) SCPO appeal: limited appellate review

The Court disposed of the SCPO appeal succinctly, emphasising that the appellate function is a limited “review” under section 24(11) of the Serious Crime Act 2007 and the Serious Crime Act (Appeals under s.24) Order 2008. Given the revocation of the TPIM while the appellant was on remand, and the judge’s finding that the SCPO was necessary and proportionate to protect the public, the decision was neither wrong nor unjust by procedural irregularity.

3.3. Impact

• Sentencing baseline for TPIM breaches: The decision establishes a clear approach that, while a TPIM is maintained, the harm/risk of harm from any breach must be treated as very serious, because the statutory conditions for TPIM issuance/continuation are themselves risk-based and security-informed.
• Limits on mitigation re-framed as culpability/harm arguments: Offenders may rely on progress/deradicalisation to mitigate, but cannot recast it as lower culpability or lower harm. This narrows the scope for arguments that attempt to “re-litigate” the underlying necessity of TPIM measures through sentencing.
• Practical guidance for courts using analogies: The judgment endorses transferring culpability factors from other protective-order breach guidelines (including Sexual Harm Prevention Order breach) and explains why “actual harm vs risk” distinctions will often be inappropriate where the offence is the breach of a protective regime.
• Security-sensitive institutional competence: The Court’s insistence that sentencing courts cannot grade terrorism risk (given CLOSED material) is likely to shape future TPIM-breach sentencing by discouraging granular “risk calibration” exercises based on partial evidence.

4. Complex Concepts Simplified

• TPIM notice: A civil preventative order imposed by the Home Secretary (with High Court permission) on someone assessed as posing a terrorism-related risk, allowing stringent restrictions (movement, association, communications) to manage that risk.
• OPEN vs CLOSED material: “OPEN” material is disclosed in ordinary court processes. “CLOSED” material contains sensitive intelligence and is not disclosed to the subject; special procedures apply. The sentencing court typically will not have access to CLOSED material.
• Culpability vs Mitigation: Culpability concerns how blameworthy the conduct is (e.g., repeated deliberate breaches). Mitigation concerns personal/contextual factors that may justify reducing punishment (e.g., bereavement, mental health), even if culpability remains high.
• Protective-order breach and “harm”: For orders designed to prevent future harm, “harm” in sentencing includes the harm risked by breaching the restrictions, not only harm that actually happened.
• SCPO and “review” on appeal: An SCPO is a preventative civil order available in criminal proceedings to restrict involvement in serious crime. On appeal, the Court of Appeal does not simply re-decide proportionality afresh; it reviews whether the Crown Court’s decision was wrong or procedurally unjust.

5. Conclusion

TPD, R. v provides important appellate guidance on sentencing for breach of a TPIM notice. It crystallises two principles: (1) harm/risk of harm from TPIM breach is inherently “very serious” because TPIMs exist only where restrictions are maintained as necessary to manage terrorism risk; and (2) culpability is determined by the breach behaviour itself, not by the offender’s ideological trajectory, though such evidence may still mitigate. The judgment also reinforces institutional boundaries: sentencing is not a surrogate forum for revisiting the security rationale for a TPIM, and SCPO challenges are constrained by a limited appellate review standard.