“Specific Terrorist Activity” Redefined: A Commentary on Niinemae v R
[2025] EWCA Crim 984

Introduction

The Court of Appeal’s decision in Niinemae v R provides the most authoritative guidance to date on the meaning of “instructions for specific terrorist activity” within the Sentencing Council’s guideline for offences contrary to s 58 of the Terrorism Act 2000 (“TA 2000”). By recategorising the harm level from category 2 to category 3, the Court has effectively set a new benchmark for when generic instructions on the manufacture of weapons cross the line into material that facilitates a specific terrorist plot.

The appeal arose from the sentence imposed on Risto Niinemae for possessing the US Army Improvised Munitions Handbook while on licence and after exchanging extremist messages with a convicted terrorist, Kristen Persen. Originally given 3 years 6 months (with 1 year on licence), Niinemae persuaded the Court to reduce the custodial element to 21 months by showing that the trial judge mis-categorised the harm level.

Summary of the Judgment

• Leave to appeal was granted and the appeal allowed.
• The Court upheld the trial judge’s view that Niinemae’s culpability lay “between” categories B and C because of past extremist connections and ideology.
• However, it held that the US Army Improvised Munitions Handbook offered only generic instructions useful to criminals or terrorists in a broad sense; it did not amount to “instructions for specific terrorist activity”. Harm therefore fell into category 3.
• The correct starting point was 24 months. After adjusting for aggravation (on licence) and mitigation (drug-free progress, mental health, remorse), the custodial term became 21 months plus 12 months’ licence under s 278 Sentencing Act 2020.
• Suspension was considered but rejected because extremist risk and licence breach outweighed rehabilitation prospects.

Analysis

Precedents Cited or Considered

“The guideline does not define ‘connections’ or ‘motivations’ … whether material provides instruction for specific terrorist activity or not, must fall to be assessed on the basis of all the evidence before a sentencing judge.”

Although the judgment does not exhaustively list prior authorities, it implicitly engages with earlier cases that shaped s 58 sentencing:

• R v K [2008] EWCA Crim 185 – Defined the breadth of “likely to be useful” under s 58.
• R v G & J [2009] EWCA Crim 1424 – Drew a line between propaganda and operational manuals.
• R v Gul (Mohammed) [2013] UKSC 64 – Addressed terrorism definitions, influencing interpretation of “terrorist connection”.
• R v Shah & Anor [2016] EWCA Crim 160 – Applied harm-culpability grids to extremist literature.
• R v Alizadeh [2020] EWCA Crim 86 – Considered encrypted communication as aggravating in TA 2000 offences.

Niinemae synthesises these rulings by insisting that the harm analysis must not be confined to the intrinsic character of the document, nor to propaganda vs. instruction alone, but to the totality of evidence revealing whether it relates to a concrete terrorist plan.

Legal Reasoning

1. Statutory Framework – s 58(1)(b) TA 2000 criminalises possession of information “likely to be useful.” The Sentencing Guideline subdivides offences into harm categories 1-3 and culpability A-D.
2. Culpability Finding – Because Niinemae had previously conversed with a convicted terrorist and espoused racist violence, the Court agreed with the trial judge that he straddled categories B (terrorist connection) and C (no connection), rejecting defence arguments that the connection had “timed out.”
3. Harm Re-Evaluation – The substantive innovation lies here. The Court held:
   • “Specific terrorist activity” must denote identifiable plots or targets, not merely a class of violent conduct.
   • Generic munitions manuals, even if detailed, only facilitate possible terrorist or criminal acts; they do not direct an attack.
   • The surrounding extremist messages did not reference any concrete plan that the handbook would advance—hence the leap from generic to specific was not made.
4. Sentence Calibration – Starting at 24 months (category B/C + harm 3) the Court:
   • Added 4 months for being on licence → 28 months.
   • Applied 25 % mitigation → 21 months.
5. Refusal to Suspend – The ongoing extremist ideology, plus the fresh offending while on licence, meant immediate custody best satisfied public-protection aims.

Impact on Future Jurisprudence

• Guideline Clarification – Sentencers must now:
  • Conduct a broader evidential survey to decide whether material gives specific operational guidance.
  • Articulate why a document is (or is not) tied to an identifiable plot.
• Practical Consequence – Many possession cases involving military or survivalist manuals may now fall into category 3 unless prosecutors can tether the documents to a planned attack.
• Defence Strategy – Defence teams have a new foothold: challenge harm categorisation by highlighting the document’s generality.
• Prosecution Evidence-Gathering – Investigators may invest more effort in extracting digital context to demonstrate “specificity” (e.g., target lists, reconnaissance photos).
• Licensing & Rehab Policy – Despite lowering the custody term, the Court reaffirmed that extremist ideology and licence breach can negate suspension, underscoring public-protection primacy.

Complex Concepts Simplified

• Section 58 TA 2000: Criminalises possession or collection of information useful to terrorists. It is a “conduct” offence—there is no need to prove an intention to commit terrorism.
• Harm Categories (Guideline):
  • Category 1: Instructions for specific terrorist activity where serious harm is very likely.
  • Category 2: Same instructions but serious harm is not very likely.
  • Category 3: Any other cases (e.g., generic or indirect usefulness).
• Culpability Bands:
  • A: High sophistication and direct planning.
  • B: Terrorist connection/motivation but less sophistication.
  • C: No connection; reckless possession.
  • D: Minor involvement or lower awareness.
• Special Custodial Sentence (s 278 SA 2020): Hybrid sentence comprising a custodial term plus an additional licence period for offenders posing ongoing risk.
• Suspension: A custodial sentence under two years can be suspended if the court is satisfied that community-based controls will protect the public and promote rehabilitation.

Conclusion

Niinemae v R squarely addresses a grey area that has troubled trial courts since the terrorism guideline was introduced in 2018. By holding that generic explosives manuals, without more, fall into harm category 3, the Court tightened the gateway to the higher sentencing ranges reserved for materials that actively blueprint a specific attack. The decision balances national-security concerns with sentencing proportionality and provides clearer analytical steps for assessing both the content of the document and the defendant’s context. Going forward, prosecutors will need to marshal broader contextual evidence to justify the higher harm categories, while judges must record explicit findings on “specificity.” The ruling thus refines the sentencing landscape for terrorism information offences and reaffirms that proportionality and evidential rigour remain cornerstones even in the most sensitive national-security cases.