Factual and Procedural Background
This appeal concerns the sentence imposed by the Crown Court in Belfast following the Appellant's guilty pleas to six counts on a Bill of Indictment involving four defendants: the Appellant, Defendant A, Defendant B, and Defendant C.
Prior to the Appellant's arrest, surveillance was conducted including recordings of conversations between the Appellant and Defendant A over several months from November 2011 to March 2012. On 30 March 2012, surveillance officers observed the Appellant and co-defendants at a woodland area where gunfire was heard for approximately 40 minutes. Physical evidence consistent with firearm use was recovered, including DNA profiles matching the Appellant and Defendant A.
The Appellant pleaded guilty to counts related to possession of a firearm in suspicious circumstances, attending a place used for terrorist training, and preparation for terrorist acts, all stemming from the events at the woodland. Other counts related to collecting personal details of a prison service governor, organizing a terrorist training event, and possession of blank firing guns associated with terrorist training. The Appellant admitted involvement in these activities based on agreed facts.
The Appellant had a significant previous conviction for attempted murder and related terrorist offences, for which he was sentenced to 24 years imprisonment and released under the early release scheme of the Good Friday Agreement. At the time of the instant offences, he remained subject to licence conditions.
The Crown Court sentenced the Appellant to an indeterminate custodial sentence with a minimum term of five years on certain counts and imposed extended custodial sentences with extended licences on others concurrently.
Legal Issues Presented
- Whether the learned trial judge erred in assessing the Appellant as dangerous and justifying the imposition of an indeterminate custodial sentence on Counts 2, 10, and 18.
- Whether the extended custodial sentences imposed on Counts 3, 4, and 7 were lawful given those counts were not specified offences under the relevant legislation.
- Whether the learned trial judge failed to properly consider evidence of the Appellant's change of attitude and reduced risk of reoffending.
- Whether the risk assessment for imposing an indeterminate custodial sentence should be based on the Appellant’s risk at the time of sentencing or on release from custody.
Arguments of the Parties
Appellant's Arguments
- The learned trial judge made a material error of law and fact by unjustifiably finding the Appellant dangerous and posing a significant risk to the public in relation to Counts 2, 10, and 18.
- The Appellant should have received greater credit for his early guilty plea on Count 18.
- Fresh evidence indicated the Appellant’s determination to renounce terrorism, which was not available at the trial, and should have been considered.
- The risk assessment should focus on the risk posed upon release from prison rather than assuming the Appellant was at large at sentencing.
- The recorded conversations contained exaggerations and hyperbole, and the absence of offending for over two years before sentencing indicated a lower risk.
- No actual harm or injury was caused to the prison service governor targeted in one count, undermining the seriousness of that offence.
Prosecution's Arguments
The opinion does not contain a detailed account of the prosecution’s legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Smith (Nicholas) (2012) 1 Cr. App. R. (S) 83 |
Assessment of dangerousness and the timing of risk evaluation for indeterminate custodial sentences. |
The court applied the principle that the risk assessment must be made on the basis that the defendant is at large at the time of sentencing, not factoring in incarceration. |
| R v Pollins (2014) NICA 62 |
Indeterminate custodial sentences as sentences of last resort and consideration of alternatives. |
Referenced to emphasize that indeterminate sentences should only be imposed after full consideration of alternatives providing public protection. |
| R v Lang (2005) EWCA Crim 2864 |
Principles on the concept of dangerousness in sentencing. |
Supported the court’s approach to assessing significant risk of serious harm. |
| R v EB (2010) NICA 40 |
Factors to consider in dangerousness assessments. |
Used to reinforce the importance of offender’s history and attitude in risk evaluation. |
| R v Pedley and Others (2009) EWCA Crim 840 |
Assessment of dangerousness and sentencing principles for public protection. |
Guided the court on evaluating offender’s past behaviour and risk of reoffending. |
| R v Wong (2012) NICA 54 |
Dangerousness and sentencing for serious offences. |
Supported the legal framework applied in this case. |
| R v Beesley and Others [2012] 1 Cr. App. R.(S.) 15 |
Appellate review of dangerousness assessments and the limited role of subsequent progress. |
Supported the court’s view that new evidence post-sentencing is unlikely to alter the correctness of the original dangerousness assessment. |
| R v Cambridge [2015] NICA 4 |
Principles on dangerousness and sentencing. |
Referenced as part of authoritative case law on dangerousness. |
| R v Khan and Others (2013) EWCA Crim 468 |
Caution against relying on exaggerations or hyperbole in offender statements. |
Warned the court to be wary of the Appellant’s possible exaggerations in recorded conversations. |
| R v MJ [2012] 2 Cr App R (S) 73 |
Timing and nature of dangerousness assessment for indeterminate sentences. |
Supported the approach that risk assessment must be made at sentencing considering all relevant evidence. |
| Regina (Faulkner) v Secretary of State for Justice and Anor; Regina (Sturnham) v Parole Board and Anor (Nos 1 and 2) [2013] 2 AC 254 |
Obiter comments on the timing of risk assessment for indeterminate sentences. |
Noted but not followed; the court preferred the reasoning in Smith and MJ. |
| R (Walker) v Secretary of State for Justice (Parole Board Intervening) [2010] 1 AC 553 |
Predictive assessment of risk at tariff expiry. |
Referenced in academic debate but the court upheld the present risk assessment approach. |
| R v Johnson (Practice Note) (2007) 1 WLR 585 |
Risk assessment principles in sentencing. |
Referenced in academic debate on timing of risk assessments. |
Court's Reasoning and Analysis
The court upheld the learned trial judge’s assessment that the Appellant was dangerous and posed a significant risk of serious harm to the public. The dangerousness finding was based on a combination of factors including:
- The Appellant’s previous serious terrorist convictions and long sentence.
- The nature and circumstances of the current offences demonstrating continued terrorist involvement despite prior incarceration and licence conditions.
- Recorded conversations evidencing ongoing support for terrorism and preparations for terrorist acts.
- The late timing of any behavioural changes, such as removal from separated prison conditions, which occurred only shortly before the appeal.
- A cautious approach to the Appellant’s recorded statements, recognizing a tendency to exaggerate.
The court considered the statutory framework under the Criminal Justice (Northern Ireland) Order 2008, particularly Articles 12 to 15, governing the imposition of indeterminate and extended custodial sentences.
Addressing the timing of the risk assessment, the court adopted the reasoning in R v Smith (Nicholas), holding that the sentencing judge must assess dangerousness on the premise that the offender is at large at the time of sentencing, rather than projecting risk at release. While acknowledging academic and judicial dissent, the court found this approach sound and consistent with established precedent, particularly the decision in R v MJ.
Although the learned trial judge did not expressly consider the second stage of risk assessment regarding future risk post-sentencing as outlined in R v MJ, the court concluded that no material before the judge indicated a capacity for change sufficient to alter the dangerousness finding.
The court also noted that new information presented on appeal, including psychological reports and prison behaviour, was insufficient to undermine the original assessment, citing R v Beesley and Others for the principle that appellate courts generally do not revisit dangerousness assessments based on subsequent progress.
Regarding the extended custodial sentences imposed on Counts 3, 4, and 7, the court identified an error since those counts were not specified offences under the legislation and thus not eligible for such sentences.
Holding and Implications
The court AFFIRMED the imposition of the indeterminate custodial sentence with a minimum term of five years on Counts 2, 10, and 18.
The court SET ASIDE the extended custodial sentences with extended licences imposed on Counts 3, 4, and 7, reducing those to determinate sentences of five years imprisonment to be served concurrently with each other and with the indeterminate sentence.
The direct effect is that the Appellant remains subject to an indeterminate sentence for the most serious offences, reflecting the court's view of ongoing risk, while the sentencing error on other counts was corrected. No new legal precedent was established beyond affirming existing principles regarding dangerousness assessments and sentencing under the 2008 Order.