Factual and Procedural Background
This appeal concerns the sentencing of the Appellant, who pleaded guilty to a single offence of preparation of acts of terrorism contrary to section 5(1) of the Terrorism Act 2006. The Appellant was originally indicted on five counts, including possession of explosives with intent to endanger life or cause serious injury to property, but ultimately pleaded guilty only to the first count, which encompassed a broad range of preparatory acts related to terrorism. The remaining counts were left on the books.
The Appellant was arrested in 2013 and had a prior conviction in 2014 for explosives offences, for which he received a six-year sentence. After release on licence in 2016, he was re-arrested in 2018 and charged with the current offences. The plea was entered in June 2021 following a delay in trial and discussions between parties. The sentencing judge imposed an extended custodial sentence of 24 years imprisonment, with an additional five-year extension period.
Legal Issues Presented
- Whether the sentencing judge erred in principle by applying the sentencing guidelines as stated in R v Kahar [2016] EWCA Crim 568 rather than the Terrorist Offences Guideline (2018) published by the Sentencing Guidelines Council.
- Whether the sentence imposed was manifestly excessive.
- Whether the sentencing judge erred in law in determining that the Appellant was "dangerous" within the meaning of Articles 11 to 15 of the Criminal Justice (Northern Ireland) Order 2008.
Arguments of the Parties
Appellant's Arguments
- The sentencing judge failed to give sufficient credit for the Appellant’s guilty plea.
- The judge failed to sufficiently distinguish between the seriousness of the Appellant’s offending and that of his co-offender, Mr M.
- The judge erred in concluding that the Appellant’s offending involved the intent to cause multiple deaths.
- The judge gave inadequate weight to mitigating factors including the limited time period of offending, the Appellant’s age, and the lack of proximate deployment of devices.
- The Appellant should have been sentenced according to the Sentencing Guidelines Council Guideline, which would have resulted in a lighter sentence.
- The judge erred in law by determining the Appellant to be "dangerous" under the statutory provisions.
Prosecution's Arguments
- The offending fell within level 2 of the R v Kahar framework, justifying a life sentence or a very long determinate sentence with an extension period.
- The sentencing judge’s application of R v Kahar was appropriate and consistent with the facts and law.
- The Appellant’s role was leading and pivotal in the preparation and storage of explosives intended to cause multiple deaths.
- The Appellant posed a significant risk of serious harm and met the statutory test for dangerousness under the Criminal Justice (NI) Order 2008.
- The Sentencing Guidelines Council Guideline was not binding and its mechanistic approach was unsuitable for this case.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Kahar [2016] EWCA Crim 568 |
Sentencing guidance for offences under section 5 of the Terrorism Act 2006, including categorisation of culpability and harm levels. |
The court applied the Kahar framework to determine the appropriate sentencing level (level 2) and found the sentencing judge’s application appropriate and not manifestly excessive. |
| Attorney General's Reference (No. 2 of 2004) (Daniel John O'Connell) [2004] NICA 15 |
Application of Sentencing Advisory Panel starting points in Northern Ireland. |
Confirmed that sentencing starting points from English advisory bodies may be applied in Northern Ireland as guidance. |
| Attorney General's Reference (No. 1 of 2008) [2008] NICA 41 |
Approach to English Sentencing Guidelines in Northern Ireland. |
Established that English Sentencing Guidelines are secondary to Northern Ireland Court of Appeal guidelines and may be followed only when appropriate. |
| R v Conrad Trafford Doole [2010] NICA 11 |
Role of this Court in providing sentencing guidance and the use of English Sentencing Guidelines. |
Reiterated that English Guidelines may inform but do not bind sentencing decisions in Northern Ireland. |
| R v SG [2010] NICA 32 |
Use of Sentencing Guidelines Council reports in sentencing sexual offences. |
Approved use of English Sentencing Guidelines reports as assistance in Northern Ireland sentencing. |
| R v DM [2012] NICA 36 |
Qualification on the use of Sentencing Guidelines due to variability of offences. |
Emphasised the need for flexibility beyond guideline parameters in sentencing. |
| R v McKeown and R v Han Lin [2013] NICA 28 |
Use of Sentencing Guidelines Council Definitive Guidelines in drug offences. |
Confirmed that English guidelines may assist in Northern Ireland but judges retain discretion and may depart for local considerations. |
| R v McCaughey and Smyth [2014] NICA 61 |
Approach to promulgation and content of sentencing guidelines in Northern Ireland. |
Emphasised the importance of local characteristics and judicial discretion over strict adherence to English guidelines. |
| R v Gerard McCormick [2015] NICA 14 |
Caution against mechanistic application of Sentencing Council Guidelines. |
Warned against rigid application of aggravating factors that may distort sentencing ranges. |
| R v Ferris [2020] NICA 60 |
Framework for appeals against sentence and restraint principle. |
Outlined the restrained approach of the Court of Appeal in sentence appeals, intervening only if manifestly excessive or wrong in principle. |
| R v Ward (No 2: Tariff) [2019] NICA 18 |
Differences in sentencing regimes between Northern Ireland and England & Wales. |
Illustrated that Northern Ireland does not apply certain English statutory provisions affecting sentencing. |
| R v Docherty [2017] 1 WLR 181 |
Nature of appeals against sentence in England and Wales. |
Confirmed appeals are not rehearings but reviews for manifest excess or error in principle. |
| R v Chin-Charles [2019] EWCA Crim 1140 |
Role of Court of Appeal in sentence appeals. |
Reinforced that appellate courts do not reweigh evidence but assess manifest excess or error in principle. |
| R v Newell [1975] 4 NIJB |
Principle of restraint in sentence appeals. |
Held court should only substitute sentence if manifestly excessive or wrong in principle. |
| R v Kelly [2015] NICA 29 |
Considerations in assessing dangerousness under Criminal Justice (NI) Order 2008. |
Outlined factors to consider in evaluating risk of serious harm and dangerousness. |
| R v Brownlee [2015] NICA 58 |
Definition and assessment of dangerousness and serious harm. |
Clarified seriousness of harm and likelihood required to satisfy dangerousness test. |
| R v Tate [2012] NICC 29 |
Relevance of absence of serious injury in assessing risk of harm. |
Noted absence of previous serious injury may be due to good fortune, not lack of risk. |
Court's Reasoning and Analysis
The Court began by affirming the appropriateness of the sentencing judge’s reliance on R v Kahar as the guiding authority for sentencing under section 5 of the Terrorism Act 2006, noting that the Sentencing Guidelines Council Guideline (2018) did not apply to Northern Ireland and was not binding. The Court emphasized the distinct sentencing regime in Northern Ireland, which allows judicial discretion and does not mandate mechanistic application of English guidelines.
The Court examined the factual basis for the sentencing, including the extensive preparatory acts, the sophistication and scale of the offending, and the Appellant’s leading role in the terrorist activities. It found the judge’s assessment of the Appellant’s culpability as a "level 2" offender under Kahar to be well-founded and the sentencing range appropriate.
Regarding the manifest excess challenge, the Court applied the established restraint principle, affirming that the sentence fell within the available sentencing range and was not manifestly excessive. The Court found no error in the judge’s evaluation of mitigating and aggravating factors, including the credit for the guilty plea and the comparison with the co-offender’s more serious offending.
On the issue of dangerousness, the Court reviewed the statutory test under the Criminal Justice (Northern Ireland) Order 2008 and found that the sentencing judge correctly applied the criteria. The judge’s detailed reasoning, including the Appellant’s intent, role, ongoing commitment to violent republicanism, and possession of information relating to the TOR browser and dark web, supported the conclusion that the Appellant posed a significant risk of serious harm.
The Court declined to formulate specific sentencing guidelines for section 5 offences in Northern Ireland, citing the broad spectrum of conduct covered and the absence of demonstrated difficulties or inconsistencies in sentencing practice.
Holding and Implications
The Court AFFIRMED the extended custodial sentence of 24 years imprisonment with an additional five-year extension period imposed on the Appellant for preparation of terrorist acts under section 5(1) of the Terrorism Act 2006.
The appeal was dismissed on the grounds that the sentence was not manifestly excessive and that the dangerousness determination was correctly made. The Court confirmed that sentencing judges in Northern Ireland retain discretion to consider English sentencing guidelines as informative but are not bound by them, particularly the Sentencing Guidelines Council Guideline, and that no new sentencing guidelines would be established by the Court for section 5 offences at this time.
The decision underscores the Court’s restrained approach to sentence appeals, the importance of local judicial discretion, and the application of statutory dangerousness criteria in terrorism-related cases. No new precedent altering the sentencing framework was set beyond these affirmations.