Perry, R. v

Factual and Procedural Background

On 15 March 2023, the Appellant was convicted following a non-jury trial of collecting or making a record of information likely to be useful to a terrorist, contrary to section 58(1)(a) of the Terrorism Act 2000. On 17 May 2023, the Appellant was sentenced to four years imprisonment followed by 12 months licensed release. The Appellant’s previous appeal against conviction was dismissed by this court on 10 November 2023. The current judgment addresses the Appellant’s appeal against sentence. The appeal proceedings included consideration of human rights incompatibility issues under article 7 of the European Convention on Human Rights (ECHR), particularly concerning the applicable sentencing regime and statutory amendments post-dating the offending.

Legal Issues Presented

1. Whether the sentence imposed was manifestly excessive.
2. Whether the sentencing judge erred in law by applying a new statutory sentencing regime (Article 15A of the Criminal Justice (NI) Order 2008) that post-dated the Appellant’s offending, thereby infringing Article 7 ECHR.
3. Whether the new statutory regime, including a mandatory one-year licence period following imprisonment, constituted a heavier penalty than was applicable at the time of the offence, thus breaching the lex gravior principle under Article 7 ECHR.

Arguments of the Parties

Appellant's Arguments

• The imposition of the Article 15A sentence was unlawful as it was a new sentencing vehicle not in existence at the time of the offence.
• The Article 15A regime introduced an additional mandatory licence period after imprisonment, which was not commensurate with the seriousness of the offence but rather an “appropriate” sentence, thus increasing the minimum disposal available to the court.
• The sentencing judge erred by measuring the custodial term under the "appropriate custodial term" provision of Article 15A rather than the "commensurate with the seriousness of the offence" criterion in Article 7(2) of the 2008 Order.
• The mandatory licence period following release effectively increased the penalty retrospectively in breach of Article 7 ECHR.
• The Appellant’s serious medical conditions, including Multiple Sclerosis and malignant melanoma, warranted a lesser sentence or suspension, which was not sufficiently considered.

Respondent's Arguments

• The new evidence concerning the Appellant’s health was admitted but did not justify a reduction or suspension of sentence.
• The sentencing judge correctly applied the Article 15A regime, which co-exists with Article 7(2) and does not displace its principles.
• The mandatory licence period is part of the execution or enforcement of the sentence, not part of the penalty itself, and thus does not breach Article 7 ECHR.
• The sentence of four years imprisonment was not manifestly excessive given the gravity of the offence and the Appellant’s culpability.

Additional Submissions

• The Department of Justice and Advocate General emphasized the legislative intent behind the 2021 sentencing reforms to impose a more austere regime reflecting public protection concerns.
• The court was invited to consider relevant case law on the interpretation and application of Article 7 ECHR and the lex gravior principle.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Ferris [2020] NICA 60	Discretion to admit fresh evidence on appeal under section 25(1)(c) of the Criminal Appeal (NI) Act 1980.	Guided the court’s decision to admit new medical evidence post-sentencing in the interests of justice.
R v McDonald and Others [2006] NICA 4	Material relevant to sentencing may be admitted even if generated post-sentencing.	Supported the admission of post-sentencing medical reports and prison records.
R (Stott) v Secretary of State for Justice [2018] UKSC 59	Judicial discretion in sentencing; interpretation of "appropriate custodial term".	Reinforced the court’s interpretation of Article 15A’s language regarding sentencing discretion.
Del Rio Prada v Spain [2013] 58 EHRR 1037	Article 7 ECHR prohibits imposition of heavier penalty than applicable at time of offence; distinction between penalty and execution of sentence.	Confirmed that changes to remission or release conditions post-sentencing do not constitute heavier penalties.
Kafkaris v Cyprus [2009] 49 EHRR 35	Distinction between penalty imposed and its enforcement or execution.	Supported the court’s view that licence periods post-imprisonment are enforcement, not penalty.
R v Uttley [2004] UKHL 38	Article 7 ECHR principles; licence conditions post-release do not constitute heavier penalty.	Applied to reject Article 7 challenge to mandatory licence period following imprisonment.
Coeme v Belgium [2000] Reports of Judgments and Decisions 2000-VII	Lex gravior principle: sentence imposed cannot exceed the limits fixed by law at time of offence.	Affirmed core principle guiding the court’s analysis of sentencing regime applicability.
Maktouf v Bosnia and Herzegovina [2014] 58 EHRR 11	Application of lex gravior principle; retroactive application of harsher sentencing regimes.	Considered in detail; distinguished on facts as the new regime in this case did not increase minimum or maximum penalties.
Re Docherty [2017] 1 WLR 181	Lex gravior principle reaffirmed; distinction between penalty and execution of sentence.	Supported rejection of Article 7 challenge and reinforced established sentencing principles.
Khan v Justice Secretary [2020] 1 WLR 3932	Changes to early release arrangements do not amount to heavier penalty under Article 7 ECHR.	Applied to reject Article 7 challenge to new sentencing regime’s licence provisions.
R v Lorenc [1988] NI 96	Sentencing for possession of documents useful to terrorists; sentencing range considerations.	Referenced as comparative sentencing authority.
Attorney General References (Nos 5 and 6 of 2009) [2009] NICA 41	Sentencing for collection and possession of information related to terrorism; assessment of sentence leniency.	Considered in sentencing range analysis.
R v Hughes [2016] NICC 13	Sentencing for possession of sensitive documents; effect of early guilty plea on sentence.	Referenced to illustrate sentencing principles.
R v Golaszewski [2020] EWCA Crim 1831	Sentence involving custodial term and mandatory licence period for terrorism-related offending.	Considered in sentencing comparison.
R v Hafeez [2020] EWCA Crim 453	Sentencing for possession of extensive terrorist material.	Referenced for sentencing context.
R v Morgan & others [2020] NICC 14	Sentencing for multiple terrorism-related offences including collection of information.	Referenced for sentencing range and principles.
R v Wong [2012] NICA 54	Deterrent sentences for facilitators of terrorist crimes; limited weight to personal mitigation.	Applied to support sentencing approach.
R v McKeown and Others [2013] NICA 63	Weight of personal mitigation in terrorism-related sentencing.	Referenced to emphasize limited mitigation effect in terrorism cases.
R v McDonnell [2006] NICA 4	Serious medical conditions do not automatically warrant lesser sentence.	Applied to reject mitigation based solely on medical condition.
R v Watson [2022] NICA 71	Medical conditions and sentencing; fact-specific approach to mitigation.	Supported the court’s analysis on medical mitigation.

Court's Reasoning and Analysis

The court first considered the application to admit fresh evidence relating to the Appellant’s deteriorating medical condition post-sentencing. Applying established principles from R v Ferris and R v McDonald, the court found the new evidence credible, relevant, and material to the interests of justice, and admitted it accordingly.

The court then examined the statutory framework governing sentencing. At the time of the offence, the Criminal Justice (NI) Order 2008 (the "2008 Order") applied, with a maximum sentence of ten years imprisonment under section 58(4) of the Terrorism Act 2000. Subsequent amendments in 2019 and 2021 introduced an increased maximum sentence (15 years) and a new sentencing regime under Article 15A of the 2008 Order respectively. The Article 15A regime applies to specified terrorism offences, including the Appellant’s, where the conviction post-dates the commencement of the 2021 Act.

The court interpreted Article 15A as co-existing with Article 7(2) of the 2008 Order, requiring the sentencing court to impose a custodial term that is "appropriate" and "commensurate with the seriousness of the offence." Judicial discretion remains central, with the sentencing court obliged to give effect to the policy and objects of the 2021 reforms, which aim to enhance public protection through a more austere regime, including a mandatory one-year licence period following imprisonment.

The court rejected the Appellant’s contention that the Article 15A regime unlawfully imposed a heavier penalty in breach of Article 7 ECHR. It distinguished the case from Maktouf v Bosnia and Herzegovina, noting that unlike in Maktouf, there was no increase in maximum or minimum sentences applicable at the time of the offence. The mandatory licence period was held to be part of the execution or enforcement of the sentence, not part of the penalty itself, consistent with established Strasbourg jurisprudence including Del Rio Prada and Uttley.

The court further held that a suspended sentence was never a realistic option given the gravity of the offence and the Appellant’s criminal record, and thus its unavailability under the new regime did not constitute a breach of Article 7.

Regarding the manifest excessiveness ground, the court acknowledged the Appellant’s serious medical conditions and admitted fresh medical evidence. However, it emphasized established sentencing principles that serious medical conditions do not automatically justify a lesser sentence, especially in terrorism-related offences where deterrence and public protection are paramount. The court found the four-year custodial sentence appropriate and not manifestly excessive, having regard to the seriousness of the offence, the Appellant’s culpability, and the legislative intent underpinning the 2021 reforms.

The court also highlighted the importance of transparency and clarity in sentencing, recommending that sentencing courts explicitly state when the Article 15A regime is applied and explain the components of the sentence, including the mandatory licence period, though failure to do so does not invalidate the sentence.

Holding and Implications

DISMISSED

The court dismissed both grounds of appeal. It held that the sentence imposed did not breach Article 7 ECHR as it did not constitute a heavier penalty than that applicable at the time of the offence, and the mandatory licence period is part of sentence execution rather than penalty. The sentence was also not manifestly excessive given the seriousness of the offence and the legislative context. The decision confirms the applicability of the Article 15A sentencing regime to offences committed prior to its commencement when conviction and sentencing occur after its enactment, provided the statutory conditions are met. No new precedent altering established principles was set; rather, the court reaffirmed existing jurisprudence on sentencing discretion, human rights compatibility, and the distinction between penalty and sentence enforcement.