Wheeler, R. v

Factual and Procedural Background

On 14 September 2023, in the Crown Court at Winchester, the Applicant, aged 18 at the time, was convicted of possessing information contrary to section 58(1)(b) of the Terrorism Act 2000 (counts 1, 2 and 3) and dissemination of terrorist publications contrary to section 2(1) and 2(2)(e) of the Terrorism Act 2006 (counts 4, 5 and 6). On 3 November 2023, before Her Honour Judge Miller KC, the Applicant was sentenced to an extended determinate sentence comprising six years' detention in a young offender institution and an extended licence period of one year, with notification requirements for 15 years due to the nature of the offences.

The offences related to the Applicant's activities on the online app Telegram, where he shared documents and materials instructing the manufacture of explosives and an improvised firearm. The prosecution alleged the Applicant had a sustained interest in National Socialism and extreme ideologies, joining extremist Telegram groups at age 15 and creating a large library of extreme right-wing material, including manifestos of known terrorists and documents on making explosives and weapons.

The prosecution relied on representative documents to demonstrate that the materials were designed to promote violence and terrorism. The Applicant disseminated numerous terrorist publications via extremist Telegram groups between January and April 2021. Expert evidence confirmed that much of the material contained viable instructions for making dangerous weapons and explosives.

Upon arrest, the Applicant provided access to his devices, which contained additional violent videos. At trial, the Applicant denied being a racist or white supremacist and claimed morbid curiosity as motivation. The sentencing judge noted the Applicant's age at the time of offences and trial, found intentional encouragement of terrorism, and assessed the culpability and harm categories accordingly. The judge considered aggravating factors including racial and religious hostility, communication with extremists, volume of publications disseminated, and use of encryption and pseudonym. Mitigating factors included the Applicant's young age, lack of previous convictions, and delay in prosecution.

The Applicant sought leave to appeal the sentence, including an application to introduce fresh psychiatric evidence diagnosing the Applicant with a high functioning autism spectrum condition, which was not available at the original sentencing.

Legal Issues Presented

1. Whether the sentencing judge erred in the extent of reduction applied for the Applicant’s young age at the time of the offences.
2. Whether the judge was correct in characterising the Applicant’s offending as intentional rather than reckless in relation to dissemination of terrorist publications.
3. Whether insufficient regard was paid to the delay in prosecution affecting sentencing.
4. Whether fresh psychiatric evidence diagnosing the Applicant with Autism Spectrum Disorder (ASD) warrants a reconsideration of the sentence imposed.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge failed to apply an adequate reduction for the Applicant’s age at the time of the offences, arguing that a reduction of one-third or more should have been applied rather than the 25% reduction granted.
• The judge erred in treating the Applicant’s conduct as intentional rather than reckless, improperly focusing on motivation rather than the circumstances of dissemination.
• The judge insufficiently accounted for the delay between offending and prosecution, which affected the sentencing powers applicable.
• Fresh evidence from psychiatric reports diagnosing the Applicant with high functioning ASD should have led to a reduced sentence, reflecting neurological and developmental limitations affecting culpability and presentation.
• The judge incorrectly assessed the Applicant’s maturity based on his presentation at trial rather than at the time of offending.
• The extended sentence and findings of dangerousness were unjustified given the Applicant’s neurological diagnosis and lack of subsequent offending.

Respondent's Arguments

• The sentencing judge was well placed to assess culpability and appropriate reduction for age, having presided over the trial and considered all relevant guidelines.
• The judge correctly characterized the conduct as intentional based on the nature and content of the material and the group to which it was disseminated.
• The judge properly accounted for delay and the seriousness of the offences, which warranted Crown Court trial and sentencing powers.
• The psychiatric diagnosis of ASD would not have materially altered the sentencing exercise or findings of dangerousness.
• The judge’s assessment of the Applicant’s presentation and maturity was one factor among many and did not improperly influence the sentence.
• The extended sentence was justified given the nature and extent of offending and the risk posed, supported by detailed pre-sentence reports and evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gafoor [2002] EWCA Crim 1857	Consideration of sentencing reductions for youth and maturity	Considered by the sentencing judge when assessing culpability and sentence discount for age
Bowker [2007] EWCA Crim 1608	Sentencing guidelines relating to young offenders	Referenced in sentencing to guide appropriate reduction for youth
ZA [2023] EWCA Crim 516	Approach to sentencing and assessment of dangerousness	Considered by the judge in context of sentencing and risk assessment

Court's Reasoning and Analysis

The court found the sentencing judge’s original conclusions were properly open on the evidence available at the time. The judge had conducted a detailed assessment of culpability, harm, aggravating and mitigating factors, and had applied relevant sentencing guidelines appropriately. The judge’s characterization of the Applicant’s conduct as intentional was supported by the nature and extent of the material disseminated and the context of the extremist groups involved.

Regarding the fresh evidence, the court acknowledged that the statutory conditions for admitting new evidence under section 23 of the Criminal Appeal Act 1968 were met. The new psychiatric reports diagnosing the Applicant with a high functioning autism spectrum condition were considered. The court agreed that while much of the judge’s analysis remained sound, the diagnosis explained the Applicant’s “cold” and “calculating” presentation at trial as neurological deficits affecting emotional recognition and expression, rather than indicative of maturity or lack of remorse.

This new understanding meant the judge’s basis for limiting the reduction for youth and for finding dangerousness was undermined. The court concluded that the sentencing judge would have approached the reduction for age more generously and would have been less likely to find the Applicant dangerous if the fresh evidence had been available.

Consequently, the court allowed the appeal, substituting a reduced custodial sentence and rescinding the extended licence period, while maintaining the notification requirements.

Holding and Implications

The court ALLOWED THE APPEAL against sentence.

The original sentence of six years' detention with a one-year extended licence period was substituted with a sentence of five years' detention in a young offender institution, and the extended licence period was rescinded. The statutory notification requirements remain unchanged.

This decision reflects the court’s recognition of the impact of newly diagnosed neurological conditions on sentencing considerations, particularly in assessing maturity and dangerousness. However, no new legal precedent was established; the judgment reaffirms the importance of comprehensive evidence in sentencing and the proper application of sentencing guidelines when fresh evidence emerges.