Niinemae, R. v

Factual and Procedural Background

On 16 September 2024, following a trial at the Crown Court at Winchester before His Honour Judge Forster and a jury, the Applicant was convicted of possession of a document or record useful to a terrorist, contrary to section 58(1)(b) of the Terrorism Act 2000. On 27 November 2024, the Applicant was sentenced to a special custodial sentence of 3 years and 6 months, comprising 2 years and 6 months custody plus 1 year on licence, pursuant to section 278 of the Sentencing Act 2020. The Applicant subsequently renewed an application for leave to appeal against sentence after refusal by a single judge.

The Applicant came to police attention during an investigation into another individual who was convicted of serious terrorism offences. The Applicant had exchanged encrypted messages on Telegram with this individual, containing offensive language, racist and extremist views, including support for right-wing groups and discussion of avoiding authorities. Police found a US Army Improvised Munitions Handbook in the Applicant's room, which contained instructions on making explosives and related devices. The Applicant was arrested on 19 September 2023.

At sentencing, the judge viewed possession of the handbook in the context of the messages and assessed the offending as category 2 harm with culpability between categories B and C. The starting point was 3 years, increased to 3 years and 4 months due to an aggravating factor of being on licence, then reduced by 25% for mitigation including progress on drug addiction, mental health issues, and remorse, resulting in the final sentence.

Legal Issues Presented

1. Whether the sentencing guidelines were correctly applied, specifically the categorisation of harm and culpability.
2. Whether insufficient weight was given to the mitigating factors in sentencing.

Arguments of the Parties

Appellant's Arguments

• The definition of terrorist connection under category B culpability should only apply if the offender possesses material while actively connected to terrorists; since the Applicant's contact had ceased, culpability should be category C.
• The sentencing judge erred in categorising harm as category 2 because the handbook provides generic instructions on improvised munitions, freely available online, rather than instructions for specific terrorist activity endangering life as required for categories 1 and 2.
• The phrase "specific terrorist activity" in the guideline is a critical criterion and must be assessed by reference to the nature of the document itself.

Respondent's Arguments

• The distinction in the guideline is between practical instructional material enabling terrorism and propaganda-type material.
• Whether a document provides instructions for specific terrorist acts should be assessed solely based on the document's contents, not extraneous factors.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the offence under section 58(1) of the Terrorism Act 2000, focusing on possession of information likely useful to a person committing or preparing an act of terrorism. The sentencing guidelines distinguish culpability by terrorist connections or motivations and categorise harm based on whether the material provides instructions for specific terrorist activity.

On culpability, the court found no error in the judge's categorisation between categories B and C, noting the Applicant's prior contact with a convicted terrorist and demonstrated extremist ideology, despite the cessation of contact.

Regarding harm, the court accepted the Applicant's argument that categories 1 and 2 require material providing instructions for specific terrorist activity, not merely material capable of use in terrorism. The handbook, described as a US Army manual for unconventional warfare, was deemed generic material capable of use but not specific instruction for terrorism. The surrounding messages did not elevate the handbook's status to specific instruction.

Consequently, the court reclassified the harm as category 3 ("all other cases"). Applying the judge's culpability assessment but adjusting harm to category 3, the starting point was 24 months, which after adjustments for aggravating and mitigating factors resulted in a custodial term of 21 months.

The court considered but rejected suspending the sentence, reasoning that the seriousness of the offence combined with the Applicant's ideological views, poor compliance with previous court orders, and the context of the offence warranted immediate custody.

Holding and Implications

The court granted leave to appeal and allowed the appeal. The original special custodial sentence of 3 years and 6 months was quashed and substituted with a special custodial sentence comprising 21 months custody and 1 year on licence, pursuant to section 278 of the Sentencing Act 2020.

No new precedent was established. The decision directly affects the Applicant by reducing the custodial term but maintaining the overall structure of the special custodial sentence.