In an interview with the Press Association the UK’s Independent Reviewer of Terrorism Legislation, Max Hill QC, has said the maximum sentence for some of the UK’s terrorism offences may be too low. In saying this the example he gave was section 38B Terrorism Act 2000, which is an offence linked to an investigation as an expert witness I am currently assisting the police with.
Section 38B is an offence where a person does not inform the police when they believe someone is preparing acts of terrorism. The section applies where a person has information they know or believe might be of material assistance in preventing another person committing an act of terrorism or in securing the apprehension, prosecution or conviction of a person in the UK of an offence involving the commission, preparation or instigation of an act of terrorism (section 38B(1) Terrorism Act 2000). The offence is committed where the person does not disclose the information as soon as reasonably practicable (section 38B(2) Terrorism Act 2000). Proceedings for this offence can be treated as having been committed in any place where the person to be charged is or has at any time since he first knew or believed that the information might be of material assistance (section 38B(6) Terrorism Act 2000).
I have emphasised the term ‘believe’ as this widens the capability of the offence being committed. Just having a hunch that something is not right might be insufficient for a prosecution to succeed in relation to section 38B. For a successful prosecution there will have to be evidence the person charged actually had knowledge that an act of terrorism is being planned or prepared by another.
As Max Hill says, this is not about introducing further terrorism related legislation, it is about allowing the judiciary wider sentencing capability where evidence relating to acts of terrorism is present. As he points out, in the UK there are wider criminal offences related to firearms, knives, assaults and violence against persons that can be applied to acts of terrorism, but if it is proved to be terrorist related activity, this will be a sentencing factor the judiciary can apply. We have seen this in the UK in the murder trials of Lee Rigby and Jo Cox, where the respective defendants were tried for murder with terrorism being a sentencing factor that increased the minimum sentence they had to serve on being found guilty.
I agree with Max Hill, for offences like section 38B the maximum sentence is too low. This offence is likely to be triggered during an investigation following a terrorist attack victims have been killed or seriously injured. Along with the tragic results of terrorist attacks, the high volume of work investigators put into gathering evidence related to this offence does not justify the relatively light sentence a defendant can receive following conviction. I understand that for the police and the Crown Prosecution Service it is the successful conviction it is not the length of sentence that is of concern just the successful prosecution, but this is a maximum sentence and with other sentencing tariff issues that could be taken into account the sentence could be a lot lower that 5 years. I agree with Max Hill’s recommendation that a list or a schedule be provided to assist the judiciary which non-terrorist offences that may considered to have the terrorism aggravating factor considered in sentencing defendant, with, maybe a consideration of amending some offences with a higher sentence.