R v Conrad Howarth

A sentencing court must apply the guideline in force when sentence is passed, since sentencing guidelines generally operate prospectively. A substantial statutory increase in the maximum penalty which an extant guideline does not reflect may justify departure from that guideline in more serious cases. It does not automatically justify a sentence outside the applicable category range.

Multiple applicable culpability factors and serious aggravating features may justify an upward adjustment to the top of the range. Retaining terrorist material and using software to conceal identity may aggravate an offence. Sentencing remains a compendious assessment, so a judge need not state a separate numerical uplift for every factor.

The appellant pleaded guilty at the Central Criminal Court to possessing a document containing terrorist information, contrary to section 58(1)(b) of the Terrorism Act 2000. The document was the Anarchist's Cookbook, which contained information concerning weapons, explosives, detonators and booby traps.

At the Crown Court at Manchester, the judge imposed a special custodial sentence of 54 months’ imprisonment and a 12-month extended licence. The judge placed the offence in Category 2B of the applicable terrorism sentencing guideline, but imposed a term above that category’s five-year maximum before credit for the guilty plea.

The appellant renewed an application for leave to appeal against sentence after refusal by the single judge. The central issue was whether the statutory increase in the maximum sentence for the offence justified sentencing beyond the Category 2B range.

1. The appeal was allowed in part. The court quashed the 54-month custodial term on count 1 and substituted a special custodial sentence comprising 45 months’ imprisonment and a one-year extended licence.

2. The sentencing judge had to consider the original terrorism guideline, which was in force when sentence was imposed. Sentencing guidelines operate prospectively: see R v Boakye and others [2012] EWCA Crim 838. Although section 7(3) of the Counter-Terrorism and Border Security Act 2019 had increased the maximum sentence under section 58 of the Terrorism Act 2000 from 10 to 15 years, the revised guideline post-dated sentence.

3. Attorney General’s Reference (R v Nugent) [2021] EWCA Crim 1535 establishes that a sentencing court may, in a more serious case, depart from an unamended guideline to reflect a very substantial increase in the statutory maximum. That approach did not justify a term above the Category 2B range here. The revised guideline, while not applicable at the original sentencing hearing, had retained the same Category 2B range; the Crown rightly accepted that the court could take that fact into account when deciding whether the sentence was excessive.

4. The judge was entitled to find two applicable Culpability B factors. The prolonged retention of the document increased the risk of its terrorist use by another person, and identity-concealing software was a serious aggravating feature. The appellant’s previous convictions carried limited aggravating weight. Those features justified an increase from the four-year starting point to the top of the five-year category range, but not beyond it before the 25% guilty-plea reduction.

5. The judge was not required to identify a discrete numerical uplift for the increased statutory maximum. Sentencing was a compendious assessment rather than a mathematical exercise. The correct custodial term was therefore five years reduced by 25%, namely 45 months.

• Court of Appeal (Criminal Division) — allowed the appeal to the extent of quashing the 54-month custodial term and substituting 45 months’ imprisonment with a one-year extended licence: [2022] EWCA Crim 1836.

• Crown Court at Manchester — on 15 February 2022, imposed a special custodial sentence of 54 months’ imprisonment and a 12-month extended licence for the section 58 offence.

• Central Criminal Court — on 31 December 2021, the appellant pleaded guilty to possession of a document containing terrorist information.