R v Alex Davies

In sentencing membership of a proscribed organisation, the court must focus on the offender’s actions and role during the indictment period, although founding or developing the organisation may bear on culpability. The applicable sentencing guideline must be followed and the sentence kept within the offence range unless the interests of justice justify departure, which presents a high hurdle. A sentence at or near the top of the range may be excessive where the offender’s individual conduct does not warrant it and substantial mitigation has insufficient weight. Youth, no previous convictions, no offending during a lengthy delay, and serious deterioration in health may cumulatively require a substantial reduction. The appeal was allowed and the sentence substituted.

Following a trial at the Central Criminal Court, the appellant was convicted of membership of National Action, a proscribed organisation, contrary to section 11 of the Terrorism Act 2000. He was sentenced to a special custodial sentence under section 278 of the Sentencing Act 2020, comprising eight years and six months’ custody and one year on extended licence.

He appealed by leave, arguing that the sentence was too high within culpability category A and that insufficient weight had been given to mitigation, including delay, his age, lack of previous convictions and deteriorating health. The central issue was whether the sentence was manifestly excessive.

1. Appeal allowed. The sentence of nine years and six months was quashed. It was replaced by a special custodial sentence of eight years, comprising seven years’ custody and one year on extended licence.
2. The offence was serious, and the identified aggravating features justified an upward adjustment from the guideline starting point. However, section 278 of the Sentencing Act 2020 meant that the custodial term could not exceed nine years on the applicable guideline framework. Section 59 required the judge to follow the guideline and sentence within the offence range unless the interests of justice justified departure. That was a high hurdle, and nothing in the sentencing remarks indicated that departure was considered necessary.
3. Although the appellant’s role in founding and developing National Action was relevant to culpability, the sentencing assessment had to focus on his actions and role during the indictment period. On that basis, a provisional custodial term at or near the top of the offence range was excessive. A term of about eight years before mitigation would have been appropriate.
4. The appellant’s comparatively young age at the time of offending, lack of previous convictions, absence of further offending during the lengthy period between arrest and trial, and serious deterioration in health were significant mitigating factors. The unexplained delay before charge increased the impact of imprisonment, particularly because the appellant required insulin and suffered serious visual problems. Their collective weight required a greater reduction than the sentencing judge had allowed. The resulting custodial term was therefore manifestly excessive.

1. Court of Appeal (Criminal Division): The appeal against sentence was allowed. The original special custodial sentence was quashed and an eight-year sentence was substituted.
2. Central Criminal Court: Following conviction on 17 May 2022, the appellant was sentenced on 7 June 2022 to nine years and six months, comprising eight years and six months’ custody and one year on extended licence.