Section 30 – Sentences for offences with a terrorist connection: England and Wales
88.Section 30 is included in response to recommendation 8 of Lord Carlile’s January 2007 report on the definition of terrorism, that a terrorist connection should be considered to be an aggravating factor in sentencing. This is important where persons are convicted of offences other than those under the terrorism legislation but where the offence is connected with terrorism (for example an explosives-related offence).
89.Under subsections (1) to (3) a court in England and Wales considering a person’s sentence for an offence listed in Schedule 2 must, if it appears that there was or may have been a terrorist connection, make a determination (on the criminal standard of proof) as to whether there was such a connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing, that is the trial evidence or evidence heard at a Newton hearing (if necessary) following a guilty plea, and taking account of any representations by the prosecution or defence. A Newton hearing is where the judge hears evidence from both the prosecution and defence and comes to his or her own conclusion on the facts, applying the criminal standard of proof. If the court determines that there was a terrorist connection, it must treat that as an aggravating factor when sentencing the offender (subsection (4)). The meaning of an offence having a “terrorist connection” is defined in section 93 as being where the offence is or takes place in the course of an act of terrorism or is committed for the purposes of terrorism. Subsection (6) provides that this statutory aggravating factor in sentencing will apply only in relation to offences committed on or after commencement.
Section 31 – Sentences for offences with a terrorist connection: Scotland
90.Section 31 provides that in Scotland the sentencing court must treat a terrorist connection (as defined in section 93), proved to the trial court, as an aggravating factor when sentencing for an offence specified in Schedule 2 to the Act (offences where terrorist connection to be considered). Subsection (3) requires a court imposing an aggravated sentence for an offence with a terrorist connection to state the extent and reasons for the difference between the sentence it imposed and that it would have imposed if the offence had not had a terrorist connection. Subsection (4) provides that evidence from a single source is sufficient to prove this aggravating factor – which is different from the usual position under the law in Scotland where corroboration is required. Subsection (5) provides that this new aggravating factor will only apply in relation to offences committed on or after commencement.
Section 32 – Sentences for offences with a terrorist connection: armed forces
134.This section makes corresponding provision to that in section 30 for service courts considering for the purposes of sentence the seriousness of a service offence as respects which the corresponding civil offence is an offence specified in Schedule 2. Corresponding civil offence is defined in section 95(4).
Section 33 – Power to amend list of offences where terrorist connection to be considered
91.This section provides the Secretary of State with a power to amend (by order subject to the affirmative resolution procedure) the list of offences in Schedule 2 in relation to which the court must consider whether there is a terrorist connection.
Schedule 2 – Offences where terrorist connection to be considered
92.Schedule 2 sets out the list of offences under the general criminal law (as opposed to the terrorism legislation) in relation to which the court must consider whether there is a terrorist connection for the purposes of aggravated sentencing (sections 30 to 33). These are the offences most frequently used to prosecute terrorist cases or which are most likely to be used to prosecute such cases. The list of offences in Schedule 2 and determination of terrorist connection are also relevant to the forfeiture provisions in the Act (see section 35 which inserts new section 23A(4) into the 2000 Act) and the notification requirements of Part 4 of the Act (see section 42).