Court of Appeal in Northern Ireland Decisions

[1]       On 15 March 2023 Nuala Perry, ("the appellant"), following a non-jury trial, was convicted of a single count of collecting or making a record of information likely to be useful to a terrorist, contrary to section 58(1)(a) of the Terrorism Act 2000 ("the Terrorism Act").   On 17 May 2023 she was punished by a sentence of four years imprisonment, to be followed by a period of 12 months licensed release.  By its judgment delivered on 10 November 2023 this court dismissed her appeal against conviction.  This further judgment determines the appeal against sentence.

The Impugned Sentence

[2]        The trial judge first addressed the gravity of the appellant's offending. The content of the notes made and retained by her was described as "sinister and of great concern." They demonstrated the appellant's role in facilitating the continuing endeavours of so-called "dissidents" to "murder, maim and disrupt ..."  The single aggravating factor identified was the appellant's criminal record. In 1975 and 1976 she was convicted of hijacking a motor vehicle, possessing a firearm with intent to carry out the hijacking and membership of a proscribed organisation. Thus "... even in her teens she was committed to violent republicanism." The sole mitigating factor acknowledged was the appellant's Multiple Sclerosis ("MS"), which would render her imprisonment "particularly challenging."  The judge expressly made "some allowance" for this.  In sentencing the appellant to four years imprisonment, the judge  observed that the term would have been five years but for her MS.

[3]        The remainder of the judgment addresses the issue of the construction and effect of certain statutory provisions post-dating the appellant's offending. The court rejected the appellant's arguments, which are renewed before this court and will be examined infra.

[4]        Before this court the appellant's sentence is challenged on two grounds, namely (a) it is manifestly excessive and (b) it is the product of an error of law by the sentencing judge, the centrepiece being article 7 ECHR, related to para [3] above.

New Evidence

[5]        The appellant was sentenced on 17 May 2023.  The first issue to be determined is whether this court should accede to her application to adduce fresh evidence.  In brief compass, the materials assembled at the sentencing stage in the Crown Court included a plethora of medical reports spanning the period September 2019 to March 2023.  The last of these reports was that of her General Medical Practitioner ("GP") dated 24 March 2023.  This documented a marked deterioration in the appellant's MS with an associated adverse impact on her mental health, which would "undoubtedly" be progressive, prompting the observation that imprisonment would be "extremely difficult" for her.

[6]        During the six months which have elapsed since sentencing the appellant's solicitors have procured a further report from her GP and a report from a consultant neurologist.  They have also obtained certain prison medical records.  This court is invited to permit the adduction of all of this new evidence.

[9]        There is also an application on behalf of the prosecution for the receipt of two items of fresh evidence consisting of a report generated by Prism Health Care dated 16 October 2023 addressing various aspects of the appellant's health and health care during the period May to October 2023. The court's assessment at the conclusion of the immediately preceding paragraph applies fully to this material and we therefore accede to the application.

The Criminal Justice (NI) Order 2008

[10]      At the time of the appellant's offending (September 2015 - February 2018) the 2008 Order was the main legislative instrument governing the sentencing of offenders in Northern Ireland.  Prior to certain material amendments which we shall address in the immediately succeeding section of this judgment its main provisions, in the context of this appeal, were the following:

Article 4 (1)(a)

This defines "custodial sentence" as inter alia "a sentence of imprisonment."  

Article 5(2)

"The court shall not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offences and one or more offences associated with it, was so serious that only a custodial sentence can be justified for the offence."

Article 5(4)

Where a court passes a custodial sentence, it shall –

(a)              "... state in open court that it is of the opinion referred to in paragraph (2) and why it is of that opinion; and

(b)              In any case, explain to the offender in open court and in ordinary language why it is passing a custodial sentence."

Article 7

"(1)      This Article applies where a court passes a sentence-

(a)               Of imprisonment for a determinative term;

...

(2)              Subject to Article 14 and the statutory provisions mentioned in paragraph (3), the sentence shall be for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it."

(Neither Article 14 nor Article 7(3) is relevant in the present context.)

Article 8

"(1) This Article applies where a court passes—

[11]      The indictment alleged that the appellant's offending had occurred "... on a date unknown between 16 September 2015 and 21 February 2018."  Throughout the whole of this period the maximum sentence, per section 58(4) of the Terrorism Act 2000 ("the 2000 Act"), was ten years imprisonment or a fine or both.  This provision was amended by the Counter-Terrorism and Border Security Act 2019 - sections 3(4), 25(1) and 27(3) - by increasing the maximum term of imprisonment to 15 years, with effect from 12 April 2019.  The appellant was convicted on 15 March 2023 and sentenced on 17 May 2023.  However, this increase in the maximum punishment did not apply to her sentencing by virtue of a transitional provision whereby, per section 25(1) of the 2019 Act, this amendment:

"... applies only in a case where every act or other event proof of which is required for conviction of the offence in question takes place on or after the day on which the amendment comes into force."

Accordingly, both on the dates (or during the period) of the appellant's offending and the date of her sentencing the maximum punishment available was the same, namely ten years imprisonment, shall consider the significance of this infra in our determination of the appellant's article 7 ECHR ground of appeal.

The New Statutory Sentencing Regime: Article 15A

[12]      Further changes to the statutory sentencing regime were made by the Counter-Terrorism and Sentencing Act 2021 ("the 2021 Act"), with effect from 30 April 2021. Notably, no change was made to the maximum punishment for offences under section 58 of the 2000 Act: see section 3 and Schedule 3, inserting a new Schedule 2A into the Criminal Justice (NI) Order 2008 ("the 2008 Order"). In the context of this appeal the most important change effected is that effected by section 24 of the 2021 Act, which inserted a new Article 15A into the 2008 Order.  Article 15A applied to the sentencing of the appellant because (a) her conviction post-dated the commencement of section 24 of the 2021 Act (30 April 2021) and (b) her offence is one of those listed in Part 4 of Schedule 2A, thereby belonging to the class of "specified offence."  

[13]      The new Article 15A regime applies only where the three conditions specified in Article 15A(1) are satisfied:

 "(1)     This Article applies where—

(a)               a person is convicted after the commencement of section 24 of the Counter-Terrorism and Sentencing Act 2021 of—

(i)                  a serious terrorism offence;

(ii)              an offence within Part 4 of Schedule 2A (terrorism offences punishable with more than two years' imprisonment); or

(iii)      any other offence in respect of which a determination of terrorist connection is made;

(b)               the court does not impose, in respect of the offence or any offence associated with it, a life sentence, an indeterminate custodial sentence, a serious terrorism sentence or an extended custodial sentence; and

(c)                the court decides to impose a custodial sentence."

Furthermore, this regime does not apply, per Article 15A(2), in the following cases:

"(2)      But this Article does not apply where—

(a)        the offender is under the age of 18 when convicted of the offence; and

(b)        the offence was committed before the commencement of section 24 of the Counter-Terrorism and Sentencing Act 2021."

The effect of Article 15A(3) is that where this provision applies:

"... the court shall impose on the offender a sentence under this Article."

[14]      Article 15A (4) is the central provision of this new discrete sentencing regime, providing:

"Where the offender is aged 21 or over, a sentence under this Article is a sentence of imprisonment the term of which is equal to the aggregate of -

(a)              The appropriate custodial term; and

(b)             A further period of one year for which the offender is to be subject to a licence."

By para (7) "appropriate custodial term" is defined as -

"... the term that, in the opinion of the court, ensures that the sentence is appropriate."

[15]      This new regime has four further noteworthy features.  First, a suspended sentence order cannot be made: Article 15A (9) Second, a convicted offender cannot qualify for remission of sentence under the Prison Rules (which is set at 50%): Art 15A (10).  Third, the obligatory custodial element of any term of imprisonment has been raised from one half to two thirds, with no guarantee of release at this point: Article 20A(3)(a) in conjunction with Article 20A(9)(b). Fourth, at this latter stage it will be for the Parole Commissioners to make decisions about release and licence conditions: Article 20A(3) and (4).

Construing Article 15A

[16]      Having regard to the arguments advanced on behalf of the appellant, it is necessary to construe certain of the provisions in the new Article 15A regime.  We shall address firstly the phrase "the appropriate custodial term", which is employed in Article 15A (4) and (7).  While the latter provision contains the statutory definition of this phrase, the word "appropriate" is not defined. This adjective is a familiar, uncomplicated member of the English language. It would have been open to the legislature to provide a special, contextual definition in devising the new regime. However, it did not do so.  No purpose would be served by this court supplying a series of synonyms. In short, judicial definition is not required. We shall, however, elaborate when comparing and contrasting the new "appropriate" statutory provisions with Article 7(1)(b) (supra).

[17]      The introduction of the new Article 15A sentencing regime does not represent the only change to the 2008 Order effected by the 2021 Act.  Certain other changes, not directly relevant in the present context, were made. These were highlighted in the submission of Mr McGleenan KC on behalf of the Ministry of Justice which brought to the attention of the court certain other newly introduced provisions containing context specific definitions of the phrase "the appropriate custodial term."  These are found in Article 13A (8) (sentencing for serious terrorism offences) and Article 14(3) (concerning extended custodial sentences for certain violent or sexual offences).  These provisions stand in contrast to their analogues in Article 15A.

[18]      Next, we consider the question of whether Article 7(2) of the 2008 Order applies to sentences imposed under the Article 15A regime.  As the language of Article 7(1)(a) (supra) makes clear, Article 7 applies in every case where a court passes a sentence of imprisonment for a determinate term. The 2021 Act effected a minor amendment to Article 7(2):

"Subject to Articles 13A, 14 and 15A and the statutory provisions mentioned in paragraph (3), the sentence shall be for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it."

The amended part of Article 7(2) is highlighted. It would have been open to the legislature to include within the new Article 15A regime a provision disapplying Article 7(2).  However, it has not done so. Nor in our view is there any warrant for spelling out of Article 15A an implied intention to this effect. We consider that the "subject to" clause is designed to ensure that in cases where the Article 15A sentencing regime must be applied the sentencing court, in giving effect to Article 7(2), will do so in a manner which does not defeat or dilute any of the new Article 15A provisions.

[19]      There is a further consideration of some relevance. The sentencing principle expressed in Article 7(2) of the 2008 Order first appeared in legislative form in Article 20(2)(a) of the Criminal Justice (NI) Order 1996. Before then it is probably correct to suggest that it operated as a common law sentencing principle.  Furthermore, it has a more elaborate analogue in England and Wales, in section 63 of the Sentencing Act 2020.  It is a long-established principle of sentencing law in this jurisdiction. Given these considerations, had there been a legislative intention to exclude it from sentencing exercises under Article 15A of the 2008 Order one would expect this to have been clearly expressed.

[20]      The new "appropriate" provisions in Article 15A inevitably invite some reflection. Neither party demurred from the court's suggestion that if and insofar as these new provisions were designed to enlarge and/or modify Article 7(2), they do so by expanding the judicial discretion.  While recognising the potential for more detailed argument in an appropriate future case, on the one hand it is not easy to contemplate radically different results in cases where (a) the sentencing of an offender entails the application of Article 7(2) alone and (b) the sentencing of an offender entails the application of Article 7(2) in tandem with Article 15A(4).  On the other hand, however, in all cases involving the sentencing of an offender under the new Article 15A regime the sentencing court will have to give effect to the policy and objects of the new statutory provisions (see infra), having regard to the Padfield principle.

[22]      To summarise, our analysis of the interplay between Article 7 of the 2008 Order (on the one hand) and Article 15A (4) and (7) (on the other) is one of co-existence. Notably, the phrase "in the opinion of the court" in Article 7(2) is repeated in Article 15A (7).  This is the classic language of judicial discretion. Superimposing the Padfield principle, the court is enjoined to form the requisite opinion consistent with promoting the policy and objects of the legislation. 

[24]      At this juncture, we turn to consider another discrete issue of statutory construction. Article 8 of the 2008 Order is among the provisions of that instrument reproduced in para [10] above.  We consider it abundantly clear from the "other than" clause in para (1)(a) that Article 8 has no application to cases where an offender is being sentenced under the new Article 15A regime.  This becomes even clearer when one considers the main features of the new regime highlighted in paras [13]–[15] above.

[25]      We shall consider next the discrete issue of the judicial function in sentencing under the Article 15A regime. Applying elementary principles this issue falls to be determined by considering the provisions of Article 15A as a whole and doing so in the broader context outlined in the preceding paragraphs.  In our opinion the Article 15A "sentence of imprisonment" has two distinct components. The first is the "custodial term" which the court considers appropriate in the sense explained above.  This period will in every case be measured by the exercise of judicial discretion, applying the Padfield principle.  Its ultimate duration will be dependent upon how the Parole Commissioners exercise their statutory function.

[26]      The second component is the obligatory period of licenced release for one year which will commence upon the offender's release from custody. We consider that two propositions emerge unambiguously from the statutory language. The first is that the measurement of the custodial period will in every case be a matter for the exercise of the discretion of the sentencing court within the constraints explained above. The second is that the sentencing court has no role whatsoever with regard to the second component of an Article 15A sentence viz the obligatory one year period of licenced release. This aspect of the sentence is mandated by the legislation.  While we shall address infra what we consider to be good sentencing practice, we entertain no doubt that a failure by a sentencing judge to advert to this feature of a sentence imposed under Article 15A would be a matter of no moment. Thus, we reject unhesitatingly the submission of Mr Hutton KC that an omission of this kind would have the windfall benefit of unconditional and unlicenced release of an offender with no ensuing licence period.

[27]      Thus, a court sentencing an offender under Article 15A of the 2008 Order will have to give effect to both Article 7(2) and Article 15A (7).  It seems unlikely that the resulting sentence will differ radically from that which would have been imposed prior to the 2021 statutory reforms. However, the legislature must have contemplated that in suitable cases the outcome will be different. If the intention were otherwise, the introduction of the additional criterion of "appropriate" would be redundant. We consider that the effect of this additional criterion is to invest the sentencing court with a degree of latitude enabling it to impose a sentence outwith the confines of Article 7(2) in a suitable case.

Which Regime?

[28]      One of the issues raised on behalf of the appellant is whether she was sentenced under the pre2021 2008 Order regime or the new Article 15A regime. It was submitted that the sentencing path contemplated by the new Article 15A regime was not explicitly followed by the judge.  Furthermore, it is highlighted on behalf of the appellant that the judge did not employ any of the new linguistic terms contained in Article 15A.

[29]      The sentencing process at first instance had the following several noteworthy features. First, the determination of the appellant's sentence was deferred to await the decision of the Supreme Court in Morgan.  Second, both parties provided further written submissions following its promulgation. Third, in his sentencing decision the judge referred specifically to the changes effected to the 2008 Order by the 2021 Act.  Fourth, he devoted several paragraphs to the decision in Morgan. He also expressed himself bound by this decision. Cumulatively, these considerations point firmly to the view that in sentencing the appellant the judge was operating under Article 15A.

[30]      Furthermore, the discrete submission on behalf of the appellant that the judge "... did not impose a defined one-year licence period within the four-year envelope of the sentencing imposed" cannot in our view be sustained for three reasons. The first is that, as we have explained above, the one-year licence period applies by operation of law, Article 15A(4)(b) rather than any judicial decision or act. The second is that, in our estimation, the judge clearly imposed a custodial term of four years exclusive of the mandatory one-year period of licenced release to follow. The third is that in our view the mandatory one-year licence must follow completion of the custodial term: adopting the expression of Mr Hutton KC and Ms Macauley, it belongs outside the custodial term "envelope."

[31]      While there was a discrete contention that the judge did not engage with certain of the appellant's submissions, we are bound to observe that following the deferral of sentence noted above and the subsequent promulgation of the Morgan judgment all that materialised on the appellant's side was a somewhat perfunctory electronic communication from her solicitors.

 [32]     Given all of the foregoing considerations, there can in our view be no plausible doubt that the judge applied the new Article 15A regime in sentencing the appellant. The exercise of examining the sentencing judgment as a whole yields the analysis that, as submitted by Mr McGleenan KC, this is what the judge did in substance.

Best Sentencing Practice

[33]      In modern sentencing practice transparency and clarity of language have become matters of high importance. This gives rise to yet another burden on sentencing judges whose daily diet is heavy court lists and complex statutory models. It is reflected in section 52 of The Sentencing Act 2020, which obliges courts in England and Wales to give reasons for, and explain the effect of, their sentences. While there is no direct analogue in Northern Irish legislation, this is in substance required generally by reason of an amalgam of statutory provisions dating from the Treatment of Offenders Act (NI) 1968 (see section 18(3) particularly), established sentencing practices and the common judicial duty to give reasons.

[34]      The effect of Article 15A(1)(c), (4) and (7) is that where the qualifying conditions specified in Article 15A(1)(a) and (b) are satisfied and neither of the exclusions in para (2) applies, the first decision for the sentencing court is whether to impose a custodial sentence. If the court determines not to take this course, the Article 15A regime does not apply - and the court should say so and why. If the court decides to impose a custodial sentence, certain further procedural requirements are engaged. As a matter of good sentencing practice, it would be desirable for the court to state that it is sentencing the offender under this new regime, given that there is a judicial choice to be made and having regard to Article 5(4)(b) of the 2008 Order, which provides:

"... (the) court shall ...

In any case, explain to the offender in open court and in ordinary language why it is passing a custodial sentence."

[35]      Next, by virtue of Article 15A(4)(a) and (7), the court is required to state that the custodial term which in its opinion ensures that the sentence is appropriate is X. Given our analysis and construction of the statutory provisions above, the court should simultaneously employ the language of Article 7(2) and Article 15A (7) of the 2008 Order.

[36]      Furthermore, it would be desirable for the sentencing judge to state that by virtue of the legislation (a) the offender will serve at least two thirds of the custodial term and (b) from that point the Parole Commissioners will decide whether the offender is to be released and, if so, when.  Finally (although the court has no role to play in this discrete matter), it would be preferable to indicate that (i) this custodial term will, upon completion, be followed by a licence period of one year's duration and (ii) the terms of such licence will be determined by the Ministry of Justice and will have to be fully observed.

Article 7 ECHR

[37]      Article 7 ECHR is one of the Convention rights protected by the Human Rights Act 1998. article 7 provides, in para (1):

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

The highlighted sentence is the one which must be addressed in the context of this appeal.

[38]      Article 7 is one of the Convention rights from which no derogation under Article 15 is permissible.  Its language is uncompromising. The Strasbourg Court has emphasised in several decisions that it is to be construed and applied in such a manner as to provide effective safeguards against arbitrary prosecution, conviction and punishment: see for example Del Rio Prada v Spain [2013] 58 EHRR 1037 at para [77], a decision of the Grand Chamber, which held that a new post-sentence provision purporting to repeal a previous provision whereby remission of sentence for work done in detention was available contravened article 7. This was a contravention because it had the effect of increasing the penalty applicable at the time of the offending: a classic illustration of the lex gravior principle in operation.

[39]      There is a recurring exhortation of the Strasbourg Court that article 7 must be construed and applied so as to provide effective safeguards against arbitrary punishment. Another familiar theme of the jurisprudence is that an abstract comparison of the two sentencing codes in question is to be avoided, the correct approach being a concrete assessment of the specific acts to determine whether the offender has actually suffered a disadvantage in consequence of the introduction of the new sentencing regime: see, for example, Jidic v Romania (Application no. 45776/16 ECHR) paras [85]–[98].

[43]      The offender's attempt to establish a breach of article 7(2) ECHR failed: see per Lord Phillips at paras [18]–[23], Lord Rodger at [38], Baroness Hale at [45] and Lord Carswell at [57]–[62]. It failed because the maximum punishment, namely life imprisonment, applied both at the time of the offending and at the time of sentencing. In the pithy formulation of Lord Phillips at para 21:

[44]      The decision of the House of Lords that there had been no breach of article 7 was affirmed by the ECtHR (Application 36946/03). The court reasoned, at page 8:

"Although, as the Court of Appeal found in the present case, the licence conditions imposed on the applicant on his release after eight years can be considered as "onerous" in the sense that they inevitably limited his freedom of action, they did not form part of the "penalty" within the meaning of Article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed. Accordingly, the application to the applicant of the post-1991 Act regime for early release was not part of the "penalty" imposed on him, with the result that no comparison is necessary between the early release regime before 1983 and that after 1991. As the sole penalties applied were those imposed by the sentencing judge, no "heavier" penalty was applied than the one applicable when the offences were committed."

Thus, the ECtHR, while agreeing with the decision of the House of Lords, preferred to decide the case on the basis that the one year period of licenced release to follow the prisoner's release from custody was to be viewed through the prism of the out workings, or execution, of the sentence of 12 years imprisonment imposed upon him.

[45]      Arguably the clearest formulation of the lex gravior rule in article 7 is found In Coeme v Belgium [Reports of Judgments and Decisions 2000-VII],p 75, para [145]:

"The court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision."

[Emphasis supplied]

A vivid illustration of this core principle is provided in the more recent jurisprudence of the ECtHR in Kupinskyy v Ukraine [Application No 5084/18] where a life sentence reducible to 20 years imprisonment under the law of the sentencing court's state (Hungary) was effectively converted into an irreducible life sentence following the transfer of the offender to his home state (Poland). In short, this constituted an impermissible redefinition of the previously applicable penalty (see especially Del Rio Prada, para 89).

[47]      The first applicant was convicted of aiding and abetting war crimes, namely assisting in the abduction of two civilians for several days. The BiH State Court sentenced him to five years' imprisonment; the lowest possible sentence for aiding and abetting war crimes under the 2003 Code, whereas under the 1976 Code his sentence could have been just one year. The second applicant was convicted of the war crime of torture. He was sentenced to eleven years' imprisonment, slightly above the ten-year minimum applicable in his case under the 2003 Code, whereas under the 1976 Code a sentence of only five years would have been a possibility. The Grand Chamber recognised that the sentencing of both applicants was within the "latitude" of both Codes. Notwithstanding, the crucial consideration, according to the court, was the possibility that the sentencing of the offenders under the earlier code could have resulted in lower sentences. Para [70] is the key passage:

[50]      In Morgan the Supreme Court recognised and affirmed the foregoing cases in its review of the case law, domestically and in Europe, from paras 78 onwards, before concluding its review with reference to the recent case of Kupinskyy v Ukraine (supra) and affirming the established distinction between measures constituting a penalty and those representing the execution or enforcement of a penalty:

"96      The central proposition outlined in Uttley was again confirmed by the ECtHR by its judgment dated 10 November 2022 in Kupinskyy v Ukraine 10 November 2022. The ECtHR, at para 47 reiterated "that in its established case law a distinction is drawn between a measure that constitutes in substance a 'penalty' and a measure that concerns the 'execution' or 'enforcement' of a 'penalty.'"

[51]      We have rehearsed above the various features of the new Article 15A regime and have highlighted those provisions of the 2008 Order which do not apply when the new regime is engaged.  In what specific respects does the appellant contend that the sentence imposed upon her under appeal to this court infringed her rights under article 7?  Her complaint has three components:

(i)                A suspended sentence of imprisonment was not an option available to the sentencing court.

(ii)              The measurement of the custodial term imposed on the appellant was effected under the "appropriate custodial term" provision in Article 15A (7) rather than the "commensurate with the seriousness of the offence" criterion in Article 7(2) of the 2008 Order.

(iii)           Following her release, the appellant will be subject to a mandatory 12 months licence period.

[52] The skeleton argument of Mr Hutton KC and Ms Macauley contains this passage:

"The appellant submits that the imposition of an Article 15A sentence would be unlawful and that the law applicable at the time of sentence should be adopted. Article 15A was an entirely new sentencing vehicle which had not existed at the time of commission of the offence."

With specific reference to the post - release licence period, it continues:

"It included an additional period of licence and that additional period of licence was included not as an alternative to custody but as an alternative to liberty.  It was not a commensurate sentence but an appropriate one. Suspension of sentence. It should not be retroactively applied."

 It was submitted on behalf of the appellant that the decision of the House of Lords in Uttley is no longer harmonious with the more recent jurisprudence of the ECtHR.  This submission is based squarely on the decision of the Grand Chamber in Maktouf (digested in paras [46]–[47] above). The latter decision, it is argued, supports the proposition that there is a real possibility that the penalty imposed upon the appellant exceeds that which she could have received under the pre–2021 sentencing model.  

[53]      It is further argued that at the time of the appellant's offending Article 7 of the 2008 Order "defined the penalty that was 'applicable' to the particular offence."  The determination of a sentence in accordance with the Article 7 criterion of "commensurate with the seriousness of the offence" is to be contrasted with the more punitive Article 15A with its twin elements of the new criterion of "appropriate" and the obligatory licence period of one year following release from sentenced custody, coupled with the exclusion of a suspended sentence option.  Regarding the latter it is specifically submitted that this:

"... materially increases the 'minimum' disposal that a court can impose and is akin to the imposition of an increased minimum sentence in the Maktouf judgment."

The two contentions at the heart of the appellant's article 7 ECHR challenge are formulated in written argument in these terms:

"Taken together these provisions result in the Article 15A sentencing vehicle representing a new sentencing vehicle that works materially to an accused's disadvantage retrospectively or carries with it a material risk that this will be the case and offends against the principles espoused by the Grand Chamber in Maktouf ...

The present case is materially distinguishable from Uttley in any event in that Uttley was at base a case about the adjustment of licencing conditions within an already announced sentence ...

It is not a case relating to the imposition of a 'new' type of sentence and the court would not be bound to follow Uttley on its interpretation of article 7 ECHR in preference to the ECtHR ...

Therefore, it is submitted, no domestic court should impose an Article 15A sentence [on] an accused for an offence committed prior to commencement of that provision."

[54]      The decision in Maktouf was considered in Docherty where Lord Hughes, delivering the unanimous judgment of the Supreme Court, stated at para [49]:

[55]      Maktouf involved the fusion of a very particular legal and factual matrix. Our analysis of this decision is as follows. In the first place, the sentencing exercise had certain features which are not replicated in that of the present case. There are three such features in particular. The first is that of the mandatory minimum punishment for the offences concerned. The second is that the new post-offending sentencing code brought in a regime which markedly increased the mandatory minimum sentence of imprisonment applicable at the time of the applicants' offending. The third is that the sentencing court had the option of sentencing the applicants under the more lenient earlier Code. As observed by Lord Hughes in Docherty, the new Code had an effect comparable to that of increasing the maximum punishment and, further, constrained the sentencing court by establishing a more severe regime.  This, succinctly, violated the lex gravior principle.  In passing, in the abstract it would appear that the ECtHR could have decided the two cases on this basis alone.

[56]      Developing this analysis, certain further observations are appropriate. First, there is no indication in the judgment of an intention to depart from, modify or develop the established case law of both the ECtHR and the Commission. Second, the decision is clearly harmonious with the central article 7 ECHR principles rehearsed in para [38] ff above.  Recalling what we have stated in para [39],  Maktouf is a paradigm example of undertaking a concrete assessment of the specific facts, circumstances and legal framework of the case in order to determine whether either offender could have suffered a disadvantage by virtue of the new sentencing regime, in preference to the more limited exercise of abstract comparison of the two sentencing codes under scrutiny.  The standard of concrete and effective safeguards shines brightly in the judgment of the ECtHR.

[57]      In addition to the foregoing it is of obvious significance that Maktouf was considered by the Supreme Court in some detail in Docherty.  This exercise did not generate any expression of surprise or concern. It was viewed through the prism of the established article 7 ECHR principles In particular, there was no suggestion that Maktouf marked a departure from, or modification or expansion of, the previous case law of the ECtHR or House of Lords. Furthermore, the analysis of Lord Hughes recognised the context specific nature of the legal and factual framework of the Maktouf decision, which we have highlighted above.

[58]      To the foregoing we would add that the principles identified in para [38] ff above were rehearsed without demur or modification by the Supreme Court in Morgan.  Furthermore, Uttley was followed in Docherty - see para [48] - and in Morgan. Thus there is a clearly identifiable continuum. In all three cases these principles were applied as appropriate.

[59]      The question for this court, unqualified and unvarnished, is whether a violation of the appellant's rights under article 7 ECHR has been established in any of the respects advanced. It is a paradigm binary question, which can be answered only "yes" or "no" as regards each of the three elements canvassed.

[60]      In answering this question, the task of this court is to first identify the governing principles and then apply them to the legal and factual matrix of this appeal. The principles which we propose to apply are rehearsed in our review of the relevant ECtHR, House of Lords and Supreme Court jurisprudence in para [38] ff above. These principles are both clearly formulated and well established.  They have featured, in varying ways, in the reasoning of the relevant decisions of the aforementioned courts. Thus, there can be no juridical justification for this court declining to give full effect to them. Applying the prism of section 2 of the Human Rights Act, we consider that the relevant decisions of the ECtHR constitute clear and consistent jurisprudence to which this court must give effect.  Applying the different prism of the domestic law doctrine of precedent, we consider that the ratio decidendi of the relevant decisions of the House of Lords and Supreme Court enshrines the same principles.

[61]      The cornerstone of the appellant's article 7 ECHR ground of appeal is that the decision of the ECtHR in Maktouf has developed and expanded the corpus of principles considered in para [38] ff above, to her advantage.  We consider that the core principle enshrined in article 7(1), second sentence, namely that there will be no infringement of this Convention right where the sentence imposed does not exceed that applicable at the time of the offender's criminality, is unchanged. In the judgement of this court, none of the three suggested incompatibility elements outlined in para [51] above infringes this principle.  As regards the second element, this is so even if the statutory construction which this court has exposed in paras [18]-[19] above is incorrect. While the appellant's argument did not formulate the contours of any new, expanded or modified principle, for the combination of reasons rehearsed above we reject the central submission advanced on behalf of the appellant on its merits.

[62]      Independent of the foregoing a separate consideration arises. The sentencing judge described the submission that the appellant should be punished by a suspended sentence of imprisonment as "entirely unrealistic." Notably, the judge evidently considered this submission and made this assessment in isolation from the effects of the 2021 Act. There is no hint in his sentencing decision that he rejected this submission because he was bound to do so by reason of the new sentencing regime. Bearing in mind what we have stated in para [26] above, we consider that this must provide a further and free-standing answer to this discrete challenge.  Even on the most generous and sympathetic view of the appellant's case, a suspended sentence of imprisonment was at no time a realistic possibility. Thus, the "real possibility" test enshrined in Maktouf (supra) is manifestly not satisfied.

[64]      Independent of all of the foregoing, the further effect of our analysis beginning in para [38] and continuing to para [62] is that to accede to the appellant's argument would entail the doctrinally impermissible step of disregarding the reasoning in decisions of both the House of Lords and the Supreme Court which this court is bound as a matter of precedent to follow.

[65]      The presentation of the appellant's case grouped together all three of the suggested incompatibility features (see [51] above] under the single banner of the Maktouf decision, without distinction. It follows that the effect of the foregoing conclusion is that the first ground of appeal is rejected in its entirety.  

Second Ground of Appeal: Manifestly Excessive Sentence

[66]      The appellant's poor health lies at the heart of the second ground of appeal. There was an abundance of medical evidence at the time of her sentencing. This disclosed a diagnosis of MS and a further diagnosis of malignant melanoma in 2019. These are life limiting conditions. In the earlier medical reports, the MS was described as "relapsing/remitting." In December 2020 her GP advised "the ultimate prognosis is of a serious decline in all areas." A neurological assessment in June 2021 reported evidence of physical, cognitive and mental health symptoms. In February 2022 her speed of cognitive functioning was found to be "extremely reduced."  Other reports document a chronic history of anxiety and depression. In March 2023 her GP reported that her condition had become "markedly worse."  Various adaptations to her home had been made. She was described as "seriously debilitated", albeit she continued to work as a bookmaker's shop manager.

[67]      The new medical evidence which this court has admitted may be summarised thus. The appellant's GP reports a "marked deterioration in her physical appearance and her mental health" and worsening anxiety. She receives some level of personal assistance and certain adaptations to her prison cell have been made. The progressive nature of her MS is confirmed by the most recent neurological assessment. The new evidence also contains 22 pages of prison medical records generated between May and August 2023.  There is no comment by either the GP or the consultant neurologist on these materials.

[68]      Examples of sentencing for comparable types of offending can be found in the reported cases. In R v Lorenc [1988] NI 96, a case of unlawful possession of documents consisting of three army manuals pertaining to the use of rifles, boobytraps and incendiaries, a sentence of two years imprisonment was reduced to one year on appeal. The court reasoned that having regard to the appellant's minor criminal record which had not entailed any custodial sentences and the trial judge's assessment that he was "an innocent abroad", a sentence of 12 months imprisonment suffices to provide effective discouragement from re-offending.

[71]      We have also taken note of the sentence of 26 months imprisonment together with a mandatory period of 12 months licensed release in the case of R v Golaszewski [2020] EWCA Crim 1831. In addition, we have considered the custodial term of four years and seven months in R v Hafeez [2020] EWCA Crim 453 which concerned the generation of an extensive electronic library containing much extremist material including bomb making recipes, videos of terrorist related murders and instructions on the commission of terrorist attacks.

[73]      There is no sentencing guideline authority for the offence of collecting or making a record of information likely to be useful to a terrorist.  It was submitted by the prosecution that the offence may cover a broad range of behaviour with regard to the nature of the information collected, the role played by the offender and the value of the information.  Thus, it is submitted that every offence is fact specific.

[74]      It is further argued that, consequently, the starting point in other reported cases may be of general assistance only in terms of identifying a range and that the cases considered above are to be viewed through this prism.

"[86]    It has long been recognised in the world of sentencing that there is scope for a merciful disposal.  In the jurisdiction of Northern Ireland this is illustrated in Attorney General's Reference (No 2 of 1993) [unreported, 28 June 1993].  In that case a suspended sentence of imprisonment was imposed on an offender who had been found guilty by jury verdict of one count of burglary and one of causing grievous bodily harm with intent, committed after he had broken into the home of and physically attacked an elderly man.  His sentence was referred, unsuccessfully, by the Attorney General to the Court of Appeal.  The factors which combined to merit the assessment that the suspended sentence was an appropriate disposal were the offender's age (21), his clear record and a psychologist's assessment that he was of low intelligence and would be vulnerable in a prison setting."

The arguments on behalf of the appellant pray in aid this passage. However, the analysis does not stop there.

[80]      The scourge of terrorist offending continues to demand condign punishment in the unsettled and challenging post - conflict world of Northern Ireland. Terrorism in all of its manifestations is fundamentally and irredeemably antithetical to the rule of law.

[81]      Concluding, first, we endorse fully all that the sentencing judge stated about the gravity of the appellant's offending. Second, the appellant's culpability was on any showing at an elevated level. Third, the proposition that the appellant fell to be punished by a sentence designed to deter her and others from committing offences of this kind is in our view incontestable. We consider that the sentencing of the appellant was harmonious with the principles rehearsed in the preceding paragraphs. We have no hesitation in dismissing this ground of appeal.

Omnibus Conclusion

[82]      For the reasons given:

(i)                The first ground of appeal based on article 7 ECHR is dismissed.

(ii)              The second ground of appeal, which contends that the appellant's sentence of imprisonment of four years is manifestly excessive, is similarly dismissed.