Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_6.html
Cite as: 2020 GWD 6-98, [2020] HCJAC 6, [2020] ScotHC HCJAC_6

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Lord Glennie

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2020] HCJAC 6

HCA/2019/000568/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

DAVID DUDGEON

against

HER MAJESTY’S ADVOCATE

Appellant: Auchincloss (sol adv); PDSO

Respondent: M Hughes; Crown Agent

Appellant

Respondent

7 January 2020

[1] The appellant is a 43 year old first offender. On 25 June 2019, he pled guilty by

section 76 indictment to a charge of possessing, at his home address, a quantity of texts,

manuals, booklets, leaflets, video files and other guides containing information of a kind

likely to be useful to a person committing or preparing an act of terrorism, contrary to the

Terrorism Act 2000, section 58(1)(b).

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[2] After a lengthy procedure involving extensive psychiatric examination the appellant

was sentenced to a period of 2 years’ imprisonment, reduced from the period of 3 years

which would have been selected but for the early plea. A supervised release order for a

period of 12 months was also imposed. The appellant has been granted leave to appeal but

restricted to the argument that the starting point sentence of 3 years was excessive.

[3] The appellant appears to have a history of mental health issues dating back to 1995,

including paranoia and low mood for which he received outpatient treatment. In

March 2019 one of the appellant’s treating psychiatrists contacted the police due to concerns

about his disclosures and behaviour during consultation. A search of his home address took

place. A number of documents of concern were found on electronic devices. These

included:

 books which contained instructions on the production and use of crude chemical and

biological weapons,

 documents and video files containing techniques for fighting and attacking with

knives and other weapons in order to inflict fatal and non-fatal injuries, and

 a book describing itself as the Art and Science of Purposeful Concealment, which

showed, amongst other things, how to smuggle weapons onto aeroplanes.

[4] The sheriff also reports that the appellant had disclosed a sustained interest in

extreme right-wing material and had an extensive internet browsing history in which he

accessed websites of an extreme far right nature and on topics including anti-Semitism,

holocaust denial, racism, conspiracy theories and serial killers.

[5] In his report to this court the sentencing sheriff explains that in the period of deferral

for sentence concerns about the appellant’s mental state materialised. Various different

reports were obtained but by the date of the sentencing diet, on 26 September, the available

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medical opinion was to the effect that the appellant did not require assessment or treatment

in hospital.

[6] The sentencing sheriff’s view was that the charge which he was dealing with was a

serious one and that there were aspects of the case which were both concerning and

unusual. He noted that the websites accessed by the appellant and the materials gleaned

from them were sinister, violent and disturbing and whilst the appellant had not acted upon

the material which he had ingathered, his actions were worrying and spanned a period of

years. The sentencing sheriff concluded that the appellant’s conduct ought to be seen in the

context of freely and frequently expressed violent and extremist racist views. In these

circumstances he considered that only a significant custodial sentence was appropriate.

[7] On the appellant’s behalf, it was contended that the sentence imposed was excessive.

It was submitted that it was relevant to take account of the period of time which had passed

without incident since the appellant downloaded the material specified in the charge. These

documents were downloaded onto the appellant’s computer in March 2013 and then on two

days in July 2015. It was submitted that most of that material was last accessed on the same

date as it was created by download and that the most recent date on which any of the

material was accessed was 2 July 2015. Accordingly, it could be seen that the appellant had

not accessed any of the relevant material for a period of years prior to his arrest. This was

not only of relevance in the context of the appellant not having acted on any of the material

but it was also relevant to take account of the passage of time which had elapsed between

acquiring this material and making the various observations to the psychiatrists which the

sheriff had been concerned about.

[8] It was also submitted that the observations which the appellant had made to the

psychiatrist and which had caused concern were made at a time when he was being treated

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for a presumed psychotic illness. In light of these circumstances it was contended that the

sheriff had attached too much weight to the comments made by the appellant and that the

headline sentence selected was therefore excessive.

[9] The offence to which the appellant pled guilty is one of a group of offences created

by part 6 of the Terrorism Act 2000. The offence is committed by possessing items of a kind

likely to be useful to a person committing or preparing an act of terrorism. The materials

found in the appellant’s possession plainly satisfied that requirement. The maximum

sentence for an offence of this kind is 15 years imprisonment. The offence of possessing

items of the appropriate sort is committed whether or not any further action is taken.

Different and more serious offences occur if acts of a violent or terrorist nature are thereafter

engaged in.

[10] Parliament has considered how best to respond to the threat of terrorist behaviour

and has concluded that significant sentences should be available to be imposed on anyone

who has engaged in the support or facilitation of such conduct.

[11] The sentencing sheriff in the present case gave careful consideration to the

appellant’s circumstances and balanced these against the nature of the material obtained by

him. He took account of Parliament’s purpose and intention in creating the offence with

which he was dealing and he assessed the seriousness of the particular conduct concerned in

light of the sentencing regime provided for. It is not clear whether the particular

submissions founded upon in the present appeal were advanced before the sheriff at the

sentencing diet. There is no reference in his report to a submission being made to the effect

that the extent of the appellant’s culpability should be mitigated by reference to the period

of time which had elapsed since the material was downloaded. However, as was observed

in presenting the appeal, it is clear from the sheriff’s report that he was well aware of when

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the relevant material was downloaded and when it had been accessed. The sheriff noted

that the appellant had not acted on any of the material downloaded.

[12] However, this was not the only relevant consideration. As the sheriff noted in his

report, the appellant had shown a sustained interest in concerning material and had an

extensive internet browsing history disclosing access to websites of an extreme far right

nature. Although not necessarily criminal conduct in and of itself, this ongoing interest

legitimately cast a light on the context in which the appellant had downloaded the material

specified in the charge and the appellant had frequently expressed violent and extremist

racist views to those who had interviewed him. In our opinion the sheriff was correct to

take account of this aspect of the case as reflecting on the appellant’s possession of the

prohibited material.

[13] In the whole circumstances we do not consider that the conclusion which the sheriff

reached in selecting a headline sentence of 3 years’ imprisonment can be described as

excessive. The appeal must therefore be refused.