Activists, not terrorists

Why ‘terrorist connection’ made little difference to prison sentences

Four Palestine Action activists imprisoned on Friday for causing criminal damage to industrial premises in August 2024 “were sentenced as terrorists because prosecutors want to make an example of them”, Amnesty International claimed at the weekend. “Criminal damage has never been treated as terrorism within the UK justice system before and it is dangerous to treat them as the same thing,” the campaign group added.

Anyone reading this might think that the activists were convicted of terrorism offences or, at the very least, that their sentences were substantially increased because Palestine Action was subsequently banned as a terrorist organisation. Neither is true.

All four defendants had been convicted of causing criminal damage to a factory near Bristol owned by Elbit Systems, an Israeli company. The cost to its insurers was well over £1 million.

Last Friday, Charlotte Head, 30, and Leona Kamio, 30, received sentences of six years for their role in the attack. Fatema Zainab Rajwani, 21, was sentenced to five years and eight months. Samuel Corner, 23, also received five years for criminal damage and a further three years and eight months, to be served consecutively, for fracturing the spine of Police Sergeant Kate Evans with a sledgehammer.

In sentencing them, Mr Justice Johnson adopted a starting point of five years — half the maximum set by parliament. He then had to take aggravating and mitigating factors into account. We can see that these factors largely balanced each other out for the younger defendants. For the older two, aggravating factors outweighed mitigating factors by just one year. Mitigating factors for all four defendants included their “positive good character”.

An aggravating factor singled out by the judge was that the offenders were on the premises as trespassers: they “used extreme force and aggression to break in, deliberately using a large vehicle as an instrument of destruction, driving the van through two security fences and through the shutter of the loading bay”.

If an offence has a terrorist connection, that must be treated as an aggravating factor. Since 2021, this legislative requirement has applied to all offences punishable with a maximum sentence of more than two years.

An offence has a terrorist connection if it is committed for the purpose of terrorism. And terrorism is defined to include serious damage to property that is designed to influence the government for the purpose of advancing a political or ideological cause.

That was established here, said the judge. But it didn’t make much difference in the end. In a strikingly generous assessment of the offenders’ motives, Mr Justice Johnson told all four of them:

It is an aggravating factor that the offending had a terrorist connection.

In measuring the increase to the sentence on account of that factor I take account of the fact that you did not intend to injure any person, and that part of your motivation in taking action was to prevent the death and suffering of Palestinian civilians, including children.

That significantly reduces the increase in the sentence that would otherwise be appropriate.

Before the activists were sentenced, leading lawyers had claimed that the aggravating factor was a “constitutional threat”.

“It’s a recategorising the offence without a trial,” one said. “It’s particularly insidious for the obvious reason that they weren’t allowed to explain their motivation to a jury — that was denied them. And yet the state says ‘we’re actually going to elevate what the offences are’ when a jury might well not have convicted had they known they were going to be treated as terrorists.

“The fundamental principle is you should not be convicted on any statutory offence for which you have not been charged.”

This is nonsense. The offence of criminal damage — the statutory offence on which they were convicted — has not been recategorised. Parliament has simply instructed sentencers to take account of an additional aggravating factor that may apply in a wide range of offences.

And there is no justification for saying the jury should have been told about this provision in the Sentencing Act. A jury’s job is decide whether an offence has been committed. It has no role in sentencing.

Moreover, it was the defendants who asked for this factor to be kept from the jury. As Johnson told the defendants on Friday:

At the outset of the case, and at the request of the prosecution, and after hearing legal argument, I ruled that it appeared that the evidence on the indictment revealed that your alleged offence of criminal damage had a terrorist connection. As I made clear at the time, that ruling had procedural consequences but did not have any effect on the trial or any sentencing.

Legislation prevented the reporting of that ruling. You asked me not to lift the reporting restriction because you were concerned it might cause prejudice. I agreed to your request not to lift the reporting restriction at that stage, even though there was a strong public interest in permitting reporting.

Friday’s sentencing hearing was delayed but Johnson’s full sentencing remarks were circulated to reporters at 7.15pm. They are well worth reading — particularly by those who have been putting it about that these offenders were sentenced “as terrorists”. They were not.

Update 1300: The Court of Appeal has allowed an appeal by the home secretary against a decision by the High Court in February to lift the ban on Palestine Action. The judgment is here and there is also a press summary