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
At first sight Corner's sentence of 3 years & 8 months for GBH seems lenient
However, s.20 OAPA 1861 has a maximum of 5 years imprisonment & he was due some discount, plus 5 years for criminal damage
I’m disappointed by the author’s use of the term ‘nonsense’ to dismiss points with which he disagrees. He may be right that the points raised were wrong in law (I’m not well versed enough in criminal law to express a view), but where a sentence gives rise to public concerns such as raised by a respected body such as Amnesty International, to dismiss points using such language is unfortunate in my view.
Assuming that the author’s analysis of statute law is correct and that a finding by the judge that terrorist related conduct had occurred inevitably lead to an aggravating factor being taken into account in sentencing, it is surely legitimate to ask whether the judge’s finding was correct. It worries me that such a consequential finding OF FACT can be made by a judge alone in a criminal case. Is that compliant with the HRA and ECHR due process requirements? On what standard of proof is a judge to decide that the facts amounted to terrorism?
In my view, the judge was wrong to decide that the terrorism definition was made out on the facts. The defendants’ primary motivation was to stop weaponry reaching Israel, which they believed would be used for purposes that would amount to war crimes or otherwise contravene international law. To find that their motive was to influence the government does not pass scrutiny. It wasn’t terrorism either as defined by law or as understood by the person on the Clapham Omnibus.
As I understand it, the judge denied the defendants the opportunity to put that intention forward as a defence. Why, I fail to see. I’m told by someone more expert than me in such matters, that it is at least arguably a defence as a matter of international law that is binding on the English court. Not only did the judge make that ruling, but under the secrecy of a reporting ban, wrongly (it has been held) tried to refer a barrister to the High Court for contempt in breaching a direction that was arguably wrong in law.
These issues also touch on prosecutorial decisions. It seems that rather than charging the defendants with terrorist offences, they were charged with ‘ordinary’ offences of criminal damage in the knowledge that, if convicted, the prosecution would make out a case that they were guilty of terrorism without the matter being put before the jury for a decision. Prosecutorial decisions are a delegated decision of the head of state and the executive. They thus fall to be examined on a different basis from decisions of courts and legislative activity. It is proper to ask whether the prosecution acted in the public interests of open justice and a fair trial, or was their charging decision an abuse of power?
Looking at this trial in the round, Ian Hislop’s well known comment is inescapable: “If that’s justice, I’m a banana”.
I think it’s helpful to take the Israel/Palestine context out of the equation and to look back to the days of South African apartheid. Presumably, Peter Hain can be grateful that he and his fellow activists, who dug up pitches and other ‘violent’ acts with the clear intention of influencing the government to stop its support of the vile South African regime, were not doing so at the present time. Had they been, they could have been prosecuted for criminal damage and then, once the inconvenience of a jury was out of the way, the prosecution could inform the judge that, as the acts fell within the ‘black letter law’ definition, he not only could - but was obliged to - bang up Hain and his fellow activists as terrorists for much longer terms, possibly without chance of parole.
It’s perhaps ironical that I’m writing this is in a café in Putney High Street, the location of the Lloyd’s Bank branch at which the South African secret police ‘fitted him up’ for a daylight bank robbery, for which the British establishment prosecuted him enthusiastically. Fortunately, he was acquitted and the law then changed to make corroborative evidence a requirement of identification evidence.