Prosecutors choice of charge is his not the courts
The Court gave guidance on sentencing for offences under s5 of the 2006 Act.
Held: It was not for the court to say that more specific offences could have been charged and should have been charged: ‘As a matter of constitutional principle, it is generally for the prosecutor to decide what charge to prefer. Whatever may have been the purpose of Parliament, the offence under s.5 is clearly on its ordinary language wide enough to cover conduct that might otherwise be charged as conspiracy or even attempt to commit particular offences’
The court set out five general principles: ‘(i) conduct threatening democratic government and the security of the state was particularly serious; (ii) the purpose of sentence would be to punish, deter and incapacitate but rehabilitation was unlikely to play a part; (iii) in accordance with section 143(1) of the Criminal Justice Act 2003, the sentencer had to consider the offender’s culpability (usually extremely high), and any harm which the offence caused, had been intended to cause, or might foreseeably have caused; (iv) the starting point was the sentence that would have been imposed if the intended act(s) had been carried out; (v) when relevant, it was necessary to distinguish between a primary intention to endanger life and a primary intention to cause serious damage to property, with the most serious offences generally being those involving an intended threat to human life.’
Lord Thomas of Cwmgiedd, CJ
[2016] EWCA Crim 568, [2016] WLR(D) 267
Bailii, WLRD
Terrorism Act 2006
England and Wales
Criminal Sentencing, Criminal Practice
Leading Case
Updated: 01 November 2021; Ref: scu.564458
