Right-wing extremist fails in appeal against two-year sentence for downloading terrorist manuals

David Dudgeon was sentenced to two years’ imprisonment, reduced from a period of three years, after pleading guilty to a contravention of section 58(1)(b) of the Terrorism Act 2000.

The 43-year-old first offender appealed against his sentence, claiming that the starting point of three years was “excessive”, but the High Court of Justiciary Appeal Court refused the appeal.

‘Violent and disturbing material’

Lord Glennie and Lord Turnbull heard that the appellant pled guilty at Edinburgh Sheriff Court in June 2019 to a charge of possessing, at his home address in Prestonpans, 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”.

The court was told that the appellant had 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 his treating psychiatrists contacted the police due to concerns about his disclosures and behaviour during consultation. 

Officers searched his home address and found a number of documents of concern on electronic devices, including documents and video files containing techniques for fighting and attacking with knives and other weapons in order to inflict fatal and non-fatal injuries.

The online material also included manuals containing instructions on the production and use of chemical and biological weapons, and a copy of the Art and Science of Purposeful Concealment, which showed how to smuggle bombs onto planes.

The appellant had also demonstrated a sustained interest 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, which the sentencing sheriff had described as “violent, sinister and disturbing”.

After a lengthy procedure involving extensive psychiatric examination the appellant Sheriff Michael O’Grady sentenced the appellant to a period of two years’ imprisonment - reduced from the period of three years which would have been selected but for the early plea - and imposed a 12-month supervised release order. 

The sheriff observed that while the appellant had not acted on the material, his action were “worrying” and had spanned a period of years, and therefore he considered that only a significant custodial sentence was appropriate.

‘Excessive sentence’

However, the appellant was granted leave to appeal on the basis that the starting point sentence of three years was “excessive”.

On behalf of the appellant 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. 

The documents were downloaded onto the appellant’s computer in March 2013 and then on two days in July 2015, but he 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.

It was also argued that the comments to the psychiatrist were made when the appellant was being treated for a presumed psychotic illness, and therefore the sheriff had placed “too much weight” on the comments.

Refusing the appeal, the judges observed that the sheriff had given “careful consideration” to particular facts and circumstances of the case.

‘Sheriff was correct’

Delivering the opinion of the court, Lord Turnbull said: “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 maximum sentence for an offence of this kind is 15 years’ imprisonment. 

“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.

“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… However, as was observed in presenting the appeal, it is clear from the sheriff’s report that he was well aware of when 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.“

“However,” he added, “this was not the only 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. In the whole circumstances we do not consider that the conclusion which the sheriff reached in selecting a headline sentence of three years’ imprisonment can be described as excessive.”