David Dudgeon v. Her Majesty’s Advocate [2020] HCJAC 6

Note of appeal against sentence:- On 25 June 2019, at the sheriff court, the appellant pled guilty by the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a contravention of section 58(1)(b) of the Terrorism Act 2000 in that he possessed 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. Following the obtaining of psychiatric information in relation to the appellant the sentencing sheriff sentenced him to a period of 2 years imprisonment, discounted from 3 years to reflect the early plea of guilty. A supervised release order for a period of 12 months was also imposed. The circumstances were that in March 2019 one of the appellant’s psychiatrists contacted the police due to the appellant’s behaviour during consultation and concerning disclosures he made. As a result, a search warrant was sought granted and executed and following a search of his home address a number of documents of concern were found on electronic devices. The appellant appealed against his sentence, leave being granted on the ground that the starting point sentence of 3 years was excessive. It was contended on behalf of the appellant that the starting point of 3 years imprisonment was excessive. It was submitted that a relevant consideration which the sheriff had failed to properly take account of was the period of time which had passed without incident since the appellant downloaded the material specified in the charge. That period of time had passed without incident since the appellant downloaded the material specified in the charge in that the documents were downloaded onto his computer in March 2013 and then on two days in July 2015. It was submitted that none of the material had been accessed for a number of years prior to his arrest which was of relevance because it illustrated that the appellant had not acted on any of the material and there was a considerable gap between him downloading the material and making the observations to the psychiatrists which the sheriff had raised concerns about and too much emphasis had been placed on these by the sheriff and the sentence was excessive. Here the court refused the appeal. The court noted that the offence to which the appellant had pled guilty was contained in part 6 of the 2000 Act and had a maximum sentence of 15 years imprisonment and such offences are committed even where no further action is taken, in situations where violent or terrorist acts occur then even more serious sentences are available to the courts. The court noted that Parliament has determined that significant sentences should be available to be imposed on anyone who has engaged in the support or facilitation of such terrorist conduct. The court considered that the sentencing sheriff gave proper consideration to the appellant’s circumstances including his history of mental health issues dating back to 1995 in selecting the sentence he had. The court noted that whilst it was correct to say that the appellant had not acted on any of the material recovered it was clear that the appellant had a long standing interest in such concerning material as was evidenced by the extent of his internet browsing history which disclosed repeated access to extreme far right websites and his repeated expression of violent and racist views to those who had interviewed him.