Policy paper

State threats aggravating factor: National Security Bill factsheet

Updated 12 February 2024

Summary

• The National Security Bill creates a new statutory aggravating factor where the foreign power condition is met (such that a person is conducting criminality for or on behalf of, or with the intention to benefit, a foreign power).
• When considering an offender’s sentence, a Judge will be required to consider whether the foreign power condition is met in relation to the offence. If satisfied the condition is met, the Judge must state so in open court and must treat this as an aggravating factor when determining the offender’s sentence.

Background

• If an individual pleads guilty, or is found guilty of a crime, Judges and magistrates will consider the seriousness of the offence and circumstances of the offender in deciding the appropriate sentence. Judges must follow guidelines from the Sentencing Council when deciding what sentences to give, as well as any relevant statutory provisions, such as those within the Sentencing Code. A sentence cannot be aggravated above the maximum penalty for that offence, regardless of the number or significance of aggravating factors.
• The Sentencing Code lists a number of statutory aggravating factors which the court must consider when considering the seriousness of the offence. These factors include, for example, any previous convictions, racial or religious hostility, if the offence was committed on bail, and if the offence had a terrorist connection. The Sentencing Code also includes mitigating factors, such as where the offender has pleaded guilty or assisted the prosecution in their investigation.

How does the aggravating factor in the Bill work?

• The National Security Bill will amend the Sentencing Code to insert a new statutory aggravating factor where the foreign power condition is met. Where the foreign power condition is met in relation to an offence, the judge will be required to acknowledge this in open court and aggravate the seriousness of the offence, meriting a higher sentence, as they deem appropriate.
• Offences under the National Security Bill cannot be aggravated by this new aggravating factor. This is because these offences already contain the foreign power condition (or relate in another way to state threat behaviour). Therefore the penalties for those offences already take into account that behaviour and to aggravate the sentence on the basis of the foreign power condition being met would, in effect, penalise an offender twice for the same activity (known as ‘double-counting’).

How does a court determine if the foreign power condition is met?

• The court will determine whether the foreign power condition is met on the basis of the usual information that is put before it for the purposes of sentencing, for example any evidence heard at trial and representations made by the prosecution or defence.
• A ‘Newton’ hearing may be needed if the offender pleaded guilty to the crime but disputes the aggravating factor. A Newton hearing is where the judge hears evidence from both the prosecution and defence and comes to his or her own conclusion on the facts, applying the criminal standard of proof. Any appeal to a sentence or conviction can be undertaken via the courts system through the standard appeal route.

Hypothetical case study

• An offender is found guilty of harassing an individual. The victim was an outspoken critic of a foreign power’s regime and a leading organiser of high-profile protests outside the foreign power’s Embassy in the UK.
• At trial, the prosecution presented evidence of communication between the foreign power and the offender, demonstrating that the foreign power tasked the offender to harass the victim in order to scare them into silence.
• The court is satisfied that the foreign power condition is met in relation to the harassment, and aggravates the seriousness of the offence, meriting a higher sentence within the maximum limit of 6 months’ custody than may have been given if the aggravating factor was not met, increasing the likelihood of a custodial sentence being served rather than a fine.