Bel [2021] EWCA Crim 1461

R v Bel [2021] EWCA Crim 1461 concerned an appeal against a sentence of two years’ custody imposed for collecting information likely to be useful to a person committing or preparing an act of terrorism, heard by the Vice President of the Court of Appeal Criminal Division (Lord Justice Fulford), Mr Justice Murray and Mr Justice Wall.

Mr Oliver Bel, aged 25, was convicted on 22 April 2021 in the Crown Court at Manchester before His Honour Judge Conrad QC and a jury of an offence contrary to section 58 of the Terrorism Act 2000, namely possessing “The Anarchist’s Cookbook”, a record of information likely to be useful to a person committing or preparing an act of terrorism. On 21 May 2021 he was sentenced to a special custodial sentence for an offender of particular concern under section 278 of the Sentencing Act 2020, comprising two years’ custody and a further one year on licence. His plea to a summary offence of sending grossly offensive matter by an electronic communications network contrary to section 127(1)(a) of the Communications Act 2003 was held to be equivocal and was sent back to the magistrates’ court. Mr Bel was also made subject to notification requirements under the Counter-Terrorism Act 2008 for ten years. The Registrar referred his application for leave to appeal sentence to the full court.

In January 2019 Mr Bel, then a mathematics undergraduate at Pembroke College, Cambridge, came to the attention of counter-terrorism police following a report by a member of the public about posts he had made in a Facebook group called the “Young Free Speech Society” in which he defended Adolf Hitler and made derogatory comments about Jews. In May 2019 he was contacted by PC Penegar, a counter-terrorism officer from the Prevent programme, who met with him on a short series of occasions. Notwithstanding that intervention, Mr Bel continued to communicate angry, racist and extreme views online with other individuals holding similar views. In July 2019 he commented on Facebook that he felt like “going on a spree”, a post which was reported to the Prevent programme by his tutor. On 12 November 2019 the anti-fascist group Hope Not Hate published an article revealing Mr Bel as a member of the far right, identifying him as a member of the Iron March forum following a leak of its membership list by the online research group Bellingcat.

On 15 November 2019 officers from the North West Counter Terrorism Unit attended Mr Bel’s home, conducted a search and seized his mobile telephone and a number of books, including volumes concerning Adolf Hitler and the Nazi movement. One of the books recovered was the Anarchist’s Cookbook, which contained instructions on how to create improvised explosive devices, including high explosives such as blasting gelatine and nitro-glycerine, and the use of firearms and other weapons. Mr Bel indicated to the officers where the book was located in his bedroom. Police enquiries established that he had ordered the book from Amazon in December 2018. It was clear from the materials recovered that Mr Bel harboured extreme right-wing views and had a general interest in extreme violence, both political and otherwise. He was in contact with individuals closely connected to the proscribed National Action group and with individuals who identified as “incels” or “involuntary celibates”, a movement characterised by hatred of women. On the two occasions in July 2019 already mentioned, Mr Bel had expressed in online posts a desire to go on “a spree”, referring to a killing spree.

Mr Bel sought to conceal his mobile telephone, which was nonetheless seized. Its contents revealed multiple examples of him discussing his hatred of Jews, black people and gay people, his identification as a national socialist and as an incel, and his discussions of violence, including his desire to kill his uncle in order to prevent him from selling the house in which Mr Bel was living. The applicant had been actively networking with two of the founder members of the proscribed National Action group, Alex Davies in September 2017 and Benjamin Raymond in October 2020. He admitted in his prepared statement and police interview to having been in contact with Ethan Stables, who in February 2018 had been convicted of preparing an act of terrorism, making threats to kill and possessing explosives in relation to a plan to carry out an attack at a Gay Pride event.

A pre-sentence report observed that Mr Bel harboured extreme right-wing views and described himself as a “Racial Socialist”, believing that his race should have its own homeland. He had been diagnosed with Asperger’s Syndrome, an Autistic Spectrum Disorder, in 2016. The author noted that one feature of ASD is intense, narrow and often obsessional interests, and where the pursuit of these interests has developed into illegal activity this may be an important factor in understanding the offending. Mr Bel struggled to see why anyone would be concerned about his possession of a book, describing it as “nothing nefarious” and “for academic interest only”. He seemed oblivious to the seriousness of his situation and failed to understand why possession of a book he had purchased from Amazon would be illegal. He expressed the view that it was strange he should be punished for possession of a freely available book and stated that his racist comments had been posted on a private forum meant for a specific audience, so he did not see why people might be upset. He told the author that his political views had been mischaracterised by the prosecution and that he was more moderate than had been presented. The author assessed that Mr Bel’s lack of understanding of the seriousness of his actions and of the risks posed by his ongoing association with those of an extreme right-wing viewpoint was of particular concern. His lack of internal controls when expressing his views was likely a result of his ASD, which would render him vulnerable to the influence of others. If he persisted in his association with such individuals, the risk of harm could increase exponentially. Although at the time of preparation he had no intention of causing harm to others, a full understanding of the risk he posed could not be possible until Extremism Risk Guidance had been completed post-sentence. He was assessed as posing a high risk of harm to the public until he developed internal controls to understand and manage his risk to others, a medium risk of harm to children through radicalisation into right-wing extremism, and a medium risk of harm to himself. Against that background, bearing in mind that Mr Bel was entrenched in his views, his continued association with right-wing extremists and his lack of any real awareness of the risks involved, the author expressed the view that the risk he posed was not presently manageable in the community. The author did not propose an alternative to a custodial sentence.

Of particular note was that Mr Bel had been the subject of an intervention by Prevent in 2019, but had persisted in possessing the Anarchist’s Cookbook despite understanding that it was extremist in nature, as evidenced by a comment he made on 15 November 2019, and despite PC Penegar having explained to him the significance of section 58 of the Terrorism Act 2000. On 31 January 2020, following the seizure at his home of the Anarchist’s Cookbook, a Totenkopf SS badge and a skull mask associated with the far right, Mr Bel bought a pack of two identical masks from Amazon to replace the one which had been seized. Following his arrest and release on bail on 19 February 2020, on 25 February 2020 he contacted the officer in the case and requested the return of the Anarchist’s Cookbook and the Totenkopf badge. On 2 October 2020 he contacted Benjamin Raymond via Twitter and asked him for his contact details.

When passing sentence, Judge Conrad QC observed that the Anarchist’s Cookbook was of use to a person preparing or committing an act of terrorism. Mr Bel had indicated that he knew the nature of the book and had been warned about such material by at least one police officer. His defence that he had a reasonable excuse for possessing it, namely academic research or legitimate intellectual interest, had been rejected by the jury. He had not given evidence to support his defence before the jury nor had he testified during the Newton hearing to support his contention, as expressed to the author of the pre-sentence report, that his political views had been mischaracterised and that he was more moderate than had been presented. The judge noted that a great deal of the evidence showed Mr Bel’s extreme right-wing mindset in terms of his communications and alliances with others of a similar mind. His pronouncements were abhorrent to all right-thinking people, as were the vile images he kept on his mobile telephone. The judge observed that it was profoundly dispiriting to see a young man blessed with high intelligence whose heart was filled with so much hatred for all manner of people who had done him no harm and who posed no threat to him. Many of his postings were truly hateful and worrying. The relevance of the evidence of his views and the expression of those views was that they were pertinent to his possession of the Anarchist’s Cookbook.

The judge expressly addressed the fact that in 2016 Mr Bel had been diagnosed with Asperger’s Syndrome and considered the extent to which allowance needed to be made for that fact. However, the judge concluded that Mr Bel used the diagnosis when it suited him. From what the judge had seen of him at the trial and during the pre-trial hearings and bearing in mind the other evidence in the case, he concluded that Mr Bel was a highly manipulative person. Although the judge bore in mind his mental disorder, as required by the definitive guideline, he did not find that it had any material effect on sentencing. The way in which Mr Bel exploited his diagnosis of Asperger’s Syndrome had been demonstrated at the beginning of the trial when he refused to wear a mask, as required. He told security staff that it was his human right not to wear a mask, then changed his reason and claimed through counsel that wearing a mask adversely affected his health in terms of his Asperger’s condition. The evidence demonstrated, however, that Mr Bel exploited his medical condition, having stated that he needed to act “legit autistic” when attending a relevant assessment. Photographs recovered from his telephone showed him wearing a Nazi type mask, seemingly quite happily. When the judge indicated that he was considering revoking bail if Mr Bel did not comply with the court’s requirements, he then wore a mask and continued to wear it throughout the trial without any ill effect. In the judge’s assessment, this showed that he was an arrogant young man who was trying to assert his authority over the court and who believed that he was superior to others. The applicant’s perception of himself as being superior was apparent from his demeanour throughout the video-recorded interviews under caution which were played in full to the court. Mr Bel’s behaviour did not, in the judge’s view, currently bode well for his rehabilitation.

Amongst matters of particular concern to the judge were that Mr Bel had not been frank with PC Penegar, who had dealt with him with courtesy and tact in trying to talk him away from extremism, particularly in not telling the officer of his involvement with the Iron March forum. Also of concern was his fascination with weapons, including his attempt to import pepper spray, his express desire to go “ER” (a reference to the killer Elliot Rodgers) and “going on a spree”, together with his contact with people of concern such as Ethan Stables, Alec Davies, Garron Helm and others. The real worry, as expressed by the judge, was that Mr Bel’s conduct may have the effect of encouraging others of an extreme mindset to take an extreme course. The judge noted the contents of the pre-sentence report and the concerns expressed by the author.

The judge bore in mind the definitive guideline for this offence and the joint sentencing note. This was a Category C case in terms of culpability. In terms of harm the judge accepted the prosecution’s submission that it straddled Categories 1 and 2. The book provided instruction for specific terrorist activity endangering life and some of the techniques described in the book, taken in isolation, would be very likely to cause harm, which would indicate Category 1. However, Mr Bel’s intention, if any, to use the techniques in the book and therefore the likelihood of harm actually being caused was less certain. There was not a great deal of difference in the starting points in the two categories. Category 1 indicated a starting point of two years’ custody after trial, Category 2 a starting point of 18 months’ custody after trial. The judge bore in mind that the guideline was published when the maximum sentence for this offence was ten years’ imprisonment and had since been increased to 15 years’ imprisonment. In the judge’s view there had accordingly to be some uplift within the category in the sentence to be imposed. With regard to mitigation, the judge took into account defence counsel’s submissions, in particular Mr Bel’s lack of previous convictions and his age at the time of these matters. The judge identified as aggravating factors Mr Bel’s failure to heed the warnings of PC Penegar and the period of time over which the offence was committed. In the view of the judge, this offence was so serious that only immediate custody was appropriate. The judge observed that the pre-sentence report did not suggest that a community order was appropriate.

On appeal, the matter was argued in two notably different ways. Until shortly before the hearing the court anticipated that the application would be addressed on the basis of the written grounds of appeal settled by Miss Bright. Mr Richard Wormald QC, recently instructed, presented a somewhat differently formulated application which raised, inter alia, a potentially important additional ground of appeal not raised before the judge or in the written grounds. The court proposed to deal with both the written and the new grounds of appeal.

As regards the significant new matter raised, Mr Wormald suggested that the court’s decision in R v LF [2016] EWCA Crim 561 was wrongly decided in the sense that it was indicated in that case that a suspended sentence of imprisonment cannot be considered practical or desirable in this context. The court was asked to consider whether the judgment in LF precluded the judge from passing a suspended sentence in the right case. Mr Wormald essentially argued that the correct result in this case would have been a suspended sentence. The prosecution heard of this new argument only late on the previous day and Mr Wormald accepted that they had not had time properly to prepare to meet it. Therefore, the court invited Mr Wormald to address it on the basis that a suspended sentence was an option that reflected the justice of the case and indicated that if at the conclusion of the submissions the court considered that his proposition in this regard potentially had merit, it would adjourn the application in order for full argument on the point to take place.

In the written grounds of appeal it was argued that the judge was wrong to pass a custodial sentence on somewhat different bases from those advanced by Mr Wormald. Common to both submissions was the suggestion that a custodial sentence would be unduly difficult for this mentally ill applicant to bear. Miss Bright also argued that Mr Bel’s good character should have anchored the sentence to a community-based disposal. The court observed immediately that, although previous good character is frequently a significant matter to take into account, that feature alone is not determinative of the kind or of the length of the sentence a court should impose. Certainly, it does not create a presumption that a non-custodial course will be followed. Those