Court of Appeal overturns finding of dangerousness and reduces sentence in terrorism case for teenager with autism spectrum disorder

Edward Fitzgerald KC and Rabah Kherbane were instructed as fresh counsel in the appeal case of Wheeler [2025] EWCA Crim 558, a significant judgment for defendants with autism spectrum disorder (“ASD”) charged with terrorism offences.

The Appellant, MW, had been convicted of sharing “terrorist” documents and materials online, including for the manufacture of explosives and improvised firearms. This included “setting up a large library” of more than 100 documents containing “terrorist” manifestos. MW distributed more than 100 such documents and images. 

At the time of his trial, MW’s ASD was not known. He was convicted by a jury, found to be dangerous, and sentenced to an extended sentence of seven years, including an extended licence period.

In sentencing MW, the judge minimised any reduction of sentence for his youth. The judge justified this on the basis MW presented as “cold”, “deeply chilling”, and did not appear to have any “emotional vulnerability” or remorse when he gave evidence. The judge also found MW to be dangerous based on his flat presentation at trial. At all times, MW denied a terrorist mindset.

After his conviction, MW was diagnosed with ASD following an extensive diagnostic process. On appeal, Edward and Rabah applied to admit the fresh evidence of two experts, obtained post-conviction and sentence. Both reports directly addressed the impact of MW’s ASD on his presentation and culpability.

Edward and Rabah argued that:

• MW’s ASD explained his organising of documents, repetitive or replicated behaviours, and appearance of transient or intense interests (without necessarily an ideological commitment) and his presentation at trial: §32. Further, the expert evidence noted MW’s ASD meant he came across distant, disengaged, reserved, subdued and cold, and others may therefore not appreciate his capacity to be caring and understanding.
• In the absence of the judge's misinterpretation of MW’s ASD and his presentation, and allowing sufficient weight for material factors, there was no reasonable basis to find that, at the date of the sentence, MW posed a significant risk to members of the public of serious harm: §37.
• The sentence should have been adjusted to recognise the neurological and developmental limitation that MW was born with, and which had affected his conduct as a young person: §38.

The Court of Appeal admitted the fresh evidence, overturned the judge’s finding of dangerousness, and reduced the sentence to five years’ imprisonment. In doing so, the Court of Appeal recognised that:

• The judge did not consider the effect that MW’s ASD may have had on his presentation, in particular the lack of emotion in that presentation. The judge had incorrectly regarded MW’s inability to express emotion as a form of "cold" or "calculating" maturity.
• In fact, this was due to specific neurological deficits of ASD and how the brain processes social and emotional engagement. A "flat" or "cold" presentation may well not be an indication of being cold or calculating but instead reflect a difficulty with emotional recognition and expression, a core feature of MW’s ASD: §49.
• Further, the judge's view on MW’s presentation played a significant part in her decision as to his dangerousness. The sentencing judge had said, “... at present, I simply have to say that you are dangerous. As I have said you came across in evidence as cold and calculating and you have no remorse that I could see." That conclusion would not fairly have been open to the judge if she had had the benefit of the fresh evidence before the Court of Appeal on MW’s ASD: §§51- 52. Absent a conclusion that his presentation in evidence was cold and emotionless, “it would have been unlikely in the extreme that the judge would have reached the decision she did on dangerousness.”

Edward Fitzgerald KC and Rabah Kherbane were instructed by Amer Ahmed at JD Spicer Zeb.

The full judgment can be accessed here.