Table Of ContentNeutral Citation Number: [2016] EWCA Crim 568
Case No: 2015/05516/A1, 2015/01799/C5, 2015/05639/C1,
2016/00589/A1, 2015/05192/A3, 2015/05300/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AND CENTRAL CRIMINAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/05/2016
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE SWEENEY
MR JUSTICE HICKINBOTTOM
and
MRS JUSTICE CHEEMA-GRUBB DBE
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina Appellant
- and -
(1)Mohammed Abdul Kahar Respondent
(Reference by the Attorney General under s.36 of the
Criminal Justice Act 1988)
Regina Respondent
- and -
(2) Brusthom Ziamani Appellants
(3)Abdurraouf Eshati
(4)Yahya Rashid Applicants
(5)Silhan Ozcelik
(6) Sana Khan
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Her Majesty’s Solicitor General (Robert Buckland QC) and Duncan Penny QC appeared
on behalf of Her Majesty’s Attorney General
S Mehta for the Respondent Kahar
Naeem Mian and Sultana Tafadar for the Appellant Ziamani
Abdul Iqbal QC and J Anders for the Appellant Eshati
M McDonald for the Applicant Rashid
P Rowlands for the Appellant Ozcelik
Henry Blaxland QC for the Applicant Khan
Annabel Darlow QC for the Prosecution
Judgment Approved by the court for handing down. R v Kahar
Richard Whittam QC for the Secretary of State for the Home Department
Hearing dates: 11 February, 15 March 2016 and 14 April 2016
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court to which each of us has contributed.
INTRODUCTION
1. This court has had a number of appeals in cases where offenders have been convicted
and sentenced under s.5 of the Terrorism Act 2006 (“the 2006 Act”). On 11 February
2016, during the course of argument in the Reference by the Attorney General of the
sentence imposed on Kahar, the issue as to the absence of other than broad general
guidance from this Court as to sentencing in such cases was raised. We learnt that
there was in existence for management purposes a schedule which contained a record
of terrorist cases and the decisions in the cases, including Crown Court sentences
imposed; it had been used in one of the appeals. The Crown Prosecution Service was
also providing judges with details of first instance cases to assist judges in sentencing.
It is not in the public interest that judges should be guided by unauthoritative
decisions or by the use of such a schedule for sentencing. Open and fair justice
requires that all guidance is in the public domain and given by either the Sentencing
Council or decisions of this court.
2. We ascertained that it was unlikely that the Sentencing Council could produce
guidelines on the Terrorism Acts for some time. We therefore decided to adjourn the
Reference, together with the appeal in Ziamani which had been listed with it, and to
list, before a five judge court, these appeals and other applications pending before the
Court of Appeal Criminal Division. Our purpose in so doing was to enable this court
to give more detailed guidance in relation to sentences that should be imposed under
s.5 until the Sentencing Council can address the issue in Guidelines.
I: GENERAL
(1) The wide definition of terrorism
3. Section 5 of the 2006 Act provides:
“(1) A person commits an offence if, with the intention of -
(a) committing acts of terrorism, or
(b) assisting another to commit such acts
he engages in conduct in preparation for giving effect to
his intention.
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(2) It is irrelevant for the purposes of subsection (1) whether
the intention and preparations relate to one or more
particular acts of terrorism, acts of terrorism of a particular
description, or acts of terrorism generally…”
4. By virtue of the combination of s.20 of the 2006 Act; the definition of “terrorism” in
s.1 of the Terrorism Act 2000 (“the 2000 Act”); and the decision of the Supreme
Court in R v Gul [2013] UKSC 64, [2014] A.C. 1260 [2014] 1 Cr.App.R. 14 at [26]
to [41], s.5 requires proof that an individual had a specific intent (albeit that it may
have been general in nature) to commit an act or acts of terrorism (which include the
use or threat of serious violence, or serious damage to property, or creating a serious
risk to public safety or health; which is designed to influence the Government of the
UK or any other country, or an International Governmental Organisation, or to
intimidate the public; for the purpose of advancing a political, religious, racial or
ideological cause) in this country or abroad, or to assist another to do so, and that he
or she engaged in conduct in preparation for giving effect to that intention.
5. It is a ‘specified violent offence’ within Chapter 5 of the Criminal Justice Act 2003
(“the CJA 2003”), with a maximum sentence of life imprisonment. It is also, as this
court has observed, an offence which can encompass a wide range of different levels
of criminality. For that reason, this court has declined hitherto to issue any guidance
in relation to ranges of sentence. For the reason we have given, we have reconsidered
this approach and set out our views below.
(2) The use of s.5 where specific offences could have been charged
6. Mr Blaxland QC, on behalf of the appellant Sana Khan, submitted (by reference to the
Explanatory Note to the 2006 Act and to Iqbal & Iqbal [2010] EWCA Crim 3215 at
[10]) that the offence under s.5 was enacted in order to extend the ambit of the
criminal law in the context of contemplated acts of terrorism; that one of the problems
which has arisen in sentencing in s.5 cases is where the conduct of the offender
amounted to a different offence under the terrorism legislation, but with a lesser
maximum sentence. Against that background, he invited the Court to state that
prosecuting authorities should only charge offences under s.5 after consideration had
been given to what other charges could appropriately be brought against the defendant
– which would confine the breadth of the offence to those cases for which the offence
was enacted, and would also help to avoid the difficulty of the sentencing judge
having to make findings of fact.
7. We decline the invitation. As a matter of constitutional principle, it is generally for the
prosecutor to decide what charge to prefer. Whatever may have been the purpose of
Parliament, the offence under s.5 is clearly on its ordinary language wide enough to
cover conduct that might otherwise be charged as conspiracy or even attempt to
commit particular offences and/or (given the overlap recognised in Roddis [2009]
EWCA Crim 585 at [9] and in Iqbal & Iqbal) to cover conduct that might otherwise
be charged as another offence under the anti-terrorist legislation itself. It would, in
our view, be inappropriate, both legally and practically, to confine the discretion of
the prosecution as to the choice of charge (as embodied, for example, in paragraphs
6.1-6.5 of the Code for Crown Prosecutors) in the way suggested – albeit that there
may be some cases in which it might be necessary to take into account, as one factor,
the maximum sentence that could have been imposed for the offence(s) that could
otherwise have been charged.
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(3) The purpose or aim of the terrorism
8. R v F [2007] EWCA Crim 243, [2007] QB 960; [2007] 2 Cr.App.R. 3 was concerned
with an offence of the possession of documents containing information likely to be
useful in committing or preparing an act of terrorism, contrary to s.58 of the 2000 Act.
Sir Igor Judge P (as he then was), in giving the judgment of the court said, at [27] &
[32]:
“…Finally, the legislation does not exempt, nor make an
exception, nor create a defence for, nor exculpate what some
would describe as terrorism in a just cause. Such a concept is
foreign to the 2000 Act. Terrorism is terrorism whatever the
motives of the perpetrators…
…the terrorist legislation applies to countries which are
governed by tyrants and dictators. There is no exemption from
criminal liability for terrorist activities which are motivated by,
or said to be morally justified by, the alleged nobility of the
terrorist cause.”
This approach was expressly confirmed by the Supreme Court in Gul at [26].
9. The issue was considered again, this time in the context of s.5 offences, in Sarwar &
Ahmed [2015] EWCA Crim 1886, in which the offenders had travelled to Syria to
assist Al-Nusra (a group that was involved, as part of the Free Syrian Army, in the
armed conflict with President Assad’s regime, and was proscribed in the UK shortly
after the offenders had arrived in Syria). They had spent six months there, during the
course of which they had, amongst other things, received weapons training and had
handled weapons (for example, on armed patrol duties close to the combat zone) but
were not involved in actual combat. Eventually, they had returned to the UK. On
their behalf it was argued that the sentence imposed upon them should be reduced
because, amongst other matters, their involvement with the Free Syrian Army could
be regarded as noble cause terrorism. By reference, in part, to [27] & [32] of the
judgment in R v F, the court rejected, at [40]-[47], that and other arguments (as to
which see below) advanced in mitigation. In particular, at [41] and [43] Treacy LJ
said:
“….We were urged to accept that based on political
considerations, the appellants’ admitted involvement with the
Free Syria Army could be regarded as some form of noble
cause terrorism. It seems to us that it would be wrong for this
Court to endorse such an argument. It would involve a
consideration of the policies of Her Majesty’s Government, an
area which courts have hitherto been very wary of entering
into. To adopt such an approach would necessitate the court
having to consider fine political arguments in a situation which
is inherently fluid and uncertain, and where loyalties are not
fixed or clear-cut. It was acknowledged that the situation in
Syria is one which has been constantly changing. What is clear
to us is that the appellants’ conduct clearly came within the
ambit of terrorism as defined in section 1 of the 2000 Act…
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....Whilst we recognise that F was concerned with whether
there was criminal activity under s.58, those observations are
persuasive in the present context. Accordingly, we are not
prepared to regard so-called noble cause terrorism as mitigating
sentence.”
10. The court is aware that, nevertheless, mitigation is still being advanced in s.5 cases
along the lines that the offender, and/or the terrorist organisation to which the
offender was affiliated, was acting in a “good” or “just” cause, and that sentence
should be reduced accordingly. It was alluded to in the appeal of Eshati (see
paragraph 98 below) on the basis that he was supporting a moderate faction in the
non-international armed conflict in Libya.
11. Against that background, at the outset of the hearing on 15 March 2016 we posed a
number of questions to the Attorney General and to Her Majesty’s Ministers with the
purpose of obtaining their observations on the approach a court should adopt to the
identity of the organisation or terrorist cause in whose name(s) terrorist offences were
committed. In particular:
i) Should an offence committed in favour of one organisation or terrorist cause
be regarded more seriously than an offence committed in favour of another,
and should this be a relevant factor in sentencing for terrorist offences?
ii) If so, how might material be placed before the court in order to enable the
assessment of the issue?
12. On behalf of the Secretary of State for the Home Department Mr Whittam QC, in
written submissions, drew our attention, amongst other matters, to s.1 of the 2000 Act,
Gul, R v F and Sarwar & Ahmed, and to [24]-[27] & [60] of the judgment in R v C &
R [2016] EWCA Crim 61 – in which this court set out the legislative history in
relation to proscription, and concluded that such matters are for Parliament, not the
courts. Against that background, Mr Whittam submitted that:
i) Some offenders, such as in Adebolajo & Adebowale [2014] EWCA Crim 2779
(the murder of Lee Rigby) fall to be sentenced for offences that are serious and
connected with terrorism but which involve no finding as to any association
with any terrorist group or organisation.
ii) In proscribing an organisation under the 2000 Act the Secretary of State will
necessarily have determined that the organisation is concerned in terrorism.
The Secretary of State is not required to determine the relative seriousness of
the terrorist activity of that organisation.
iii) If the relevant offence is one contrary to the general terrorism legislation, it
will involve a finding that the definition of terrorism in s.1 of the 2000 Act has
been met.
iv) There are particular difficulties with regarding criminal activity on behalf of
one terrorist organisation or cause as being more serious than another,
including:
a) Parliament has legislated against all terrorism (as defined) and does not
distinguish between causes or aims.
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b) To do so would arguably introduce a new element into an offence.
c) Even if the particular offence was related to a terrorist organisation, it
might not be clear as to which organisation.
d) It would be invidious, in dealing with law enforcement agencies and
partners, here and abroad, to publicly rank terrorist organisations or
causes.
e) In any event, the security situation in England and Wales and
elsewhere can change rapidly.
f) It is not a fanciful suggestion that some terrorist organisations may
perceive any ranking to be an incentive to commit further atrocities.
g) It would not be possible, for Public Interest Immunity reasons, to
disclose in public the information behind any such decision.
h) In any event, it would not be practicable to provide information to the
court, which was not provided to the offender, but which would have a
direct impact on the sentence to be passed.
13. We entirely agree with the reasoning, quoted above, in both R v F and Sarwar &
Ahmed, and are fortified in that conclusion by the submissions made on behalf of the
Secretary of State. It must be clearly understood, in relation to all terrorist offences
and terrorist related offences, that so-called just or noble cause terrorism is irrelevant
to sentence and does not provide any mitigation. We have applied this principle in the
appeal of Eshati – see paragraph 106 below.
(4) The factors relevant to sentencing in cases under s.5
14. In Barot [2007] EWCA Crim 1119 [2008] 1 Cr.App.R 31, against the background of
the increased gravity of the threat posed then, as now, by extremist terrorism, and
given the increase in minimum terms for murder as a result of the enactment of
Schedule 21 to the CJA 2003, this court concluded that the levels of sentence in the
most serious terrorist cases should be very substantially increased beyond the broad
bracket previously identified in Martin [1999] 1 Cr.App.R.(S.) 477.
15. The combined effect of the decisions in Martin, Barot, Usman Khan & others [2013]
EWCA Crim 468 and Dart & others [2014] EWCA Crim 2158, is that the following
broad principles are applicable in the consideration of sentence for a s.5 offence:
i) Conduct threatening democratic government and the security of the state has a
seriousness all of its own.
ii) The purpose of sentence in s.5 cases is to punish, deter and incapacitate (albeit
that care must be taken to ensure that the sentence is not disproportionate to
the facts of the particular offence) and, save possibly at the very bottom end of
the scale, rehabilitation is unlikely to play a part.
iii) In accordance with s.143(1) of the CJA 2003, the sentencer must consider the
offender’s culpability (which, in most cases, will be extremely high), and any
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harm which the offence caused, was intended to cause, or might foreseeably
have caused.
iv) The starting point is the sentence that would have been imposed if the intended
act(s) had been carried out – with the offence generally being more serious the
closer the offender was to the completion of the intended act(s).
v) When relevant, it is necessary to distinguish between a primary intention to
endanger life and a primary intention to cause serious damage to property –
with the most serious offences generally being those involving an intended
threat to human life.
16. It is clear that, in recent years, s.5 cases have fallen into two broad factual categories
(in each of which the ultimately intended act has, more often than not, been murder),
namely:
i) Those in which the conduct in preparation for the intended terrorist act(s) and
the intended terrorist act(s) take place, or are intended to take place, wholly or
mainly within the UK.
ii) Those in which the act(s) of terrorism (often involving providing, or intending
to provide, violent support to non-international armed conflict) are intended to
take place abroad – encompassing variously, for example, offenders who reach
the intended country; offenders who engage in preparation to travel but who
do not reach the relevant country; and those who provide assistance to others
who are intending to, or do, travel with the requisite intention.
17. There may, of course, be cases that involve both categories, which may add to their
gravity – for example, if an offender returns from fighting abroad in a non-
international armed conflict intending to commit one or more further acts of terrorism
in the UK.
18. However, as this court has said in a number of the cases to which we have referred, it
makes no difference to the seriousness of the offence whether the intended act or acts
were to take place in this country or abroad. Thus, for example, if the ultimate
intended act was murder, then whether that was to be in the UK or abroad would
make no difference – the starting point would generally be life imprisonment.
19. In addition to the number, nature and gravity of the intended terrorist acts(s), and to
aggravating factors of general application, and depending on the facts of the particular
case, the following are also likely to require consideration:
i) The degree of planning, research, complexity and sophistication involved,
together with the extent of the offender’s commitment to carry out the act(s) of
terrorism.
ii) The period of time involved – including the duration of the involvement of the
particular offender.
iii) The depth and extent of the radicalisation of the offender (which will, in any
event, be a significant feature when considering dangerousness – see below) as
demonstrated, for example, by way of the possession of extremist material,
and/or the communication of such views to others.
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iv) The extent to which the offender has been responsible, by whatever means, for
indoctrinating, or attempting to indoctrinate others, and the vulnerability or
otherwise of the target(s) of the indoctrination (actual or intended).
19. As to cases in which the act(s) of terrorism are intended to take place abroad, we
agree with the additional conclusions reached at [40]-[47] in Sarwar & Ahmed that it
will aggravate the offence if the preparatory conduct was carried out with a view to
fighting UK armed forces; that it may do so if the intention is to fight forces closely
allied to UK forces (but that it will not mitigate the offence that there was no prospect
of ending up fighting allied forces); and that any assertion that the intention was to
engage only with armed forces, rather than to direct activity against civilians, must be
judged in the common sense light of the likely extent of collateral damage being
caused to civilians. Indeed, in the Syrian context, that it is appropriate to take judicial
notice of the general nature of the conflict and the fact that there have been appalling
consequences for the citizens of that country arising from the armed conflict - such
that the likelihood of significant collateral damage being caused to civilians is great.
20. Other matters that are likely to be of particular relevance in a case involving acts of
terrorism that are intended to take place abroad include:
i) The relative degree of sophistication of the route and the means adopted by the
offender to reach the intended country.
ii) Whether the offender travelled, or intended to travel, alone or with others and
the extent of any assistance by the offender to the others.
iii) The nature of any property taken or intended to be taken – with the taking or
intended taking of equipment that might be used directly or indirectly for
violent action, and/or the possession or intended possession of significant
funds, or the wherewithal to obtain such funds on route, or to do so in the
ultimate destination country, being potential aggravating features.
iv) If the offender reached the country, the period of time that they were there; the
conduct that they engaged in whilst there; what their reason for returning was;
and the method of their return.
21. Whichever of the broad factual categories identified above that they fall into, offences
involving an intention to assist one or more others to commit acts of terrorism may be
just as serious, or even more serious (for example, in the case of a mastermind who
has no intention of carrying out the intended acts themselves) than the offence of the
person who the offender assists. Each case will depend on its own facts, but the
general principles identified above will apply. Two types of commonly encountered
offenders are:
i) Those who provide finance – where the amount(s) provided, or intended to be
provided, and their significance, or intended significance, in the achievement
of the intended act(s) of terrorism will be amongst the factors to be considered.
ii) Those who assist others who travel abroad, or assist others who intend to
travel abroad – where the number of those assisted, the nature and value of the
assistance (including whether the traveller was encouraged into conduct that
they would not have undertaken if left to their own devices), the motivation
behind the assistance, and whether or not the assistance was an isolated act or
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formed part of a pattern of behaviour, will be amongst the factors to be
considered.
22. As to mitigation generally, and in addition to mitigating factors of general application,
the particular vulnerability of the offender and, if particularly vulnerable, the extent to
which they were groomed, and any voluntary disengagement, may be amongst the
factors to be considered. That said, the extent to which, if at all, any such factors do
mitigate sentence will be highly fact sensitive.
II: THE APPROACH TO SENTENCE IN S.5 CASES
(1) Culpability and harm
23. The sentences that were imposed in the cases to which we were referred were
necessarily based on their own facts, some after a trial, some after a plea and with the
latter involving differing levels of discount depending on when the plea was first
intimated. In all but one case, namely Attorney General’s Reference (No.7 of 2008)
[2008] EWCA Crim 1054, they involved an appeal by the offender(s) and thus the
ultimate question was whether the sentence was manifestly excessive – albeit that in
Dart & others the court opined, and we agree, that in the case of Dart himself, there
could have been no realistic complaint if a significantly longer notional custodial term
had been identified.
24. As the range of conduct, both in terms of culpability and harm caused, is so broad, the
levels in to which we have divided the criminality that may be encompassed within
the offence must be regarded as points on a scale of offending which can merit a life
sentence with a very long minimum term to offending which may properly be marked
with a relatively short determinate sentence.
25. In accordance with the principles that we have identified, the levels which we set out
are differentiated by two principal factors:
i) the culpability of the offender principally by reference to proximity to carrying
out the intended act(s) measured by reference to a wide range of circumstances
including commitment to carry out the intended act(s); and
ii) the harm which might have been caused measured in terms of the impact of
the intended act (or series of acts) or the intended number of acts, including
not only the direct impact intended on the immediate victims, but also the
wider intended impact on the public in general if the act had been successful.
26. In each case given that, as noted above, the offence is a ‘specified violent offence’
within Chapter 5 of the CJA 2003, the judge will have to consider whether the
offender is:
i) dangerous within s.225 (as amended) so as it would be a proper exercise of the
discretion to impose a life sentence or extended sentence (under the principles
considered in R v Burinskas [2014] EWCA Crim 334, [2014] 1 WLR 4209); or
ii) whether a life sentence should otherwise be passed under the principles
examined in R v Saunders [2013] EWCA Crim 1027, [2013] Crim LR 930
[2014] 1 Cr App R (S) 45 at paragraph 11.
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27. In deciding whether an offender is dangerous the extent and depth of their
radicalisation / extremism and the likelihood of its continuance will, obviously, be
very important factors and an offender who is in the grip of idealistic extremism is
likely to pose a serious risk for an indefinite period.
(2) Levels of offending
28. The judge should then turn to identifying where on the scale the offending falls,
taking into account the six levels which we set out below. In each instance the range
that we have identified relates to the sentence (actual or notional) after trial, and the
cases are cited as illustrations, on their particular facts, of conduct which we regard as
coming within the relevant level, rather than as expressing our necessary agreement
with the sentence actually imposed, particularly (though we have included some of
them) in relation to those decided before, or without reference to, the general increase
in sentence consequent upon Barot. Whilst a number of the examples involve
multiple offenders, a lone wolf offender’s offence may be just as serious. Equally, in
the usual way, there is a degree of overlap between the levels, and aggravating and
mitigating features may move the ultimate sentence up or down within a level, or may
move it to another level:
Level 1
29. The highest level in our view is where the offender has taken steps which amount to
attempted multiple murder, or something not far short of it, or to a conspiracy to
commit multiple murder if it is likely to lead to an attempt that is likely to succeed –
but no physical harm has been caused. Given the particular gravity of terrorist
offences, the Definitive Guideline issued by the Sentencing Guidelines Council in
relation to attempted murder is not directly applicable. We would include within this
level cases which, if charged under s.5, would have included the circumstances in
Ibrahim & others [2008] EWCA Crim 880 (Conspiracy to murder - the 21/7 plot in
which four bombs were detonated on the London Underground but failed to explode,
and life sentences with minimum terms of 40 years, imposed after trial, were upheld
on appeal); Abdullah Ahmed Ali & others [2011] 2 Cr App R 22 (Conspiracy to
murder by causing explosions on transatlantic airliners - where life sentences with
minimum terms of between 32 and 40 years were imposed after trial and the sole
appeal against sentence was dismissed); and Barot (conspiracy to murder, where the
minimum term which this court imposed, after a plea attracting 10% discount, was 30
years). For such an offence a sentence of life imprisonment with a minimum term of
30 to 40 years or more is appropriate.
Level 2
30. A little below on the scale are those who may not get quite so near in preparation or
where the harm which might have been caused was not quite as serious. Examples
from the cases to which our attention was drawn include Khyam & others [2009] 1 Cr
App R (S) 77 (Conspiracy to cause explosions intended to result in multiple deaths, in
which some of the offenders had received explosives training - where life sentences
with minimum terms from 17 to 20 years, imposed on conviction, were upheld, but
½
all without reference to Barot); Islam & others (part of Ali & others) (Conspiracy to
murder in which the objective was to blow up an uncertain but potentially large
number of victims - where life sentences with minimum terms from 18-22 years,
imposed after a trial on offenders in the role of foot soldiers, were upheld); Asiedu
[2008] EWCA Crim 1725 (Conspiracy to cause explosions, in which the offender had
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Description:identity of the organisation or terrorist cause in whose name(s) terrorist and terrorist related offences, that so-called just or noble cause terrorism is
