R v Barot (Dhiren)
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 2007 |
| Neutral Citation | [2007] EWCA Crim 1119 |
| Docket Number | Case No: 200606248 A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 May 2007 |
[2007] EWCA Crim 1119
the Lord Chief Justice of England and Wales
the Right Honourable Lord Justice Latham and
the Honourable Mr Justice Treacy
Case No: 200606248 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Butterfield
Woolwich Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr I. Mcdonald QC and Mr A. Bajwa for the Appellant
Mr E. Lawson QC and Mr E. Brown for the Respondent
Hearing dates: 3rd April 2007
Lord Phillips CJ:
Introduction
On 12 October 2006 in the Crown Court at Woolwich before Butterfield J the appellant pleaded guilty, on re-arraignment, to conspiracy to murder. He was one of eight accused of this and other offences. On 7 November 2006 he was sentenced to life imprisonment, with a minimum term to be served of 40 years, less 2 years and 94 days already served on remand in custody. 12 additional counts under section 58 of the Terrorism Act 2000 and one count of conspiracy to cause a public nuisance were ordered to remain on the file. Since the hearing before us pleas of guilty to conspiring to cause explosions likely to endanger life have been accepted from six of the appellant's co-accused. They remain to be sentenced.
The appellant's application for permission to appeal against this sentence was referred to this Court by the Registrar. We granted that permission at the beginning of the hearing. We did so because this appeal raises issues of principle in relation to the sentencing of terrorists who have plotted terrorist acts but have not carried them out.
There are two grounds of appeal. The first is that it was wrong in principle to impose an indeterminate sentence. The second is that the minimum term of 40 years imprisonment is manifestly excessive.
The facts
Early in 2004 the appellant visited Pakistan, returning on April 21 st. In July 2004 a computer was found by Government officials in Gujarat in Pakistan. On that computer were detailed plans for terrorist attacks in the United Kingdom. On 3 August the appellant and a number of associates were arrested in England. Further evidence was obtained upon searching premises that they had occupied. This formed the basis of the facts opened by Mr Lawson QC for the Crown at the sentencing hearing.
A written basis of plea was signed by Mr Lawson and by Mr Macdonald QC, counsel for the appellant. Under this the appellant accepted that he was party to the preparation of proposals for mass murder in both the United States and the United Kingdom. These proposals were prepared for the purpose of being submitted for approval and support to Al Qaida or an associated terrorist organisation. They are remarkable in form, resembling a prospectus for a business venture.
It was the Crown's case was that the appellant was the principal architect and the author of these proposals and this was accepted by Mr Macdonald QC on behalf of the appellant. The facts that we now set out are based on passages in the prosecution's opening or the judge's sentencing remarks that have not been challenged by Mr Macdonald.
The appellant was born in 1971 in India. His Hindu parents brought him to England in 1972, where he became a British citizen. At the age of 20 he embraced Islamic extremism. In October 1995 he went to Kotti, an area in the Kashmir region, where he attended a terrorist training camp and received instructions in the use of weapons, explosives and other terrorist related activities. In 1999 he went to the Philippines to attend another terrorist camp for two weeks, where he was trained in the use of small arms and mortars, the handling of explosives and in jungle craft.
In 2000 he began to apply himself to preparing proposals for terrorist attacks in the United States. He visited the United States in the autumn of 2000 and again in the spring of 2001 to carry out research. The fruits of his labours were detailed descriptions and plans of a number of prominent buildings that might be suitable for terrorist attacks. These housed the headquarters of four key financial institutions: the New York Stock Exchange, Citigroup in New York, Prudential in Newark and the International Monetary Fund and World Bank in Washington. The proposals were illustrated by photographs and a video of the sites in question.
Some work was done on these proposals as late as February 2003, but the prosecution accepted that after the events of September 11 2001, plans for terrorist activities in the United States may have been 'shelved' in favour of proposals for such activities in the United Kingdom. Those proposals were for four different types of terrorist attack. By far the most detailed was for the 'Gas Limos Project'. This proposed packing three stretch limousines with propane gas cylinders and explosives and detonating these in an underground car park. A summary commented: “Estimated casualties to be hundreds if the building collapses (Inshalla)”
There were three subsidiary proposals, that were intended for “synchronised, concurrent (back-to-back) execution, on the same day and time. The first was described as the 'Radiation (Dirty Bomb) Proposal'. This proposed the ignition of ten thousand smoke detectors. The judge commented: “That project was, on its face, designed to achieve a number of further and collateral objectives, such as to cause injury, fear, terror and chaos. The expert evidence is that the project, if carried through, would have been unlikely of itself to cause death as opposed to causing considerable fear, panic and social disruption”.
The third plan was much less detailed. It was to bring about a major rail disaster by explosion or sabotage. One example suggested was an explosion in a tunnel under the Thames that would “rupture through to the river itself”. The final proposal involved the high-jacking of a petrol tanker and using it to ram a target. This was put forward only in outline.
The judge's summary of the facts
Dealing with the proposals that related to the United States the judge observed:
“Had it not been for the terrible events of the 11 th September 2001 I have little doubt that one or more of those proposals would have become a dreadful reality. I accept that it would not have been you who carried out the attacks- that would have been the task of others. Your task was to identify the targets and the best strategy to achieve what you would have regarded as success”.”
The judge then turned to an issue as to how soon the proposals in relation to the United Kingdom were liable to be implemented. The Basis of Plea recorded:
“The Crown does not have evidence to contradict a defence contention that no funding had been received, nor any vehicles or bomb-making materials acquired, in furtherance of executing the conspiracy”.
Mr Macdonald submitted to the judge that the United Kingdom proposals were only in the early stages of preparation when the appellant was arrested. The judge took the view that the evidence was equivocal on this point, but commented:
“In my judgment it does not greatly affect the situation. Even if the execution of these plans was not to take place for some time, I am satisfied that, unless you were stopped, it was only a matter of time before the grim reality of your plans took effect”.”
The judge went on to deal with both the appellant's involvement in the conspiracy and the consequences that it would have had had it been implemented.
“It is impossible to convey in a few words the gravity of what you and those with whom you conspired, whoever they were, hoped to achieve. For years you dedicated yourself to planning the means by which you and those involved with you could slaughter hundreds, if not thousands, of wholly innocent men, women and children. This was no idle and impractical plot with little prospect of becoming reality. The detail of the planning; the care with which you concealed what you were doing, the elaborate lengths to which you went to avoid detection, and the steps you took to bring the plans to fruition, all point to a determined, sophisticated and deadly design. I have no doubt that, had your evil purpose not been discovered and thwarted, you and your gang of murderous cohorts would have brought about the terrible massacres you intended”
At the hearing before us Mr Macdonald made no challenge to this summary of the facts. He confined his submissions in respect of these to a contention that the plan was a long way from being put into effect at the time that the appellant and his associates were arrested.
The documents discovered by the police included one that was described as 'the 1996 document'. This contained a survey of certain London hotels and railway stations. After the hearing we had the opportunity, which we had not had before the hearing, to read, in the voluminous documentation, statements by three prosecution expert witnesses, to which our attention had not been drawn. These were annexed to a commentary, prepared by the appellant for the purpose of discounting any suggestion that the premises to which the 1996 document referred would have been suitable targets for the Gas Limos Project. As to that Mr Lawson, in opening the facts, made it plain to the judge that the prosecution had no basis for suggesting that these premises were targets for that project. It seemed to us, however, that the expert statements raised questions as to the viability of the Gas Limos Project that were not reflected in the judge's summary of the facts.
We sent a note to counsel seeking assistance with this aspect of the case. This...
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