R v Mohammed Abdul Kahar (Reference by Attorney General under s.36 of the Criminal Justice Act 1988)

JurisdictionEngland & Wales
JudgeLord Thomas of Cwmgiedd, CJ
Judgment Date17 May 2016
Neutral Citation[2016] EWCA Crim 568
Docket NumberCase No: 2015/05516/A1, 2015/01799/C5, 2015/05639/C1, 2016/00589/A1, 2015/05192/A3, 2015/05300/B4
CourtCourt of Appeal (Criminal Division)
Date17 May 2016
Between:
Regina
Appellant
and
(1) Mohammed Abdul Kahar (Reference by the Attorney General under s.36 of the Criminal Justice Act 1988)
Respondent
Regina
Respondent
and
(2) Brusthom Ziamani
Appellants
(3) Abdurraouf Eshati
(4) Yahya Rashid
(5) Silhan Ozcelik
(6) Sana Khan
Applicants

[2016] EWCA Crim 568

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

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

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

Richard Whittam QC for the Secretary of State for the Home Department

Hearing dates: 11 February, 15 March 2016 and 14 April 2016

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.

(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.

(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...

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