Imprisonment - Length of sentence - Defendants pleading guilty to number of terrorism offence

R v Khan and others: Court of Appeal, Criminal Division: 16 April 2013

The first, second, fourth and fifth defendants, USK, MR, ABMS, and NH were each born in the UK and lived in Stoke (the Stoke defendants). The third defendant, OSL, lived in Cardiff, as did two co-accused, GD and AMM (the Cardiff defendants). Two further co-accused, MC and SR, lived in London (the London defendants). They came to the attention of the security services after becoming fundamentalists who wished to support and commit acts of terrorism. The security services monitored them using covert surveillance techniques and devices. Although from different parts of the country, the three groups met together.

In November 2010, they were recorded meeting in a Cardiff park. Although limited material was available as to precisely what transpired, the meeting was alleged to have covered ideological discussion and general ambitions concerning terrorist activities. Later that same month, the defendants from Cardiff and London met in London where discussions for targets for attack and methodology took place. Thereafter, GD and AMM were recorded discussing the construction of explosive devices.

In December, the Stoke defendants were recorded discussing jihad overseas. The three groups also met in a Welsh country park where discussion included how to advance plans for an attack. The Stoke defendants were monitored discussing locations in Stoke that might be targeted. USK was monitored in conversation about how to construct a pipe bomb from a recipe referred to in an Al-Qaida publication. Later in December 2010, the London defendants were engaged in experimentation using the pipe bomb recipe (see [9]-[20] of the judgment). It was at that point that the defendants and co-accused were arrested.

Interviews at the police station were not productive of any information. Subsequently, the defendants all pleaded guilty to various offences (see [24]-[38] of the judgment). Accordingly, in January 2012, USK, ABMS and NH pleaded guilty to engaging in conduct in preparation for acts of terrorism contrary to section 5(1) of the Terrorism Act 2006 (the 2006 act) and OSL pleaded guilty to a similar offence. MR pleaded guilty to being in possession of articles for a terrorist purpose contrary to section 57 of the 2006 act.

In February 2012, USK was sentenced to detention for public protection with a minimum custodial term of eight years, MR was sentenced to five years' imprisonment, and OSL was sentenced to an extended sentence of 15 years and four months with a custodial term of 10 years' imprisonment and an extension period of five years. ABMS and NH were both sentenced to imprisonment for public protection with minimum custodial terms of eight years 10 months for ABMS and eight years for NH. All were subject to terrorist notification periods imposed pursuant to the provisions of Part 4 of the Counter Terrorism Act 2008 (the 2008 act) of 30 years, save for MR whose period was 15 years (see [43]-[61] of the judgment). They each appealed against sentence.

It fell to be determined whether the sentences imposed had been manifestly excessive and/or wrong in principle and/or determined with too high a starting point. USK, ABMS and NH, specifically contended that the judge had wrongly characterised the conduct of the Stoke defendants as having a level of sophistication such that they were more dangerous than the London defendants. OSL contended that: (i) the finding of dangerousness had not been justified given the nature of the offence to which he had pleaded guilty; (ii) even if dangerous, an extended sentence had not been appropriate or necessary in his case; and (iii) the starting point of 13 years' imprisonment had been too long and insufficient credit had been given for his guilty plea. MR contended, amongst other things, that his offending had been at a different level to that of his co-defendants.

The court ruled: (1) The critical decision which the judge had made, accepting the proposition advanced by the prosecution, had been to the effect that the position of the Stoke defendants was 'equally serious'. The judge had been fully entitled to reach that conclusion and its implementation in the sentencing decisions reached for those three defendants could not be impeached (see [78] of the judgment).

However, in the circumstances, the indeterminate sentences would be quashed and determinate terms passed such that: (i) in the case of ABMS the substituted sentence was an extended sentence of 22 years and eight months of which the custodial term was 17 years eight months with an extension period of five years; and (ii) for both USK and NH, the sentence was an extended sentence of 21 years of which the custodial term was 16 years' imprisonment, in each case with an extension period of five years. In all three cases, the notification provisions of the 2008 Act would continue to apply for 30 years (see [79] of the judgment).

(2) There was no reason in OSL's case for interfering with the sentencing decision reached. The sentence was neither wrong in principle nor manifestly excessive (see [83] of the judgment). OSL's appeal would be dismissed (see [83] of the judgment).

(3) Having reduced the sentence on the other Stoke defendants by removing the sentence of imprisonment for public protection, it would be right to make a marginal adjustment to MR's sentence (see [90] of the judgment). The appeal would be allowed and the sentence would be reduced to four-and-a-half years, recognising that that would reduce the notification period from 15 years to 10 years (see [90] of the judgment). R v Zafar [2008] All ER (D) 189 (Feb) considered; A-G's Reference (No 7 of 2008); R v Qureshi [2008] All ER (D) 306 (Apr) considered.

Joel Bennathan QC (instructed by the Registrar of Criminal Appeals) for USK; Brian O'Neill QC (instructed by the Registrar of Criminal Appeals) for MR; James Wood QC and Hossein Zahir (instructed by the Registrar of Criminal Appeals) for OSL; Andrew Hall QC and Frida Hussain (instructed by the Registrar of Criminal Appeals) for ABMS; Jim Sturman QC (instructed by the Registrar of Criminal Appeals) for NH; Alison Morgan (instructed by the Crown Prosecution Service) for the Crown.