Boular & Boular [2019] EWCA Crim 798; [2019] 2 Cr. App. R. (S.) 41
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**Regina v Rizlaine Boular and Safaa Boular [2019] EWCA Crim 798; [2019] 2 Cr. App. R. (S.) 41** is a Court of Appeal judgment in which the court dismissed the renewed application of the elder sister but granted leave to appeal and reduced the minimum term imposed on the younger applicant.
The applicants, sisters Rizlaine Boular (aged 23 at appeal) and Safaa Boular (aged 19 at appeal), were sentenced for offences contrary to section 5 of the Terrorism Act 2006. Rizlaine Boular pleaded guilty on 23 February 2018 to engaging in conduct in preparation for giving effect to an intention to commit acts of terrorism, namely an attack using knives or other weapons in the United Kingdom between 11 and 28 April 2017. On 4 June 2018, following trial before His Honour Judge Dennis QC, Safaa Boular was convicted of two counts of engaging in conduct in preparation for acts of terrorism. Count 1 related to her relationship with an Islamic State fighter, Naweed Hussain, and her plans to travel to Syria to marry him and carry out a suicide bombing between 1 January 2016 and 5 April 2017. Count 2 concerned her communication with Hussain and arrangements to receive weapons in order to conduct an attack in the United Kingdom. Rizlaine Boular was sentenced on 15 June 2018 to life imprisonment with a minimum term of sixteen years. Safaa Boular was sentenced on 3 August 2018 to custody for life with a minimum term of thirteen years on each count. Both sisters were refused leave to appeal by the single judge and renewed their applications.
The court heard that both sisters had been raised in a dysfunctional family and had been exposed to extremist ideology from about 2012–2013 through their mother, Mina Dich, who herself pleaded guilty to an offence of assisting Rizlaine Boular. In October 2014, Rizlaine Boular attempted to travel to Syria to join ISIS but was stopped in Turkey. In 2016, Safaa Boular, then aged 16, began communicating with ISIS recruiters, including Naweed Hussain, with whom she arranged to travel to Syria, marry, and carry out a suicide bombing. She was stopped at Stansted Airport on return from Morocco and her passport was seized. She purported to marry Hussain in an online ceremony and after both sisters were arrested in August 2016 on suspicion of preparing for terrorism, Safaa continued communicating with Hussain and, after his death on 4 April 2017, with persons she believed to be accomplices but who were in fact members of the Security Services. A plan emerged for her to attack the British Museum using firearms and grenades. On 19 April 2017, Safaa Boular was arrested and remanded. Following her arrest, Rizlaine Boular resolved to carry out an attack herself. Using coded telephone calls with her sister, she agreed to mount a knife attack in the Westminster area on 27 April 2017. On 25 April, Rizlaine and her mother drove around Westminster landmarks on a reconnaissance mission and purchased a set of knives. On 27 April, a covert probe recorded Rizlaine discussing and apparently practising the attack, and she was arrested that evening.
The sentencing judge had before him a number of reports. In relation to Rizlaine Boular, Imam Dr Alyas Karmani provided a detailed assessment dated 30 April 2018 in which he found her to be cooperative, lacking in genuine conviction in her extremist beliefs, and an ideal candidate for successful de-radicalisation. Dr Nigel Blackwood, in a psychiatric report dated 2 May 2018, found no major mental illness and concluded that although some risk of future violence remained, it did not reach the statutory threshold of dangerousness by the likely time of release. A pre-sentence report, however, assessed her as posing a high risk of serious harm to the public and as meeting the criteria for dangerousness. For Safaa Boular, a pre-sentence report dated 26 July 2018 noted that she denied the allegations but was distancing herself from extremist ideology. The author assessed her as posing a high risk of serious harm, particularly in the community.
The judge applied the Sentencing Council definitive guideline on offences under the Terrorism Act 2006. He categorised Rizlaine Boular’s offence as A2: leading role and preparations complete or so close to completion that the activity was very likely to have been carried out but for apprehension, with multiple deaths risked but not very likely. The guideline starting point was life imprisonment with a minimum term of 25 years. The judge identified as aggravating features the period of her commitment to the ISIS cause and the acceptance of violent jihad, and as mitigating her guilty plea, young age, immaturity, absence of previous convictions, the impact on her relationship with her young child, and remorse. He found her to be a dangerous offender based on the nature and extent of her radicalisation and her depth of commitment. He took a starting point of 25 years, adjusted to 24 years for aggravating and mitigating factors, and reduced it by one third for the guilty plea to reach sixteen years. For Safaa Boular, the judge categorised count 1 as the lower end of B2: leading role and preparations advanced and activity likely to have been carried out but for apprehension. Count 2 was also categorised as B2 for similar reasons. He found her to be a dangerous offender, noting that she had been exposed to extremist ideology from a young age when she would have been both vulnerable and impressionable, but that by 2016 she was old enough to make her own decisions and appeared confident and self-assured. He took a starting point of fifteen years, increased it to eighteen for aggravating features, and reduced it by five years to take into account her age at the time of offending, the level of exploitation, and the absence of previous convictions, resulting in a thirteen-year minimum term.
On appeal, Mr Khan QC and Miss Tafadar for Rizlaine Boular advanced three grounds. First, they submitted that the offence should have been categorised as C2 rather than A2, arguing that she did not act alone given her mother’s involvement and did not play a leading role because the plan had been handed over to her by Safaa Boular, and that the activity was not very likely to be carried out because she was not yet in the vicinity of the intended scene. The Court of Appeal rejected this submission. Lord Justice Holroyde held that there could be more than one leading role per offence and that the judge was entitled to find that by late April 2017, when Rizlaine had purchased and practised with a weapon and was planning to carry out the attack later that day, she was playing a leading role. The court also held that the judge was entitled to find the activity was very likely to be carried out but for arrest, rejecting the argument based on geographical proximity as liable to produce surprising results. The court declined to provide general guidance on the culpability factors in the guideline, finding them clear as drafted. Second, it was submitted that the judge was wrong to find Rizlaine a dangerous offender when two of the experts indicated she did not meet the statutory criteria. The court held that the judge was entitled to disagree with the views of the Imam and Dr Blackwood, neither of whom specifically addressed the statutory criteria, and to prefer the view expressed in the pre-sentence report. Third, it was argued that insufficient weight was given to the mitigation, particularly Rizlaine’s unhappy upbringing, exposure to trafficking and indoctrination, and attempted suicide. The court found that the judge had clearly taken all these matters into account and that no ground of appeal provided an arguable basis for regarding the sentence as wrong in principle or manifestly excessive. Rizlaine Boular’s renewed application was accordingly refused.
Mr Bennathan QC and Mr Zahir QC for Safaa Boular no longer pursued a challenge to the life sentence but argued that insufficient weight was given to mitigating factors and that the judge erred in categorising the offences. They submitted that count 1 should have been categorised as D2 or B3, on the basis that Safaa did not play a leading role because she was subordinate to Naweed Hussain’s influence and that the offence was unlikely to be carried out as it was unrealistic that a sixteen-year-old Muslim girl would reach Syria unintercepted. They also pointed to conversations suggesting the suicide attack would take place only after the couple had children. They further submitted that multiple deaths were not risked or very likely. The court rejected these arguments. It held that the judge was entitled to find that Safaa played a leading role, as she was to wear and detonate a suicide belt to murder others, whether or not Hussain also had a leading role. The court also held that the judge was entitled to conclude that she was likely to succeed in travelling to Syria despite the difficulties, given her determination. As to harm, the use of a suicide belt plainly risked multiple deaths, but the judge rightly concluded it was not very likely to succeed, so category 2 was appropriate. As to count 2, it was submitted that it should have been categorised as D3, arguing that the reference to activity being “likely to have been carried out” had an objective element and that given the involvement of the Security Services the attack would never in fact be carried out. The court rejected this submission. It held that culpability factors must be considered on the basis of what the offender was planning to do, as the offence consists of engaging in conduct in preparation for intended acts of terrorism. The participation of the Security Services did not reduce culpability. The court held, however, that the involvement of the Security Services was relevant to harm. It rejected the Crown’s submission that such involvement came within the phrase “but for apprehension” but held that in assessing harm, the reference to “risk” focused on what was intended (the consequences if the plan had succeeded), while the reference to “likelihood of occurrence” required the court to consider how likely the plan was to succeed. The court held that the judge was entitled to find that multiple deaths were risked (what Safaa intended) but was not very likely to succeed, so category 2 was correct.
The court considered with greater care the ground that the judge gave insufficient weight to Safaa Boular’s youth (15 at the start of the indictment period, only just 17 at the end) and to her history of grooming and exploitation. The court recognised that the judge had been in the best position to assess these matters having presided over the trial and had found Safaa to be confident, self-assured and making her own choices at age 16. The judge had taken a starting point of fifteen years, increased it to eighteen for aggravating factors, and reduced it by five years to take account of youth, exploitation and the absence of previous convictions. Nevertheless, the Court of Appeal concluded, with hesitation, that the judge had failed to give sufficient weight to the particularly potent effect of youth and grooming taken in combination. It noted that during most of the indictment period Safaa was 16, and although she appeared mature, throughout her adolescence she had been exposed to radicalisation in a dysfunctional home, making her all the more vulnerable to the influence of ISIS recruiters when they targeted her. The court observed a material difference between Safaa’s age during that period and the materially older age of her sister Rizlaine when the radicalisation process began. The court held that a reduction of little more than one quarter from the appropriate adult sentence was insufficient for an offender with no previous convictions and with the mitigating factors of exploitation as well as youth. The court emphasised that the overarching principles for sentencing young offenders do not require a mechanistic approach and bore in mind that the life sentence fully met the need to protect the public and was in itself a very heavy penalty for one so young. It further noted that Safaa had set herself on her course to grave offending when only 15 and had from age 12 been subject to radicalisation through the malign influence of her mother and her mother’s friends.
In short, the Court of Appeal granted leave to appeal in Safaa Boular’s case, quashed the sentences below, and substituted sentences of custody for life with a minimum term of eleven years, while dismissing Rizlaine Boular’s renewed application.