Usman Khan, Mohibur Rahman and Others [2013] EWCA Crim 468
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In R. v. Usman Khan, Mohibur Rahman and Others [2013] EWCA Crim 468, the Court of Appeal (Criminal Division) comprising Lord Justice Leveson, Mr Justice Mitting and Mr Justice Sweeney allowed in part the appeals against sentence by nine men convicted of terrorism offences.
On 31 January 2012 at the Crown Court at Woolwich before Mr Justice Wilkie, the appellants had pleaded guilty to various offences under the Terrorism Act 2006. Usman Khan (then nearly 21), Abdul Bosher Mohammed Shahjahan (one month short of 28) and Nazam Hussain (aged 26) each pleaded guilty to engaging in conduct in preparation for acts of terrorism contrary to section 5(1) of the Terrorism Act 2006 (Count 9). Omar Sharif Latif (aged 28) pleaded guilty to a similar offence (Count 12). Mohibur Rahman (aged 27) pleaded guilty to being in possession of articles for a terrorist purpose contrary to section 57 of the 2006 Act (Count 11). On 9 February 2012, Wilkie J sentenced Khan to detention for public protection with a minimum custodial term of eight years. Rahman was sentenced to five years’ imprisonment. Latif received an extended sentence of 15 years and four months comprising 10 years’ custody with a five‑year extension period. Shahjahan and Hussain were each sentenced to imprisonment for public protection with minimum custodial terms of eight years ten months and eight years respectively. Time on remand was directed to count in all cases, and each man was made subject to terrorist notification periods under Part 4 of the Counter‑Terrorism Act 2008: 30 years save for Rahman, who received 15 years. Three other co‑accused, Mohammed Chowdhury (aged 21), Shah Mohammed Lutfar Rahman (29) and Gurukanth Desai (30), together with Abdul Malik Miah (aged 25), had also pleaded guilty to engaging in conduct in preparation for acts of terrorism (Count 10) and received extended sentences of 18 and a half years, 17 years, 17 years and 21 years ten months respectively, with custodial terms of 13 and a half, 12, 12 and 16 years ten months in each case, plus five‑year extension periods.
The appellants (described as the Stoke defendants) were born in the United Kingdom of Pakistani or Bangladeshi origin and lived in Stoke. Latif (the Cardiff defendant) lived in Cardiff, as did his co‑accused Desai and Miah (Bangladeshi in origin). Chowdhury and Shah Rahman (the London defendants) also lived in London. All had become committed Islamic fundamentalists influenced by jihadi ideology, particularly the online publications of Anwar Al‑Awlaki and Al Qaeda’s magazine Inspire, which advocated terrorism including the construction of improvised explosive devices. The security services had monitored the group using covert surveillance.
On 7 November 2010 the men from different parts of the country met in Roath Park, Cardiff. The meeting was arranged by Chowdhury, described by the Crown as the linchpin though not the leader. Limited material was recorded as to what transpired, but the meeting was alleged to have covered ideological discussion and general ambitions concerning terrorist activity. On 28 November the Cardiff and London defendants met in London, discussing targets and methodology. On 28, 29 November and 10 December the brothers Desai and Miah were recorded discussing construction of explosive devices. On 12 and 14 December the Stoke defendants discussed jihad overseas. On 12 December the three groups met in a Welsh country park in a meeting said to include advancing plans for an attack. On 14 December the Stoke defendants were monitored discussing locations in Stoke that might be targeted. On 15 December Khan was monitored discussing how to construct a pipe bomb using a recipe in Inspire. On 19 December the London defendants were engaged in experimentation with the pipe bomb recipe. This prompted arrests on 20 December 2010.
All nine men had initially faced a joint charge of engaging in conduct in preparation for acts of terrorism and conspiracy to cause an explosion. After lengthy pre‑trial hearings and further disclosure during which a jury was sworn on 24 January 2012, discussions continued as the defendants sought to separate the allegations relating to the different groups based upon their different activities, intentions and aspirations. During those discussions, the London defendants, through counsel, sought a Goodyear indication. On 31 January Wilkie J provided such an indication (which did not involve an indeterminate term) after which all defendants pleaded guilty to specific offences which identified their own involvement as opposed to involvement in the wider group’s activities.
The defendants provided bases of plea which were not challenged by the Crown, it being accepted that the prosecution would be at liberty to open all relevant facts not inconsistent with those bases. The London defendants’ bases of plea acknowledged a plan to place a live explosive device in the Stock Exchange, intended to explode but not to cause death or serious injury; the intention was to cause terror, property damage and economic damage, though there was a clear risk of death or serious injury. No materials had been obtained and no firm date had been set at the time of arrest. The Stoke defendants’ basis of plea acknowledged that they were trying to raise funds to build a madrassa in Kashmir which would be available for men who would be fighting to bring sharia to the Kashmir region and which would include firearms training. The plan included at least one Stoke defendant being able to have firearms training for that purpose. They did not intend to participate in an act of terrorism in the UK in the immediate future. They contemplated that some of those trained might return to the UK and engage in terrorist activity, but there was no timetable, no targets identified, nor any method agreed. Latif’s basis of plea was that he had attended meetings on 7 November and 12 December aware that conversations concerning terrorist training were likely to take place, but did not thereafter participate in the development of any plans. Mohibur Rahman admitted possessing Inspire 1 and 2 but tendered no basis as to the purpose for his possession.
In opening, Mr Andrew Edis QC for the prosecution summarised the extensive probe evidence. During the opening there was discussion about the application of the dangerousness provisions and the judge read into the opening the Crown’s view that the Stoke defendants regarded themselves and were regarded by the Crown as much the more serious offenders. The following day, however, Ms Alison Morgan (Mr Edis’s junior) made clear, in language approved by Mr Edis, that the two counts should be viewed as being equally serious: neither was more serious or less serious than the other.
In sentencing, Wilkie J conducted a thorough and detailed analysis. He accepted that Chowdhury was the linchpin of the different geographical groups but was not the leader. His assessment was that the Stoke group was pre‑eminent: they had longer‑term views to raise funds and establish a military training establishment overseas. They dismissed immediate action in the UK as untrained individuals and intended that Khan and Hussain should attend the training establishment once set up. He concluded that Shahjahan was the leader of the Stoke defendants with Khan and Hussain closely behind. He found that Miah was the pre‑eminent force in the London and Cardiff groups. He concluded that each defendant who had pleaded guilty to a section 5 offence was dangerous within the meaning of the Criminal Justice Act 2003. However, in respect of the London defendants, none had shown any long‑term or strategic perspective and their risk could be controlled by multi‑agency involvement and stringent licence conditions. In contrast, the commitment to long‑term terrorist aims of Shahjahan, Khan and Hussain had been different: they had serious long‑term plans to send Khan, Hussain and other British recruits for training and terrorist experience, and should they return to the UK they would do so trained and experienced. They rightly considered themselves more serious jihadis than the others. Accordingly, the public could only be protected by the imposition of an indeterminate sentence in their cases. The judge did not find that Mohibur Rahman was dangerous. The judge recognised the late pleas and allowed a 20 per cent discount. He accepted that sentencing in section 5 cases was fact‑specific and there was limited authority. He found that Counts 9 and 10 were of equal seriousness. Count 9 involved attendance at operational meetings of the group and discussions which included plans for immediate terrorist action in the UK; it would be artificial to separate the madrassa from the gravamen of the section 5 charge. The starting point for Shahjahan as leader was 22 years after trial, discounted to 17 years eight months for plea. Khan and Hussain each had a starting point of 20 years, discounted to 16 years. In relation to the London defendants, the judge identified that they intended to plant a pipe bomb at the Stock Exchange in the near future and had commenced preparation, albeit that they were novices with no training. They were determined to embark on violent terrorist action and had selected a high‑profile target to maximise terrorist effect and economic impact, and were reckless as to death or serious injury. The starting point for Miah was 21 years, for Chowdhury 17 years, for Shah Rahman and Desai 15 years each. Latif’s starting point was 13 years. Each was made subject to a five‑year extension period. For Mohibur Rahman, the starting point for Count 11 was six and a half years, discounted to five years with a 20 per cent reduction.
The primary ground of appeal pursued by Khan, Shahjahan and Hussain was that the judge wrongly characterised the conduct of the Stoke defendants as having such a level of sophistication that they were more dangerous than the London defendants and that this did not justify an indeterminate sentence. Mr Joel Bennathan QC on behalf of Khan argued that he was a 19‑year‑old whose ambition was to bring sharia law to Pakistan‑controlled Kashmir. The madrassa had not been built and there was no evidence of real funding; he had no access to terrorist training and it was highly unrealistic to suppose that the authorities in Pakistan would allow a teenager from Stoke to impose sharia law or run a training school. Mr Andrew Hall QC on behalf of Shahjahan submitted that an immediate plan to destroy the London Stock Exchange with an explosive device, carrying with it a very high risk of death and personal injury, was clearly more serious than the Stoke plan, which at best was in the very early stages with little cash raised and no decision as to where any graduate might fight jihad in the future. Mr Jim Sturman QC on behalf of Nazam Hussain repeated that no training camp had been built, no men recruited and only minimal funding obtained. The prosecution challenged these submissions. Mr Edis submitted that the naivety of the London sub‑group would have presented an obstacle to success, whereas the Stoke group were not naive at all; they themselves appreciated that they were dealing with an inexperienced and hot‑headed group who might get them all arrested.
The Court of Appeal held that at the time the appellants were sentenced there was no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation. However, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk was relevant to the risk posed and the need to protect the public. The judge had concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary. Although training terrorists in the use of firearms could only lead to potential loss of life, the fulfilment of that goal was further removed and there were other obstacles, not least because their activities had come to the attention of the security services in Pakistan. There was no suggestion that any of the Stoke defendants had in fact been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built. Notwithstanding the considerable respect that the conclusion reached by Wilkie J merited, the Court of Appeal concluded that if, as he had found, the plans of the two groups were equally serious, the risk posed to the public could not be greater from those who were very much further away from realising their goal than those who were far closer to doing so. Too much weight should not be placed on conversations for the purpose of ascribing comparative sophistication. On the question of comparative risk, the court did not consider that a distinction could safely be drawn between the London and Stoke defendants. Accordingly, it quashed the sentences of imprisonment and detention for public protection and imposed determinate terms in each case with an extension of five years.
On the question of the appropriate determinate term, the Court of Appeal emphasised that it was not seeking to set out guidelines for terrorism offences, which come in many different forms. However, a number of principles could be emphasised. First, culpability and harm must be considered, and in most cases of terrorist offences the former would be extremely high. Second, the purpose of sentence for the most serious terrorist offences is to punish, deter and incapacitate; rehabilitation would play little if any part. Third, the starting point for sentence for an inchoate offence is the sentence that would have been imposed if the objective had been achieved. Fourth, sentences from cases before the impact of Schedule 21 of the Criminal Justice Act 2003 were of historical interest only. Finally, the court did not consider it appropriate to seek to provide guidelines based on these cases alone.
Turning to the individual appeals, the Court of Appeal recognised that the sentences imposed on the London defendants were more readily comparable with other sentencing decisions and those sentences had not been appealed. The critical decision which the judge had made, accepting the proposition advanced by the prosecution, was to the effect that the position of the Stoke defendants was equally serious. Bearing in mind the detailed consideration which he had given to the probe and other evidence, he was fully entitled to reach that conclusion and its implementation in the sentencing decisions reached for Khan, Shahjahan and Hussain could not be impeached. Accordingly, the court quashed the indeterminate sentences and substituted determinate terms as follows. In the case of Shahjahan, the substituted sentence was an extended sentence of 22 years eight months of which the custodial term was 17 years eight months with an extension period of five years. For Khan and Hussain, 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 Counter‑Terrorism Act 2008 would continue to apply for 30 years.
In relation to Omar Latif, Mr James Wood QC argued that the finding of dangerousness was not justified, or that even if dangerous an extended sentence was not appropriate or necessary, and that the starting point of 13 years’ imprisonment was too long. The Court of Appeal rejected these submissions. Latif’s admission involved an admission that his attendance was preparatory to an act of terrorism and with the intention of assisting others to commit such an act. The seriousness of that intention could be inferred from the facts that he was part of the group that provided money to the Stoke defendants, he was the recipient of one of