Neutral Citation Number: [2015] EWCA Crim 1886
Case No: 201405953 A7
& 201405956 A7
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
His Honour Judge Topolski QC
T20147072 & T20147073
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/12/2015
Before :
LORD JUSTICE TREACY
MRS JUSTICE ELISABETH LAING DBE
and
SIR DAVID MADDISON
--------------------Between :
YUSUF SARWAR
MOHAMMED AHMED
- and REGINA
Appellants
Respondent
----------------------------------------A Bajwa QC & R Thomas (instructed by the Registrar of Criminal Appeals) for Yusuf
Sarwar
J Bennathan QC & R Thomas (instructed by the Registrar of Criminal Appeals) for
Mohammed Ahmed
B Altman QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing date : 18 November 2015
---------------------
Approved Judgment
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
Lord Justice Treacy :
1.
Both appellants appeal against extended sentences of 17 years and 8 months imposed
in the Crown Court at Woolwich on 5 December 2014 for an offence of preparation of
terrorist acts contrary to section 5(1) of the Terrorism Act 2006. The extended
sentence comprised a custodial term of 12 years 8 months and an extension period of
5 years. In addition, the appellants were made subject to notification orders under the
Counter Terrorism Act 2008 for a period of 30 years.
2.
The appellants had entered guilty pleas on the second day of their trial, but prior to the
swearing in of a jury. In passing sentence the judge granted 20 percent credit for the
guilty pleas and no complaint is made about that. It follows that the custodial term
after a trial would have been one of 16 years.
3.
The facts show that on 15 May 2013 the appellants travelled from the UK to Turkey
and then on to Syria where they were involved with Islamist forces fighting against
the regime of President Assad. The pair returned to the UK on 13 January 2014 and
were arrested. Before they went each of them had misled his family as to the purpose
of the trip. Sarwar had booked and paid for one-way flights and coach tickets and a
hotel room had also been booked well in advance of travel. There had been a similarly
well planned but aborted trip in March 2013. The significant planning which had gone
on for several months prior to departure was identified by the Crown as supporting its
case that the arrangements were not a spontaneous response to a developing
humanitarian crisis in Syria but instead a well planned operation put into action for
different and more sinister reasons.
4.
About four days after their departure the appellants’ respective families met and
discovered that they had been deceived. Sarwar’s mother found a letter left for her
stating that he was travelling to Syria intent on jihad, that he did not intend to return
and wished to be martyred on the battlefield in Syria. He referred to joining an
organisation we shall refer to as KAM, said to be part of Al-Nusra, an organisation
which was proscribed in June 2013. Sarwar’s parents went promptly to the police.
The appellants’ homes were searched and computers when examined provided a
wealth of material showing a very high level of commitment to violent Islamist
extremism.
5.
Both appellants had large quantities of jihadist literature and other material. There
were social media conversations referring to going to jihad and the creation of cover
stories. More than a year before their departure Ahmed was describing Al-Quaeda as
“the best” and America and NATO as the clear enemy. He regarded Shia Muslims as
not being Muslims. Sarwar’s computer showed that Ahmed had been in contact with
someone in Denmark in March 2012 about the possibility of going to the Yemen.
Ahmed was told he could be a Mujahid anywhere in the world. His contact spoke
about mujahideen being sent back to the EU with a task and said that he would be
accepted in the Yemen. Ahmed replied by saying he found this to be “very inspiring”.
Sarwar’s computer contained extreme Islamist material showing combat activity in
Syria and sectarian anti-Shia material. Similar material was found on Ahmed’s laptop.
It included a video called “Syria training” featuring fighters and weapon firing.
Before they left Sarwar bought items to improve fitness together with a camera and
memory card, balaclavas, heavy duty combat gloves, a water-proof head lamp and a
walkie-talkie.
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
6.
Examination of social networking activity provided more evidence that the true
purpose of the journey was to go to Syria to commit acts of terrorism in furtherance of
their extreme Islamist views. For example, between January and May 2013 Ahmed
had a number of Skyped chats with a man who appears to have been a Syrian fighter.
A recent fatal bombing was referred to as “the spoils of war” and there was talk about
the group Al-Nusra. There were also exchanges with a young woman about
martyrdom. Ahmed spoke of the addictive nature of battles and referred to the training
of a friend. He was advised to do a first aid course which would result in a certificate
which he could use at a border to show that he was entering the country purely to help
people.
7.
Conversations with another woman provided significant evidence of the pair’s
movements after they left the UK. In June Ahmed told her that he had finished
training prior to their crossing into Syria. In an August message he spoke of doing 10
days of guarding very close to the “kafir”. He attached a picture of himself sitting by
sandbags flanked by two machine guns and asked her to crop or blacken out his face.
In September he sent a long message about the death of a fighter who had taken the
appellant with him to shoot the “kafir” two days before he himself was shot and
killed. In conversations with another woman he told her that he had gone into battle
and prayed that he would be martyred at the next one.
8.
When the pair returned to the UK they only had hand luggage but a digital camera
was found in Sarwar’s holdall. Two memory cards contained over 1600 deleted
images. Those images were taken in Syria. Analysis showed that many had been
taken very close to places of combat and depicted the preparation of weapons and
ordnance. There was an image of Sarwar in a full-face balaclava, carrying a weapon.
One image depicted a photograph of a flag with the legend “Al-Nusra Front” in
Arabic. Other images enabled an expert to say that both men must have undergone at
least basic weapons training. On one of the memory cards there were video clips of a
terrorist bombing in Moscow and footage of a detailed step-by-step demonstration of
how to construct an improvised explosive device.
9.
The appellants’ holdalls and clothing were examined. Traces of high explosive
components were found on items attributable to each of them. These findings were
said to be more than would be expected from travel to a conflict zone and supported
the suggestion that both had been in very close proximity to combat.
10.
When interviewed Sarwar denied ever going to Syria or engaging in any type of jihad.
He did not answer questions but supplied a prepared statement. Ahmed claimed to
have spent the previous 8 months in Turkey with Sarwar. The appellants put forward
bases of plea. Sarwar’s indicated:
i)
that his intended act of terrorism, once in Syria, was to assist Al-Nusra, a
group not proscribed at the time he left this country, but which was involved in
the armed conflict with President Assad’s regime;
ii)
that he had another intention, namely to assist people non-violently in their
humanitarian crisis and that he did not intend to commit acts of violence
involving the targeting of civilians;
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
iii)
that his training was limited to being shown the use of a firearm in the event of
requiring it defensively. He had not received any other kind of combat
training;
iv)
that whilst in Syria he dissociated himself from Al-Nusra once he realised the
true extent of its terrorist activities;
v)
that for three to four months whilst not engaging in combat he assisted the
Free Syrian Army which involved itself in a defensive action against the Assad
regime and in providing humanitarian assistance;
vi)
that he engaged in no combat in Syria. His activities were limited to:
a)
patrol duties on a shift basis at a house in which he and other
volunteers were based; and
b)
following an attack by the Assad regime, attending the site of the attack
to provide humanitarian assistance;
vii)
that the explosive traces found in his property were attributable only to his
humanitarian work at the scenes of explosions and not to combat;
viii)
that the memory card was given to him by another volunteer and he was
unaware of its previously deleted content.
Ahmed’s basis of plea mirrored that of Sarwar save that he made no mention of the
memory card which had been found in Sarwar’s possession. We assume that the
reference to the memory card is to that which contained instruction as to constructing
an explosive device.
11.
The bases of plea were not accepted by the Crown. The Crown submitted that many
of the matters asserted were outside its knowledge. The Crown put its case forward
not on the basis of involvement in combat in the sense of fighting but on the basis that
the appellants had been involved in armed activity in combat areas. In particular, the
Crown pointed to the photographs with weaponry, the finding of explosive traces and
the evidence in relation to Ahmed from his social media conversations.
12.
The judge’s sentencing remarks set out the facts, the rival submissions of the Crown
and the appellants, considered the relevant legislation and the decision in Dart and
others [2014] EWCA Crim 2158. Having considered those matters the judge held that
both appellants were fundamentalists who had become deeply committed to violent
extremism. He said that the acts of terrorism which they intended to commit involved
attacking President Assad’s forces in Syria with the obvious risks that those acts could
result in both military and civilian losses. In order to give effect to that intention they
had taken a number of preparatory steps in this country. As the decision in Dart
showed it made no difference to the gravity of the offence that the intention was to be
achieved abroad rather than the UK. Had their intention been achieved, the notional
sentence would have been one of life imprisonment. He noted that the appellants had
accepted by their guilty pleas that their intention was to commit acts of terrorism.
13.
Having observed that the appellants had not put before the court any evidence or
material of their own to displace the clear inference to be drawn from all the material
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
before him that the pair had been engaged in active combat he found that both
appellants had fulfilled their intention. He went on to say that he could not be sure
that either appellant had formed any specific intent to commit acts of terrorism in the
UK although the retention of the memory card with detailed instructions as to how to
make an improvised explosive device was deeply disturbing.
14.
He stated that the purpose in sentencing cases like this was to punish, deter and
incapacitate whilst at the same time noting his duty to pass sentences that were not
disproportionate to the facts. He was satisfied that notwithstanding the absence of
evidence of a contemplation of an attack in this country, it was still open to him to
make a finding of dangerousness. He went on to make such a finding and to conclude
that an extended sentence was appropriate given a persistent commitment to terrorist
activity demonstrated over time and in a variety of ways, taken together with their
willingness to travel abroad, receive terrorist training and then cross over into Syria to
fight. This was not displaced by their voluntary return to this country.
15.
One particular submission made to the judge was that the case should be regarded as
less serious because the appellants were going to fight the forces of a regime in Syria
against which there was a tide of opposition both internally and internationally. The
judge paraphrased this as “intended acts of terrorism in a good cause”. The judge
rejected this as a mitigating feature stating that at the very heart of an act of terrorism
there is serious violence, serious damage to property and/or serious risk to public
safety or health. The penalty for an intended or indeed an actual act of terrorism could
not be mitigated by having regard to the identity, position or conduct of its intended
victims. Finally, the judge concluded that on the evidence before him the two
appellants were equally responsible.
16.
The grounds of appeal for each appellant are in similar terms. We can take them
together save that we record that in Sarwar’s case a written submission was made that
he was the lesser partner of two. The appellants’ arguments both go to the length of
the custodial term imposed as well as to the passing of an extended sentence. It is
submitted that offences contrary to section 5 can vary from a case involving preparing
to commit a terrorist act of mass murder in this country to an intended use or threat of
force abroad in the belief that it would assist the people in that foreign country against
a tyrannical regime which is condemned as such by Her Majesty’s Government. It
was argued that this case fell into the latter category and that it was thus less
blameworthy. The appellants’ intention was to fight against President Assad’s forces
so as to defend or protect those being attacked or repressed by him. There was no
intention to commit acts of violence against Syrian civilians. Whilst it is
acknowledged that the reach of a section 5 terrorist offence is very broad (see R v Gul
[2013] 3 WLR 1207) the court should in this case recognise the position of President
Assad’s regime as it is generally perceived to be in this country.
17.
Moreover, it is submitted that when the relevant preparatory acts were carried out
there was no prospect that the appellants would end up fighting against Western
forces. This is a further factor which should tell in their favour. As to the actions
which the appellants did take once they reached Syria, they ended up with a group
who were part of the Free Syrian Army, a coalition which has been supported and
supplied by Western countries, and their actions had been limited to patrolling and
humanitarian assistance. Thus what transpired fell well short of very aggravating
conduct.
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
18.
Both appellants were men of previous good character. Each was a month or so short
of his 21st birthday when he travelled abroad. They should be regarded as
unsophisticated youths who were naive and perhaps conditioned by others with whom
they engaged through the internet. Insofar as the evidence against Ahmed consisted of
social media conversations care should be taken in taking them at face value since
they may have involved an element of invention or exaggeration to impress the
women with whom he was communicating. Reliance was also placed on the fact of
guilty pleas, the appellants’ voluntary return to this country (which was attributed to a
combination of their growing weary and frightened by the conditions in Syria), and a
lack of animosity towards the West.
19.
Some emphasis was laid on the beneficial influence of the appellants’ law-abiding
families and their actions in this matter as being relevant to the question of
dangerousness. In this context, too, the absence of an intention to use or threaten
violence in the United Kingdom was said to be material since containing and
controlling the appellants’ future conduct would be easier in these circumstances.
20.
Both appellants provided references to the sentencing judge, sixteen in Sarwar’s case
and three in the case of Ahmed.
21.
Sarwar has invited the court to receive fresh evidence pursuant to section 23 of the
Criminal Appeal Act 1968. We have read statements from three witnesses. The first is
Sarwar’s mother. She gives evidence of her son’s personality and capabilities and of
the impact of the sentence. There is a statement from Jahan Mahmood who describes
himself as an historian. His statement is a statement of personal opinion about the
case, reflections on the social problems surrounding radicalisation and the best way of
dealing with such problems. He also speaks of the naivety of the appellants. There is
also a statement from a Dr Michael Korzinski, a psychologist who has met the
appellants since sentencing. He concludes that they are suffering from profound
disillusionment and grief and that they were ill-equipped to deal with hyperbolic
religious rhetoric on the internet. He describes them as having been isolated, socially
inexperienced and emotionally immature. There is no clinical diagnosis of, for
example Post Traumatic Stress Disorder; nor is there any report showing any mental
condition which could reduce culpability. Dr Korzinski’s report indicates that there is
no developed understanding of the effects of social media in this sort of case.
22.
We do not think any significant weight attaches to any of these statements. Mrs
Sarwar’s statement merely adds to a reference she provided to the judge without
contributing new insight. Mr Mahmood’s statement is very general in nature and is
largely social commentary. The time for advancing mitigation is at the original
sentencing hearing. Moreover, there is nothing which has emerged from these two
statements which in our view carries any weight, reveals any new facts, or which
would have made any difference to the sentencing exercise. We therefore decline to
receive them.
23.
Turning to Dr Korzinski’s report, it reveals a picture of two young men who became
radicalised by spending a lot of time online. The portrayal of their asserted isolation is
somewhat at odds with the picture painted by a significant number of the references
which were put before the judge. We do not think there is anything stated by Dr
Korzinski which would not have been apparent to the judge below from the facts of
the case. We therefore decline to admit his statement. Moreover, submissions had
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R v Sarwar & Ahmed
already been made to the judge below relating to the asserted naivety and immaturity
of the appellants, and arguments had been made on the question of dangerousness by
reference to the law-abiding nature of the appellants’ families which would serve as a
suitable control once the appellants were released from custody.
24.
We begin our observations in this case by stating that we do not see any basis for
criticising the judge’s conclusion that this pair were equally involved. Accordingly,
we do not see that there was any legitimate basis for distinguishing between them.
The question which we, therefore, have to resolve is whether the common complaints
as to the severity of the outcome are in any way justified.
25.
There are no sentencing guidelines for this sort of offence, and on more than one
occasion this court has declined to lay down guidelines, observing that the facts of
individual cases are likely to be very different from one another. The offence under
section 5 is committed when a person engages in acts in this country for the purpose
of giving effect to an intention to commit acts of terrorism. Those acts of terrorism
may take place in this country or abroad. In Dart, this court held that it made no
difference to the gravity of the offence whether the intended act or acts were to take
place here or abroad.
26.
Section 1 of the Terrorism Act 2000 defines terrorism. Its effect was summarised in
Gul at [27] of the Supreme Court’s judgment as follows:
“The effect of s.1(1) of the 2000 Act is to identify terrorism as
consisting of three components. The first is “the use or threat of
action”, inside or outside the United Kingdom, where that
action consists of, inter alia, “serious violence”, “serious
damage to property”, or creating a serious risk to public safety
or health – s.1(1)(a), (2) and (4). The second component is that
the use or threat must be “designed to influence the government
[of the United Kingdom or any other country] or an [IGO] or to
intimidate the public” – s.1(1)(b) and (4). The third component
is that the use or threat is “made for the purpose of advancing a
political, religious, racial or ideological cause” – s.1(1)(c).”
27.
The judgment continued at [28]:
“As a matter of ordinary language, the definition would seem to
cover any violence or damage to property if it is carried out
with a view to influencing a government or IGO in order to
advance a very wide range of causes. Thus it would appear to
extend to military or quasi-military activity aimed at bringing
down a foreign government, even where that activity is
approved (officially or unofficially) by the UK government.”
28.
By their guilty pleas the appellants acknowledged that their conduct met this
definition of terrorism. As the decisions in Dart and in Khan and others [2013]
EWCA Crim 468 at [75] show, the starting point for sentence is the sentence that
would have been imposed if the objective had been achieved, in other words if the
intended acts of terrorism had actually been carried out. However, as both Dart and
Attorney General’s Reference No 7 of 2008 [2008] EWCA Crim 1045 show, the
Judgment Approved by the court for handing down.
R v Sarwar & Ahmed
ultimate sentence would in large part be determined by the factual nexus between the
offender’s conduct in the UK in preparation for acts of terrorism and the potential acts
of terrorism. Both Dart and Khan and others support the propositions that in most
terrorist cases culpability will be extremely high and that the purpose of sentencing
for the most serious terrorist offences will be to punish, deter and incapacitate. There
is no suggestion that the judge did not fully have in mind these sentencing principles.
29.
These offences were undoubtedly characterised by a significant degree of planning
and persistence. Those steps were ultimately put into effect by travelling from this
country and engaging abroad with like-minded people. Notwithstanding the
appellants’ assertions of respect and regard for this country’s way of life, it is
perfectly clear to us that these two young men had become heavily radicalised in a
dangerous way and that their commitment to such a cause cannot simply be
disregarded by reason of untested and asserted good intentions for the future.
30.
We do not regard the fact that the target of their intentions was on this occasion not
within this country as something which means that the criteria for a consideration of
dangerousness do not apply. The combination of extensive planning and
premeditation coupled with repeated expressions of alignment with radical Muslim
fundamentalism, followed by the appellants acting upon such views, satisfies us that
the judge was correct in making a finding of dangerousness and passing an extended
sentence (assuming that the necessary pre-conditions in terms of sentence length are
met).
31.
Insofar as reliance was placed upon the law-abiding nature of the appellants’ families
as a factor operating against a finding of dangerousness, we have to say that we are
not impressed. The fact is that both these young men over many months were able to
conceal from their families the nature of their criminal activities. They were able to
deceive them as to the purpose of their departure from this country, one of them
setting up an email account in an English name for the purposes of continuing that
deception whilst they were abroad. Whilst we recognise the responsible nature of the
families’ behaviour in alerting the authorities and have no doubt as to their good
intentions for the future, we regret that that is not in our judgment sufficient to
provide the sort of guarantee or reassurance which would be needed to displace the
obvious need for an extended period of licence after release in order to ensure public
protection.
32.
We therefore turn to the question of the custodial term. There has been argument
before us that we should regard as more serious than the present matter the case of
Dart in which a sentence of 8 years after a trial (6 years to reflect the guilty plea) was
held not to have been manifestly excessive. We note that in Dart’s case this court
commented that a significantly longer term than 8 years after a trial could have been
imposed. Dart was a case when the appellant had gone to Pakistan for a period of
about three weeks for training at a camp, had returned to this country and was making
further preparations to return to Pakistan. One feature upon which reliance has been
placed is that it is said that Dart contemplated action in this country as a result of his
acts of preparation. It seems to us that this overstates the position. At [60] this court
stated:
“[The trial judge] then underlined that he did not sentence Dart
on the basis that he had intended to carry out terrorist activities
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R v Sarwar & Ahmed
in this country, but rather upon the basis that his immediate
objective had been to go out to Pakistan for training, with a
view to carrying out subsequent (albeit as not yet crystallised)
terrorist operations there.”
33.
At [62] the court went on to note that a factor in the trial judge’s finding of
dangerousness in Dart’s case was that although no target (whether at home or abroad)
had been identified, he was sure that an attack of some sort in the United Kingdom
had not been ruled out. However, we note that the indictment against Dart related to
preparation for acts of terrorism to be carried out in Pakistan, and that Dart’s basis of
plea, which was not challenged expressly, denied an intention to commit any act of
terrorism in the UK.
34.
We note also that Dart’s activities abroad were for a period of three weeks, and thus
considerably shorter than the six months or so that these appellants were in Syria. His
activity abroad had involved obtaining terrorist training with a view subsequently to
fighting coalition forces in Afghanistan. We accept that an aggravating feature of this
type of offence can arise where intended actions abroad involve or include a real
possibility of armed action against UK or allied forces. However, in Dart’s case
although he went abroad and obtained training, he returned to the UK and never in
fact succeeded in going back and taking up arms. During Dart’s time abroad which
was considerably shorter than that spent by these appellants, he does not seem to have
been involved in armed activity close to combat action in the way in which these
appellants were.
35.
Dart is one of those cases where this court has expressly declined to lay down
guidelines for this sort of offence. As we have already noted the court considered that
the sentence of 8 years after a trial in that case could have been significantly longer.
Its conclusion on the facts of that case was simply that the 6 years imposed after
discount for guilty plea was not manifestly excessive. It is our task to consider the
appropriate level of sentence based on the facts of this case and we are not
significantly assisted by a consideration of Dart. We were also asked to consider
Iqbal whose case is considered within the judgment in Dart. Similar considerations
apply.
36.
Counsel put before us five other sentencing decisions, some of them sparsely
reported. Three of the five are first instance cases from which we do not think any
particular assistance can be derived. The only authority mentioned at Court of Appeal
level is Attorney General’s Reference No 7 of 2008 whose facts were somewhat
unusual and significantly different from this case in a number of respects. We do not
consider that it provides any material assistance as to an appropriate level of sentence.
We have additionally considered the decision of this court in Khan and others [2013]
EWCA Crim 468. We note a wide variation in sentences passed depending on
individual circumstances which reflect the variety of ways in which this offence can
be committed. Again, we do not consider that the disposals in that case provide
significant assistance.
37.
Returning for a moment to the five decisions relied on by the appellants, one of them
is the case of Imran Khawaja. Khawaja was sentenced by Jeremy Baker J at
Woolwich Crown Court on 6 February 2015. Khawaja had travelled to Syria,
remained there for 2 ½ months and received terrorist training. Whilst there he took
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part in the production of images and films designed to promote the Islamic State’s
cause and to encourage UK Muslims to join jihad. In one film he was depicted
holding up two severed human heads whilst speaking in a manner contemptuous of
the deceased. The judge found that he had been close to a combat zone but that he had
not actually taken part in the fighting itself. The judge passed an extended sentence
whose custodial element prior to credit for a guilty plea would have been 16 years.
Some emphasis was laid on this case as demonstrating that the level of sentence in
this case was too high.
38.
We remind ourselves that Khawaja is a first instance decision and that the sentence
imposed by the judge will be at a point within a range, so that a higher sentence might
well have been open to him. Nonetheless, we consider that there is some force in the
point that the present case can be viewed as less serious than Khawaja.
39.
It is axiomatic to say that each case must depend on its own particular circumstances.
In Gul the Supreme Court recognised the breadth of conduct covered by the definition
of terrorism in the 2000 Act. It must follow from that that when dealing with a section
5 offence it will be necessary to examine where the particular offending lies in the
spectrum of offences of this type. We have already observed that both Dart and
Attorney General’s Reference No 7 of 2008 refer to a consideration of the factual
nexus between preparatory acts and the potential acts of terrorism. No party before us
sought to submit that we should disregard what actually happened once these
offenders left the jurisdiction and went abroad. Indeed, much of the hearing before us
and that of the hearing in front of the judge below was taken up with an examination
of what did not happen abroad. That was the whole rationale behind the bases of plea
on behalf of the appellants. It was not disputed that the appellants’ preparations and
ultimate travel abroad took place with the clear intention that they should be involved
in armed combat against the forces of President Assad in Syria. This is clearly
important. The thrust, however, of the basis of plea was that that had not in fact
occurred, albeit that there was an acceptance that the appellants had been involved in
armed activity close to combat zones, but falling short of actual combat.
40.
The appellants submitted that involvement against Assad’s forces represented a less
blameworthy form of the offence since pronouncements by the then Home Secretary
had on more than one occasion condemned the Assad regime and indicated that Her
Majesty’s Government as at 20 November 2012 had decided to recognise the National
Coalition of Syrian Revolutionary and Opposition Forces as the sole legitimate
representative of the Syrian people. We note that in May 2013 the Foreign Secretary
announced the provision of £12 million pounds in non-lethal assistance to the
Coalition. The appellants’ basis of plea asserts that they acted with the Free Syrian
Army. It is not clear to us that this organisation is part of the Coalition, but we shall
assume for the purposes of this argument that it was. The appellants’ intention on and
prior to leaving the UK, however, had clearly been to fight alongside the forces of AlNusra which was proscribed in this country shortly after their arrival undoubtedly on
the basis of its previous activities. As we have recorded there was photographic
evidence of the Al-Nusra flag photographed on the camera taken by the appellants.
41.
We were urged to accept that based on the 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
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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 loyalties
are not fixed or clear-cut. It was acknowledged that the situation in Syria is one which
has been constantly changing. What is clear to us is that the appellants’ conduct
clearly came within the ambit of terrorism as defined in section 1 of the 2000 Act.
42.
We note that in R v F [2007] 2 Cr App R 3 Sir Igor Judge, as he then was, in a case
brought under section 58 of the 2000 Act (possession of documents containing
information likely to be useful in committing or preparing an act of terrorism),
dismissed a submission that the fact that the documents planned the removal of an
allegedly tyrannical regime could constitute a reasonable excuse under section 58(3).
He said at [27]:
“…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.”
At [32] he said:
“…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.”
43.
Whilst we recognise that F was concerned with whether there was criminal liability
under section 58, those observations are persuasive in the present context.
Accordingly, we are not prepared to regard so-called noble cause terrorism as
mitigating sentence.
44.
We next turn to the point that there was no prospect that the appellants would end up
fighting against Western forces. As we have stated earlier, if the preparatory activity
was carried out with a view to fighting UK forces, that would be an aggravating
feature of the offence. Depending on the circumstances, the same might hold good in
relation to forces closely allied to UK forces in a particular situation. We accept that
such a feature was not present in this case where the intended and likely adversary
was President Assad’s forces. Whilst we bear in mind that this aggravating feature is
not present, it should also be borne in mind that the absence of aggravation does not
constitute positive mitigation.
45.
Insofar as a similar point is taken on the basis that there was an intention to engage
with Assad’s armed troops rather than to direct activity against civilians the position
is not that clear-cut. Whilst the Crown accepts that these appellants had no specific
intention of attacking civilians it submits that the nature of war and terrorism should
be recognised. If the appellants had fulfilled their intention of fighting whilst in Syria
it would be unrealistic to conclude that there would be no harm caused to civilians.
We can take judicial notice of the general nature of the conflict in Syria and the fact
that there have been appalling consequences for the civilians of that country arising
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from the fighting. In our view the Crown is right. The likelihood of significant
collateral damage being caused to civilians arising from armed engagement with
Assad’s forces would be great.
46.
In relation to the submissions that the appellants can claim benefit from the fact that
they had no plans for terrorist action within the United Kingdom, we note that in Gul
it was held that section 5 applies whether or not the intended activity was to take place
within the UK. That being so, we are unconvinced that the fact that preparations were
being made for terrorist activity abroad should mitigate the offence. This country has
set its face against terrorism and in section 5 Parliament has provided that preparation
in the UK is an offence wherever the terrorist activity is to take place. As the
submission was developed before us, it appeared that this particular point was aimed
more at the finding of dangerousness than the length of the custodial period. Insofar
as it related to dangerousness we have already made clear that we do not consider it
carries any real weight in the circumstances of this case.
47.
The overall submission in relation to the points we have dealt with so far is that taken
together they diminish the gravity of the offending in this case and should have
resulted in a shorter sentence. As will be apparent from our analysis, we are not
persuaded to attach any or any significant weight to them individually or
cumulatively, with the exception of the point arising from the case of Khawaja.
48.
A further point arises as to the basis upon which the judge passed sentence. It will be
recalled that the appellants put forward bases of plea which made plain that they did
not engage in combat activity whilst in Syria and that neither the Crown nor the court
triggered a Newton hearing despite the fact that the Crown did not accept those bases
of plea. Instead the Crown put the case forward on the basis that the appellants had
been involved in armed activity close to the combat zone. In this way the Crown was
not asserting that the appellants had taken part in fighting but was relying on the
photographs, some of the social media material, and expert evidence as to firearms
and explosives. From this the inference could properly be drawn that the appellants
had received weapons training and had handled them, for example, on patrol activity
close to the combat zone. The appellants do not demur from such an analysis
(although there is debate as to the significance to be attached to it). What they say is
that it was not legitimate for the judge when he came to pass sentence to pass sentence
on a different basis.
49.
At page 30 of the sentencing transcript the judge said:
“Neither defendant has put before the court any evidence of
their own that displaces the clear inference to be drawn from all
that is before me that they were engaged in active combat…I
am driven to the safe conclusion that I have accurately
summarised the position, it comes to this: I find that both of
these defendants fulfilled their intention and have accepted by
their pleas of guilty that their intention was to commit acts of
terrorism.”
50.
It seems plain to us that the judge did indeed go beyond the basis upon which the case
had been advanced by the Crown and formed conclusions adverse to the appellants
which ran contrary to their bases of plea. As is well known, and as the Criminal
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Practice Direction (Sentencing) B, paras B.6-10 [2013] 1 WLR 1364 reiterates, a
judge is not entitled to reject a defendant’s basis of plea without a Newton hearing
unless the basis is manifestly false. Given the way the Crown put the case there was
no basis for the judge to have rejected the bases of plea as manifestly false and
indeed, earlier in his sentencing remarks, the judge had said in terms that it had not
been considered necessary to determine any of the points in issue by the calling of
evidence.
51.
It seems to us in those circumstances that the judge fell into error in not proceeding on
the basis put forward by the Crown, (and not disputed by the defence), and that he
was wrong to form the conclusion which he did without hearing evidence, as well as
putting a burden on the appellants to give evidence or put material before the court.
Mr Altman for the Crown confirmed to us how the Crown had put its case in drawing
a distinction between involvement in armed activity close to the combat zone and
involvement in combat itself. He confirmed that the Crown had never sought to
persuade the judge to make the finding that he did. We are satisfied that this was an
irregularity which will have led the judge to aggravate the sentence.
52.
Whilst the section 5 offence is concerned with preparation for acts of terrorism in this
country, it is settled that for sentencing purposes the court may look at the link or
connection between that activity and the proposed acts of terrorism even if those acts
are to be committed abroad. It is clear that the preparations made by these offenders
were with a view to becoming involved in combat activity with forces of President
Assad. To that end the appellants made significant preparations over a long period of
time (including contacts with other extremists), which achieved their aims of
travelling to Syria, meeting up with like-minded others and receiving firearms
training. Such activities, as the evidence showed, brought them into close proximity
with the combat zone or zones and whilst there they engaged in armed patrol duties.
True it is that ultimately they did not engage in armed combat but they had travelled
very far along the road towards that. It might also be said that the activities in which
they engaged had the ability to provide support and encouragement to those who were
in fact involved in armed combat. We have not seen anything upon which a claim that
their preparations were in part motivated by humanitarian concerns can be sustained.
53.
In our judgment therefore there is a substantial nexus between the preparatory activity
and what transpired once the appellants went abroad. Nonetheless we are satisfied that
the finding of involvement in combat activity improperly made by the judge made
some difference to the sentences which were imposed.
54.
Whilst according to the authorities cited, the court should look at the preparatory acts
and their nexus to the potential intended acts of terrorism, there was some discussion
at the hearing as to the legitimacy of looking at what in fact transpired if terrorist
activities took place abroad. What, for example, would be the situation as to sentence
if what was done abroad considerably exceeded in gravity any preparatory acts done
in the United Kingdom? Such a question does not arise for answer in this appeal. Here
the appellants were relying on the fact that what they had in fact done was less serious
than that which their preparatory acts indicated they intended to do. Since the Crown
was prepared to proceed on such a basis and since it would not operate in a way
unfairly towards these appellants we will adopt that approach in this case. It may be
that in the future, in an appropriate case, this point will need to be revisited. However,
in the present case the common approach of examining what occurred abroad has the
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merit of consistency with the observations of Lord Phillips CJ in Rahman and
Mohammed [2009] 1 Cr App R (S) 70. At [8] he spoke of the “care to be taken that
sentences [under this legislation] are not disproportionate to the facts of the particular
offence”, whilst acknowledging gravity and the need for deterrence.
55.
Insofar as reliance is placed on age and naivety, we of course recognise that these are
young men upon whom a lengthy sentence will bear hard but we are not persuaded
that there was any particular naivety or immaturity which should attract further
weight. In our judgment the appellants showed a deep commitment to the jihadist
cause maintained over a substantial period and resorted to subterfuge in order to
achieve their aim of going to support jihad. Both of them were nearly 21 when they
left the country. It is true that neither has any previous conviction but these are grave
offences and the mitigation of good character carries correspondingly less weight in
those circumstances.
56.
Stepping back and looking at the matter in the round we are persuaded that the judge
took too high a starting point for the custodial term in setting it at 16 years. We are
principally influenced by our finding in relation to the basis of plea and the combat
activity issue, but bear in mind that what they did went a long way towards fulfilling
their intentions. Our conclusion is that in all the circumstances there should be a
reduction in sentence based on a starting point of 13 years. Giving 20 percent credit
for the guilty pleas (as the judge did) results in a custodial term of 10 years and 3
months. We consider that the 5-year extension period was appropriate in the
circumstances in this case.
57.
Accordingly, for the reasons given, the appeals are allowed and the sentences are
reduced in each case by the substitution of an extended sentence of 15 years and 3
months for the 17 year 8 month term imposed below. That extended sentence will
comprise a custodial term of 10 years and 3 months and an extension period of 5
years. This alteration does not affect the application of section 246A of the Criminal
Justice Act 2003 (special provisions relating to the release on licence of prisoners
serving extended sentences where the custodial term is of 10 years or more).