In recent years there have been a number of sentencing appeals in connection with section 5 of the Terrorism Act 2006 (“the 2006 Act”).

Section 5 (1) of the 2006 Act provides:

“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”.

The offence casts a wide net over a range of criminality. It catches not only those intending to commit acts of terrorism act but also those who assist others to commit such acts. The offence applies to conduct both in and out of the UK and the provision is engaged as soon as there is evidence of preparatory acts of terrorism.

The wide ambit of the offence means sentencing courts have been presented with a variety of mitigating and aggravating factors which in the absence of any proper guidance has sometimes led to inconsistent sentencing approaches.

For these reasons Lord Thomas’ judgment in R v Kahar and others [2016] EWCA Crim 568 is a welcome development in sentencing principles for terrorist offences.

The judgment adds much needed clarity to the question of sentencing in section 5 cases and cases involving terrorist convictions generally.

The first issue addressed by the court was mitigation.

Given the current conflict in Syria, many offenders convicted of this offence have been young men who left the UK, entered Syria and joined forces with resistance groups fighting against the Assad regime. Following conviction, a feature of the mitigation in these cases is that the sentence should be reduced because the offender’s conduct although terrorist conduct could be regarded as noble cause terrorism.

Not so said the Court of Appeal. The court stated:

“It must be clearly understood, in relation to all terrorist offences and terrorist related offences, that so-called just or noble cause terrorism is irrelevant to sentence and does not provide any mitigation”.

Accordingly mitigation along the lines that the offender, and/or the terrorist organisation to which the offender was affiliated, was acting in a “good” or “just” cause will not assist in the reduction of sentence.

As to mitigation generally, particular features which may be relevant to section 5 cases, include the particular vulnerability of the offender and, if particularly vulnerable, the extent to which they were groomed, and any voluntary disengagement, however the court stated:

“…. the extent to which, if at all, any such factors do mitigate sentence will be highly fact sensitive”.

The court also held that there should be no distinction in the seriousness of the offence between offenders intending to commit the offence in the UK and those who are intending to plan offences abroad. Although it will aggravate the offence if the preparatory conduct was carried out with a view to fighting UK armed forces.

The court stated that specific consideration with overseas cases include

i. Relative degree of sophistication of the route

ii. Circumstances of travel arrangements and extent of any assistance by the offender to the others

iii. Nature of equipment taken and extent to which offender has access to funds

iv. If the offender reached the country, the period of time that they were there; the conduct that they engaged in whilst there; what their reason for returning was; and the method of their return

In addition to the number, nature and gravity of the intended terrorist acts(s), and to aggravating factors of general application, and depending on the facts of the particular case, the court identified the following four factors which are likely to require consideration.

i. The degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism

ii. The including the duration of the involvement of the particular offender

iii. The depth and extent of the radicalisation of the offender as demonstrated, for example, by way of the possession of extremist material, and/or the communication of such views to others

iv. The extent to which the offender has been responsible, by whatever means, for indoctrinating, or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination (actual or intended).

Given the range of conduct both in terms of culpability and harm caused, the court divided the different scales of criminality into six levels. The levels set out the degrees of culpability and harm and the clarity on the type of sentencing the nature of the offending will attract. Sentences can range between a relatively short determinate sentence to a life sentence with a very long minimum term.

Consideration of the levels will therefore be a key part of the sentencing exercise and the sentencing Judge will need assistance as which particular level applies to the offending in question.

The court also explained:

“Equally, in the usual way, there is a degree of overlap between the levels, and aggravating and mitigating features may move the ultimate sentence up or down within a level, or may move it to another level”.

LEVEL ONE

Level one is the highest level and applies to cases where the offender has taken steps which amount to attempted multiple murder, or a conspiracy to commit multiple murder. Offending falling within level one would attract a sentence of life imprisonment with a minimum term of 30 to 40 years. The court indicated that this level would apply to cases such as Ibrahim & others [2008] EWCA Crim 880 which concerned a conspiracy to murder. This case concerned the 21/7 plot in which four bombs were detonated on the London Underground but failed to explode, the defendants received life sentences with minimum terms of 40 years, imposed after trial. The level would also apply to the circumstances concerning the offending in Abdullah Ahmed Ali & others [2011] 2 Cr App R 22. In this case the defendants conspired to murder by causing explosions on transatlantic airliners. The offenders received life sentences with minimum terms of between 32 and 40 years imposed after trial.

LEVEL TWO

Offending falling within level two and three are also offences where the culpability and degree of potential harm is high however the minimum term for the life sentences start at a lower range. Level two offenders can expect a minimum term in the range of 21-30 years and level three offenders will receive between 15-20 years.

The court explained that level two cases would apply to circumstances where the offender “may not get quite so near in preparation or where the harm which might have been caused was not quite as serious”. Examples of cases falling within this level are the circumstances in Asiedu [2008] EWCA Crim 1725, the offender had conspiracy to cause explosions, he had purchased 450 litres of hydrogen peroxide for the 21/7 plot, had taken part in boiling it down, but had abandoned his bomb on the day. A sentence of 33 years imprisonment was upheld on appeal.

LEVEL THREE

An example of a level three case is the circumstances in Usman Khan & others which involved offenders from Cardiff and London planning a pipe bomb attack on the London Stock Exchange in order to cause terror, damage to property and economic harm, the offenders had yet to acquire the necessary materials. Following pleas by all the offenders that, the Cardiff and London offenders were sentenced to extended sentences with custodial terms from 17 years to 21 years.

Level three cases are cases which are also likely to include those in which the offender travels abroad and participates in actual combat.

LEVEL FOUR

Cases falling within the fourth level will normally concern offenders who join or support a terrorist organisation, usually engaged in a conflict overseas, and either participates on the periphery of the actual combat or trains, whether in the UK or abroad. A determinate sentence in the range of 10-20 years is likely to be appropriate in such cases.

LEVEL FIVE

The court described level five cases in the following way:

“The typical case is an offender who sets out to join a terrorist organisation engaged in a conflict overseas but does not complete his journey or an offender who makes extensive preparations with a real commitment, but does not get very far, or who does not get very far in his preparations for an intended act, which will usually be in the lower realms of seriousness, in the UK”.

In such a case, where the offender is not dangerous, the range of a determinate sentence is likely to be 5-10 years. Level five cases are likely to involve similar facts to the case of Tabbakh [2009] EWCA Crim 464 the offender was convicted of a section 5 offence, he made efforts to make a bomb, but the bomb was not viable because the offender failed to use the right grade of ingredients. A sentence of seven years was upheld on appeal.

LEVEL SIX

The final level, level six, will normally apply to offenders who:

“….who never sets out or who sets out, but the circumstances are such where it is unlikely that he will go very far, or returns without going far, or who has a minor role in relation to intended acts at the lowest end of seriousness in the UK”.

For this level of offending the court concluded that sentences in the range of 21 months to 5 years are likely to be appropriate.

The ruling represents a significant development in the sentencing practice for those convicted of terrorist offences and should lead to greater consistency in sentencing.

Shippers need to ensure they are prepared for new container weight verification rules that come into force in July 2016. The International Maritime Organisation (IMO) has adopted amendments to the Safety of Life at Sea convention (SOLAS) requiring every packed export container to have its weight verified before being loaded onto a ship.

On 1 July 2016, the amendments to SOLAS take effect, requiring shippers whose name appears on the bill of lading to verify the weight of a container carrying cargo before it is loaded on as cargo. The full text of the convention is available on the website of the International Maritime Organization. The new mandatory requirement will be introduced by the Merchant Shipping (Carriage of Cargoes) Regulation 1999 . The Regulation will not be amended because it already places a requirement on the shipper to provide the weight of cargo however new guidance has been issued about how the Regulation should be interpreted in the light of the amendments to SOLAS. The guidance (MGN) was issued by the Maritime Coastgaurd Agency (MCA).

Background: Container vessels do not have the capability to weigh the containers that are loaded onto them. Prior to the advent of containers, a ship captain largely knew what cargo was on his ship. The container fundamentally changed that. The captain only knows what he is told on a piece of paper and relies on shippers declaring the contents and weight of the container accurately.

However, there has been an increasing concern in the industry that the weights of containers are mis-declared, resulting in ships carrying a load beyond their capacity.

On 18 January 2007 the container ship MSC Napoli sent out a distress signal after getting into difficulties in the English Channel. The 62,000-tonne vessel took in water through a hole in its side and the crew were forced to abandon ship.

The ship was carrying 41,773 tonnes of cargo on board and over a 1,000 tonnes spilled into the sea. Nearly 3,000 birds have been killed or injured by the chemicals which fell into the sea. The RSPCA and local wildlife charities described it as “one of the worst UK marine pollution incidents”.

The insurers for the ship described the consequential claim as “the second most expensive claim ever”. They also said that the beaching of the vessel, which had 3,664 tons of fuel oil and marine diesel on board, had avoided “a potentially very grave environmental disaster”.

A subsequent report published by the Marine Accident Investigation Branch concluded that the failure to verify the weights of containers had substantially contributed to this accident. The report concluded: The audit of the containers removed from MSC Napoli and the deadload calculated on departure, indicate that the declared weights of many of the containers carried by the vessel were inaccurate. This discrepancy is widespread within the container ship industry and is due to many packers and shippers not having the facilities to weigh containers on their premises. It is also due to shippers deliberately under-declaring containers’ weights in order to: minimise import taxes calculated on cargo weight; allow the over-loading of containers; and to keep the declared weight within limits imposed by road or rail transportation.

As part of the investigation it was discovered that 137 of the containers stored on deck were more than 3 tonnes different from the declared weights. The largest single difference was 20 tonnes, and the total weight of the 137 containers was 312 tonnes heavier than on the cargo manifest.

This is not an isolated incident. In 2012, the need to address the mis-declared container problem was reinforced when Ukrainian Customs authorities weighed containers at their ports and found that 56% of the containers’ actual weights exceeded the shipper-declared weights. Other countries, including India and New Zealand, conducted similar tests and found similar results.

The Marine Accident Branch recommended as part of their report: In view of the fact that container ships invariably sail very close to the permissible seagoing maximum bending moments, the additional undeclared weight has the potential to cause vessels to exceed these maxima. Container shipping is the only sector of the industry in which the weight of a cargo is not known. If the stresses acting on container ships are to be accurately controlled, it is essential that containers are weighed before embarkation.

Verified container weight requirement: As a result, the IMO agreed an amendment to the Safety of Life at Sea (SOLAS) Convention in May 2014. The amendment creates an obligation on the marine terminal operator and carrier to issue a verified container weight (Verified Gross Mass (VGM)) before a container is loaded onto a vessel. The obligation is legally binding from 1 July 2016.

The new regulation will mean carriers will not load containers anywhere in the world unaccompanied by a VGM, because doing so would leave their ships out of compliance with flag state and insurance rules.

1. Section 4 (1) (a) of the Regulation states:

“The shipper shall, subject to paragraph (4) below, provide such information to the owner or master sufficiently in advance of loading as is necessary to enable them to ensure that

i. the different commodities to be carried are compatible with each other or suitably separated;

ii. the cargo is suitable for the ship;

iii. the ship is suitable for the cargo; and

iv. the cargo can be safely stowed and secured on board the ship and transported under all expected conditions during the intended voyage.

(b) The cargo information referred to in sub-paragraph (a) shall include:

(i) in the case of general cargo and cargo carried in cargo units, a general description of the cargo, the gross mass of the cargo or cargo units and any relevant special properties of the cargo ………”

The International Maritime Organisation has indicted that 162 governments, including the British Government, have agreed to implement the amendments to SOLAS.

While shippers have always had to provide a weight on the bill of lading, the new rules require the signature of an authorised individual who must certify that the contents have been weighed prior to the loading of the container or that the full packed container has been weighed. Paragraph 6.2 of the MGN states:

“…..the document declaring the verified gross mass of the packed container should be signed by a person duly authorised by the shipper. The signature may be an electronic signature or may be replaced by the name in capitals of the person authorised to sign it”.

Paragraph 1 of the MGN gives effect to paragraph 1 of SOLAS which states:

“Before a packed container can be loaded onto a ship, its weight must be determined through weighing. It is a violation of SOLAS to load a packed container aboard a vessel to which SOLAS applies without a proper weight verification. There is no exception to this requirement”…

Estimating weight is not permitted. The shipper (or by arrangement of the shipper, a third party) has a responsibility to weigh the packed container or to weigh its contents. Under either Method, the weighing equipment used must meet national certification and calibration requirements. Further, the party packing the container cannot use the weight somebody else has provided, except in one specific set of defined circumstances.

It is important to note that, for the shipper’s weight verification to be compliant with the SOLAS requirement, it must be “signed”, meaning that a specific person representing the shipper is named and identified as having verified the accuracy of the weight calculation on behalf of the shipper.

The new regulation is relevant and critical to the entire supply chain and it is important that companies and individuals involved in shipping are clear and familiar with their obligations and responsibilities.

A breach of these regulations will be considered under the existing framework of the Merchant Shipping (Carriage of Cargoes) Regulations 1999 and will almost certainly result in a prosecution with this risk of an unlimited fine or up to two years’ imprisonment. The primary offences are contrary to section 4(6) and 4(7) of the Regulation:

Section 4 (6) states:

“If a shipper or forwarder fails to provide appropriate cargo information as required by this regulation, or furnishes cargo information which he knows to be false or recklessly furnishes cargo information which is false, he shall be guilty of an offence”.

Regulation 4(7) states:

“If an owner or master accepts for carriage, or takes or receives on board any cargo for which appropriate cargo information as required by this regulation has not been furnished, he shall be guilty of an offence”.

In the UK, regulators and authorised cargo inspectors are likely to use an enforcement threshold of +/-5% of the verified gross mass of the packed container. If a business fails to meet the expected standard of an accredited company, in addition to criminal penalties the MCA may suspend or revoke a company’s licence to ship containers.