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.

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Tanveer is a specialist in criminal and regulatory law. He has been recognised by the Times Newspaper as a legal star of the future and ranked in Legal 500 as a recommended barrister. Tanveer writes regularly on topics ranging from financial crime to regulation and terrorism law.
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