Rahman & Anor v R

These two appeals against sentence were listed consecutively as applications for permission to appeal. Each had been referred to this court by the Registrar. We granted permission to appeal in each case. In each case the appellant had been sentenced on a count charging him with disseminating a terrorist publication contrary to section 2 of the Terrorism Act 2006. There is as yet no decision of this court in relation to sentencing for that offence. In the case of Mohammed the prosecution had advanced some submissions as to the approach to sentencing for offences under section 2 of that Act, that required consideration. Accordingly we decided that we would reserve giving a reasoned decision until we had heard both appeals in order to give some general guidance in relation to sentencing for this offence. We shall do this first before turning to the facts of each appeal.

Section 2 of the 2006 Act is a complex and lengthy section. This is not surprising, for it imposes restrictions on freedom of expression. Insofar as material it provides as follows:

“2 Dissemination of terrorist publications

(1)

A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so-

(a)

he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or

(c)

he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).

(2)

For the purposes of this section a person engages in conduct falling within this subsection if he-

(a)

distributes or circulates a terrorist publication;

(b)

gives, sells or lends such a publication;

(c)

offers such a publication for sale or loan;

(d)

provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan;

(e)

transmits the contents of such a publication electronically; or

(f)

has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).

(3)

For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (2), if matter contained in it is likely-

(a)

to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or

(b)

to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them.

(4)

For the purposes of this section matter that it likely to be understood by a person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which –

(a)

glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; and

(b)

is matter from which that person could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by him in existing circumstances.

(5)

For the purposes of this section the question whether a publication is a terrorist publication in relation to particular conduct must be determined-

(a)

as at the time of that conduct; and

(b)

having regard both to the contents of the publication as a whole and to the circumstances in which that conduct occurs.

(6)

In subsection (1) references to the effect of a person’s conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct.

(7)

It is irrelevant for the purposes of the section whether anything mentioned in subsections (1) to (4) is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.

(8)

For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person-

(a)

as in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or

(b)

in fact makes use of it in the commission or preparation of such acts.

(9)

In proceedings for an offence under this section against a person in respect of conduct to which subsection (10) applies, it is a defence for him to show-

(a)

that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and

(b)

that it was clear in all the circumstances of the conduct, that that matter did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.

(10)

This subsection applies to the conduct of a person to the extent that –

(a)

the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (3)(a); and

(b)

that person is not proved to have engaged in that conduct with the intention specified in subsection (1)(a).

(11)

A person guilty of an offence under this section shall b e liable-

(a)

on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both;

(b)

on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;”

At the sentencing hearing for Mohammed Mr Jonathan Sharp, on behalf of the prosecution, put before the court a document headed ‘Note on Sentencing’. This included the following statement:

“The potential range of seriousness covered by the offence

9.

Since the intention of the legislation is to criminalise dissemination of a particular type of publication, it is submitted that the seriousness of the offence is largely measurable by the quality and quantity of the publications concerned, and that other considerations are of minor importance. The Court’s attention is respectfully drawn to s.2(7) and 2(8), which render irrelevant considerations that might otherwise be important in considering the seriousness of the impact of any publication being disseminated.”

Mr Ward for Mohammed originally accepted this statement as accurate, but before us changed his stance and challenged it. He was right to do so. We asked Mr Sharp to explain on what his statement was based. He replied that it was simply his construction of the section. We do not accept Mr Sharp’s construction. Section 2(7) and 2(8) are dealing with the ingredients of the offence and not with seriousness. It is not to be inferred that matters other than the quality and quantity of the material published are to be treated as of minor importance. They must be given the importance that they deserve.

These comments apply equally to the rest of Mr Sharp’s note. This goes on to suggest that while recklessness in subsection (1) is “somewhat less serious” than an intention to encourage the commission, preparation or instigation of acts of terrorism, “given the general scheme of the section the Court may consider that the appropriate reduction in sentence may be small”. Once again we can see no warrant for any departure from the ordinary approach to evaluating the seriousness of an offence.

As to that approach, section 143(1) of the Criminal Justice Act 2003 provides:

“In considering the seriousness of the offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused”

That provision applies as much in relation to an offence under section 2 of the 2006 Act as in relation to any other offence.

Whether the defendant intended dissemination of terrorist publications to encourage the commission, preparation or instigation of acts of terrorism or was merely reckless as to such consequences is likely to be significant when assessing culpability. The volume and content of the material disseminated will be relevant to the harm caused, intended or foreseeable.

In R v Abu Baker Mansha [2006] EWCA Crim 2051, when considering a sentence for an offence under section 58(1)(b) of the Terrorism Act 2000, this Court said this:

“We agree with the judge that a person convicted of a terrorist offence must expect a substantial sentence in order to serve as a deterrent to others and to mark the extreme seriousness of the criminality involved in terrorist activities”

It is true that terrorist acts are usually extremely serious and that sentences for terrorist offences should reflect the need to deter others. Care must, however, be taken to ensure that the sentence is not disproportionate to the facts of the particular offence. As Calvert-Smith J remarked when imposing sentence in R v Adel Yahya at the Central Criminal Court on 5 November 2007:

“The offence to which you have pleaded guilty – under section 58 of the Terrorism Act 2000 – is one which may be committed in an almost infinite variety of ways. The sentence appropriate for a particular offence of this kind will need to reflect the particular facts and circumstances of the offender.”

If sentences are imposed which are more severe than the circumstances of the particular case warrant this will be likely to inflame rather than deter extremism. The words of Calvert-Smith J apply with particular force to offences under section 2 of the 2006 Act. These are capable of varying very widely in seriousness and this is reflected by the fact that, while the offence carries a maximum sentence of 7 years imprisonment if tried on indictment, it may be tried summarily.

In the light of these general remarks we turn to the facts of the particular appeals.

The appellant originally faced an indictment containing 3 counts. Count 1 alleged preparation of terrorist acts contrary to section 5 of the Terrorism Act 2006. Count 2 alleged possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism, contrary to section 57 of the Terrorism Act 2000. Count 3 alleged dissemination of a terrorist publication, contrary to section 2 of the Terrorism Act 2006.

The case had been listed for trial. On 20 November 2007 HH Goldstone QC was invited, pursuant to the principles in R v Goodyear 2005 1 WLR 2532, to give an indication of the maximum sentence he would pass if the appellant pleaded guilty to counts 1 and 3 and to an additional count of aiding and abetting contravention of the obligations of a control order, contrary to section 8 of the Accessories and Abettors Act 1861 and section 9(1) of the Prevention of Terrorism Act 2005. The judge was provided with an agreed basis of plea.

On 21 November 2007 the judge stated that the maximum sentence which would follow pleas of guilty was 6 years in total. The appellant then pleaded guilty. He was sentenced concurrently as follows. Count 2, 6 years imprisonment, count 3, 6 years imprisonment and count 4 (by then added to the indictment), 3 years imprisonment. The maximum sentences for these offences are respectively 15, 7 and 5 years.

The applicant came to the UK on 13 September 2004 on a student visa and on 21 September registered for a place on an honours degree course in Biotechnology at Abertay University, in Dundee, Scotland. He applied for the course from abroad. In June 2005 he was withdrawn from the course due to non-attendance and non-performance. Until his arrest he was employed at a mobile-phone shop in Manchester.

After arriving in the UK, he shared accommodation at various addresses with a school friend, Awan Aslam, settling at 160 Heywood Street, Cheetham, in 2005. The other occupants of Heywood Street were Mohammed Iqbal, Mohammed Afsar and Jamal Akbar.

On 12^th and 13^th March 2006 a camping trip took place in the Lake District attended by the applicant and Aslam. Their conduct during that trip was recorded on video clips on computers seized in Manchester and Nottinghamshire. At one time one of the men is seen running in front of a car shouting instructions. There is a further video of individuals “leopard crawling” in the snow. There are references to tactics used in Chechnya and to martyrdom by death on the battlefield.

On 23 June 2006 another camping trip took place in Hawkshead, in the Lake District. Again a number of men attended including the applicant and Aslam. Those present concentrated on fitness and stamina-building exercises.

A letter written in Urdu from Aslam who had gone to Pakistan was found in the applicant’s bedroom. The applicant admitted that the letter was from Aslam and that he understood its contents. The letter contained:

The possession of this letter was the foundation of Count 3. Under the basis of plea, accepted by the prosecution, the appellant had not yet disseminated this letter but had the intention of doing so. Thus he was guilty under section 2 (2) (f) of the Act.

A friend of the applicant called Omar Arshad fell out with his family in October 2006 after developing an interest in affairs in Afghanistan and Iraq. His family believed he was being “radicalised” by Mohammed Khan. On 18 October 2006 he was reported missing by his father.

Surveillance evidence showed that Arshad resided at the applicant’s home address in Cheetham from 19 October to 23 October 2006.

On 3 January 2007 Arshad’s father travelled to Dewsbury Mosque to collect his son. As a result officers were able to serve a Home Office Control Order on him. He had a full beard when photographed.

Mr Mohammed Asfar provided a witness statement which said that on the evening of 3 January 2007 Iqbal, Akbar, the applicant and Arshad were at the address in Heywood Street. He described Arshad as clean-shaven. This was evidence that he had changed his appearance following the service of the Control Order earlier that day. At 23:13 hrs the applicant and Iqbal left the house. The applicant withdrew £250 from a Natwest cash till and £230 from a Royal Bank of Scotland account. Both men then returned to Heywood Street.

At 5:03 hrs on 4 January 2007 Arshad left Heywood Street with Afsar who drove him to Birmingham. A ticket was then purchased from a travel agent for a flight from Birmingham to Tehran that day. The cost of the ticket was £421.70. There was video evidence of Arshad at Birmingham International Airport on the afternoon of 4 January.

These facts were the foundation for Count 4. The basis of plea accepted that the appellant assisted Arshad to escape from the jurisdiction, knowing that he was subject to a Control Order.

Count 2 was founded on the following facts, as admitted by the appellant in his basis of plea. The defendant prepared a postal package which contained combat knives and mobile telephones, mobile phone batteries and two mobile phone chargers which he intended to send to Pakistan to be used by others for a purpose connected to terrorism. One of those people he intended to assist was Omar Arshad the man he had helped to escape. The package included 2 mobile phones attributed to Omar Arshad.

The indication of a six year sentence given by the judge in accordance with the Goodyear procedure was a global sentence in respect of all three counts. Mr Aylott for the appellant has never disputed that 6 years was an appropriate starting point as the total sentence for the three counts on a guilty plea. His case, as we shall shortly show, is that the judge erred in failing to have regard to personal mitigation that had formed no element in the judge’s consideration when he arrived at the maximum period of six years for his Goodyear indication.

In these circumstances it is not appropriate to treat any of the individual sentences as a guide to the appropriate sentence for the offence in question. A six year sentence would have been significantly too high for Count 2 had that count stood alone, and the same is true of Count 3.

Before the Judge gave the Goodyear indication there was some discussion as to the basis upon which he should do so. The judge identified that there was authority to the effect that, where a terrorist has had a change of heart and no longer espouses terrorism, this can constitute mitigation. The judge commented that there was nothing to suggest that the appellant had had a change of heart. Accordingly he would give his indication on the basis that there was no change of heart. If change of heart was advanced by way of mitigation he would have to decide the extent to which it should affect the sentence.

The judge’s Goodyear indication was in the following terms:

“I have to have regard to the principles of totality. On the one hand there is the extent to which the Counts to which the defendant’s proposed pleas have been indicated, the extent to which those Counts are inter-related and on the other hand I have to bear in mind that there are three separate offences. I bear of course those matters in mind quite apart from any personal mitigation to which I have yet to be referred. I have concluded that if the defendant were convicted following a trial, of these 3 Counts, and I emphasize I am not including Count 1 for obvious reasons, the maximum sentence which would follow upon the conviction in respect of each of those Counts 2, 3 and 4 would be between seven and a half and eight years imprisonment. It would be appropriate to give him between twenty and twenty five per cent credit for the plea and the timing of that plea. In those circumstances the maximum sentence which would follow in the event of the pleas of guilty to those 3 Counts will be one of 6 years imprisonment in total.”

When sentencing the appellant, the judge said this:

“I am, with some hesitation, prepared to sentence you on the basis that whilst continuing to adhere to the accepting and acceptable principles of Islam, you have now renounced those radical views, if only because the intelligence which enabled you to exercise freedom of choice in deciding to espouse the cause in the first place and to act as you did, may have enabled you, since your arrest, to realise the crass stupidity of that cause, rightly described by Mr. Aylott on your behalf, as warped.”

After summarising other facts material to the sentence on each count, the judge explained the sentences that he was imposing as follows:

“I have considered with care the credit to which you are entitled for your plea. In one case to which I was referred, credit of 25 percent was given for a plea following a trial in which the defendant had given evidence where the jury was unable to agree.

Such credit, that is of 15 percent and of 25 percent in the earlier case, might seem generous but must be considered in the context in the type of case with which the court is dealing.

Not only are these cases very serious, it is not always realistic to expect that defendants facing serious charges and long sentences will plead at an early stage, or when facing charges such as these, at all, and there are other considerations, notably the saving of considerable sums of money when a case such as this goes short, not to mention avoiding the requirement for undercover officers and other sensitive witnesses to give evidence.

In my view therefore, flexible approach to credit in cases such as this may be appropriate. Whilst maximum credit will always be reserved for those who plead guilty at the earliest opportunity, the gradient of the sliding scales in this type of case may be less steep.

Your decision to plead guilty was, I accept, a brave one and given your stated renouncement of the radical and Jihadist cause, I accept that your sense of remorse and shame is genuine. In this case it is accepted that negotiations towards a plea began some little time ago and that for some time before the trial was due to start there was the likelihood that I would be asked to give an indication as to the maximum sentence on an agreed basis of plea.

In all the circumstances, I conclude that credit of 25 percent is appropriate in this case. I therefore sentence you Abdul Rahman, as follows: on Count 2, six years imprisonment; Count 3, six years’ imprisonment; Count 4, three years’ imprisonment. Those sentences will run concurrently the one with the other making six years in all.

Of that sentence you will service one half and you will be given credit for the period of 303 days which you have spent on remand since your arrest. At the conclusion of your sentence I recommend that you be deported to Pakistan. It goes without saying that the continued presence in this country of those who commit terrorist related offences, is wholly undesirable. I need say no more.”

Mr Aylott’s point is a simple one. The judge’s Goodyear indication of a maximum of six years imprisonment was premised on there being no ‘change of heart’ mitigation. The judge accepted when he came to sentence, that such mitigation was made out. The sentence that he imposed, however, had no reduction for that element of mitigation from the sentence originally indicated as the maximum.

We see the force of this submission. We do not, however, consider that this head of mitigation was one that called for a very great reduction in the sentence that the judge had previously indicated. We would asses that reduction at six months. We would not normally alter a six year sentence on appeal by as little as six months. On the particular facts of this case, however, we think it right to do so. Accordingly we quash the concurrent sentences of six years imprisonment imposed in respect of Count 2 and Count 3 and replace them with concurrent sentences of five years and six months in each case. To that extent Abdul Rahman’s appeal is allowed.

The applicant was a British Citizen, born in Halifax on 8 January 1981. He started to practise Islam in 2004 and he came under the influence of Ditta, who was an extremist. At the end of 2005 he decided that he would make his living by selling Islamic material at stalls in the North of England. He set about purchasing material from wholesalers and bought computer equipment so that he could reproduce this. By February 2006 his stock was in place and in March or April he started to sell it. Ditta joined him in this enterprise. Ditta was bent on encouraging the commission of acts of terrorism but the appellant did not have the same intention. He was, however, aware of what he was selling and reckless as to whether or not this had the effect of encouraging the commission of terrorist acts.

What the appellant was selling covered a very wide range of material. He started this venture before the 2006 Act came into force in April 2006, and at that time he was doing nothing illegal. Most of the material that he sold fell outside the scope of section 2 of that Act when it came into force. Some of the material, however, constituted terrorist publications that fell within that section. The prosecution of the appellant and Ditta followed police observations in June and July 2006. The appellant’s plea of guilty related to 9 identified items of material that included recordings of terrorist training, extracts from the lives of terrorists and glorification of terrorist activities and those who committed them.

The appellant submitted a lengthy ‘mitigation statement’ and this was supplemented by lengthy oral submissions made by Mr Ward at the sentencing hearing. There was considerable discussion of the appellant’s state of mind in distributing the material. Ultimately Mr Ward accepted that the appellant had been aware of the risk that by distributing the material it would fall into the hands of someone who would be inspired by it to take terrorist action and that it was unreasonable to take that risk. Mr Ward submitted, however, that the appellant had been unaware that what he was doing was illegal. He was aware of the change of the law made by the 2006 Act, but uncertain of the precise nature of the change and unaware that in selling the material he was breaking the law.

Mr Ward emphasised the distinction between the appellant and Ditta, in that the latter was a dedicated extremist whose intention was to encourage terrorist activity. Furthermore section 58 of the 2000 Act laid down a more serious offence than section 2 of the 2006 Act. Apart from the offence to which he had pleaded guilty, the appellant was a man of exemplary character, as demonstrated by a number of character references.

Later, Mr Ward submitted that if there was intention to encourage terrorism a sentence would fall within the higher end of that available under section 2 whereas recklessness would bring in a sentence at the lower end.

After referring to the object of the legislation and to the nature of the illegal material in respect of which the appellant had pleaded guilty, the judge compared the position of the appellant with that of Ditta:

“Your co-accused, Ditta, was more seriously involved than you were and I sentenced him to four years imprisonment.

You have had the sense and courage to plead guilty at the first available opportunity and I accept that you did not plan any personal involvement in terrorism. I accept that the basis of your plea is that you were reckless.

How many minds, young minds, have been affected we will never know but I accept that Ditta was more extremist in his views that you are, and I accept all that has been said about you by those you have been good enough to send references to the Court. All of them speak with one voice, how, in ordinary society, you are a decent honourable man.

I accept that you sold this material openly in street stalls, not in a clandestine fashion, and I accept it is difficult sometimes to draw the line between material which is illegal and that which is not. I also accept that much of this material is available on websites throughout the world.”

The judge went on to make two rather cryptic observations:

“I further accept that glorification of terrorism was not an offence when you first possessed this material, but you knew the rules when you traded in it and you took, by your plea, a calculated risk knowing that if this material was disseminated you would go to prison.”

“I agree with your counsel as to the starting point for the sentence. I accept that this is not the worst type of offence of its kind under Section 2, and many cases will come before the Court far more serious than this one, which will attract a tariff at the maximum level.”

Mr Ward, in his submissions to us, submitted that there was insufficient differentiation between the sentence imposed on his client and that imposed on Ditta, for much more serious offending under section 58 of the 2000 Act. He sought to buttress that submission by reference to other sentences imposed for breaches of section 58. There was some force in those submissions and it is certainly true that offences under section 58 of the 2000 Act are likely to be more serious than those under section 2 of the 2006 Act, albeit that this will not always be the case. Mr Ward had, however, more cogent submissions than mere reliance on comparisons.

Mr Ward emphasised the fact that his client had been carrying on a business that was legal before section 2 of the 2006 Act came into force. Furthermore, while he was aware of the general nature of the 2006 Act, he had not appreciated that some of the material that he was selling fell within the prohibition imposed by section 2. Mr Sharp confirmed that the prosecution accepted that this was the case.

Ignorance of the law is no defence, but it can sometimes amount to mitigation. In the circumstances of this case we think that it does so. There is unlikely to be scope for similar mitigation in the future, so far as section 2 of the 2006 Act is concerned, for the successful prosecutions that have now taken place in respect of that section are likely to have drawn the effect of section 2 to the attention of those who disseminate Islamic material.

The judge has made no mention of this head of mitigation in his sentencing remarks. Indeed, if the first cryptic passage is correctly transcribed, it suggests that the judge was sentencing on the basis that the appellant was aware that he was committing an offence.

Mr Ward also emphasised the fact that the appellant did not intend to encourage acts of terrorism, he was merely reckless as to whether some of the publications that he was distributing might have this effect. He was not in sympathy with Ditta’s wish to do so. Furthermore, he had now lost any sympathy that he had had for Islamic extremism. The character references demonstrated his general good character.

We have already observed that the difference between recklessness and intent in offences under section 2 of the 2006 is likely to have a significant effect on culpability. None the less large scale dissemination of extremist material with recklessness or indifference as to its effect is capable of being more serious than a limited dissemination with intent to encourage terrorism. Each case must be considered on all the relevant facts.

In this case we consider that the fact that the appellant was merely reckless as to the effect of some of the material that he was distributing, rather than seeking to encourage terrorism, constitutes significant mitigation. None the less, he was distributing material on a large scale and a significant sentence of imprisonment was merited.

That brings us to the second cryptic passage in the judge’s sentencing remarks. Mr Ward submitted that, when the judge said that he agreed with the starting point for the sentence suggested by counsel, this referred to Mr Ward’s submission to him that, because only recklessness was here involved, the starting point should be at the lower end of the sentencing range. Yet the judge must have taken as his starting point, before allowance for the effect of the appellant’s guilty plea, a sentence of 4 ½ year’s imprisonment, that is a sentence closer to the top of the range permitted by the 7 year maximum.

By the end of the hearing we had concluded for the reasons argued by Mr Ward, that the sentence imposed by the judge was excessive on the facts of this case. The appellant was close to the date upon which he would be considered for release under that sentence. Accordingly we allowed his appeal, quashed the sentence imposed and replaced it with a sentence of two years imprisonment, stating that we would give our reasons later. We have now done so.