Smith, R. v

This is an appeal against sentence brought with leave of the single judge. The appellant was convicted of possession of an explosive substance, contrary to section 3(1)(b) of the Explosive Substances Act 1883 after a trial at the Central Criminal Court. On 26th May 2017 he was sentenced to an extended sentence of 20 years' detention in a young offender institution, comprising a custodial term of 15 years and an extended licence period of five years. No separate penalty was imposed on an alternative count of perpetrating a bomb hoax to which the appellant had previously pleaded guilty.

The facts show that on 20th October 2016, shortly before 11 am, the appellant deliberately left an improvised explosive device (IED) inside a rucksack on the London Underground tube train before he alighted from the tube at London Bridge Station. A female passenger noticed the unattended rucksack and the train driver was alerted. Once he looked inside the rucksack he thought that the contents were suspicious. As a result, when the train reached North Greenwich Station it was taken out of service and the station was evacuated.

The device had been constructed by the appellant a few days earlier at a home which he shared with his mother. He had made the device after reading an article entitled "Make a bomb in the kitchen of your mum" which came from a magazine called "Inspire", apparently published by Al Qaeda. The appellant had purchased a number of items for the purpose of constructing the device which was contained within a thermos flask. His preparations had taken place over a number of weeks. It had been entirely a matter of chance that, contrary to the appellant's expectation and intention, the device did not explode.

The appellant was seen on CCTV. He had not taken any steps to disguise himself. He had used an Oyster card which was registered in his correct name and so he was arrested the following day. When interviewed, he admitted responsibility at once for what he had done. However, he claimed that it had merely been a prank and that he had never intended to hurt anyone. That assertion formed the basis of the plea to perpetrating a bomb hoax.

The unchallenged evidence of the forensic scientist at the trial showed that if there had been a successful ignition of the material within the thermos flask, it would have been capable of causing the flask to rupture, projecting metal fragments and ball bearings outwards. This had the potential to cause serious injury and damage within the length of the carriage in which the device had been left. In the light of the jury's verdict on the main charge, it was clear that the jury rejected the suggestion that what had happened was a prank, without the intention of harming anyone. There was an intention to endanger life and/or cause serious damage to property, the former being the primary intention.

The appellant was almost 20 at the time of the offence. He was of previous good character. He had recently embarked upon a degree in computer forensics and from a young age had had an interest in guns, weapons and bombs. That interest was an unhealthy one. A search of the appellant's home showed that he had previously created a non-viable IED. There was evidence presented at trial showing that he had an interest in Islam and the Koran, but the judge said that he was satisfied that the evidence did not establish that his actions had been terrorism related and he had not been charged with any offence under the Terrorism Act.

In passing sentence, the judge said that he was satisfied that the appellant was a dangerous offender. In so concluding he took into account information from the pre-sentence report and psychiatric reports. He was influenced by the appellant’s history of preoccupation with weapons and bombs, as well as the diagnosis of Asperger's syndrome which made it difficult for the appellant to empathise with others and to understand and fully appreciate the very serious potential consequences of his actions. Individuals suffering from that condition can become very fixated and preoccupied in their interests. This failure to appreciate the gravity of what he had done impacted upon the level of this appellant's culpability, according to the judge, who also made allowance for the appellant’s age and lack of previous convictions.

The psychiatric report showed an established history and diagnosis of an autism spectrum disorder, a collective term embracing Asperger's syndrome. This appellant fell within the category of high functioning autism which means that he has no impairment of intelligence; indeed he was described as being able and of good intelligence. He maintained throughout that all he had intended was a prank which would not harm anyone. His lack of appreciation as to how dangerous this offending had been was described as "startling".

The grounds of appeal assert that notwithstanding the care and insight which the judge's sentencing remarks demonstrate in seeking to reflect the circumstances of the offence and the mitigation specific to this appellant, the sentence imposed was manifestly excessive on account of his youth, disability and vulnerability. There can be no doubt that the passing of an extended sentence was necessary in this case. The circumstances of the offence and the material in the psychiatric reports show that the dangerousness provisions were amply satisfied. The real issue is whether the 15-year custodial element of the sentence was too long.

This case is clearly aggravated by a significant degree of planning and the fact that there was an intention to endanger life, as opposed to one of merely damaging property. A viable IED had been created and had been left in a carriage at a time when there were at least 10 people present and when the appellant had activated the timing mechanism with a view to an explosion taking place in less than 15 minutes. The device incorporated ball bearings which could only add to the potential harmful effect of an explosion which the judge found had fortuitously not occurred because of a failure in the ignition process. In addition to the likelihood of very serious harm to a number of people, there was expense and inconvenience caused to those travelling on the underground network at the time. There would have been distress or alarm caused to those people immediately affected and a wider loss of the sense of security suffered by travellers generally once the incident became known about.

As to mitigation, there is this appellant's age and his previous good character. The judge found that this was not a terrorist related incident. As matters transpired, no death, injury or damage occurred. This offender's history shows that he is a vulnerable individual who had suffered from bullying at school, and whilst on remand in prison, arising from his condition. The prison environment may bear harder upon him in those circumstances. In addition, emphasis has been laid on his autism spectrum disorder which would have blunted his understanding of the gravity of what he was doing and which the judge accepted impacted on the degree of his culpability.

In that context, we think it right to observe that the jury rejected the appellant's case that all he had intended was an elaborate hoax which would merely generate some smoke when the device ignited. The evidence showed that the offender had very shortly after leaving the underground system begun checking the internet for reports of the incident which he expected to happen. His intelligence was not impaired by his autism and he had carried out internet searches which included events taking place in Boston and Soho which showed that detonation of IEDs had had fatal consequences. One of the reports observed, accurately in our view, that whilst many suffer from an autism disorder, very few would think it appropriate to take a viable bomb onto an underground train.

This appellant has given no credible explanation for his use of ball bearings which would act as destructive shrapnel if and when the device exploded. The use of ball bearings was totally at odds with his claim of a hoax and clearly consistent with an intention to do at least really serious injury.

There are no sentencing guidelines for this type of case, but we have considered the decisions of this court in Larsen [2014] EWCA Crim 1514, Hines-Randall [2014] EWCA Crim 2364, Kahar and others [2016] EWCA Crim 568, and Nadeem Muhammed, an Attorney General's Reference, [2017] EWCA Crim. 1832.

Kahar gives guidance for sentence in terrorism cases, particularly section 5 offences. Nadeem Muhammed considers that guidance in a non-terrorism context. Had this been a terrorism case, very much higher levels of sentence would have been passed. The decisions in Larsen and Hines-Randall are now of lesser assistance in this type of case. In considering the decisions to which we have referred, it is important to bear in mind firstly that this is not a terrorism case, and secondly, that cases of this sort will always be fact-sensitive.

In considering whether the custodial element of the sentence imposed was manifestly excessive, the two major considerations for us have been this appellant's age and his autism. Whilst the latter factor is clearly a material consideration, for the reasons identified above we consider that this appellant nonetheless retained a significant degree of culpability for actions intended to cause really serious injury to others in a public place and which came very close to fruition.

In those circumstances, we are not persuaded that the judge failed adequately to reflect the appellant's age, autism and other mitigation. The sentence imposed is very significantly less than might have been expected for an offender of mature age, acting with a terrorist mindset and who did not suffer from the appellant's autistic condition. In our judgment, the sentence imposed cannot be criticised as in any way excessive and this appeal is dismissed.