R v Alan Murphy

On 21 November 2023 in the Crown Court at Preston the appellant, Alan Murphy pleaded guilty to the following four offences: count 1, having an explosive substance with intent to cause serious injury to property, contrary to section 3(1)(b) of the Explosive Substance Act 1883; count 2, having an imitation firearm, a BB gun, in a public place, contrary to section 19 of the Firearms Act 1968; count 3, having an imitation firearm, a homemade shotgun, in a public place, contrary to section 19 of the 1968 Act and count 4, having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988.

On 22 August 2024, before His Honour Judge Flewitt KC at the same court, the appellant was sentenced on count 1 to an extended sentence of 20 years, comprising a custodial term of 15 years and an extended period of licence of five years. On each of counts 2 and 3 he was sentenced to nine months' imprisonment concurrent and on count 4 to 22 months concurrent. The appellant was acquitted of count 5, having an explosive substance with intent contrary to section 3(1)(b) of the 1883 Act.

He now appeals against sentence by leave of the single judge.

In November 2020 the appellant was unlawfully at large having absconded from an extended sentence of imprisonment imposed at Bolton Crown Court on 11 September 2013. He had been living in a camper van near to a soup kitchen called "Amazing Grace".

On 26 November 2020 police officers visited Amazing Grace to speak to the appellant as a safeguarding precaution. It had been hoped that he might be able to move into more formal accommodation. The appellant gave police officers a false name and a false date of birth but, having used a fingerprint scanner, the appellant's true identity was established. Having previously been convicted of offences involving firearms, the appellant was asked if he had a gun. The appellant admitted that he had a gun and an improvised explosive device ("IED") in his rucksack.

The rucksack was searched and police officers found an IED (count 1), a BB gun (count 2), a homemade shotgun (count 3) and a kitchen knife (count 4). The appellant thereafter made a comment to a police officer that he was going to blow up a bank that he had seen on a TV show.

The area concerned was evacuated and an army explosives ordinance disposal officer attended and made safe the IED and the shotgun. The IED was a potentially viable device consisting of 34g of black powder, probably taken from a firework. The powder had been confined in a glass bottle which had been wrapped in plastic tape and fabric straps. That had been wrapped up in part of a leather belt with a pyrotechnic fuse inserted into it. That part of the device had itself been wrapped in a bag of what was probably flour, together with glass jars containing a flammable liquid, a glass jar containing nails and batteries and a plastic bag containing nails. If the fuse were lit it would have caused an explosion with the potential to cause damage to property and serious injury or death to any person nearby. The risk of damage, injury and death had been increased by the presence of the nails and batteries.

The improvised shotgun was potentially viable. It had been made from two tubes each containing 3g of pyrotechnic composition, along with a fuse and nuts and bolts. The effect of lighting the fuse could not be predicted with any certainty but it may have acted like a gun, firing out the nuts and bolts at speed. Alternatively, if the nuts and bolts had become stuck the device could have exploded. By the time the improvised shotgun had been examined by a firearms expert it had been dismantled. The BB gun was found to operate normally but it had an empty magazine. The appellant was thereafter arrested.

The appellant was aged 62 at sentence. He had 11 convictions for 30 offences spanning the period 22 February 1978 to 30 March 2021. His convictions included eight offences relating to firearms, shotguns or offensive weapons.

In a basis of plea the appellant provided the following explanation of his motive and intention. He said he had "seen a documentary on Netflix entitled "Dirty Money Cartel Bank" which suggested that the HSBC bank had connections to the funding of terrorism and to drug cartels in Mexico. He was outraged at what he thought was nefarious activity by the bank. The defendant intended to demonstrate his grievance against the HSBC bank by damaging its branch in Blackpool or cars belonging to employees of the bank that were parked in the branch's car park. He did not want to hurt anyone.

The judge accepted that the acquittal on count 5 meant that the jury were not sure that the appellant intended to endanger life, but he rejected the submission that the jury must have accepted that "there was no risk of death to anyone, not even in fact injury".

It was common ground that if the “Explosive Substances (terrorism only) Guideline applied directly, count 1 would fall into culpability Category A because the appellant was "in possession of a viable explosive device". As to harm, the judge said that although the appellant was arrested before he was able to plant and detonate the IED he had no doubt that his plan "if carried out would have put at risk the life of anyone who happened to be in or passing the car park when it exploded." He said that although the appellant "may not have intended to endanger life, that would, in my judgment, have been the inevitable consequence of what you intended to do.”

In that regard, he said, it was important to bear in mind that, pursuant to section 63 of the Sentencing Act 2020, any assessment of seriousness includes a consideration not only of any harm caused or intended but also of any harm that might foreseeably be caused. It followed that if this were a terrorism case it would fall into Category 3A of the guidelines which has a starting point of 16 years' imprisonment and a category range of 12 to 20 years' imprisonment.

The judge said that he would reflect the fact that the risk here was of death rather than serious injury to property and make a significant upward adjustment to the starting point. He then made a downward adjustment to reflect the absence of a terrorist motivation or connection. He said that those two considerations cancelled each other out which took him back to the starting point for a Category 3A offence. He then increased the figure to reflect the balance of aggravating and mitigating features in the case. The aggravating features, he said, included the other offences to which the appellant had pleaded and for which he intended to impose concurrent sentences, the fact that the appellant was unlawfully at large when he committed the offences and his previous convictions. The mitigating features included the fact that his plan was not put into effect and the delay in the case being brought before the court. Finally, the judge applied a 25 per cent reduction for the appellant's guilty plea.

On behalf of the appellant, Mr Littler argued in writing:

In our judgment the judge's sentencing exercise here was a careful and well-constructed piece of work. He was correct to take count 1 as the lead offence, to increase the sentence for that offence to reflect the total criminality, and to make the sentences on the other counts concurrent. He was not obliged to make clear at every stage of the process precisely how the sentence had been adjusted upwards and downwards. It was enough that he explained how he reached his final figure. In this case the judge's explanation was, in our judgment, entirely sufficient.

The judge did not ignore the starting point of 16. On the contrary, he confirmed he would adopt it before taking into account his conclusion that the relevant risk was one of death, as well as damage to property, and then considering the aggravating and mitigating factors. Quite properly, ground 4 is not pursued by Mr Littler. That leaves ground2.

The second ground is of the greatest substance. The judge accepted that this was not a terrorism case and that it had no terrorist connection for the purpose of section 69 of the Sentencing Act. However, relying on the decision of the Court of Appeal Criminal Division in R v Muhammed [2017] EWCA Crim 1832, he held that the Sentencing Council Guideline for Offences contrary to section 3 of the Explosive Substances Act 1883 provided an appropriate starting point for the consideration of sentence here, but that some adjustment was required to account for the absence of a terrorist connection. He correctly observed that a risk of death was more serious than any risk of damage to property and so would justify an upward movement in the category range.

In our judgment, the degree of adjustment required to reflect the fact that a case is not a terrorist case must depend on the facts of the case and in particular on the following: First, the extent to which the case under consideration shared the characteristics of a terrorism offence; second, the extent of the criminality involved, and third the nature of the risk to the public.

Here it was said with justification that the appellant intended that his actions would come to the attention of the media and be widely reported to the public; that in consequence those actions would cause widespread fear, would damage to reputation of the bank and would place the bank under pressure the change its policies. Mr Allman, who appeared before us today for the prosecution, submits that the only element missing from what would constitute a terrorism case was a coherent ideology as a motivation. In response, it is argued that the circumstances here were very different from what might be thought of as a typical terrorist offence. The target of the offending was property, albeit that there was a risk of death, the appellant was motivated by a Netflix documentary rather than some entrenched ideological belief and there were at least some thoughts of taking steps to reduce the risk to people in the vicinity.

In our judgment, the judge had careful and proper regard to the decision in Muhammed. He was right to make a downward adjustment to reflect the fact that this was not a terrorist act. There was a significant difference between these offences and terrorist offences, namely the absence of a relevant ideology behind the appellant's actions. But here there was a risk of injury and death and the threat of damage to property. The judge was right to accord particular importance to the threat to life which was, as a matter of fact, created by the appellant's conduct, even if the appellant did not intend such an outcome. On the facts of this case, in our judgment, the judge was entitled to treat those considerations as cancelling each other out. That took his calculation back to the starting point of 16 years.

The judge then considered the aggravating and mitigating factors. The former included the other offences to which the appellant had pleaded, the fact that the appellant was unlawfully at large when he committed the offences and his previous conviction. Amongst the latter was the delay in bringing the case to trial. That however was a product of both systemic delay and delays for which the appellant himself was responsible. In our judgment, the judge adopted an entirely proper approach and he was entitled to increase the starting point by four years to reflect the balance of those factors. It was then necessary to make a reduction to reflect the plea and the judge was correct to apply a 25 per cent reduction for that.

In those circumstances, there is no merit in any of the ground and this appeal is dismissed.