No. 2008/00593/A8
Neutral Citation Number: [2008] EWCA Crim 1054

IN  THE  COURT  OF  APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday  22  April  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
MR  JUSTICE  PITCHFORD
and
MRS  JUSTICE  DOBBS

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ATTORNEY GENERAL'S REFERENCE Nos. 7 of 2008
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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SOHAIL  ANJUM  QURESHI

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Mr J Laidlaw QC appeared on behalf of the Attorney General
Mr A Hall QC and Mr R M T Price appeared on behalf of the Offender
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J U D G M E N T
Tuesday  22  April  2008

THE LORD CHIEF JUSTICE:
Introduction
1.  On 8 January 2008 in the Central Criminal Court, before the Common Serjeant (His Honour Judge Barker QC), the offender, Sohail Anjum Qureshi, pleaded guilty to preparing for the commission of terrorist acts (count 1), possessing an article for a terrorist purpose (count 2) and possessing a record likely to be useful to a person committing or preparing an act of terrorism (count 3).  He received the following sentences for these offences: on count 1, four-and-a-half years' imprisonment (less time spent on remand); on count 2, three years' imprisonment concurrent; and on count 3, 18 months' imprisonment concurrent.  

2.  The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer these sentences to this court on the ground that the total sentence of four-and-a-half years' imprisonment was unduly lenient.  We grant leave.

The Facts
3.  On 18 October 2006 the offender was arrested at Heathrow Airport, about to board a flight to Islamabad.  His luggage contained two steel batons, two sleeping bags, a portable computer hard drive, a compact disc, night vision binoculars, medical clothing, three rucksacks, two British passports, a number of mobile telephones and nearly £9,000 in cash.

4.  Examination of the hard drive in his possession showed that it contained a substantial quantity of material which provided a theological justification for terrorism, and military and intelligence guides downloaded from the internet.  The compact disc included a collection of photographs and videos of executions and previous terrorist attacks, and photographs of the offender holding assault rifles.

5.  His home address in Forest Gate was searched.  He had tried to delete material from his computer before his departure, but had not been wholly successful.  This revealed that he had tried to upload a farewell letter on to an Islamist site.  The material on his computer was largely further motivational material, but it also revealed e-mail exchanges with Samina Malik, who worked at Heathrow.  The offender asked her for advice on current security restrictions.  He also communicated with an associate on an extremist internet forum, telling him that he intended to carry out a terrorist operation on his trip to Pakistan.  He told the associate that he would buy the night vision binoculars using a false name and pay in cash. 

The Proceedings
6.  The offender was charged under section 5(1) of the Terrorism Act 1996 with preparing for the commission of terrorist acts by (and this was the actus reus) travelling to Heathrow in order to travel to Pakistan (count 1).  He was also charged with possession of articles for a terrorist purpose contrary to section 57 of the Terrorism Act 2000 in respect of the items found in his luggage, on the ground that the circumstances gave rise to a reasonable suspicion that his possession of them was for a purpose connected with the commission, preparation or instigation of an act of terrorism (count 2).  Finally, he was charged with an offence under section 58 of the Terrorism Act 2000 on the basis that the data on the compact disc and computer hard drive contained information that was likely to be useful to a person committing or preparing an act of terrorism (count 3).

7.  The offender was originally charged with Samina Malik, but the indictment was severed on 9 October 2007 as a result of the late discovery of internet material that the prosecution thought might be of assistance in his prosecution.  His trial was re-fixed to start on 7 January 2008.

8.  On the day of the trial the offender sought from the Common Serjeant an indication under the Goodyear procedure of the sentence he might expect if he pleaded guilty.  The prosecution and the defence agreed a factual basis, including aggravating and mitigating features for the judge for the purpose of this exercise.  It was as follows:

		"1.  A sentence indication is sought upon the basis of a guilty plea to each of the three counts on the indictment, and on the assumption that there is no sustained challenge to the case as put by the prosecution in the Opening Note.

		2.  The aggravating features arise from the nature of the charges of preparing for the commission of terrorist acts, and the possession of materials for that purpose or likely to be useful for such a purpose.  The prosecution are unable to identify with precision either the nature or location of any proposed terrorist activity, or whether it was to be in the form of direct involvement or assistance provided to others; for example, by the provision of funds or the materials particularised in count 2.  It is agreed that either activity was to be out of the jurisdiction and potentially in Pakistan or Afghanistan.  It is not asserted that there was a concluded intention to carry out or assist any particular act of terrorism.

		3.  The mitigating features include:

		(a)	The pleas of guilty, albeit on the eve of the trial.

		(b)	The defendant's previous good character and antecedents.

		(c)	The particular inchoate nature of the offence alleged in count 1; committed as the journey to the airport was begun, and not demonstrating a concluded intention to engage in or assist terrorist activity.

		(d)	Insofar as there was a willingness to engage in or assist any terrorist activity, it was conditional upon the opportunity arising, uncertain in nature, and of limited proposed duration.

		4.  The Attorney General's right to seek leave to refer the sentencing of an offender to the Court of Appeal, and the defendant's right to seek to appeal any sentence, is unaffected by any Goodyear indication."

9.  The Common Serjeant indicated the following day that he would not impose a sentence in excess of six years' imprisonment.  The offender proceeded to plead guilty to each of the three counts on the indictment.  In mitigation, his counsel contended that he was something of a "Walter Mitty" character, who was exaggerating what he was doing and playing a role to impress others.  Many of the documents were found in the recycle bin of the hard drive, which the offender had thrown away and would not have had the expertise to recover.  The offender was a well-educated man aged 30, of good character, whose career in dentistry was in ruins.  His imprisonment would cause great suffering to his parents, who were in Pakistan and unable to visit him.  The Common Serjeant confirmed that he had noted reports from Belmarsh which showed the offender's good progress there.

10.  The relevant part of the Common Serjeant's sentencing remarks reads as follows:

		"The agreed factual basis document indicates that here there is no sustained challenge to the case put forward in the opening note and that the prosecution say that really it is self-evident that you were travelling to a militant hotbed with money and equipment in order to make yourself available to support your cause in one way or another.

		They cannot identify with precision where you were going or any proposed activity or whether it was to be in the form of direct involvement or assistance provided to others.

		It is agreed in that document that the activity was to be outside of this jurisdiction and it is not asserted that there was a concluded intention to carry out or to assist any particular act of terrorism.

		I accept that the offences under section 5 and under section 57 are clearly not as culpable as attempting to commit something, or actually committing a terrorist act.

		Nevertheless any form of terrorism, wherever it is and whatever it is, is an affront to civilisation and can lead to untold grief and destruction and a man with your educational background would be well aware of that fact.

		The main mitigating feature is that you pleaded guilty, albeit at a late stage.  I am also prepared to take into consideration that your case was severed by an order of the court and could not be dealt with earlier.

		You have no previous convictions.  You have high educational qualifications.

		Additionally, and importantly, there is no evidence of your connection with any plot or plans of any sort.  There may be, as has been powerfully urged by Mr Hall, something of a Walter Mitty characterisation about you.

		I have given this matter anxious thought and my conclusion on the agreed matters placed before me is that on the very wide spectrum covered by section 5 and section 57, the facts of this case fall at the lower end.

		....

		My starting point for the totality of these offences on the basis which they have been presented is one of six years, as has been mentioned, but a late but comprehensive plea merits a reasonable discount."

In the event, the discount given by the Common Serjeant was one of 25 per cent, which produced a sentence of four-and-a-half years' imprisonment (less 432 days spent on remand).  

11.  There was a degree of dispute between counsel as to the basis upon which this court should approach this offending.  The offender pleaded guilty on a basis that was set out in writing and agreed by the prosecution.  He did so after the Common Serjeant had given an indication of the sentence that he would be likely to receive on the agreed basis under the Goodyear procedure.  

12.  The plea was entered and accepted at a time when there was an unresolved issue as to the admissibility of evidence of internet correspondence ("AT1") to which the offender was party.  The prosecution sought originally to use this material to flesh out some of the detail in the agreed basis of plea at the time of sentencing.  Defence counsel objected to this course.  The judge referred to this material and said, somewhat cryptically, in his sentencing remarks: "I note the recent observations of both counsel".  He did not, however, make any further reference to that material.  

13.  It would not have been right for the judge to have deployed that material in order to go beyond the facts that formed the basis of the plea of guilty.  Nor would it be right for us to do so.

14.  Mr Laidlaw on behalf of the Attorney General referred us to the guidance given by this court in relation to sentencing for terrorist offences in R v Barot [2007] EWCA Crim 1119, where this court observed that, in approaching the sentence for an inchoate offence it is appropriate to start by considering the sentence that would have been appropriate had the objective of the offender been achieved.  That comment is of some significance when we consider the submissions made by Mr Laidlaw.  He sought to persuade us that the sentence imposed in this case was unduly lenient by reference to a number of other terrorist cases in which it was possible to infer that the activity being carried on was in support of terrorist activities that would include acts of murder.  As Mr Laidlaw accepted, most of the authorities to which he referred us were cases more serious than that of the offender.  That was not, however, his submission in relation to R v Khan and Others (18.02.08), who were recently sentenced at Leicester Crown Court for offences under section 5.  

15.  The most startling offence in that case for which Khan was convicted, was of plotting to kidnap a serving soldier in Birmingham, to decapitate him and to release a video of the killing in order to demoralise others serving in the Armed Forces.  That resulted in a life sentence for Khan, who was the ringleader.  The other more relevant offences were under section 5 of the 1996 Act.  Those offences consisted of shipping containers of equipment out to terrorists.  There were two separate consignments of containers that formed the subject of the charges, containing a very substantial amount of equipment.  There was evidence that these two consignments were part of a course of conduct that had included two previous consignments.  While Khan was the ringleader, the trial judge found that the other defendants' assistance had been essential to the overall success of the enterprise.  The sentences imposed on the three of them (before making a discount for guilty pleas in two cases) were five years, six years and seven years' imprisonment.  It was not suggested by Mr Laidlaw that those sentences were in any way inadequate for those offences.  

16.  It seems to us that the sentence imposed upon the offender must be considered on the following basis.  He is an educated man without any criminal record.  He had become infected with extremist ideology.  This had led him to plan to go abroad to assist in terrorist activities, either in person, or with the funds and limited equipment that he was carrying -- the "field material" and the extremist material on the disc.  However, there was no weaponry and no explosives.  Nor was there any finding of the precise support that he might give to terrorism, or where he would give it.  We consider that the seriousness of his offences is comparable to that of the co-defendants in Khan.

17.  The evil of terrorism, whether in this country or elsewhere in the world, is reflected by the heavy maximum sentences that the various offences carry: life imprisonment in respect of section 5 of the 2006 Act; 15 years in respect of section 57 and 10 years in respect of section 58 of the 2000 Act.  Within these maxima there is a very broad spectrum of potential offences.  The judge found, rightly in our view, that the offending in this case fell at the lower end of the scale.  The nexus between the acts committed by the offender and potential terrorist activity was relatively remote.  Furthermore, the judge accepted that the offender might be something of a Walter Mitty character (that there might have been a degree of play-acting in his conduct).

18.  In these circumstances we have concluded that the sentence before discount of six years' imprisonment was a lenient sentence, but not unduly so.

19.  What of the 25 per cent discount for the guilty pleas?  The submissions for the Attorney General suggested that because they were so late in the day, the discount was excessive.  Had the pleas been entered promptly, they would have attracted a discount of one-third.  Was 20 per cent over-generous, having regard to the lateness of the pleas?  These discounts are given for pragmatic reasons: because they save the time, expense and uncertainty of a trial.  The burden on the administration of justice of terrorist trials currently is very considerable.  Guilty pleas, even at a late stage, are to be encouraged.  This was a generous discount, but it cannot be said to have had the effect of rendering the final sentence unduly lenient.

20.  In these circumstances, although we have granted leave to the Attorney General to make the reference, we shall dismiss the reference and leave the sentencing unchanged.