201201451A2, 201201453A2, 201201445A2
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
The Hon Mr Justice Wilkie
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MITTING
MR JUSTICE SWEENEY
| USMAN KHAN
OMAR SHARIF LATIF
ABDUL BOSHER MOHAMMED SHAHJAHAN
|- and -
Brian O'Neill Q.C. for the Mohibur Rahman
James Wood Q.C. and Hossein Zahir for Omar Sharif Latif
Andrew Hall Q.C. and Frida Hussain for Abdul Bosher Mohammed Shahjahan
Jim Sturman Q.C. for Nazam Hussain
(all instructed by the Registrar of Criminal Appeals)
Alison Morgan (instructed by the Crown Prosecution Service) for the Crown
Hearing date : 22 March 2013
Crown Copyright ©
Lord Justice Leveson :
The Goodyear Indication
"The defendants generally had sought a Goodyear indication from the judge. He declined to give one. His principal reason was that in a multi-handed case in which each defendant had detailed submissions to make about not only his own role but his role in comparison with that of others, it was not possible to give useful prior indications of what his conclusions were likely to be about their relative positions. In that, he was, if we may say so, plainly right, and the complex competing bases of plea advanced by the various defendants both before him and now only serve to confirm his position."
"i. That the section 5 offence included a plan to place a lvie explosive device of a kind which was capable of causing death or serious injury in the Stock Exchange in London. The intention was that it should be exploded but not that it should cause death or serious injury. The intention of the defendant was that it should cause terror, property damage and economic damage. It was, however, a clear risk that it would in fact cause death or serious injury.
ii. It was the intention of this defendant this plan would be carried out in the near future. However, at the time of arrest no materials had been obtained with a view to constructing an explosive device, nor had any firm date been set for carrying out what had been discussed.
iii. The meetings and discussions on which the prosecution rely were, in part, in furtherance of this plan. The detailed target developed during the indictment period. Various other projects were also considered during this time.
iv. The role of this defendant, in particular, was: (a) He was the linchpin of the group (see phone schedules). He played a significant role in researching and selecting the target and researching the construction of a device on 19 December 2010 by reading Inspire 1. (b) There were three people present at all relevant face to face meetings between different groups (7/11, 28/11 and 12/12: he was one of them."
"1. The defendant met with Mohammed Chowdhury and others on 28 November when there were early discussions in which the defendants considered acting together and identified an objective of causing economic damage and disruption.
2. In due course he became party to a plan with Chowdhury to place a live explosive device in the Stock Exchange in London. The intention was that it should be exploded but not that it should cause death or serious injury. The intention was that it should cause terror, disruption and financial damage. However there was a clear risk that it would in fact cause death or serious injury.
3. Rahman was Chowdhury's close associate in Lodnon and involved with him in target selection and the planning for the construction of a device. This he did on 19 December when both researched the construction of a device by reading Inspire 1."
"It is to be observed that those two written bases of plea do not involve any dispute as between those two defendants as to their respective roles. Furthermore, the activities of those two defendants upon which their agreed bases of plea are focused are activities which involve them and only involve others very tangentially, at any rate in respect of the actual preparation for the production and detonation of a live explosive device."
The Bases of Plea
"The defendants plead guilty to [what became count 9] on the following basis:
1. They were trying to raise funds to build a madrassa by a mosque that already existed in Kashmir.
2. The long-term plan included making the madrassa available for men who would be struggling and fighting to bring sharia to the Kashmir region of Pakistan.
3. That plan included such people, including at least one of the Stoke defendants, being able to have firearms training in or around the madrassa for that purpose.
4. They did not intend to participate in an act of terrorism in the UK in the immediate future. They contemplated that some of those trained might return to the UK and engage in some sort of terrorist activity, but there was no time table, no targets identified, nor any method agreed. It may have been that their experiences after going to Kashmir might have meant no such activity, in the event, would ever actually have taken place in the UK".
"The 3 Stoke Defendants concerned (MS, UK, and NH) will have to accept that the prosecution will open the case as follows, and that the Crown is free to make allegations which are not inconsistent with the basis of plea. The defendants are not required to accept all allegations made, and, since no Goodyear indication is sought, the Court can resolve any issues which are material to sentence.
The language in the Basis of Plea is not intended to be comprehensive and it may be helpful to set out the Crown's position as to what it entails.
THE FUNDAMENTALS OF THE AGREEMENT BETWEEN THE PARTIES
The Crown will not allege that these defendants are criminally liable as participants (either primary or secondary parties) in the planned attack on the London Stock Exchange.
The Crown will not allege that any defendant was party to a plan to carry out any other attack in the UK in the immediate future.
However, it will be alleged that these defendants were part of a group of 9 people which was formed in October 2010 with a view to deciding how best to further the jihadist cause, which meant planning for acts of terrorism. The meetings of the group on 7/11 and 12/12 were intended to further this enterprise and were conduct within section 5 of TACT 2006. Various different proposals were considered during the indictment period, none of which became a planned attack except that on the London Stock Exchange, see above.
In the event, as a result of those meetings, two different plans emerged: the attack on the Stock Exchange, and the plan of the Stoke defendants identified below. Each part of the group was aware of the plan of the other, and they were discussed freely between them. The group continued to function until the arrests as a forum for discussion of possible courses of action. This does not mean that every member had become a participant in every, or any, particular plan.
These defendants were in discussion with the London/Welsh group in November/December 2010 in the course of which they became aware that at least some members of that group intended to carry out attacks in the UK. The discussions included terrorist funding, and terrorist training in addition to the plans of the London/Welsh group.
THE PLAN OF ACTION OF THE STOKE GROUP
They were funding a proposed madrasah abroad which was to be a place of terrorist training in that firearms training would be provided there. The madrasah was in the very early stages of construction, but terrorist training was already possible (conversation of 4th/5th December).
Mohammed Shajahan did not intend to travel to train, but Usman Khan and Nazam Hussain (among others) did. Mohammed Shajahan's Defence Case Statement correctly alleges that UK and NH were about to travel to Pakistan. He does not there concede the purpose of that travel, but it is now clear.
The purpose of attendance for the purpose of training was the acquisition of skills to enable the commission of acts of terrorism in furtherance of the jihad. The recruitment and funding of such activity is section 5 conduct because it is intended to result in the commission of acts of terrorism.
The precise place where they would fight jihad at that later stage had not been decided, but the discussions revealed by the evidence demonstrate that they contemplated that some of those trained would commit their acts of terrorism abroad but that others might return to the UK and commit them there. No timetable, target, or method for these acts of terrorism had been agreed. Their experiences after going to Kashmir might have meant no such activity, in the event, would actually have taken place in the UK".
"1. That he was party to a plan to place an explosive device of a kind capable of causing death or serious injury in the Stock Exchange in London. The intention was that it would explode but not that it should cause death or serious injury. The intention of the defendant was that it should cause terror, property damage and economic damage. The defendants realised that there was a risk of death or serious injury to persons.
2. At the time of the formulation of the plan, it was the intention that the plan would be carried out in the near future. However, at the time of arrest, no material had been obtained with a view to constructing an explosive device, nor had any firm date been set for carrying out what had been discussed.
3. Abdul Miah was fully involved in the plan. His role was limited to discussing the plan and carrying out research on the London Stock Exchange.
4. The meetings and discussions on which the prosecution rely were, in part, in furtherance of this plan. The detailed target developed during the indictment period. Various other projects were also considered during this time".
"He was a party to a plan to place an explosive device in a toilet in the London Stock Exchange of a kind capable of causing death or serious injury.
His intention was to cause terror, property damage and economic harm, not to cause death or serious injury.
He realised that there was a risk that the explosion might cause death or serious injury.
Although his intention was that the plan would be carried out in the near future, no materials had been obtained and no firm date had been set for carrying out the plan by the time of his arrest. The preparatory acts were limited to talk and research by others.
The meetings and discussions upon which the prosecution rely were in furtherance of the plan. The target of the London Stock Exchange developed during the indictment period. Various other projects were considered as well but were abandoned".
"[Miah's] previous record is in contradistinction to everybody else's and the basis on which I have been giving indications or hints as to level of sentence have been on the basis that they were of previous good character. Obviously your client cannot claim that and in my judgment it would properly go towards length of a custodial sentence rather than moving it from one category to the other because I agree with Mr. Edis that the focal point of dangerousness and its management effectively is the terrorism offence and what pertains to him would pertain no more or less so to the others."
"He attended a meeting in Cardiff on 7.11.10 at which the defendants from Stoke, and Chowdhury, Miah and Desai were present. He arrived late and left on a number of occasions, returning to central Cardiff by car. He was not present for much of the time the others were together.
He attended the meeting in Cwm Carn on 12.12.10, being driven there in the car of Abdul Miah. He attended the meeting aware that conversations concerning terrorist training activity were likely to take place. These conversations did in fact take place.
Thereafter Omar Latif did not participate in the development of any plans of a terrorist nature, including those relating to the Stock Exchange or terrorist training in Pakistan".
Mr Edis: "What I think I've said is that we will not accept that they were any less serious as has been published in some press reports of the earlier part of these proceedings; that they are different offences, a different kind of offence, the bomb plot being generated and to be carried out in a fairly short period of time, but involving a live device in a populated building. The Stoke offence being a rather longer term and perhaps more sophisticated plan which involved the creation also of a very significant risk to public safety. We would certainly submit that that is a very serious terrorist offence."
Wilkie J: "Right. I think, reading their conversations, they do regard themselves as significantly more advanced, both in terms of experience, technique, ambition, facility than the people from Cardiff or London, given the rather (inaudible) raw recruits ... only one of them seeming to pass muster by their exacting standards .... You are not suggesting that they're wrong-headed in that assessment?"
Mr Edis: "Not at all."
"We have been asked overnight to reflect on and to indicate the Crown's position in relation to the seriousness of Count 9 and Count 10 as they compare to each other ... They are, of course, quite different offences in the way in which they have been particularised and reflect different conduct. It is therefore difficult to draw direct comparison between them. However, balancing the immediacy of the threat in Count 10 namely the attack on the Stock Exchange, as against the potentially less immediate threat posed by Count 9, however with potentially very serious consequences in the long-term and involving calculated activity on the part of the Stoke defendants, we submit that the two counts should be viewed as being equally serious; in other words, neither being more serious or less serious than the other. ... We have also been also been asked to clarify out position on dangerousness. May I reiterate that we submit in this case that all nine defendants can properly be considered to be dangerousness within the definition of the 2003 Act, principally because of the commitment that they all showed to the Jihadist ideology."
The Indeterminate Term
"No timetable, target or method for these acts of terrorism had been agreed. Their experiences after going to Kashmir might have meant that no such activity, in any event, would actually have taken place in the UK."
"The Judge was required to decide whether an extended sentence would adequately protect the public and decided that it would do for those whose involvement in terrorism appeared to be of lesser duration and lesser sophistication, namely the Stock Exchange Bomb plot defendants. They had not, so far as the evidence reveals, devised any plan at all for actually getting their device into the Stock Exchange and in reality this would have presented a major problem for them, given the security precautions in place and the probable conspicuousness of these defendants. It is quite likely that the plan would have failed at that stage, probably to be replaced by another plan to attack a softer target. However, the naivety of this sub-group would have presented an obstacle to any success being achieved. This contrasts with the Stoke group who were not naive at all. They themselves appreciated (as evidence by their conversations) that they were dealing with an inexperienced and hot headed group who might get them all arrested despite their own well developed field craft. In this they were right.
The Determinate Term
Usmar Khan, Mohammed Shahjahan and Nazam Hussain