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Cite as: [2012] ECHR 408

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FOURTH SECTION

DECISION

Application no. 28055/08
by Waseem MUGHAL
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 February 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,

and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 4 June 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Waseem Mughal, is a British national who was born in 8 February 1983 and lives in Evesham. He was represented before the Court by Mr Martin Backstraw of Bindmans LLP, a lawyer practising in London. The respondent Government are represented by Ms H. Moynihan, Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Between June 2005 and their arrest in October 2005 the applicant and two other men were involved in the purchase, construction and maintenance of a large number of websites and internet chat forums on which material was published by third parties which incited acts of terrorist murder, principally in Iraq. The cost of purchasing and maintaining the websites was met by the fraudulent use of credit card details obtained by theft and hacking. The loss to the credit companies as a result of the fraud was estimated to be GBP 1.8 million. The material on the websites, much of it provided by Al-Qaeda in Iraq, included assertions that it was the duty of Muslims to fight and kill the enemies of Islam; films of explicit acts of terrorist violence, including the beheading of civilian hostages and attacks on British and American forces in Iraq, and of the last testaments of suicide bombers; and information about travelling to Iraq.

The applicant, aged 22 at the time of his arrest, was a biochemistry graduate with good computer skills. The police found CDs including footage of beheadings and mujahedeen fighting when they searched his home. It was alleged that his role in the operation was to provide stolen credit card identities which were used by one of his co-accused to finance the websites. There was evidence of a conversation between the two when the applicant stressed the importance of maintaining the websites to incite Muslims to engage in Jihad.

The applicant and the two co-accused were charged with incitement to commit an act of terrorism, namely murder, contrary to section 59 of the Terrorism Act 2000, and conspiracy to defraud.

The applicant pleaded not guilty to the counts against him and appeared on 23 April 2007 before Woolwich Crown Court for trial. Shortly before the close of the prosecution’s case, the applicant’s representative sought an indication from the judge as to the length of the sentence he would receive were he to change his plea to guilty. The indication of sentence was sought in accordance with the procedure set out by the Court of Appeal in R v Goodyear (see below). The applicant’s representative and the prosecution agreed a written basis for plea, describing the facts of the offences. The applicant was advised by his representative that he should only change his plea to guilty if he was guilty and warned that the sentence that the judge would indicate could still be increased on appeal, if the Attorney-General considered it to be unduly lenient. The applicant’s co accused also sought indications of sentence in the same manner.

The trial judge indicated that should the applicant change his plea to guilty, on the basis of the agreed facts, the maximum sentence that he would impose would be seven and a half years’ imprisonment.

On the basis of this indication the applicant changed his plea to guilty. On 2 July 2007 the judge directed the jury to return verdicts of guilty on the terrorism and conspiracy charges, and discharged the jury from returning any verdict on the remaining charges against the applicant. In accordance with the indication, the applicant was sentenced to seven and a half years’ imprisonment for the incitement to terrorism charge, to run concurrently with a three and a half year sentence for the conspiracy to defraud offence. It was also ordered that the time that he had already spent on remand would count towards the total period to be spent in prison.

On 31 July 2007 the Solicitor-General, on behalf of the Attorney-General, applied for leave to refer the sentences to the Court of Appeal. She acknowledged that it had been a difficult sentencing exercise, since it had been the first case of its kind and no sentencing guidelines had been established. However, she considered that the sentences imposed were unduly lenient, in light of the scale of the operation; the extreme, explicit and persuasive nature of the material distributed on the websites; the fact that the defendants knew that much of the material came directly from Al Qaeda in Iraq; and the defendants’ intention to incite Muslims to commit acts of terrorist violence.

The Solicitor-General was granted leave to refer the sentences. Following a hearing on 18 December 2007 the Court of Appeal decided that the sentences passed on all three defendants had been unduly lenient, in the light of the factors identified by the Solicitor-General. The Court of Appeal also took into account a number of mitigating factors, including the defendants’ youth and the fact that they had all pleaded guilty, albeit at a late stage in the proceedings. The Court of Appeal increased the applicant’s sentence from seven and a half to twelve years’ imprisonment on the incitement to terrorism charge. The sentences of the applicant’s co defendants were also increased.

B. Relevant domestic law and practice

The power of the Attorney-General to make a reference to the Court of Appeal is contained in section 36(1) of the Criminal Justice Act 1988, which provides as follows:

“36. Reviews of sentencing. E+W+N.I.

(1) If it appears to the Attorney General—

(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and

(b) that the case is one to which this Part of this Act applies,

he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may—

(i) quash any sentence passed on him in the proceeding; and

(ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.”

In R v Goodyear [2005] EWCA Crim 888, the Court of Appeal set out the procedure to be followed and the safeguards to be applied where a defendant, during the course of his trial, asks the judge for an indication of the maximum sentence he would receive upon a plea of guilty. The Court of Appeal held that such an indication could be given only on the basis of a set of facts agreed upon by the prosecution and defence lawyers, describing the offence and the defendant’s role. If there were discrepancies of fact, the judge should order a “Newton hearing” to enable the judge to determine the facts to form the basis for sentencing following a guilty plea. Whenever an indication of sentence was sought, the defendant’s representative had to advise the defendant that he should change his plea to guilty only if he accepted that he was guilty. The defendant should also be informed that the sentence could be increased on appeal by means of an Attorney-General’s reference, if the sentence was considered to be unduly lenient. The prosecution should not comment on the sentence that the judge was considering nor express any opinion as to sentence. Once the judge had given an indication, he or she was bound by this indication and could not pass a more severe sentence.

COMPLAINTS

The applicant complained under Article 3 of the Convention that such a high increase in sentence, following the indication that he had been given by the trial judge, amounted to inhuman and degrading treatment.

The applicant also complained under Article 6 that the original indication of plea had been an unfair inducement to plead guilty and that his right to a fair trial has therefore been violated.

THE LAW

The applicant alleged that he was deprived of a fair trial, contrary to Article 6 § 1 of the Convention, which provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...”.

The Government did not accept that the criminal proceedings had been unfair. They emphasised that the process by which the sentencing indication had been given was initiated by the applicant. He had been represented by counsel and advised that he should not plead guilty if he was not guilty and that the sentence could be increased following a reference to the Court of Appeal. Moreover, the applicant did not complain before the Court of Appeal that the indication of sentence procedure had been unfair nor that the Attorney-General’s reference should be refused on the ground that he had pleaded guilty on the basis of the trial judge’s indication of sentence.

The applicant agreed that the procedure for seeking and being given an indication of sentence pursued a valid purpose in adversarial criminal proceedings in encouraging early guilty pleas. He emphasised, however, that it relied on the sentence indicated being both fair and realistic. Otherwise, the indication was no more than an unfair inducement to plead guilty. In his own case, notwithstanding the warnings he was given, he was entitled to assume that the sentence indicated by the trial judge was reasonable and he could not have been expected to contemplate that it would be increased so drastically: an increase by over a third of the minimum term of imprisonment.

The Court recalls that a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her forms part of the general notion of a fair hearing under Article 6 § 1 (see G. v. the United Kingdom (dec.), no. 37334/08, 30 August 2011). The Court has, however, held that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see, mutatis mutandis, Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 II; see also Deweer v. Belgium, 27 February 1980, §§ 49-54, Series A no. 35).

In the present case, the applicant waived his right to require the prosecution to establish before the jury that he was guilty of the offences charged. He decided to enter a guilty plea at a late stage, once he had had the opportunity to hear all the evidence against him and make an assessment of the likelihood of his being convicted. Although the applicant must have known that a guilty plea would be taken into account in mitigation of any sentence passed, there is no evidence of any other inducement, constraint or pressure being applied to him; indeed, it appears to have been the applicant who initiated the procedure to seek an indication of sentence from the judge. The judge indicated that, were the applicant to plead guilty, he would receive a maximum sentence of seven and a half years’ imprisonment. The trial judge made this indication in good faith, but without knowing how the Court of Appeal would view the case because at the time of the trial there were no established precedents or sentencing guidelines for an offence of this type. The applicant was advised that he should only enter the plea if he was guilty and he agreed to the statement of facts which formed the basis of the sentencing exercise. He was also advised that there was a risk that the sentence could be increased by the Court of Appeal following a reference request by the Attorney-General, if the Court of Appeal considered the sentence to be “unduly lenient”.

In these circumstances, the Court considers that the applicant’s decision to plead guilty and thus waive the right to require the prosecution to prove his guilt was unequivocal and attended by sufficient safeguards. It holds that the complaint under Article 6 § 1 must be rejected as manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant also complained that the increase in sentence, following the indication made by the trial judge, amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

The Court finds that the imposition of a sentence of twelve years’ imprisonment, in respect of criminal acts of this nature, following proceedings which complied with Article 6 § 1, does not give rise to any appearance of a breach of Article 3. It follows that this complaint must also be rejected as manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President