England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2016

Lord Thomas of Cwmgiedd CJ :

GENERAL

1. On 17 May 2016, in R v Kahar & Ors [2016] EWCA Crim 568, [2016] 1 WLR 3156, [2016] 2 Cr App R (S) 32, [2016] Crim LR 670 this court gave guidance in relation to the sentencing of those convicted of offences under s.5 of the Terrorism Act 2006. Guidance was urgently needed and it was unlikely that the Sentencing Council would be able to provide a guideline in the immediate future.
2. The three related applications of six applicants considered by us in this judgment were referred by the Registrar, together with the reference by HM Attorney General, so that they could be heard together and the court could consider further issues that were said to have arisen.
3. Before turning to the specific applications and the reference it is right to observe that none of the cases referred to the Court by the Registrar gave the court any basis for reconsidering the guidance given in Kahar. On the contrary, the guidance given could readily be applied to each of the cases before the court. The cases principally involved findings of level 5 offending; as it is apparent from what we say in relation to the specific appeals, the guidance given in Kahar clearly covers the different forms of offending within that level, including those who organised participation by others in terrorism overseas, even though they did not themselves travel overseas. The guidance in Kahar should therefore continue to be applied pending the issue of guidelines by the Sentencing Council.
4. It is only necessary for us to highlight two matters:

i) The practice of some advocates in seeking to address the court on a comparison between the facts of cases.

ii) The meaning of "members of the public" in s.226A(1)(b) of the Criminal Justice Act 2003 (the CJA 2003).

Attempts to compare the facts of cases

5. In the appeal of Shazib Khan, an attempt was made to contrast the facts in Kahar and other cases, as part of a submission that the offending fell into a less serious category (see paragraph 73 and following below).
6. We wish to emphasise that this type of argument is misconceived and should not be attempted. This court has made it clear repeatedly that such an approach is unhelpful when considering guidance given by this court and when considering the application of a guideline of the Sentencing Council.
7. One of the chief purposes of giving guidance in Kahar was precisely to avoid attempts to make detailed comparisons between cases which are highly fact sensitive. For the same reasons, the descriptions of the guideline levels are not intended to be mechanistically applied. They deliberately focus on "typical" cases. For these reasons this court will not pay any regard to such comparisons.

Dangerousness: members of the public

The issue and the finding of the trial judge

8. In the appeal of Gray (see paragraph 55 and following), the question of statutory interpretation raised was whether the phrase "members of the public" in s.226A(1)(b) of the CJA 2003 referred only to members of the public in the UK or whether it included members of the public of countries other than the UK. The sub-section refers to a necessary precondition for an extended sentence as being a

"significant risk to members of the pubic of serious harm occasioned by the commission by the offender of further specified offences."

It does not define "members of the public".

9. The judge found that there was no significant risk to members of the public in the UK; there was such a risk to members of the public in Syria; and that the members of the public in Syria were within the scope of the definition.

The submission

10. It was submitted that since the CJA 2003 did not specifically define or extend the meaning of "members of the public" beyond the UK, the judge was wrong to construe it as extending to those in Syria. Ordinarily statutes apply only to persons within the territory in which they have legal effect. The CJA 2003 had not extended the dangerousness provisions beyond the UK. If Parliament had intended to do so, it would have said so, as it did in the case of the Terrorism Act 2000; s.1(1)(b) of the Terrorism Act 2000 provided:

(1) In this Act "terrorism" means the use or threat of action where –

…

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public….

Section 4(c) provided:

"A reference to the public includes a reference to the public of a country other than the United Kingdom."

These provisions applied to the Terrorism Act 2006.

11. Reliance was also placed on the fact that in s.106(3) of the Sexual Offences Act 2003, in the context of sexual offences prevention orders to protect members of the public from serious sexual harm, "the public" is defined as "the public in the United Kingdom". Attention was also drawn to the Foreign Travel Order provisions in ss.114-117 of that Act which provided additional powers to the courts to prohibit foreign travel by a defendant in order to protect children outside the UK. Thus, it was submitted that legislators were well aware that in the absence of specific provision extending the reach of legislation, the protections provided would have been limited to the public of the UK. This example, therefore, was said to reinforce the argument made on behalf of Gray.

Our conclusion on the meaning of "members of the public"

12. Specified violent offences are listed in Part 1 of Schedule 15 to the CJA 2003. From the time of its enactment, the list in Part 1 has included offences which can be committed outside the United Kingdom: for example, offences under s.1 of the Taking of Hostages Act 1982, ss.1 to 4 of the Aviation Security Act 1982, ss.1 and 9 to 13 of the Aviation and Maritime Security Act 1990 and ss.51 and 52 of the International Criminal Courts Act 2001, as well as manslaughter and attempt or conspiracy to murder.
13. It would make no sense to suppose that, in a case where there is a significant risk that the offender will commit further specified offences outside the United Kingdom, Parliament intended to confine the members of the public whose safety the court may consider to people within the United Kingdom. To take an example canvassed in argument, if a man is convicted of attempting to murder a particular individual with whom he is obsessed and there is a significant risk that he will try to do so again, it is unreasonable to interpret the CJA 2003 as requiring the court when assessing whether the offender is dangerous to ignore this risk if the potential victim is living in France.
14. We accordingly consider that, in the context of section 226A(1)(b), although the territorial scope of "the public" is not expressly defined, the phrase must be intended to include the public in other countries. It will, nevertheless, only be relevant to consider the risk of harm to such persons where the further specified offences in contemplation are offences which, in view of their territorial scope, are capable of causing harm abroad.
15. Since the CJA 2003 came into force, the list of offences specified in Part 1 of Schedule 15 has been added to by amending legislation from time to time. Relevantly for the purposes of this case, the Schedule lists offences contrary to ss.54, 56, 57 and 59 of the Terrorism Act 2000, as well as offences under ss.5, 6, 9, 10 and 11 of the Terrorism Act 2006. S.59 of the Terrorism Act 2000 creates an offence of inciting another person to commit an act of terrorism outside the United Kingdom and hence is an offence involving conduct which is specifically calculated to cause harm overseas. Moreover, since 3 March 2015 s.17 of the Terrorism Act 2006 has given the courts of England and Wales universal jurisdiction in relation to offences under Part 1 of that Act wherever those offences are committed. It is clear therefore that Parliament has given attention to terrorism legislation which can have transnational effects within the framework of the dangerousness provisions.
16. We do not think that the reference to the Sexual Offences Act 2003 advances the argument made on behalf of Gray. That legislation, in contrast to the CJA 2003, contains a definition of "the public" which limits its territorial scope to "the public in the United Kingdom."
17. As no other points of general application arose, we turn to the specific applications before us. Our decisions on these applications contain nothing that is likely to be of assistance in other cases, other than the two general points we have considered.

THE SPECIFIC APPLICATIONS AND THE REFERENCE

(1) ABDALRAOUF ABDALLAH and STEPHEN GRAY

Background

The sentences passed

18. Abdallah and Gray were active in a terrorist group based in Manchester in 2014.

i) On 11 May 2016, Abdullah was convicted of two offences after a trial at the Central Criminal Court before HH Judge Kinch QC and a jury. He was sentenced on 15 July 2016 for those offences. Count 1 was an offence contrary to s.5 of the Terrorism Act 2006, namely preparation of terrorist acts. That offence can be committed by personal commission of acts of terrorism, or by assisting another to commit such acts. Count 2 was an offence contrary to s.17 of the Terrorism Act 2000 involving funding arrangements for terrorism. On the same day he was sentenced to an extended determinate sentence of 9½ years on count 1, comprising a custodial term of 5½ years and an extended licence period of 4 years. On count 2, he was sentenced to 2 years imprisonment concurrently.

ii) On the same day Gray, who had tendered early guilty pleas but who had subsequently unsuccessfully contested a Newton Hearing arising from his basis of plea, was sentenced on three counts. Counts 3 and 4 were s.5 offences, and count 5 was a s.17 offence. On counts 3 and 4 the judge imposed an extended determinate sentence of 9 years comprised of a custodial term of 5 years and an extended licence period of 4 years. On count 5 he was sentenced to a 3 year concurrent sentence of imprisonment.

19. Their applications for leave to appeal against sentence have been referred to the Full Court by the Registrar. In addition Abdallah is the respondent to an application made by the Attorney General to refer the sentences to the court under s.36 of the Criminal Justice Act 1988 as unduly lenient.

Abdallah

20. Abdallah was 21 years old at the time of the offending. He lived in Manchester and was a UK and Libyan national. He had travelled to Libya in 2011 and taken part in the fighting against the Gadaffi regime. He suffered a gunshot wound to his back. As a result he was rendered paraplegic and remains in a wheelchair. He used a number of aliases.
21. Abdallah was treated as being of good character. It was accepted that his condition was permanent, and that it left him dependent on others to function on a daily basis. He had been diagnosed with post traumatic stress disorder (PTSD), and there was evidence that he suffered from depression. In the light of reports from a consultant clinical forensic psychologist, the judge accepted that Abdallah would find a prison sentence more onerous than an able-bodied prisoner. His physical condition and PTSD would make his position in prison more difficult. We have seen a report produced post-sentence which spoke of improvement in the conditions in which Abdallah is held. He now has a specially adapted cell which gives him the opportunity to integrate with other inmates, and is consequently better settled than previously.

Gray

22. Gray was 31 years old at the time the offending. He is a UK national who has converted to Islam. He previously served in the Royal Air Force, and acted bravely in Baghdad in 2001. He subsequently went by the name of Mustapha Deen, but in 2010 changed his name back to Stephen Gray, probably to facilitate movement between countries. Like Abdallah he used a number of aliases.
23. Gray was of previous good character and a family man. He had visited Syria in 2012. The judge accepted that on that occasion he was driven by sympathy for the plight of the victims of bombing.

The activities in which Abdallah and Gray were engaged

The Manchester terrorist group

24. Abdallah organised the terrorist activities of the Manchester group. He provided practical and emotional support to the members of the group. He assisted Gray and another jihadi, Raymond Matimba, in their attempt to enter Syria via Turkey where it was intended that they would join Abdallah's brother, Mohammed Abdallah. Abdallah also sent money to his brother. He and another man had actually entered Syria, but did not remain long before departing for Libya.
25. Gray made two attempts to enter Syria in quick succession in July 2014. He failed on each occasion to gain entry into Turkey as a means of entering into Syria. Matimba, who had travelled with Gray on the first occasion, was allowed through Turkish border controls and surfaced as an armed fighter for the so-called Islamic State (IS) in Syria in October 2014. Gray had bought flight tickets for both men on the first occasion.
26. The group used a number of shared contacts to facilitate movement through Europe to the Syrian border. It was also involved in arrangements for the purchase and supply of weapons. A key contact of the group was Abu Mutasim. He was involved in moving fighters either side of the Syrian border. Abdallah contacted him the day before Gray and Matimba made their first attempt to travel to Syria, thereafter discussing Gray's movements with him and others. Evidence of the group's communications showed that Gray had arranged to transfer money to Mutasim to finance the purchase of weapons and that Abdallah was heavily involved.
27. Police found a number of mobile telephones relating to Abdallah. It became clear that he had used internet media to send an average in excess of 100 messages per day in July 2014. There was traffic which showed that when Abdallah was in hospital for 2 days in July 2014 and not using his equipment, Gray became desperate as a result of being out of contact with him. One particular mobile phone contained images of guns and images consistent with support for IS and associated organisations.
28. There was specific evidence that Gray and Matimba had participated in war gaming events using replica weaponry in April 2014.
29. When the time came to travel to Syria, Gray and Matimba used a roundabout route so as to try to avoid official enquiry. They in fact lied to counter-terrorist officers at Manchester Airport on their departure. As already stated, Gray was refused entry to Turkey and was sent back to Manchester via Italy. On his return he once more lied to officials as to his reason for travel. Within days he made a second attempt to travel to Syria by a different route with the help of an associate of Abdallah. Having failed to gain entry to Turkey for a second time, he returned to Manchester on 26 July 2014, in possession of almost £1,000 cash for which he had no explanation. His passport was seized. It was clear that he had made determined attempts to reach armed groups in Syria.
30. In the meantime Matimba had succeeded in crossing into Syria, where he joined Abdallah's brother. Abdallah had kept both his brother and another man in Syria alert to the impending arrival of Matimba and Gray.

Money transfers

31. There was evidence of money transfers. On 2 July 2014, Matimba paid £182 into Gray's bank account. This was 2 days before the first trip made by Gray. On 10 July, Matimba received £1,700 by money transfer in Turkey. One week later, he received a further £600. On the following day at the same hotel in Istanbul, a money transfer of £2,000 was ostensibly made by Abdallah's father in Manchester to Mohammad Abdallah. Abdallah was using his father's account to avoid a connection being made between him and his brother.

Involvement with weapons

32. The specific evidence relating to weapons was that on 1 July 2014 Abdallah contacted his brother telling him in code that Gray would be arriving with 6 weapons. Other recovered messages show that in July 2014 Abdallah was in touch with Mutasim in Syria. The messages refer to the obtaining of weapons with a view to supplying members of the group, including Abdallah's brother, with them. The weapons involved were assault rifles and military grade pistols.
33. In July 2014, Matimba's mother became concerned about her son. Gray and Abdallah discussed steps which they might take to avoid the risk of their implication by her.
34. In interview after their arrests, Abdullah and Gray made denials.

The Newton hearing for Gray

35. In Gray's case, there was a basis of plea limiting his involvement and culpability in counts 3 and 4 (the s.5 offences). A two day Newton hearing was held, as a result of which the judge made findings adverse to Gray. The judge held that Gray had intended to travel to Syria to take up arms and fight. He found that Gray had been involved in providing details of a source for firearms for use in Syria. Whilst the judge could not conclude with certainty which armed group Gray intended to join, he rejected Gray's contention that his intention and allegiance had been driven by humanitarian reasons. He was thus rejecting an assertion that Gray had intended to go to Syria and secure arms so as to defend himself and others. The judge also rejected an assertion that Gray was unaware that Matimba would join IS.

The judge's sentencing decision

36. In passing sentence, the judge concluded that each applicant fell within dangerousness provisions, and that it was right for him to impose an extended determinate sentence. In Abdallah's case, he rejected the Crown's argument that the offending fell within levels 2 and 3 as set in R v Kahar & Ors. He put the case at level 5. In Gray's case he put the case within level 5, a decision not in issue in these proceedings.
37. In putting Abdallah's case at level 5 the judge took the view that it lacked the sophistication, organisation and materials that might otherwise have pushed it into level 4. In fixing a custodial term of 5½ years the judge granted a discount in the region of 30% from an 8 year term to reflect the harsher effect of imprisonment upon Abdallah by reason of his disability and PTSD.
38. In Gray's case the judge noted that his attempts to reach Syria were determined and sustained, but that they were ultimately unsuccessful. He considered that they were not particularly sophisticated attempts and they had depended on others. Gray had planned the route to Syria, and had bought tickets for himself and Matimba. His culpability was greater because he knew, as the judge found, that Matimba intended to join up with IS. He assessed the appropriate custodial term at 7 years, and, despite the impact of the Newton hearing, the judge was nonetheless prepared to give significant credit for the guilty plea resulting in the 5 year custodial term.

Abdallah's grounds of appeal, the Attorney General's reference and our conclusion

The submission by Abdallah on the extended sentence

39. Abdallah advanced two principal grounds of appeal. First, it was submitted that the judge's finding of dangerousness was wrong, and that a sentence on count 1 pursuant to s.236A of the CJA 2003 should have been imposed. In particular it was submitted that there was no evidential justification for assessing Abdallah as dangerous. Moreover it is said that the assistance he had provided to those travelling to Syria had minimal impact or value. None of those whom he had assisted had been shown to have joined any terrorist organisation during the indictment period which ended in July 2014. Matimba had not surfaced as an IS fighter until October 2014. We were unimpressed by this last point. Matimba's emergence as a jihadist fighter was clearly related to Abdallah's involvement.
40. In addition the court was urged to have regard to defence evidence that during his time in Libya Abdallah had fought for the Libyan Army against IS. This, it was said, should put his offending into context. Reliance was placed on his compliance with stringent terms of bail after his arrest prior to his trial. Reliance was also placed upon the applicant's physical condition and the fact that the judge had not obtained a pre-sentence report. There was also a submission that the judge had failed to indicate prior to sentence that he was contemplating a finding of dangerousness. For all those reasons the passing of an extended determinate sentence was challenged.

The submission in relation to the level of offending

41. The second ground of appeal urged that the judge was wrong to conclude that the applicant's case fell into level 5. Abdallah had not left the United Kingdom. He had only played a minor role in relation to people who had not engaged in terrorist activity during the indictment period. Before any consideration of the applicant's personal and medical mitigation, a custodial term no greater than 5 years should have been contemplated. That would put the case on the cusp of levels 5 and 6. In the circumstances the judge's starting point of 8 years was manifestly excessive.

The application by the Attorney General

42. In seeking leave to make the reference on the basis that the sentence was unduly lenient, it was submitted on behalf of the Attorney General that the judge should have assessed Abdallah as falling within level 4, as identified in Kahar. His overall role within the group and the breadth of his activities justified such a finding. Attention was drawn to paragraph 21 of Kahar where the court observed that there would be offenders who had no intention of carrying out the intended acts themselves, but whose offending might be even more serious than the offence of the person assisted. Examples given were those who provide finance and those who assist others who travel abroad, or who intend to travel abroad.
43. The jury's verdict showed that it rejected Abdallah's case that his purpose was or may have been solely defensive. It must have been sure that one of his purposes was the advancement of a political, ideological or religious cause.

Our conclusion on the reference and the application

44. In our judgement, Abdallah was heavily concerned, albeit over a relatively short time frame, with the deployment of those who were going to fight in Syria. He was also involved in the proposed purchase and distribution of weapons. It is clear from the episode in which he was briefly out of contact with Gray that he was relied on by members of the group as a mentor and organiser. The frequency with which he was involved with messaging tells its own story. Those messages included a significant number of references to IS and Al-nusra, both of which are extremist terrorist organisations. The messages are consistent with the group at the very least considering whether to join one or other of those organisations, and indicate where their sympathies would lie once they arrived in Syria and were armed. The fact that Matimba eventually surfaced as an IS fighter came as no surprise. Abdallah's activities had facilitated that result. We are, therefore, unpersuaded that Abdallah's role should be regarded as relatively limited as was submitted to us on his behalf.
45. The question of dangerousness was for the judge to assess. Whilst there was no pre-sentence report, it should be remembered that the judge had conducted a trial of some length, in which Abdallah's activities had been carefully examined and in which he had given evidence and called evidence on his own behalf. The judge was, therefore, very well placed to make an assessment of Abdallah. The absence of a pre-sentence report was therefore in our judgement not significant. There was a psychological report with extensive discussion of Abdallah's history. We have been provided with a pre-appeal report in which he minimises his offending. There was no evidence of change from the mind-set as found by the judge at sentence.
46. The judge had sought written submissions from the parties prior to sentence as to whether, in relation to dangerousness, the public should be limited to those in the UK or not – an issue we considered at paragraphs 8 and following. Abdallah's counsel responded to this. In those circumstances the complaint that the judge did not alert the defence to the possibility of a finding of dangerousness cannot be sustained.
47. Whilst we accept that a search of Abdallah's home did not reveal significant quantities of extremist material as sometimes occurs, the evidence in the case showed a clear interest in extremist armed Islamic groups; there were also images recovered from his phone showing clear sympathy with IS. In passing sentence the judge said that all he had read and seen in this case had led him to conclude that the mind-set that led Abdallah to offend was still in place. There was nothing to suggest that he had revised his thinking. He represented a future danger.
48. We consider that that was a conclusion to which the judge was entitled to come after considering contrary arguments. One of those related to Abdallah's period on bail. Given the stringent terms of bail and the fact that Abdallah must have assumed he was under continued surveillance, we attach little weight to the absence of activity during that period. For these reasons we do not consider that the imposition of an extended sentence was open to criticism. The judge was very well placed to deal with the issue.
49. We turn next to the custodial term. The typical cases described in Kahar for each of the identified levels are necessarily non-specific. Much will depend on the overall assessment of the trial judge. In this case the judge identified level 5 as the most appropriate. He felt that the case lacked the necessary sophistication, organisation and materials that might otherwise have placed it in level 4. He also took into account that the offending was for a short period and the lack of evidence of indoctrination of others.
50. It will be seen that the typical cases cited in Kahar best describe activities of active persons. As already observed, however, s.5 applies equally to a person who with the necessary intent assists another to commit acts of terrorism. Emphasis is given to this at paragraph 21 of Kahar to which we have already referred. It indicates that those who are involved in this way should be assessed by reference to the number of those assisted, the nature and value of the assistance, the motivation behind the assistance, and whether or not the assistance was an isolated act or formed part of a pattern of behaviour.
51. In our judgement this case does not fall within the purview of level 6, which is concerned with more minor offending than occurred here. The real choice in this case is between levels 4 and 5. Abdallah undoubtedly was coordinating the activities of a small group of men intending to take part in the armed conflict in Syria. He took substantial steps in a number of ways to achieve their arrival in that country, their financial support, and their being armed. One of the group, Matimba, undoubtedly became an active fighter.
52. There are therefore undoubtedly features of this case which would support a level 4 classification. It seems to us that level 5 represents a rather lower level of activity. Abdallah had not desisted from what he was doing until he became aware of police interest in him at the beginning of August 2014. He was not a Walter Mitty character or unclear as to what he intended to do. We think that the intense level of organisational activity coupled with financial assistance and involvement in the proposed provision of weaponry is a significant feature.
53. We therefore consider that there is force in the submissions made on behalf of the Attorney General and grant leave to make the reference. It follows that submissions made on behalf of Abdallah that the custodial term was too long cannot succeed. It seems to us that this case should at least have been placed in the lower echelons of the range for level 4, making allowance for factors favourable to Abdallah identified by the judge. We therefore dismiss Abdallah's application.
54. That conclusion in an ordinary case might well have led this court to the view that the sentence imposed was an unduly lenient. However, Abdallah's case has to be considered in the light of his paraplegia, with its attendant physical difficulties, and his PTSD, management of which may be more problematic in custody. We also have regard to the extended period of licence after release, together with notification requirements. In the highly unusual circumstances of this case, we do not think it would be appropriate to increase the custodial element of the sentence imposed below.

Gray's grounds of appeal and our conclusion

The issue

55. The submission made on behalf of Gray did not take issue with the custodial term imposed, but challenged the judge's finding of dangerousness both on grounds of statutory interpretation of the scope of "members of the public" (which we have considered at paragraph 8 and following) and on the merits. We give leave on the basis we considered the point of statutory interpretation arguable, but as we have set out, we have concluded the question of construction against Gray.

The judge's decision on dangerousness

56. The judge said that he was not persuaded that there was a significant risk of serious harm to members of the public in this country. He said that the further specified offences he was concerned about were further offences under the terrorism legislation which might be committed in foreign countries. He concluded that if there was a qualifying risk to members of the public wherever situated, he was required to take that into account.
57. He considered that the evidence led him to conclude that the mind-set which led Gray to offend was still in place. He had seen Gray give evidence at the Newton hearing and did not sense any lessening of the indignation which had led him into offending. There was a significant risk that there would be further attempts at securing entry (or assisting others to secure entry) to Syria. If that took place the danger of serious harm to members of the public in that country was clear and overwhelming. Accordingly, it was necessary to apply the dangerousness provisions.

Our conclusion

58. In the present case the risk found by the judge that Gray would again attempt to go to fight in Syria plainly involved a risk that members of the public in Syria would suffer serious harm occasioned by the commission of specified offences which were capable of having extraterritorial effects. Such offences include manslaughter and attempting or encouraging murder, as well as offences under the terrorism legislation.
59. As to the point raised that there was insufficient evidence to justify the judge's conclusion as to future risk to those in Syria, we do not accept the submission. The judge noted Gray's mind-set and his persistent efforts to enter Syria. We do not consider that his conclusion that there was a significant risk of either a further attempt by Gray to enter Syria or of assisting others to do so was in any way flawed. The fact that Gray made no attempt between July 2014 and his arrest in November 2014 to return, his passport having been seized, does not carry any weight. The judge was entitled to find the risk as he did and to impose the licence period which he did. For these reasons the appeal of Gray is dismissed.

(2) JUNEAD KHAN AND SHAZIB KHAN

Background

The sentences passed

60. Junead Khan and Shazib Khan were engaged in terrorist activity:

i) On 1 April 2016 at the Crown Court at Kingston before Edis J they were convicted by a jury of engaging in conduct in preparation of terrorist acts, contrary to s.5(1) of the Terrorism Act 2006.

ii) In count 1, Junead Khan and Shazib Khan were both charged and convicted of jointly planning, between August 2014 and July 2015, to go to Syria with the intention of joining IS. Preparatory steps taken included discussing their plans in messages with each other and with others, including members of IS in Syria, preparing lists of kit to take with them, and researching online and ordering various items of kit consisting mainly of military clothing. For this offence on 13 May 2016 the judge imposed on each applicant an extended sentence, with a custodial term of 8 years and an extended licence period of 5 years. The custodial term was subsequently reduced from 8 years to 7 years pursuant to s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 at a further hearing on 17 June 2016.

iii) Count 2 represented a more serious offence committed by Junead Khan alone. It involved a plan formed by him in July 2015 to murder a US serviceman in East Anglia. For this offence, Junead Khan was sentenced to life imprisonment with a minimum term of 12 years (to run concurrently with his sentence on count 1).

iv) Their applications for leave to appeal against sentence have been referred to the Full Court by the Registrar.

Junead Khan

61. Junead Khan was born and raised in Luton. He was 25 years old at the time of his trial. He has a history of drug-induced psychosis and schizophrenia, although his condition is now stable. The judge found on the basis of psychiatric evidence that his mental illness did not explain his extremism but had made him very vulnerable in 2013 and 2014 when he was radicalised by people who knew about his difficulties.

Shazib Khan

62. Shazib Khan was born in Bangladesh and came to the UK at the age of 15. At the time of the trial he was 23 years old. Although almost two years younger, he is the uncle of Junead Khan. The two men were close friends and by the end of May 2015 they were living in the same house. They were both radicalised by members of a terrorist organisation, Al-Muhajiroun, and shared the same extremist ideology.

Count 1: The activities and the sentence

The facts

63. From April 2014 Junead Khan and Shazib Khan exchanged messages discussing Syria and expressing support for Jihad. On 29 June 2014 a jihadist group declared a new caliphate and the creation of IS. Over the following days they discussed travelling to live under Islam and to fight for IS. They also watched propaganda films which contained footage from Syria of corpses, shootings and the massacre of captured soldiers.
64. The evidence showed that both were security conscious to varying degrees. In August 2014, Shazib Khan began using a messaging service called Kik Messenger to make contact with a number of IS fighters in Syria. He made clear his desire to go to Syria to fight and obtained information about what equipment to bring, how much money he would need and what route he should take. One of the IS fighters with whom he communicated was a man from Luton whom he knew called Abul Rahin Aziz.
65. In the following months Junead Khan and Shazib Khan continued to view and share information and images relating to violent Jihad. Amongst other communications, Junead Khan sent Shazib Khan messages celebrating the multiple murders at the premises of "Charlie Hebdo" in Paris on 7 January 2015 and an image of a captured Jordanian pilot burned alive by IS in February 2015. Junead Khan's Amazon account activity shows that on 1 January 2015 he searched for an Ontario SP1 Marine Combat Knife, an item which he also included in a "wish list" found in a diary later seized from his house. In February 2015 Shazib Khan purchased online several items of military clothing and other kit.
66. On or around 4 July 2015 Junead Khan and Shazib Khan learnt of the death in a drone strike in Syria of Abu Rahin Aziz. They reacted to this news in different ways. Shazib Khan used Kik to make contact with the fighters in IS with whom he had previously communicated, while Junead Khan embarked on the conduct which was the subject of count 2.
67. Shazib Khan and Junead Khan were both arrested on 14 July 2015.

The sentencing decision

68. In his sentencing decision the judge found that Shazib and Junead Khan formed a joint plan to travel to Syria to fight which was pursued for almost a year and was "far advanced" by the time of the death of Aziz in July 2015. The only impediment to going at that stage had been the need to save some more money and buy more kit. He had no doubt that both were dangerous and considered protection of the public to be a paramount consideration.
69. There was a significant difference in the gravity of the offending by the two because of the conduct of Junead Khan which was the subject of count 2 (which we consider at paragraphs 79 and following below). The judge described Shazib Khan as much more intelligent than Junead Khan, thoroughly dishonest and manipulative and "absolutely committed to the Jihadi creed". He distinguished his case from that of "a misguided young person who embarked on a plan to travel to Syria which had little prospect of success." He found that Shazib Khan genuinely intended to do harm and that his frequently expressed desire for martyrdom was genuinely held.
70. As we have mentioned at paragraph 60.ii), the custodial term of the extended sentence imposed on count 1 was initially set at 8 years but then reduced to 7 years at a further hearing. That hearing took place after judgment was given in Kahar on 17 May 2016. Applying the guidance given in Kahar, the judge considered that the offence on count 1 fell within level 5 or, if the appropriate starting point was level 6 because no travel actually took place, it was aggravated by the finding of dangerousness and level of commitment shown by Shazib and Junead Khan which moved the case into level 5. He adjusted the sentence in the way described to take account of the guidance.

Shazib Khan's submissions and our conclusion

The grounds of appeal

71. The primary ground of appeal advanced on behalf of Shazib Khan was that, in terms of the levels of offending identified in Kahar, the judge was wrong to place this offence in level 5 rather than level 6 and, in consequence, imposed a sentence which was manifestly excessive. The second ground was that the judge was wrong in his finding of dangerousness. The third ground was directed at a specific factual finding made by the judge.
72. In support of the first ground, it was submitted that, in the case of an offender who intended to join a terrorist organisation overseas, level 5 was applicable only if the offender actually "set out", i.e. embarked on a journey. It was submitted that an offender who never actually set out, even if he made extensive preparations over a long period, fell within level 6.
73. An attempt was made to support the argument by a lengthy analysis of the facts of Kahar and other cases in comparison with the present case.

Our conclusion

74. As we have set out at paragraphs 5-7, the comparison with other cases is not something to which this court will have regard. Guidelines deliberately focus on "typical" cases. The typical case of a level 5 offender is indeed someone who sets out to travel, and in the present case the judge rightly gave weight in reducing the custodial term to the fact that no journey actually took place. However, the extent and seriousness of the preparations made, the length of time over which the plan to go to Syria to fight for IS was pursued, the joint nature of the plan, the depth of the applicants' commitment to the cause of IS and its methods and the extent of the harm they intended to cause were factors which, in combination, amply justified the judge's assessment that the case fell within the sentencing range of level 5. The judge was also right to emphasise not only the acts of murder which the applicant himself intended but the gravity of the crimes which he hoped to assist others to achieve. It is impossible in the circumstances to say that the custodial term of 7 years was manifestly excessive.
75. Equally hopeless is the second ground, which sought to challenge the finding that Shazib Khan was dangerous. This was a fact-sensitive assessment, which the judge who had observed him throughout a long trial and seen him give evidence was uniquely well-placed to make. In view of the judge's findings about Shazib Khan's terrorist intentions and deep level of commitment to the Jihadi cause, the judgment that he presented a significant risk of causing serious harm through the commission of further specified offences was not one in any case that could reasonably be criticised.
76. The third ground was directed at a particular factual finding made by the judge that Shazib Khan remained in communication with Aziz in the period between the end of November 2014 and the death of Aziz in early July 2015, although no messages from this "dark" period have been recovered; and that during this period Aziz had agreed to vouch for the applicants to enable them to join IS. It was submitted on his behalf that this theory was never suggested by the prosecution at the trial, was not supported by any evidence and was arrived at unfairly as the applicant never had an opportunity to address it.
77. We reject the contention that the judge was not entitled to infer that Shazib Khan communicated with Aziz during the "dark" period. By the time of sentence Junead Khan had admitted to the psychiatrist that he had done so. As the judge also recorded in his sentencing decision, both Junead Khan and Shazib Khan had acquired the Surespot messaging system (used to send particularly secure messages) at about the same time in November 2014 and both men were found with contact details for Aziz when they were arrested. Whether or not Aziz had specifically agreed in his communications with Shazib Khan to vouch for the applicants to IS is not, to our mind, a matter which has any material bearing on the soundness of the sentence. Aziz was plainly and on any view regarded by Shazib and Junead Khan as an important contact whose death evoked a strong reaction from them both. Even if it is assumed in their favour that Aziz did not agree to undertake any formal process of vouching for the applicants (or tazkiyah, to use the Arabic term used at the trial), we do not consider that this makes any material difference to their culpability or affects the extent of the intended harm. Nor does it cast any doubt on the judge's findings of dangerousness.
78. Accordingly, we see no merit in any of the grounds of appeal advanced by Shazib Khan. His application for leave to appeal is refused.

Junead Khan: The allegations on count 2, the sentence and our conclusion

The case against Junead Khan

79. Three matters formed the basis of count 2 which solely involved Junead Khan
80. First, on 5 July 2015, after learning of the death of Aziz, Junead Khan used Surespot (to which we have referred in paragraph 77) to converse with "Abu Hussain 3", believed to be a British man who was fighting in Syria. The conversation included references to bombs and to killing US soldiers. During this conversation Junead Khan received on his iPhone a nine page document giving instructions on how to make a pressure cooker backpack bomb. The instructions were accurate and would have enabled someone who followed them to produce a viable bomb. However, although Junead Khan opened the file on the night he received it, he did not open the file again or take any step to act on the instructions.
81. Second, on 7 July 2015 Junead Khan carried out online researches into knives. In particular, he sent a message via Amazon to a supplier asking how long delivery would take for an Ontario SP1 Marine Combat Knife, a type of knife which he had previously researched (see paragraph 65 above) and which looked similar to the one used by the notorious IS assassin known as "Jihadi John". The answer received was "12 days or less". Junead Khan put the knife in his Amazon shopping basket but did not place an order to buy it. He later removed the knife from his shopping basket on 12 July 2015.
82. Third, on 9 July 2015 when Junead Khan was working as a van driver and when he was under surveillance, his delivery route took him close to the location of several US military bases in East Anglia, which on the prosecution case were the potential targets for his planned attack. He did not, however, deviate from his allocated route or make any attempt to carry out an attack. There was also evidence given by an undercover officer who was in regular contact with Junead Khan that at around this time the officer had made a (bogus) job offer to Junead Khan to work as a chauffeur in London. Junead Khan accepted the offer, which would have taken him away from the area where the US bases were located.
83. When Junead Khan was arrested on 14 July 2015, a mobile phone found in his possession contained gruesome images of beheadings and other atrocities, as well as images of Jihadi John.

The sentencing decision

84. In his sentencing decision the judge found that Junead Khan acquired the bomb-making recipe intending to use it, but quickly decided not to pursue that aspect of the plan. The judge also inferred that Junead Khan was serious in his intention to kill a US serviceman at the time when he searched for a knife online and rejected the suggestion that his subsequent conduct showed that he had abandoned that intention.
85. The judge was satisfied that Junead Khan was dangerous and sentenced him on the basis that at the time of his arrest he was "not far from the commission of a murder to be committed by a horrifying method in order to create terror and terrorist propaganda in this country". He regarded the offence on count 2 as so serious that a life sentence was necessary. As mentioned earlier, he fixed the minimum term of the sentence at 12 years (less time spent on remand).

Junead Khan's grounds of appeal

86. In focussed and well-argued submissions for Junead Khan, it was accepted that the judge was entitled to find that he had reacted to the news of the death of Aziz by forming an intention to murder a US serviceman. But it was submitted that there was no proper evidential foundation for finding that the plan was pursued and that he still had such an intention at the time of his arrest. The possibility that the plan had been formed in the heat of the moment and soon afterwards abandoned was a real one which could not properly be rejected. In oral submissions the challenge to the judge's finding of dangerousness was no longer pursued, but it was argued that the judge was wrong to conclude that a life sentence was necessary as a punishment or for the protection the public; he ought instead to have imposed a determinate but extended sentence of imprisonment.

Our conclusion

87. In assessing both the culpability and dangerousness of an offender who has engaged in preparatory conduct with the intention of committing terrorist acts, two dimensions of the offence need to be considered. One is the gravity of the intended acts. The other is how close the offender came to the commission of those acts. In this case there is no doubt about the heinous nature of the crime which Junead Khan formed an intention to commit. But the point was fairly made on the appeal that, in terms of steps actually taken, he did not carry his intention far. The evidence indicated, and the judge found, that although Junead Khan formed an intention and obtained a recipe to manufacture a bomb during an online conversation on 5 July 2015, he quickly abandoned that particular plan. His thoughts then turned to acquiring a knife. This plan was taken further by searching online, putting a knife in an online shopping basket and inquiring about the time for delivery. However, Junead Khan did not take the vital step of actually acquiring or ordering this knife (or any other knife) and five days later he removed the item from his online shopping basket. Moreover nothing happened on the journey in East Anglia that took him near a US base and he thereafter accepted an offer of work in London.
88. We have very carefully considered the evidence. It is significant in our view that nothing happened on the last journey and no knife had been acquired by the time of his arrest. We therefore consider that the finding that he was "not far from the commission of a murder" at the time of his arrest went a little further than the evidence justified. In the circumstances neither the gravity of his conduct, very serious as it was, nor the level of danger which it indicated required the court to impose a life sentence of imprisonment. In terms of the sentencing levels identified in Kahar, we consider that this case falls at the lower end of level 3 or the top of level 4. In our view, both the gravity of the offence and the need to protect the public would adequately be met by a very long but determinate extended sentence.
89. We therefore grant leave. We quash the life sentence passed on count 2 and substitute for it an extended sentence with a custodial term of 20 years and an extension period of 5 years. To that extent, the appeal is allowed.

(3) AYMAN SHAUKAT AND LORNA MOORE

90. Ayman Shaukat, Lorna Moore and others were engaged in terrorist activity in Walsall through a group known as Islam Walsall, an association with extremist links. Several members of the group travelled, or attempted to travel to Syria between July and December 2014 to fight for IS:

i) On 24 February 2016 at the Central Criminal Court before HH Judge Wide QC and a jury, Shaukat was convicted of two offences under s.5 of the Terrorism Act 2006.

ii) Lorna Moore was convicted of an offence under s.38(b)(1)(a) of the Terrorism Act 2000, by failing to disclose information about acts of terrorism.

iii) Two of the co-accused, Alex Nash and Kerry Thomason, pleaded guilty to counts under s.5. The role of Nash is set out at paragraphs 100-101 below. Thomason, who knew her husband, Siadatan, another member of Islam Walsall, was going to Syria, assisted him, but was herself stopped from going.

iv) On 23 May 2016, Shaukat was sentenced to an extended sentence of 15 years, comprising a custodial term of 10 years and an extension period of 5 years.

v) Moore was sentenced to 2½ years imprisonment. Nash was sentenced to five years with the further year's licence pursuant to s.236A of the CJA 2003. Thomason (who was found to be within level 6 of Kahar) was given a 2 year suspended sentence with a supervision requirement.

Their applications for leave to appeal against sentence have been referred to the Full Court by the Registrar.

Shaukat

91. Shaukat was born on 16 May 1988 and was 27 years of age at the time of the trial. He had completed a law degree at Coventry University and was employed as a customer services agent for Equity in Finance Ltd in Wolverhampton. He had committed some minor offences of dishonesty which the judge did not consider relevant to sentencing.

Moore

92. Moore was born on 23 March 1982 and grew up in Northern Ireland; she attained a number of GCSE and A Level qualifications before attending Manchester Metropolitan University and graduating with a degree in childhood studies. Prior to her conviction she worked in a number of childcare roles, and was of good character.
93. Moore met her husband Sajid Aslam in 2000 while studying in Manchester. She converted to Islam in 2002, adopted the name Ayesha and married in 2003. They then had two children. It was through Aslam that she later became associated with Islam Walsall.
94. She contended that the marriage was a difficult one and that she was subjected to various forms of domestic abuse over the years. She claimed that at one stage the relationship broke down completely due to Aslam's bullying and controlling behaviour. He moved out, but they subsequently reconciled and had a third child in 2013, when she was working as a trainee maths teacher.

The activities

95. The case against Shaukat was that he was at the centre of Islam Walsall; he acted as an organiser and facilitator. The case against Moore was that she was a trusted member of Islam Walsall who failed to tell the police of her husband's departure for Syria to fight for IS.

The arrangements for the travel of Aslam, Moore's husband, to fight for IS

96. On 23 August 2014 Shaukat drove Sajid Aslam, a fellow member of Islam Walsall and the husband of Lorna Moore, from Walsall to Stansted Airport, from where he flew to Istanbul on 23 August 2014. Aslam left his computer and a disc with extremist literature in Shaukat's care. Aslam travelled from Turkey to Syria to fight for IS. He subsequently informed Shaukat via coded message that he had successfully entered Syria. The two remained in coded contact for a period thereafter.
97. After Aslam's departure, Shaukat handed over some of Aslam's belongings to Moore. Moore was also in contact with Aslam. Moore sought passports for her children and on 3 November 2014 booked flights to Majorca for 15 November; the prosecution contended this was a pretext for a journey to Syria. She had received a text message from Nash, another member of Islam Walsall, saying "see you there".
98. Moore contended that she was unaware of her husband's intention and believed he was going to teach English in a refugee camp in Turkey. She gave a witness statement to police to this effect. She also contended he was controlling and abusive.
99. Moore's house was searched by police on 11 November 2014, and a number of mobile phones associated with members of Islam Walsall were recovered. A number of matters were put before the jury to demonstrate that she knew he was going to Syria. These included an audio recording of a conversation between Moore and Aslam from February 2010, in which they discussed the validity of her calling the police if he abused her, and the following exchange took place:

"ASLAM: what do you mean?

MOORE: Like, for example, what you are always talking about, fighting

ASLAM: yeah

MOORE so if she goes to non-believing police and says something about that, then I would say that's not the correct thing to do. But if the women, if a woman is being verbally abused, not treated very nicely, then I would say that she is allowed to seek help when she needs. If she is living in a non-believing country then she has to go to non-believing cops."

Also included was a letter which Aslam had written to their son which told him to seek from his mother, Moore, the explanation for his leaving.

The arrangements for Nash

100. On 4 November 2014 Shaukat drove Nash and his wife Yousma Jan to Birmingham Airport so that they could fly to Turkey. Nash subsequently attempted to enter Syria through an elaborate plan, but was intercepted at the border and deported by the Turkish authorities. The judge concluded that Nash was dedicated to the cause of violent jihad.
101. Following their departure from Birmingham, Shaukat informed Nash's landlord that they would not be returning and removed the remaining items of value from their house to the Walsall Islamic Centre. Shaukat and Nash remained in contact while the latter was in Turkey, and Shaukat advised him to be careful when communicating via mobile phone.

Other evidence in respect of Shaukat

102. Following Shaukat's arrest various materials related to extremism were recovered from his phone and home. These included a photograph of himself in his bedroom in front of a flag associated with IS, a number of e-books on how to serve and participate in Jihad ...including 39 ways to serve and participate in Jihad and 44 ways to support Jihad by Anwar Al Awlaki), an image of a mock-up of an IS passport, and a hard copy of a publication entitled "The Modern Rules of Engagement" by the leader of the Taliban.
103. Communications between Shaukat and an unknown woman from August 2014 were also recovered, in which he sent items related to IS in Syria and described his modus as being "to radicalise and incite".
104. It was contended on Shaukat's behalf that he had played only the most minor of roles in facilitating the terrorist acts of others, and that he was a well-loved figure in his community with no relevant convictions. Several witnesses spoke to affirm this, describing his kindness to individuals and the community at large. There was evidence from Dr Mohamed El Sharkawy, the Imam at Wandsworth Prison (who had a responsibility for Shaukat after his remand into custody until his move to another prison in September 2016), that he was eager to learn and did not have extremist views.
105. The judge was provided with many references for Moore as well as a pre-sentence report. She denied in conversation with the writer of the report any knowledge of Aslam's intentions or his beliefs. She denied she had any extremist views. She was assessed as posing a medium risk of causing serious harm.

`The sentences passed

106. The judge held that the acts that made up the offence "were committed in the context of [Shaukat] being a supporter of terrorist acts, in the form of violent jihad". He also found that Shaukat was an intelligent man, skilled in deception and adept at expressing himself differently depending on the audience; he was the person who could be relied upon to help and be trusted not to tell. His mind-set was his commitment to violent jihad and offered his continuing support to those who had gone to fight. Although the judge paid careful attention to the views of Dr El Sharkawy, these did not displace the evidence he had before him. Shaukat knew that Aslam had got to Syria and joined in the fighting. The judge emphasised that the level of criminality was determined by the seriousness of the terrorist activity that he assisted with. On the levels set out in Kahar, Aslam's offending fell within level 4, Nash within level 5, and Shaukat on the cusp between the two. The judge also concluded on the evidence that Shaukat was a dangerous offender. He imposed on Shaukat a custodial term of 10 years and an extension period of 5 years.
107. The judge found that Moore "knew perfectly well of [her] husband's dedication to terrorism in the form of violent jihad." He concluded that she was not vulnerable, but rather a "strong character" who had told a series of lies during the trial about the ongoing nature of her relationship with her husband and the events leading up to his departure. The conversation from February 2010 clearly demonstrated her knowledge of his character and her own attitude to informing on such matters. She had deceived to cover up her true mind-set towards violent jihad. He sentenced Moore to a custodial sentence of two and a half years.

Shaukat: grounds of appeal and conclusion

108. It was contended on behalf of Shaukat that he was not dangerous, that the custodial term was too long and there was disparity between the sentence passed on him and Nash and Thomason.
109. It was submitted that the judge had been wrong when assessing the culpability and harm caused to take into account not merely the assistance Shaukat had given, but the judge's view that he was he was a supporter of violent jihad. The judge had overestimated his importance in the group. The judge had wrongly placed the offending at the cusp of level 4 and 5; he should have assessed the level by reference to the help given, not to what the person assisted had done subsequently. An attempt was made to compare and contrast the facts in other cases.
110. We were provided with a further report from Dr El Sharkawy and reports from the prison at which he was serving his sentence.
111. We have considered Shaukat's culpability in the light of the arguments advanced. The judge had the benefit of hearing the evidence at the trial and was entitled to infer from all the evidence that Shaukat was at the centre of the activities of Islam Walsall that supported the activities of IS. He was entitled on the evidence before him to find that Shaukat knew that Aslam had gone to Syria, joined in the fighting and was a dedicated terrorist fighter; the same would have been true of Nash had he not been intercepted.
112. The judge was right in taking into account his mind-set both in the assessment of his culpability and in the assessment of dangerousness. There was ample evidence to support the findings in relation to his commitment to IS, violent jihad and extremism.
113. There was no disparity. There was evidence that Shaukat had exercised influence over Nash who had the benefit of a guilty plea. The position of Thomason was in no way comparable.
114. There was, in our judgement, more than sufficient evidence before the judge on which he was entitled to conclude that Shaukat was dangerous; that evidence included his dedication to the cause of violent jihad, the assistance had had given and his considerable ability to deceive. We have carefully considered the further report from Dr El Sharkawy that has been put before us. Although it is more detailed than the report put before the judge, it does not in our judgement displace the clear evidence before the judge of the danger that Shaukat poses.
115. The application for leave to appeal is refused.

Moore: grounds of appeal and conclusion

116. It was contended on behalf of Moore that the judge had not assessed correctly the information that he had in relation to terrorist activity and therefore he had imposed too harsh a sentence. He had not accorded sufficient weight to her personal dilemma of loyalty to her husband and had wrongly assessed her as a strong character. He had not sufficiently taken into account the effect of imprisonment on her three young children.
117. We can see no basis for the contention that the judge had wrongly assessed her state of knowledge of her husband's activities given the verdict of the jury, her mind-set and her strength of character. The information she had was significant bearing in mind the finding that her husband was to her knowledge going to Syria to fight for IS. The sentence passed fully took into account her previous good character and the position of her children. There are no arguable grounds of appeal and the application is accordingly refused.