Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 125

HCA/2016/441/XC

Lord Justice General

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST SENTENCE

by

TANVEER AHMED

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Dean of Faculty (Jackson QC), CM Mitchell; Paterson Bell (for Rafferty Wood & Co, Glasgow)

Respondent: Niven Smith AD; the Crown Agent

29 November 2016

Introduction
[1]        On 7 July 2016, at the High Court in Glasgow, the appellant pled guilty, under the procedure provided by section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge which libelled that:

“on 24 March 2016 in the shop premises at 106 Minard Road, and on Minard Road, Glasgow you ... did assault Asad Shah and did repeatedly strike him on the head and body with a knife and repeatedly stamp, kick and punch him on the head and body and you did murder him.”

On 9 August 2016, the appellant was sentenced to life imprisonment, with a punishment part set at 27 years.  This figure was discounted from a starting point of 30 years. 

[2]        The appeal raises two issues.  The first is whether the starting point for the sentence was excessive.  The second is whether the discount afforded was inadequate. 

Facts
[3]        The deceased was 40 years old.  He was born in Pakistan and came to Scotland in 1998, along with other members of his family, to join his parents who had been granted asylum in Scotland, having come here to avoid violence and intimidation visited upon them as a result of their membership of the Ahmadi sect of Islam.  Ahmadis differ from the majority of Muslims in their belief that Muhammad was not the final Prophet.  The sentencing judge reports that most Muslims believe that Muhammad was, as he said, the final Prophet.  Any statement to the contrary is considered by many to be blasphemous. 

[4]        The deceased owned a newsagents on Minard Road.  He was a well-known and much loved member of the local community.  He was recognised as a peace-loving man who went out of his way to show respect for those of all faiths.  However, he was accustomed to using social media and had published written and spoken material on inter alia Facebook and You Tube.  It was agreed that some of his messages were capable of being interpreted as meaning that he himself claimed to be a prophet. 

[5]        The appellant had been in Glasgow on occasions and chanced to be there on 22 March 2016, when he asked an acquaintance if he knew “Shah from Glasgow”.  He was aware that the deceased was an Ahmadi.  The appellant was shown certain Facebook entries.  He returned to Bradford the following day, stating that he would be back on the Thursday (24 March).  On that day, he drove to Glasgow.  Whilst en route he viewed further entries in social media on his mobile phone, in which the deceased had repeated his claim to be a prophet.  The appellant was heard stating, “Listen to this guy, something needs to be done, it needs to be nipped in the bud”. 

[6]        The appellant arrived at the deceased’s shop at about 9.00pm.  The deceased was working with an assistant.  His brother was in separate premises in the basement.  The appellant approached the counter.  The deceased offered his hand in greeting, but this was rebuffed.  The appellant spoke in intense terms to the deceased.  Both accessed mobile devices.  The appellant continued to speak to the deceased, repeatedly gesturing as if making a point.  At about 9.12 the appellant reached into his robes and removed a knife with which he attacked the deceased, moving behind the counter to do so.  The shop assistant attempted to intervene, but was unable to prevent the attack, which involved repeated stabbing of the deceased’s head and upper body.  The deceased managed to leave the shop, but the appellant kept hold of him and continued to stab him.  The deceased’s brother attempted to intervene.  He managed to drag his brother away, but the appellant continued his attack.  The appellant was kneeling on the deceased and pinning him to the ground.  The assistant succeeded in removing the knife, but the appellant began punching, kicking and stamping with full force on the prone body of the deceased.  The attack then ceased and the appellant walked calmly to a bus shelter nearby, where he sat and waited. 

[7]        The deceased was taken to hospital.  Despite surgical intervention, he was pronounced dead shortly afterwards.  He had sustained multiple injuries, including fractures to his nose, jaw, cheekbones and skull.  The base of his skull was fragmented in a manner most commonly seen in road traffic incidents.  There were some 30 stab wounds or lacerations, principally to the head and neck.  All were potentially life-threatening, but the immediate cause of death was the injuries to the head and neck.  The deepest wound was some 16.5cms in length. 

[8]        The impact of the death on the deceased’s wife, parents and brothers and sisters has been considerable.  Several members of the family have required medication and therapy, particularly the brother who witnessed the murder.  The death also caused great shock and distress in the local community, the country and the wider world. 

[9]        The appellant was found by the police in the bus shelter, bleeding from injuries sustained during the attack.  When interviewed under caution, he explained that his actions had been motivated by the deceased’s disrespect for “the Koran, the Prophet Muhammad, Allah and Faith”.  He maintained that he had warned the deceased that he was there to kill him.  He had asked him to stop claiming to be a prophet.  When cautioned and charged with murder shortly thereafter, he stated that he had no regrets over what he had done. 

[10]      The agreed narrative presented to the court was to the effect that the murder was motivated by the religious belief of the appellant, notably his claim that what the deceased had said had so offended his faith and his Prophet that he considered that he had a duty to kill him.  Psychiatric examination revealed no mental disorder.  The narrative also stated that the murder had been an attack of considerable brutality, which had prompted great and continuing anxiety among Ahmadis, who had suffered violent persecution elsewhere in the world. 

[11]      The appellant was 32 years of age and also born in Pakistan.  He had moved to Bradford in 2001.  He is married with three children, aged 14, 13 and 8.  He was a taxi driver.  He is a Sunni Muslim.  The sentencing judge was presented with various references of a glowing nature from members of the appellant’s local community.  The judge remarks that, although some of these suggested that what the appellant had done was out of character, none had commented adversely on the murder itself. 

[12]      It was maintained in mitigation that the appellant had not come to Glasgow to kill the deceased.  This was not accepted by the sentencing judge, given the fact that the deceased had taken a knife with him and had said to the police that he had told the deceased that he was there to kill him.  A proof in mitigation was offered, but declined.  The judge noted that the Criminal Justice Social Work Report made very disturbing reading, in that the appellant continued to believe that what he had done had been justified.  It stated, in particular, that the appellant had exhibited no remorse.  Rather, he stated that he had not regretted murdering the deceased and that, if similar circumstances arose in the future, he was prepared to kill again. 

[13]      In her sentencing statement, the judge described the murder as barbaric, premeditated and wholly unjustified.  It had involved an appalling display of merciless violence.  It had resulted from intolerance and had led to the death of an innocent man who, although expressing different beliefs, had an understanding and tolerance of others.  In her report, the sentencing judge said that:

“... I took the view that, having regard to all the factors put before me, an exemplary sentence ought to be imposed in this case.  In the current climate there are very serious concerns by the public at extremist views, based on beliefs of any particular faith.  While I accept ... that this was not a religiously aggravated crime in terms of the legislation, nor was it motivated by hatred or prejudice against a particular religious group, it was a religiously motivated crime because the deceased did express views which were different to those of the appellant and he saw fit to travel from a different jurisdiction with the intention of depriving [the deceased] of his life simply because he expressed a different religious view.  I accept that the appellant and others are entitled to hold any belief they wish.  They are not, however, in a civilised country, entitled to execute those who disagree with that view.  This was, in my view, one of those rare cases where a clear message had to be sent that such conduct based on religious intolerance would be dealt with severely.  That was my primary reason for imposing what I consider had to be an exemplary sentence.”

Submissions
[14]      The appellant submitted that the starting point selected by the sentencing judge was excessive.  The appellant had accepted his guilt immediately and had not sought to evade the authorities.  He had been fully compliant with the investigation.  He had authorised his law agent to state publicly that the murder was not caused by any antipathy towards the Christian community or any other religious faith.  This, it was said, had been important in order to quell speculation and further possible violence. 

[15]      The appellant was a first offender, a family man and had the benefit of glowing references.  Although the offence was religiously motivated, it had not been religiously aggravated.  In these circumstances, the offence fell to be considered along with other similar sentences in high profile cases.  These had been significantly less than those imposed here.  Reference was made to HM Advocate v Fraser, 30 May 2012, Lord Bracadale; HM Advocate v Pacteau, 8 September 2015, Lady Rae; HM Advocate v Leatham, 12 October 2016, Lady Rae; and HM Advocate v Coulter, 31 October 2016; all unreported. 

[16]      Secondly, it was submitted that the discount afforded did not represent the utility to the criminal justice system.  The appellant had stated an intention to plead on the day after his first appearance in court.  There had been some delay in formally recording that, but that was because of enquiries required by the Crown.  The trial judge had indicated that, in view of the circumstances, the utilitarian benefit was limited.  The trial would have been, according to the judge, a short one.  However, there had been no need for a preliminary hearing, no need for the citation of witnesses.  No court time had been allocated for a trial.  Accordingly, the judge had erred in affording the limited discount which she had.

Decision
[17]      The function of this court is to determine whether the punishment part of the life sentence selected by the sentencing judge was excessive in the sense of constituting a miscarriage of justice.  This was a murder of a most extreme kind.  It was premeditated and motivated by religious intolerance.  The victim was a stranger to the appellant.  He had an extended family whose members have suffered an acute sense of loss.  The deceased was a well-loved member of the local community.  The impact of the appellant’s actions have been felt in that community and the wider world.  Having regard to the nature of the crime and the sentencing judge’s careful reasoning, which has been quoted above, the court is not satisfied that the starting point of 30 years was excessive. 

[18]      In HM Advocate v Boyle 2010 SLT 29, it was said that discounts in murder cases should not normally exceed one-sixth and should not be greater than 5 years.  In this case it was less than that.  However, it is important to bear in mind that affording a particular discount is not a matter of entitlement, but one for the discretion of the sentencing judge (see Gemmell v HM Advocate 2010 JC 223, LJC (Gill) at para [31]).  It is correct to say that the strength of the Crown case is per se not a factor which can be used to restrict the level of discount.  The utilitarian value of the plea clearly is.  In this case, the circumstances were such that, having regard to the nature of the evidence, the utilitarian value was limited and the sentencing judge was entitled to assess the discount accordingly.  The court is not satisfied that the selection of the discount has resulted in an excessive sentence which amounts to a miscarriage of justice. 

[19]      For these reasons, this appeal is refused.