Barot v R

A discretionary life sentence may be imposed for a very serious offence where there are good grounds for believing that the offender will remain a serious danger to the public for an indeterminate period. Sustained ideological extremism directed towards mass murder may establish that continuing danger.

When fixing the minimum term, public protection is already secured by the life sentence and must not inflate the punitive term. For terrorist attempts and conspiracies to commit mass murder, seriousness depends on culpability and intended or foreseeable harm. A 40-year minimum term should ordinarily be reserved for a serious, viable attempted mass murder causing no physical harm. A conspiracy falling short of attempt, especially where implementation or success was uncertain, requires a significantly lower term.

The appellant pleaded guilty in the Crown Court at Woolwich to conspiracy to murder. He had prepared detailed proposals for terrorist attacks in the United Kingdom and the United States, intended to secure approval and support from Al Qaida or an associated organisation. He was sentenced to life imprisonment with a minimum term of 40 years.

He appealed on the grounds that a discretionary life sentence was wrong in principle and that the minimum term was manifestly excessive. The appeal required the court to assess the significance of the technical viability and likely implementation of an unexecuted terrorist conspiracy, and to give sentencing guidance for terrorist attempts and conspiracies to commit murder.

1. Appeal allowed in part. The discretionary life sentence was upheld, but the minimum term was reduced from 40 to 30 years, less time served on remand.
2. For offences committed before 4 April 2005, a discretionary life sentence required a very serious offence and good grounds for believing that the offender would remain a serious danger to the public for an indeterminate period. The appellant’s prolonged commitment to extremist terrorism and mass murder justified that conclusion. A relevant continuing danger was not confined to psychiatric or medical conditions: see Attorney General’s Reference No. 32 of 1996 (Whittaker) [1997] 1 Cr App R (S) 261.
3. The purposes of sentencing in Criminal Justice Act 2003 section 142 were declaratory of the previous law. Public protection was secured by the indeterminate sentence and could not increase the minimum term. Seriousness depended on culpability and the harm caused, intended and foreseeably capable of being caused under section 143(1). In an inchoate terrorist offence, the court should begin with the sentence appropriate if the intended objective had been achieved, while assessing realistically the likelihood of implementation and success.
4. The earlier guidance in R v Martin [1999] 1 Cr App R (S) 477 required revision for contemporary terrorist mass-murder cases. A life sentence with a 40-year minimum term should ordinarily be the maximum where a terrorist, after trial, made a serious attempt by a viable method but caused no physical harm. A conspiracy which fell short of attempt required a lower sentence. Where implementation or success was uncertain, the reduction should be significant. Leadership, role, and appropriate credit for a guilty plea remained material.
5. The sentencing judge was entitled to regard the appellant as the leader of a grave conspiracy directed at indiscriminate mass murder. However, the Gas Limos project was technically deficient, there was no evidence that it had received the necessary endorsement, and there was uncertainty whether it would have been attempted or succeeded. Those matters required a 30-year minimum term, including approximately 10 per cent credit for the late guilty plea.

• Court of Appeal (Criminal Division) — allowed the sentence appeal to the extent of reducing the minimum term from 40 years to 30 years: [2007] EWCA Crim 1119.
• Crown Court at Woolwich — on 7 November 2006, following a guilty plea to conspiracy to murder, imposed life imprisonment with a 40-year minimum term.