Sherif & Ors, R v

Deliberate failure to enquire, because a defendant suspects the truth and does not wish it confirmed, may provide evidence from which a jury can infer knowledge or belief. It does not itself reduce the statutory requirement to suspicion.

An offer of accommodation to a person known or believed to have committed an arrestable offence is capable of being an act for the purposes of section 4(1) of the Criminal Law Act 1967. In serious terrorism cases, the statutory maximum for failure to disclose information may be justified by the gravity of the planned or committed terrorist act. Consecutive sentences remain subject to totality where assistance to an offender adds little to the failure to disclose information.

Six applicants sought to challenge sentences imposed following offences connected with the failed terrorist attacks of 21 July 2005. Five had been convicted after trial of failures to disclose information under the Terrorism Act 2000 and, in some cases, assisting offenders under the Criminal Law Act 1967. Fardosa Abdullahi had pleaded guilty to assisting an offender.

Siraj Ali, Ismail Abdurahman and Muhedin Ali also pursued challenges to conviction. Their appeals raised, respectively, the significance of deliberate blindness to knowledge or belief, the admission of an uncautioned witness statement later adopted after legal advice, and whether an offer of accommodation by telephone could constitute an act of assisting an offender.

The central sentencing issues were the use of maximum sentences, consecutive terms, totality, personal mitigation, and credit for electronically monitored house arrest.

1. Conviction challenges. Siraj Ali’s application was refused. The judge had correctly directed that suspicion was insufficient, but that deliberately shutting one’s eyes to the obvious could be evidence supporting knowledge or belief. The direction was consistent with the approach in Westminster City Council v Croyal Grange Ltd 83 Cr App R 155.

2. Abdurahman’s conviction appeal was dismissed. The deliberate decision not to caution or offer legal advice after police officers considered he should be treated as a suspect was troubling and breached the relevant Code. However, the trial judge could find that nothing said or done had made the statement unreliable for section 76(2) purposes. After caution and legal advice, Abdurahman substantially adopted it as his account. The judge was also entitled not to exclude it under section 78 of the Police and Criminal Evidence Act 1984. There was no abuse of process because no unequivocal representation of non-prosecution, acted on to his detriment, had been established: R v Abu Hamza [2007] 1 Cr. App. R 27.

3. Muhedin Ali’s application was refused. An offer of accommodation to a fugitive is itself capable of being an act under section 4(1) of the Criminal Law Act 1967. It did not matter who initiated the telephone call in which the offer was made.

4. Sentencing. The gravity of planned indiscriminate terrorist murder could justify the five-year maximum for relevant offences under section 38B of the Terrorism Act 2000. Failures to disclose information before and after an act of terrorism were separate offences and could attract consecutive sentences. However, a consecutive term for assisting an offender required criminality additional to the related failure to disclose information.

5. The court gave modest credit for lengthy electronically monitored house arrest, following the approach in R v Glover, Cox and Issitt [2008] EWCA Crim 1782. It allowed the sentence appeals of Siraj Ali, Abdurahman, Abdul Sherif, Wahbi Mohamed and Muhedin Ali, substituting total sentences of 9 years, 8 years, 6 years and 9 months, 13 years, and 4 years and 9 months respectively. Abdullahi’s sentence of three years’ detention in a young offender institution was neither manifestly excessive nor wrong in principle, and her appeal was dismissed.

• Court of Appeal (Criminal Division): by this judgment, [2008] EWCA Crim 2653, dismissed the conviction appeal of Abdurahman and refused leave to appeal against conviction for Siraj Ali and Muhedin Ali. It allowed the sentence appeals of five applicants and dismissed Abdullahi’s sentence appeal.
• Trial court: convicted the first five applicants after trial and sentenced them for terrorism-related failures to disclose information and, where charged, assisting offenders. Abdullahi pleaded guilty to assisting an offender. The court and citation are not stated in the judgment.