Jalil & Ors, R v

A provisional sentencing indication does not bind the judge beyond an express reservation that it is subject to imminent appellate authority. A sentencing range for terrorist explosive conspiracies may cease to be a valid guideline where subsequent authority and statutory changes have materially altered the sentencing context.

For jury selection, a possible challenge for cause based on apparent bias does not make a qualified potential juror ineligible for a ballot. An objection to an irregularity in selection must be taken promptly. Evidence may correct a false impression created by a defendant, and a disclosure shortcoming makes a conviction unsafe only where it has caused material unfairness.

Four defendants were involved in a major terrorist conspiracy led by Barot. Jalil, Bhatti and Ul Haq pleaded guilty to conspiracy to cause explosions likely to endanger life, contrary to section 2 of the Explosive Substances Act 1883. Shaffi was tried and convicted of conspiracy to murder.

At Woolwich Crown Court, Butterfield J imposed extended sentences. Jalil, Bhatti and Ul Haq appealed their sentences. Shaffi appealed his conviction on grounds concerning the jury ballot, bad-character evidence and non-disclosure. The Court of Appeal considered the effect of R v Barot [2007] EWCA Crim 1119 on sentencing guidance and determined whether any asserted trial irregularity rendered Shaffi’s conviction unsafe.

1. The appeals were dismissed. Butterfield J had not departed in error from a sentencing indication. His indication about the level of a determinate sentence expressly remained subject to the imminent judgment in R v Barot [2007] EWCA Crim 1119. That reservation was clear and was material because that judgment altered the relevance of the earlier sentencing guidance.

2. The range suggested in Martin [1999] 1 Cr App Rep (S) 477 could no longer be treated as a valid guideline for these terrorist conspiracy sentences. The court did not re-state an overall bracket. It held, however, that the judge correctly took account of the much greater potential for mass death and injury, the modern seriousness of terrorist offending, and the increase in time served for the gravest murders under section 269 and Schedule 21 of the Criminal Justice Act 2003. The sentences imposed were not wrong in principle or manifestly excessive.

3. The extended licence for Bhatti was justified under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The ordinary licence period would not adequately protect the public or secure rehabilitation, given the future risks associated with a person involved in a serious terrorist plot.

4. Shaffi’s conviction was safe. Any objection to jury selection was not made when required by section 18 of the Juries Act 1974. In any event, there was a ballot of 14 qualified potential jurors. Possible apparent bias was a matter for challenge for cause after ballot, not a question of qualification for the ballot.

5. The judge was entitled to admit evidence of apparently fraudulent company transactions to correct the misleading impression that Shaffi was a bona fide businessman. The court also found no material disclosure failure. Both relevant witnesses gave unchallenged evidence at trial, so any possible earlier disclosure deficiency made no difference to the safety of the conviction.

• Court of Appeal (Criminal Division): dismissed the sentence appeals of Jalil, Bhatti and Ul Haq, and dismissed Shaffi’s appeal against conviction: [2008] EWCA Crim 2910.
• Woolwich Crown Court: Butterfield J sentenced the three guilty-pleading defendants to extended sentences and, following trial, convicted Shaffi of conspiracy to murder and sentenced him to an extended sentence.