Khan & Ors v R

In terrorism sentencing, comparative dangerousness must be assessed by the real progress of a planned attack and the risk it presents. Aspirational or boastful conversations do not safely demonstrate greater sophistication or future risk. Where offences are equally serious but one group is further from achieving its aim, that difference may mean an extended sentence adequately protects the public and an indeterminate sentence is unjustified.

Sentencing for conduct in preparation for terrorism remains fact-specific. It must reflect culpability, harm, punishment, deterrence and incapacitation. For possession of terrorist articles, the court must sentence the admitted offence, rather than unproved wider criminality inferred from surrounding circumstances.

Five appellants appealed sentences imposed by Wilkie J at the Crown Court at Woolwich after guilty pleas arising from terrorist activity by groups based in Stoke, Cardiff and London.

Three Stoke defendants pleaded guilty to conduct in preparation for acts of terrorism contrary to section 5 of the Terrorism Act 2006. They received sentences of detention or imprisonment for public protection. Omar Latif pleaded guilty to a more limited section 5 offence and received an extended sentence. Mohibur Rahman pleaded guilty to possessing editions of Inspire for a terrorist purpose and received five years’ imprisonment.

The central issues were whether the Stoke defendants’ plans justified indeterminate sentences by reason of greater dangerousness, whether Latif’s sentence was excessive, and whether Rahman’s sentence properly reflected his admitted possession offence.

1. The appeals were allowed in part. The court quashed the detention or imprisonment for public protection imposed on Khan, Shahjahan and Hussain. Although persons convicted of this kind of terrorist offending could properly be assessed as dangerous, the evidence did not safely support a distinction in future risk between the Stoke and London groups.

   The Stoke plan involved potentially grave long-term consequences. It was nevertheless less advanced and faced substantial practical obstacles. Where the judge had treated the two groups’ offending as equally serious, the public risk could not be greater for those further from achieving their apparent aim. Comparative sophistication could not safely be inferred from monitored conversations, since self-publicists may exaggerate while more serious plotters may speak less openly. Extended sentences with five-year extension periods adequately protected the public.

2. The court substituted an extended sentence of 22 years and eight months for Shahjahan, comprising 17 years and eight months’ custody and a five-year extension. Khan and Hussain each received extended sentences of 21 years, comprising 16 years’ custody and a five-year extension. The 30-year notification requirements under the Counter-Terrorism Act 2008 continued to apply.

3. The court restated that sentencing under section 5 of the Terrorism Act 2006 is fact-specific because the offence covers conduct ranging from activity close to an attempt to conduct only just crossing into criminality. Culpability and harm remain central. In the most serious terrorism cases, punishment, deterrence and incapacitation are the principal purposes. Earlier sentencing authorities predating Schedule 21 to the Criminal Justice Act 2003 provide no present benchmark.

4. Latif’s appeal was dismissed. The finding of dangerousness and the extended sentence were justified on the admitted facts. His sentence was neither wrong in principle nor manifestly excessive. There was also no basis to interfere with the forfeiture order.

5. For Rahman, section 57 of the Terrorism Act 2000 required reasonable suspicion that he intended the articles to be used for the commission, preparation or instigation of terrorism. The surrounding evidence supported that conclusion. However, sentence had to remain confined to the admitted possession offence, not wider inferred criminality. Following the reduction of the Stoke defendants’ sentences, his sentence was reduced to four years and six months, with a consequent ten-year notification period.

• Court of Appeal (Criminal Division) — in Khan & Ors v R, [2013] EWCA Crim 468, allowed the sentence appeals of Khan, Shahjahan and Hussain to the extent of replacing their indeterminate sentences with extended sentences; allowed Rahman’s appeal by reducing his sentence; and dismissed Latif’s appeal.
• Crown Court at Woolwich (Wilkie J) — on 9 February 2012 imposed detention or imprisonment for public protection on Khan, Shahjahan and Hussain, an extended sentence on Latif, and five years’ imprisonment on Rahman following guilty pleas.