Dart & Ors v R

For sentencing under section 5 of the Terrorism Act 2006, the court should begin with the notional sentence for the terrorism intended to be carried out. It must then assess the factual nexus between the preparatory conduct and that intended terrorism. Sentences must punish, deter and incapacitate, while remaining proportionate.

Intended terrorism abroad is not less serious for that reason. Overlap with terrorist-training offences does not prevent a charge under section 5, and the maximum for training does not cap sentence for a properly charged section 5 offence. Absence of an imminent threat does not preclude dangerousness. A late plea warrants more than the usual 25% discount only where unusual public benefit justifies it.

Six applicants renewed applications for leave to appeal against sentences imposed after guilty pleas to engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. There was no factual link between the proceedings, but the applications were heard together because they concerned the same broad offence and invited further sentencing guidance.

Dart had received an extended sentence after preparations to travel to Pakistan for terrorist training and subsequent terrorist activity abroad. Iqbal and Ahmed had received extended sentences. Arshad and Hussain had received determinate sentences for less serious preparatory conduct. The central issues were the correct sentencing approach to section 5, dangerousness, credit for guilty pleas, and whether the individual terms were manifestly excessive.

1. The court refused the renewed applications of Dart, Iqbal and Ahmed. It granted leave to Arshad and Hussain, allowed their appeals against sentence, quashed their original sentences and substituted terms of five years three months and three years nine months respectively.

2. Section 5(1) of the Terrorism Act 2006 requires a specific intention to commit, or assist another to commit, acts of terrorism and conduct in preparation for that intention. The intended acts may be general rather than particular. Conduct which also concerns terrorist training may properly be charged under section 5. The maximum term for section 6(2) training does not confine the sentence for a section 5 offence: applying Iqbal & Iqbal [2010] EWCA Crim 3215, the overlap is not illogical.

3. For a section 5 offence, the starting point is the notional sentence had the intended terrorism been completed. Where the intended acts are at the upper operational end, including killing or endangering life, that starting point may be life imprisonment. The court must then assess the factual nexus between the preparatory conduct and the intended acts, together with culpability, harm, deterrence, incapacitation and proportionality. Intended acts abroad are no less serious on that account.

4. The court upheld the findings that Dart, Iqbal and Ahmed were dangerous. The absence of an imminent threat requiring arrest did not answer the distinct question of dangerousness under the Criminal Justice Act 2003. The sentencing judges were entitled to assess the persistence and seriousness of the applicants’ conduct, discussions and later material, and to reach conclusions different from those in pre-sentence reports.

5. The 25% guilty-plea discounts were upheld. The pleas were not indicated at the first reasonable opportunity. The residual flexibility identified in Caley and Others [2013] 2 Cr.App.R. (S.) 47 did not justify a greater reduction merely because a lengthy trial was avoided.

6. Arshad’s nine-year notional term and Hussain’s seven-year notional term were too severe on their respective facts. The substituted terms reflected their lower-level conduct and, for Hussain, his age. Hussain’s terrorist notification period consequently reduced automatically to 10 years.

• Court of Appeal (Criminal Division): In Dart & Ors v R [2014] EWCA Crim 2158, the court refused Dart’s, Iqbal’s and Ahmed’s renewed applications. It allowed Arshad’s and Hussain’s sentence appeals and substituted lesser determinate sentences.
• Crown Court at Woolwich: Wilkie J sentenced Iqbal and Ahmed to extended sentences, and Arshad and Hussain to determinate sentences, for offences under section 5(1) of the Terrorism Act 2006.
• Central Criminal Court: Simon J sentenced Dart to an extended sentence for an offence under section 5(1) of the Terrorism Act 2006.