Sarwar & Anor v R

For sentencing an offence of preparation of terrorist acts, the fact that the intended terrorism was to occur abroad does not reduce the offence’s gravity. The court should start with the sentence for the intended acts if achieved, then assess the factual nexus between the domestic preparation and the intended terrorism.

Terrorism undertaken for an assertedly just or politically supported cause does not mitigate sentence. The absence of intended action against United Kingdom forces is an absence of aggravation, not positive mitigation. A judge may not reject a basis of plea that is not manifestly false without a Newton hearing.

Sarwar & Anor v R concerned two appellants who pleaded guilty to preparing terrorist acts contrary to section 5 of the Terrorism Act 2006. They had travelled to Syria after extensive planning and had been involved in armed activity near combat zones.

At Woolwich Crown Court, the judge imposed extended sentences of 17 years and 8 months, comprising 12 years and 8 months’ custody and a five-year extension period. The judge found that each appellant had engaged in active combat, despite bases of plea denying combat and the Crown advancing its case on the lesser basis of armed activity close to combat.

The appeals challenged both dangerousness and the length of the custodial terms. They raised whether overseas terrorism, an assertedly humanitarian or anti-Assad purpose, and the absence of intended domestic attacks reduced culpability.

1. The appeals were allowed. The extended sentences were reduced to 15 years and 3 months, comprising custodial terms of 10 years and 3 months plus five-year extension periods.
2. Preparation under section 5 of the Terrorism Act 2006 is committed in the United Kingdom, but the intended terrorism may be abroad. Following Dart and others [2014] EWCA Crim 2158, that location does not reduce the gravity of the offence. The appellants’ guilty pleas accepted that their intended conduct met the statutory definition of terrorism. That definition can encompass violence directed at a foreign government, even where the United Kingdom supports opposition to that government.
3. The court rejected the proposition that terrorism in an assertedly noble cause mitigates sentence. The court should not determine fine and changing political questions when sentencing terrorist offending. The absence of a real prospect of fighting United Kingdom or allied forces removed a possible aggravating feature, but did not amount to mitigation. Nor did an intention to direct violence at armed forces eliminate the substantial risk of civilian collateral harm.
4. The judge was entitled to find dangerousness. Extensive planning, entrenched radicalisation, overseas travel, firearms training and armed patrols near combat zones justified an extended sentence. The absence of a planned domestic attack and the law-abiding character of the appellants’ families did not provide adequate reassurance for public protection.
5. The judge nevertheless erred by finding that the appellants had engaged in active combat. Their bases of plea were not manifestly false, and the Crown had not sought that finding. Under the Criminal Practice Direction (Sentencing) B, paras B.6–10 [2013] 1 WLR 1364, a judge could not reject the bases without a Newton hearing. The error materially aggravated sentence.
6. The proper approach was to begin with the notional sentence if the intended acts had been achieved, while assessing the nexus between the preparation and the intended terrorism. The appellants had travelled far towards combat, but did not engage in it. A 13-year starting point, reduced by 20% for the guilty pleas, produced custodial terms of 10 years and 3 months. The five-year extension periods remained appropriate.

• Court of Appeal (Criminal Division) — allowed the sentence appeals and substituted extended sentences of 15 years and 3 months: [2015] EWCA Crim 1886.
• Woolwich Crown Court — on 5 December 2014 imposed extended sentences of 17 years and 8 months for preparation of terrorist acts.