Kahar & Ors, R v (Rev 1)

An offence under Terrorism Act 2006, section 5 is broad. It requires a specific intention to commit or assist acts of terrorism and conduct preparatory to giving effect to that intention. A terrorist cause said to be just or noble does not mitigate sentence.

Sentencing must reflect culpability, proximity to the intended acts, the harm intended or foreseeably caused, and the wider public impact. The court established six sentencing levels, ranging from life sentences with very long minimum terms for near-completed multiple-murder plots to short determinate sentences for the least serious preparatory conduct. Radicalisation, dangerousness, planning, assistance to others and disengagement may materially affect sentence.

The court heard a reference by the Attorney General concerning the sentence imposed on Mohammed Abdul Kahar and appeals or renewed applications concerning Brusthom Ziamani, Abdurraouf Eshati, Yahya Rashid, Silhan Ozcelik and Sana Khan.

The cases involved offences under the terrorism legislation, principally preparation of terrorist acts under section 5 of the Terrorism Act 2006. The individual challenges concerned sentence, save that the Attorney General contended that Kahar’s overall sentence was unduly lenient.

Because detailed public sentencing guidance for section 5 offences was lacking, the court convened a five-judge court. It considered the proper approach to sentencing across the full range of preparatory terrorism offending, including conduct directed at acts in the United Kingdom and abroad.

1. Sentencing guidance. The court gave guidance pending a Sentencing Council guideline. Section 5 covers a very broad range of offending. Sentence must reflect culpability, principally measured by proximity and commitment to the intended acts, and the intended or foreseeable harm, including the wider impact on the public.
2. General principles. Terrorist offending threatens democratic government and state security. Its principal sentencing purposes are punishment, deterrence and incapacitation. The starting point is generally the sentence for the intended substantive act. An intended murder is no less serious because it was to occur abroad. A purportedly noble or just cause is irrelevant to mitigation: see R v F [2007] EWCA Crim 243 and Sarwar & Ahmed [2015] EWCA Crim 1886.
3. The six levels.
   • Level 1 normally attracts life imprisonment with a minimum term of 30 to 40 years or more.
   • Level 2 normally attracts life imprisonment with a minimum term of 21 to 30 years, or a very long determinate sentence with a five-year extension.
   • Level 3 attracts life imprisonment with a 15 to 20-year minimum term, or a 20 to 30-year or longer determinate sentence with a five-year extension.
   • Level 4 normally attracts a 10 to 20-year or longer determinate sentence and a five-year extension.
   • Level 5, where the offender is not dangerous, normally attracts five to ten years’ custody and the statutory additional licence period.
   • Level 6 normally attracts 21 months to five years’ custody.
4. Dangerousness and mitigation. The sentencer must consider dangerousness and the availability of life or extended sentences. The depth, extent and likely continuance of radicalisation are important. Vulnerability, grooming and voluntary disengagement may mitigate, but their effect is fact-sensitive.
5. Individual outcomes. The Attorney General’s reference in Kahar was allowed and his total sentence was increased from five to eight years. Ziamani’s extended sentence was reduced from 27 to 24 years, comprising 19 years’ custody and a five-year extension. Eshati’s appeal was dismissed. Rashid’s and Ozcelik’s applications were refused. Khan’s life sentence remained, but her minimum term was reduced from 25 to 23 years.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 568, the court issued general sentencing guidance and determined the consolidated reference, appeals and applications.
• Crown Court at Newcastle: Kahar was convicted of terrorism offences and sentenced to five years’ imprisonment. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988.
• Central Criminal Court: Ziamani was convicted under section 5 and received an extended sentence of 27 years; Eshati received consecutive sentences totalling six years; Ozcelik was convicted under section 5 and received 21 months; Khan was convicted under section 5 and received life imprisonment with a 25-year minimum term.
• Crown Court at Woolwich: Rashid was convicted of two section 5 offences and received concurrent five-year detention terms.