Mohammed, R. v

For a murder committed before 18 December 2003, the transitional regime in the Criminal Justice Act 2003 requires the court to determine the minimum term which the former Secretary of State would probably have notified under the earlier practice. That inquiry must address the gravity of the particular offending. A co-offender’s earlier minimum term does not prevent a substantially different conclusion where it was founded on an erroneous assessment of that historic practice.

Where the transitional inquiry is decisive, modern statutory credit provisions do not require credit for pre-extradition custody abroad. The sentencing judge retains the historic discretion to allow credit. Absconding from bail and remaining abroad may aggravate the offending without amounting to double counting.

The defendant was convicted at Leeds Crown Court of eight murders and conspiracy to commit arson with intent to endanger life. The planned petrol-bomb attack killed eight members of a family, including five children, and seriously injured three survivors. Spencer J imposed life sentences with a minimum term of 23 years, less 312 days spent on remand in England.

The Attorney General referred the murder sentences as unduly lenient. The defendant sought leave to appeal, contending that his culpability was lower than that of a co-offender and that he should receive credit for 1,350 days in Pakistani custody while extradition was contested. The central issues were the likely historic minimum term under the transitional provisions and the availability of credit for custody abroad.

1. The Attorney General’s reference was allowed. The minimum terms for murder were unduly lenient. The court quashed them and substituted life sentences with a minimum term of 27 years, less the 312 days spent remanded in custody in England. The defendant’s application for leave to appeal against sentence was refused.

2. For this pre-18 December 2003 offending, paragraph 10 of Schedule 22 to the Criminal Justice Act 2003 required a two-stage exercise. The court could first assess the term under Schedule 21, but the decisive limit was the term which the Secretary of State would probably have notified under the former practice. That assessment was not controlled by the 22-year minimum term previously specified for a co-offender.

3. The earlier assessment gave insufficient weight to the cumulative seriousness of the offending: revenge and planning, eight deaths including five children, the use of dangerous weapons, and the exceptional preparation of weighted petrol bombs together with petrol poured into the house. These features placed the case within the gravest category contemplated by the historic guidance. Allowing generously for the defendant’s age, the likely notified term was not less than 27 years.

4. The court rejected the challenge based on custody in Pakistan. At the decisive historic stage, credit for custody abroad pending extradition was discretionary. The modern credit provisions did not displace that inquiry. There was no reason to conclude that either a sentencing judge or the Secretary of State would have exercised the discretion in the defendant’s favour, particularly given his prolonged absconding and contested extradition.

5. There was no double counting. Absconding from bail and remaining outside the jurisdiction were aggravating features independently of the refusal to credit custody abroad.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 766, allowed the Attorney General’s unduly lenient sentence reference, substituted a 27-year minimum term for the murder sentences, and refused the defendant leave to appeal against sentence.

• Crown Court at Leeds: Spencer J sentenced the defendant after convictions for eight murders and conspiracy to commit arson with intent to endanger life. Life sentences with a 23-year minimum term were imposed for the murders.