Sentencing for concealing terrorist information

From The TimesFebruary 11, 2009

Sentencing for concealing terrorist information
Court of Appeal, Criminal Division
Published February 11, 2009
Regina v Sherif
Regina v Ali (Siraj)
Regina v Ali (Muhedin)
Regina v Mohamed
Regina v Abdurahman
Regina v Abdullahi
Before Lord Justice Latham, Mr Justice Openshaw and Mr Justice Burnett
Judgment November 21, 2007

The seriousness of terrorist activity about which a defendant failed to give information, rather than the extent of the information that could have been provided, was what determined the level of criminality which had to be reflected in the sentence.

Section 21(4) of the Criminal Justice and Immigration Act 2008, which introduced section 240A into the Criminal Justice Act 2003, gave credit against sentence of half the number of days spent when a defendant had been subject to an electronically monitored curfew of at least nine hours a day.

The Court of Appeal, Criminal Division, so stated in a reserved judgment when: refusing Siraj Ali and Muhedin Ali leave to appeal against their convictions, dismissing the appeal against conviction by Ismail Abdurahman and allowing appeals against sentence by Abdul Sherif (assisting an offender, count 12, and failing to give information post-event, count 20), Siraj Ali (prior-knowledge offences, counts 1 and 2, post-event offences, counts 14 and 15, and assisting an offender, count 11), Muhedin Ali (assisting an offender, count 12, and failure to give information post-event, counts 26 and 27), Wahbi Mohamed (prior-knowledge offences, counts 5, 6, 7 and 8, assisting an offender, counts 12 and 13, and failing to give information post-event, counts 22, 23, 24 and 25) and Ismail Abdurrahman (assisting an offender, count 12, and failing to give information, counts 16, 17, 18 and 19) against the maximum terms, imposed consecutively, by Judge Worsley, QC, in Kingston upon Thames Crown Court on February 4, 2008, but dismissing the appeal against sentence by Fardosa Abdullahi.

The offences related to prevention of the commission of an act of terrorism and securing arrest contrary to section 38B(2) of the Terrorism Act 2000, inserted by section 3 of the Anti-terrorism, Crime and Security Act 2001, and section 38(1)(a) and (b) of the 2000 Act and assisting an offender with intent to impede arrest or prosecution contrary to section 4(1) of the Criminal Law Act 1967.

Siraj Ali’s 12-year sentence was reduced to nine years, 479 days had been spent under house arrest. Ismail Abdurahman’s 10-year sentence was reduced to eight years. Abdul Sherif’s 10-year sentence was reduced to six years and nine months, 467 days had been spent under house arrest. Wahbi Mohammed’s 17-year sentence was reduced to 13 years, 304 days had been spent under house arrest. Muhedin Ali’s seven-year sentence was reduced to four years, 479 days had been spent under house arrest.

Mr Oliver Blunt and Mr Mark Summers for Abdul Sherif; Mr Owen Davies, QC for Siraj Ali; Mr Charles Bott, QC and Mr Christopher Henley for Muhedin Ali; Mr David Spens, QC for Wahbi Mohamed; Mr John King and Miss Anne Faul for Ismail Abdurahman; Mr Jo Cooper, solicitor, for Fardosa Abdullahi; Mr Max Hill, QC and Ms Emma Gargitter for the Crown.

LORD JUSTICE LATHAM, giving the judgment of the court, said the fact that Parliament had passed the 2008 Act should be reflected in the court’s consideration of the appeals against sentence.

Four of the appellants had been under house arrest. Issues of principle raised in the appeals against sentence included whether the judge had been right to impose the maximum sentence on so many counts.

Although the enormity of the crime and the risk those bombers posed to public safety until their arrest, was capable, in appropriate circumstances, of justifying the imposition of the maximum sentence to either, and even to both limbs of section 38B of the 2000 Act, as inserted, it was the seriousness of the terrorist activity about which a defendant failed to give information which would determine the level of criminality rather than the extent of the information which could be provided, which would affect the sentence.

The other issue of principle of importance concerned the imposition of consecutive sentences. There was nothing wrong in principle with imposing consecutive sentences where both limbs of section 38B were charged.

The failure to give information before the act, arguably the more serious offence and the failure to given information afterwards, were separate offences.

But where the offence of assisting an offender was charged, as here, care needed to be taken to ensure that there was criminality over and above the failure to inform, if a consecutive sentence was to be justified.

When refusing the application by Muhedin Ali for leave to appeal against his conviction, the court stated that, on an ordinary construction of the wording of section 4(1) of the 1967 Act, the making of an offer of accommodation was “an act,” even if it was made over the telephone, whether or not the person making the offer made or received the call.

Solicitors: Arani & Co, Southall; McCormacks; Powell, Spencer & Partners; AA Mirsons; DK Fisher; TNT Solicitors; Crown Prosecution Service.