Kahar & Ors, R v

The Court of Appeal provided guidance for sentencing section 5 Terrorism Act 2006 offences.

In the absence of Sentencing Council guidelines, the Court of Appeal (Court) provided detailed guidance for sentencing s.5 Terrorism Act 2006 offences.

Section 5 makes it an offence for someone, with the intention of committing acts of terrorism or assisting others to commit such acts, to engage in conduct in preparation for giving effect to that intention.

Section 5 is a ‘specified violent offence' within Chapter 5 of the Criminal Justice Act 2003 and carries a maximum sentence of life imprisonment.

Held

1. Upon being invited to rule on the issue by one of the Applicants, the Court would not interfere with the discretion of the CPS to charge under section 5 where other offences could be charged instead.

2. The Court decided that a number of factors will affect likely sentence. The two principal factors are culpability, part of which will often be the level of proximity to carrying out the act, and the level of harm, or potential harm. Other considerations include [full list at paras 14-23]:

• A distinction between intent to endanger life and merely an intent to endanger property
• Whether conduct threatened democratic government
• That usually the aim will be to punish and deter
• There is no distinction between acts committed in the UK or overseas
• Degree of planning and sophistication involved
• Period of time the individual was involved
• Depth and extent of radicalisation (both of the offender and the extent to which he has radicalised others)

3. In mitigation, consideration should be given to the vulnerability of the individual, the extent to which they were groomed and any voluntary disengagement. Fighting for a just cause will not provide mitigation.

4. The sentencing judge will need to consider dangerousness and whether a life sentence should be passed following principles in R v Saunders [2013] EWCA Crim 1027.

5. The Court sets out levels of offending from 1 to 6 [paras 29-36]. Level 1 attracts life sentences with minimum terms of 30 – 40 years and includes where the offending includes multiple attempted murders or a conspiracy to commit similar acts that was likely to succeed. At the lower end, Level 6 encompasses offenders who never get far in their plans and were never likely to get far in their plans, and minor roles in intended acts at the lowest end of seriousness. Here sentences range from 21 months to 5 years.

6. Whatever the sentence, notification will apply along with forfeiture orders, when relevant.

The appeals against sentence were variously allowed and dismissed.