Sarwar & another (Mohammed Ahmed) v R

The motives of individuals when preparing terrorist activities do not provide mitigation, but the circumstances of each case must be considered.

The appellants pleaded guilty to an offence under section 5(1) of the Terrorism Act 2006 and appealed against their sentences of 17 years and 8 months (12 years 8 months with 5 year extension period).

Their rejected basis of pleas claimed they had travelled to Syria to fight against the forces of President Assad, with no intention of causing civilian harm abroad or in the UK and they had not been actively involved in armed conflict.

During sentence, the judge went beyond the Crown's case to find the two had been involved in armed conflict, and reiterated that the decision in Dart and Others [2014] EWCA Crim 2158 meant it made no difference to the gravity of the offence that the appellants' intentions were to be achieved abroad rather than the UK.

At appeal, the appellants accepted that section 5 has a broad remit as affirmed by R v Gul [2013] 3 WLR 1207, but argued their actions were less blameworthy because of national and international opposition to President Assad's regime.

The Court noted the absence of sentencing guidelines for this offence and the need to take into account the individual circumstances of each case. This includes the factual nexus between preparatory acts and potential acts of terrorism. (Dart and Attorney General's Reference No.7 of 2008 [2008] EWCA Crim 1045.)

Section 1 of the Terrorism Act 2000 defines terrorism broadly and there is no provision for reasonable excuse in the statute. In R v F [2007] 2 Cr App R 3, Lord Judge commented that this includes acts preparatory to terrorism intended to overthrow tyrannous regimes, stating "[T]errorism is terrorism, whatever the motives of the perpetrators."

Held:
The Court of Appeal was not prepared to regard "noble cause" terrorism as a mitigating factor during sentence.

The acts of the appellants clearly came within the statutory definition of terrorism and there is no basis in law for considering the justification of their motives. This includes taking into account the UK Government's international position, as it would mean straying into areas of policy consideration outside the court's legal remit.

The Court considered the need to look at preparatory acts and their nexus to the actual acts that transpired abroad, including future circumstances where the terrorist activity abroad is greater than that prepared for in the UK.

In the meantime, an examination of what occurred abroad would be consistent with the observations of Lord Phillips CJ in Rahman and Mohammed [2009] 1 Cr App R (S) 70 that care should be taken to ensure sentences under the terrorist legislation are not disproportionate to the facts of a particular offence.

Although the appellants' section 5 submissions were rejected, a reduction in sentence was justified in all the circumstances including the fact that the sentencing judge should not have rejected the basis of plea without holding a Newton. The sentence was reduced to 15 years and 3 months, comprising a custodial term of 10 years and 3 months and an extension of 5 years.

Appeals allowed