Sentencing – Causing explosions – Recusal – Sentence length – Terrorism

R v (1) Omar Khyam (2) Salahuddin Amin (3) Jawed Akbar (4) Anthony Garcia (5) Waheed Mahmood: CA (Crim Div) (Sir Igor Judge (president QB), Mr Justice Bean, Mrs Justice Dobbs): 23 July 2008

The applicants applied for leave to appeal against their various ­convictions for conspiracy to cause explosions, possession of fertiliser containing ammonium nitrate and aluminium powder for the purposes of terrorism, and the appellants (S and G) appealed against sentences of life imprisonment with minimum terms of 17 years, six months and 20 years respectively.

The applicants all held extremist jihadist views which extended to the maiming and killing of non-believers. They conspired together to cause explosions in the UK with the conspiracy extending over three continents. The object of the conspiracy was to further the cause of Islam by using violence, particularly in the UK, with proposed terrorist attacks on the London underground, nightclubs, public houses and synagogues. Following the vacation of the trial date, the president of the Queen’s Bench Division made enquiries of the trial judge as to why it had been vacated. The president informed the trial judge that the Lord Chancellor also wished to know the reasons. A justified explanation was given and the president informed the Lord Chancellor. Applications were made for the trial judge to recuse himself, which were refused, and the applicants were subsequently ­convicted. The application for ­permission to appeal raised several issues including whether the president of the Queen’s Bench Division should recuse himself.

Held: (1) Nothing in the conversations between the president and the trial judge required or justified the recusal of the president. The Lord Chancellor’s then constitutional ­position was as head of the judiciary and he was responsible to Parliament for the efficient operation of the ­criminal ­justice system. The judiciary as a whole had for some time before the vacation of the trial date been waging a ­constant battle against the culture of adjournment, with its adverse consequences for many of those involved in the criminal justice process. The postponement of the trial, long after the date had been fixed, needed to be explained not merely to the parties but, if necessary, to the public at large. In those circumstances there was no reason why the president should not have sought the information and relayed it to the Lord Chancellor.

(2) G and S’s discretionary life ­sentences were inevitable and rightly imposed. They were highly dangerous men, willing to participate in the ­infliction of wholesale death and destruction and, but for the intervention of the security services, their common objectives would have been achieved. They represented a ­continuing danger and would continue to do so for the indefinite future. The minimum term imposed on G would be reduced to 17 years, six months to reflect the fact he had not played a leadership role in the conspiracy. The minimum term imposed on S would be reduced to 16 years, nine months to make allowance for the period of detention he had been subjected to in Pakistan.

Applications refused, appeals against sentences allowed.

J Bennathan QC, M Huseyin for the applicant Khyam; P O’Connor QC, H Mullen for the applicant Amin; J Wood QC, R Harvey for the applicant Akbar; M Ryder, H Zahir for the applicant Garcia; M Massih QC, RMT Price for the applicant Mahmood; DE Waters QC, M Heywood, D Atkinson for the ­prosecution.