Aiding and abetting – Dissemination of terrorist publications – Intention – Mitigation – Sentencing guidelines

R v (1) Abdul Rahman (2) Bilal Mohammed: CA (Crim Div) (Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Goldring, Mr Justice Plender): 8 July 2008

The appellants (R and M) appealed against their sentences for terrorist offences. In relation to R, the offences included possessing an article for a purpose connected with the commission, preparation or instigation of an act of terrorism, contrary to section 57 of the Terrorism Act 2000; disseminating a terrorist publication, contrary to section 2 of the Terrorism Act 2006; and aiding and abetting contravention of the obligations of a control order, contrary to section 9(1) of the Prevention of Terrorism Act 2005.

The judge gave a Goodyear direction that the maximum sentence that would follow guilty pleas was six years’ imprisonment in total. R then pleaded guilty. The judge imposed concurrent sentences of six years’ imprisonment in respect of two of the offences and a concurrent sentence of three years’ imprisonment. M pleaded guilty to possessing a terrorist publication with a view to selling or distributing it.

In mitigation M stated, among other things, that although he was aware of the change of the law made by the 2006 act, he was uncertain of the precise nature of the change and unaware that, in selling the material, he was breaking the law. The judge did not mention that head of mitigation in his sentencing remarks. M was sentenced to three years’ imprisonment. R submitted that the judge accepted that he had had a change of heart and no longer espoused terrorism, but that when the judge sentenced him he made no reduction for that element of mitigation from the sentence originally indicated as the maximum. M submitted that he did not intend to encourage acts of terrorism and was merely reckless as to whether some of the publications might have that effect.

Held: (1) The court gave general sentencing guidance in relation to the offence of disseminating a terrorist publication under section 2 of the 2006 act. When evaluating the seriousness of the offence, it was not to be inferred that matters other than the quality and quantity of the material published were to be treated as of minor importance. They had to be given the importance that they deserved. Sections 2(7) and 2(8) were dealing with the ingredients of the offence and not with seriousness. There was nothing to warrant a departure from the ordinary approach under section 143(1) of the Criminal Justice Act 2003 to evaluating the seriousness of an offence. Whether the defendant intended dissemination of terrorist publications to encourage the commission, preparation or instigation of acts of terrorism, or was merely reckless as to such consequences was likely to be significant when assessing culpability. However, large-scale dissemination of extremist material with recklessness or indifference as to its effect was capable of being more serious than a limited dissemination with intent to encourage terrorism. The volume and content of the material disseminated would be relevant to the harm caused, intended or foreseeable. It was true that terrorist acts were usually extremely serious and that sentences for terrorist offences should reflect the need to deter others, R v Mansha (Abu Baker) [2006] EWCA Crim 2051, [2007] 1 Cr App R (S) 70 considered. However, care had to be taken to ensure that the sentence was not disproportionate to the facts of the particular offence, R v Yahya (Adel), unreported 5 November 2007 Central Crim Ct applied. The offences under section 2 were capable of varying very widely in seriousness.

(2) The judge had identified that there was authority to the effect that, where a terrorist had had a change of heart and no longer espoused terrorism, that could constitute mitigation. There was force in the submission that the judge accepted when he came to sentence that the change of heart ­mitigation had been made out, and, therefore, there should have been a reduction for that element of mitigation from the sentence originally indicated. Accordingly, the reduction was assessed at six months and the concurrent sentences of six years’ imprisonment were replaced with concurrent sentences of five years and six months.

(3) Ignorance of the law was no defence, but it could sometimes amount to mitigation. The fact that M was merely reckless as to the effect of some of the material constituted significant mitigation, but he was distributing material on a large scale. Therefore, a significant sentence of imprisonment was merited. However, because only recklessness was involved in the present case, the staring point should have been at the lower end of the sentencing range. The judge had taken as his starting point, before allowance for M’s guilty plea, a sentence of four-and-a-half years. That was a sentence closer to the top of the range. In the circumstances, the sentence imposed was excessive. A sentence of two years’ imprisonment was appropriate.

Appeals allowed.

C Aylott for the first appellant; J A R E Ward for the second appellant; B Cheema for the respondent in the application of Rahman; J G J Sharp for the respondent in the application of Mohammed.