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||Neutral Citation Number:  EWCA Crim 1119
||Case No: 200606248 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Butterfield
Woolwich Crown Court
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RIGHT HONOURABLE LORD JUSTICE LATHAM
THE HONOURABLE MR JUSTICE TREACY
|| DHIREN BAROT
||- and -
Mr I. Mcdonald QC and Mr A. Bajwa for the Appellant
Mr E. Lawson QC and Mr E. Brown for the Respondent
Hearing dates : 3rd April 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Phillips CJ :
- On 12 October 2006 in the Crown Court at Woolwich before Butterfield J the appellant pleaded guilty, on re-arraignment, to conspiracy to murder. He was one of eight accused of this and other offences. On 7 November 2006 he was sentenced to life imprisonment, with a minimum term to be served of 40 years, less 2 years and 94 days already served on remand in custody. 12 additional counts under section 58 of the Terrorism Act 2000 and one count of conspiracy to cause a public nuisance were ordered to remain on the file. Since the hearing before us pleas of guilty to conspiring to cause explosions likely to endanger life have been accepted from six of the appellant's co-accused. They remain to be sentenced.
- The appellant's application for permission to appeal against this sentence was referred to this Court by the Registrar. We granted that permission at the beginning of the hearing. We did so because this appeal raises issues of principle in relation to the sentencing of terrorists who have plotted terrorist acts but have not carried them out.
- There are two grounds of appeal. The first is that it was wrong in principle to impose an indeterminate sentence. The second is that the minimum term of 40 years imprisonment is manifestly excessive.
- Early in 2004 the appellant visited Pakistan, returning on April 21st. In July 2004 a computer was found by Government officials in Gujarat in Pakistan. On that computer were detailed plans for terrorist attacks in the United Kingdom. On 3 August the appellant and a number of associates were arrested in England. Further evidence was obtained upon searching premises that they had occupied. This formed the basis of the facts opened by Mr Lawson QC for the Crown at the sentencing hearing.
- A written basis of plea was signed by Mr Lawson and by Mr Macdonald QC, counsel for the appellant. Under this the appellant accepted that he was party to the preparation of proposals for mass murder in both the United States and the United Kingdom. These proposals were prepared for the purpose of being submitted for approval and support to Al Qaida or an associated terrorist organisation. They are remarkable in form, resembling a prospectus for a business venture.
- It was the Crown's case was that the appellant was the principal architect and the author of these proposals and this was accepted by Mr Macdonald QC on behalf of the appellant. The facts that we now set out are based on passages in the prosecution's opening or the judge's sentencing remarks that have not been challenged by Mr Macdonald.
- The appellant was born in 1971 in India. His Hindu parents brought him to England in 1972, where he became a British citizen. At the age of 20 he embraced Islamic extremism. In October 1995 he went to Kotti, an area in the Kashmir region, where he attended a terrorist training camp and received instructions in the use of weapons, explosives and other terrorist related activities. In 1999 he went to the Philippines to attend another terrorist camp for two weeks, where he was trained in the use of small arms and mortars, the handling of explosives and in jungle craft.
- In 2000 he began to apply himself to preparing proposals for terrorist attacks in the United States. He visited the United States in the autumn of 2000 and again in the spring of 2001 to carry out research. The fruits of his labours were detailed descriptions and plans of a number of prominent buildings that might be suitable for terrorist attacks. These housed the headquarters of four key financial institutions: the New York Stock Exchange, Citigroup in New York, Prudential in Newark and the International Monetary Fund and World Bank in Washington. The proposals were illustrated by photographs and a video of the sites in question.
- Some work was done on these proposals as late as February 2003, but the prosecution accepted that after the events of September 11 2001, plans for terrorist activities in the United States may have been 'shelved' in favour of proposals for such activities in the United Kingdom. Those proposals were for four different types of terrorist attack. By far the most detailed was for the 'Gas Limos Project'. This proposed packing three stretch limousines with propane gas cylinders and explosives and detonating these in an underground car park. A summary commented: "Estimated casualties to be hundreds if the building collapses (Inshalla)"
- There were three subsidiary proposals, that were intended for "synchronised, concurrent (back-to-back) execution, on the same day and time. The first was described as the 'Radiation (Dirty Bomb) Proposal'. This proposed the ignition of ten thousand smoke detectors. The judge commented: "That project was, on its face, designed to achieve a number of further and collateral objectives, such as to cause injury, fear, terror and chaos. The expert evidence is that the project, if carried through, would have been unlikely of itself to cause death as opposed to causing considerable fear, panic and social disruption".
- The third plan was much less detailed. It was to bring about a major rail disaster by explosion or sabotage. One example suggested was an explosion in a tunnel under the Thames that would "rupture through to the river itself". The final proposal involved the high-jacking of a petrol tanker and using it to ram a target. This was put forward only in outline.
The judge's summary of the facts
- Dealing with the proposals that related to the United States the judge observed:
"Had it not been for the terrible events of the 11th September 2001 I have little doubt that one or more of those proposals would have become a dreadful reality. I accept that it would not have been you who carried out the attacks- that would have been the task of others. Your task was to identify the targets and the best strategy to achieve what you would have regarded as success". "
- The judge then turned to an issue as to how soon the proposals in relation to the United Kingdom were liable to be implemented. The Basis of Plea recorded:
"The Crown does not have evidence to contradict a defence contention that no funding had been received, nor any vehicles or bomb-making materials acquired, in furtherance of executing the conspiracy".
- Mr Macdonald submitted to the judge that the United Kingdom proposals were only in the early stages of preparation when the appellant was arrested. The judge took the view that the evidence was equivocal on this point, but commented:
"In my judgment it does not greatly affect the situation. Even if the execution of these plans was not to take place for some time, I am satisfied that, unless you were stopped, it was only a matter of time before the grim reality of your plans took effect". "
- The judge went on to deal with both the appellant's involvement in the conspiracy and the consequences that it would have had had it been implemented.
"It is impossible to convey in a few words the gravity of what you and those with whom you conspired, whoever they were, hoped to achieve. For years you dedicated yourself to planning the means by which you and those involved with you could slaughter hundreds, if not thousands, of wholly innocent men, women and children. This was no idle and impractical plot with little prospect of becoming reality. The detail of the planning; the care with which you concealed what you were doing, the elaborate lengths to which you went to avoid detection, and the steps you took to bring the plans to fruition, all point to a determined, sophisticated and deadly design. I have no doubt that, had your evil purpose not been discovered and thwarted, you and your gang of murderous cohorts would have brought about the terrible massacres you intended"
- At the hearing before us Mr Macdonald made no challenge to this summary of the facts. He confined his submissions in respect of these to a contention that the plan was a long way from being put into effect at the time that the appellant and his associates were arrested.
- The documents discovered by the police included one that was described as 'the 1996 document'. This contained a survey of certain London hotels and railway stations. After the hearing we had the opportunity, which we had not had before the hearing, to read, in the voluminous documentation, statements by three prosecution expert witnesses, to which our attention had not been drawn. These were annexed to a commentary, prepared by the appellant for the purpose of discounting any suggestion that the premises to which the 1996 document referred would have been suitable targets for the Gas Limos Project. As to that Mr Lawson, in opening the facts, made it plain to the judge that the prosecution had no basis for suggesting that these premises were targets for that project. It seemed to us, however, that the expert statements raised questions as to the viability of the Gas Limos Project that were not reflected in the judge's summary of the facts.
- We sent a note to counsel seeking assistance with this aspect of the case. This resulted in supplementary written submissions from Mr Macdonald that based the following submissions on the experts' evidence:
"We make the following two general points:
a) A degree of professionalism or sophistication in any crime is a factor making that offence more serious. Equally, any element of amateurishness or ineptitude in a crime will make it less serious; and
b) We submit that if a conspiracy to commit murder (even mass murder) is doomed to fail or cannot be shown to be likely to succeed, that factor must be reflected in the sentence that is passed.
2. Linking those general points to the evidence in this case, namely the witness statements of Messrs. Halliday, 'EU' and Todd, whose statement is also in the Appellant's bundle, we invite the Court to conclude that:
a) The UK Projects had many elements that were amateurish and none that were professional;
b) Whilst the UK Projects are viable, in the sense that there was potential for damage (possibly severe damage), they suffered from numerous defects that reduced the prospects of any of them being either approved or executed; and
c) Even if the UK Projects had been taken to the point of execution, there is a substantial gap between the appellant's intention and the likelihood that anything like his intention would ever have been achieved."
- No such submissions were made to the judge. Mr Lawson has provided us with some further information in relation to the expert evidence in this case. Initially the appellant's proposed Basis of Plea included the following statement:
"An assessment of the efficacy and potential of the Gas Limos and Radiation Projects is set out in the appended witness statements of three experts, David Halliday, Clifford Todd and EU. The Crown does not dispute their conclusions"
Immediately before the plea of guilty was entered the appellant, by his counsel, required that paragraph to be withdrawn from the Basis of Plea, and it was.
- Mr Lawson has observed that the appellant appeared, perhaps perversely, to wish to avoid advancing anything that detracted from the efficacy of his plans. In these circumstances Mr Lawson suggests that the points now raised in paragraphs 1 a) and 2 a) of the submissions that Mr Macdonald has submitted 'raise concerns'.
- We think it quite possible that the appellant would not have wished to invite a finding from the court that his terrorist plans were amateurish and technically defective. Difficult issues of professional etiquette may arise in relation to counsel's duty to a defendant who does not wish submissions of fact to be made that might be advantageous to his case. We are in no doubt, however, that justice required that the court should sentence the defendant on the basis of the relevant expert evidence, insofar as this was relevant.
- Mr Lawson had prepared a lengthy Opening Note, which had been disclosed to the appellant and was before the judge. This summarised at some length the evidence of the three experts in question and then suggested the conclusion that had the appellant's plan, "or any of it been executed the consequences, particularly in terms of loss of life, would have been horrendous".
- In his oral submissions to the judge Mr Lawson referred in considerable detail to the Gas Limos Project as proposed. He then referred briefly to some passages from the expert evidence, followed by the following summary:
"Overall, a view has been expressed as to the scientific and technical expertise employed, that whilst there are some technical points in the proposal that display only a passing familiarity with some of the principles, overall – and here I summarise – that which was proposed could work."
- In the absence of any challenge from the Defence to this summary, it is not surprising that the judge proceeded on the basis that the Gas Limos project was, as its author claimed, a viable project for killing hundreds, if not thousands of innocent victims – "a sophisticated and deadly design".
- Careful consideration of the expert evidence has led us to the conclusion that the judge was wrong to accept this hyperbole. The witness referred to as EU has a scientific doctorate and has been employed for more than 20 years working for the Ministry of Defence at Aldermaston where he has studied and worked with both conventional and nuclear armament applications. Dealing with the topic "explosive expectations" he stated:
"In general, the overall project offers up what appears to be a well devised plan but is perhaps better viewed as a professional-looking attempt from amateurs who did not really know what they were doing. If pressurised cylinders of flammable gas (with or without oxygen as additional cylinders) were assembled as described and were the heat-producing 'add-ons' (e.g. napalm) included, then, on setting off the contraption, there would be a high likelihood that a fire source at least would be produced. An explosive event might occur particularly if explosive substances were present. However, the expectation of an explosive yield of 370kg TNT equivalent from the basic 'main charge' cylinders is unrealistic since the 37 propane cylinders (each of which is estimated as being able to produce a 10kg TNT equivalent yield) are distributed between three limos and it is highly improbable that they would all produce their maximum explosive effect simultaneously. That notwithstanding, the potential for severe damage, disruption and injury in the area concerned is present and is evidently intended."
- Mr Halliday, a forensic scientist, appears to have reached a similar conclusion. He comments at E604:
"The documents that I have reviewed contain a wide-ranging selection of published and on-line data but information in them that would be relevant to NAL/6 appear, in some cases, to have been ignored or misread. This may also reflect the author(s) lack of an appropriate science or engineering background."
Dealing specifically with the gas limo device he comments:
"the overall design of the gas limo device, with all its add-ons, suggests that the designer has not thought through the consequences of incorporating some of the features, but has simply put them all together on a 'more is better' basis. In my view simplification would greatly improve the effectiveness of the device."
- His conclusion was as follows:
"Implementation of the plans described … to cause damage, disruption and injury through (a) the use of energy sources more easily obtainable than conventional explosives and (b) the use of radioactive materials either with or separate to a 'main charge' device would, in my opinion, have been to some extent successful but it is unlikely that the effects would match the expectations hoped for by the perpetrators."
- The final expert witness was Mr Todd. He is Principal Forensic Investigator in the Forensic Explosives Laboratory at the Defence Science and Technology Laboratory at Sevenoaks. His conclusions were as follows:
"Based upon my examination of the above document, it is my opinion that it describes a credible plan to make and initiate a very large improvised explosive/incendiary device. It consists essentially of three stretch limousines or similar size vehicles, all parked together in an indoor or underground car park or similar target location. They would be filled with propane or butane cylinders, placed on petrol soaked charcoal, vented to some degree and then ignited. The aim appears to be to cause large explosion and/or fire that will cause major property damage and injury or death at the chosen target location. The particular type of explosion envisaged is a BLEVE, and various details are given as to how this will be achieved. Between the discussion of BLEVEs and the final configuration of the device, the plan is slightly muddled, suggesting that the author may not have a scientific or technical background. It is by no means certain that one or more BLEVEs would occur, for instance in domestic premises from time to time, where gas has been allowed to leak into the building and is accidentally ignited. This is not a BLEVE, but nevertheless can be equally destructive.
Having said all that, such a device would pose a great risk to the property and any people present in the vicinity of the target location. At the very least a very large fire is likely to occur in the ground or basement level of the chosen target, and unless doused very quickly, would be accompanied at the very least by explosions from the pipe bombs. The outcome would range from a certain amount of fire damage, if doused very quickly, through serious fire damage to the property, to one or more large BLEVE explosions spreading debris and burning material several 10s of metres, to a large vapour cloud explosion causing complete destruction of the target building."
- The effect of all this evidence is as follows. The Gas Limos Project was superficially attractive, but in fact amateurish. It combined different proposed methods of creating explosions and fire that were mutually incompatible. The Gas Limos and their contents were intended to give rise to a massive cumulative explosion. This would never have occurred in practice. The greatest explosive hazard would have occurred if gas had been released into a confined space and ignited if and when it had reached a mixture with air that fell within the explosive limits. This would not have been easy to achieve, and would certainly not have been achieved had the combustible materials that were supposed to be placed around the gas cylinders been ignited at an early stage. This said, the proposed contraptions would undoubtedly have been very hazardous. Precisely what harm they might have done if attempts had been made to ignite or detonate them could not reliably be predicted.
- In the light of this summary we do not consider that the judge was correct to proceed on the basis that, but for the arrest of the appellant and his associates, the Gas Limos Project would have been implemented, with the consequences predicted by the appellant. Surveillance showed that the group were indulging in anti-surveillance techniques and communicating in code up to the moment of their arrest. Work was done on their computers after Mr Barot returned from Pakistan on 21 April 2004. They were plainly, as Mr Lawson put it, "up to no good". There was however no evidence that enabled the Crown to submit that Al-Quaeda had endorsed the plans – although Mr Lawson submitted that the ongoing activity led to the conclusion that they had received 'some species of approval'.
- In these circumstances we must review the judge's sentence on the basis that, while his appraisal of what the appellant was intending to achieve was well founded, he was wrong to proceed on the basis that, had the appellant and his associates not been arrested, those intentions would have become reality. Because of its technical inadequacies the Gas Limos Project would not have worked as intended and there can be no certainty that it would ever have been attempted.
- The judge summarised what it was that the appellant was seeking to achieve, and this is worth repeating, for it is not disputed:
"Your plans … whether here or in the United States, would have had a devastating effect at many different levels. There would be those who died, plucked from their families and friends by happenchance, utterly blameless people. Each pointless death would bring in its train grief, bewilderment, devastation and anger in those left behind to mourn. But it would not be death alone that you would have achieved; there would have been those who survived, hideously injured, having to endure the rest of their lives with terrible disabilities, their hopes and dreams for their future destroyed at your hand, the lives of their families too would be changed forever. Beyond that, in the wider community, the impact would be disastrous. In this country there are thousands and thousands of ordinary, decent, hard-working, law-abiding Muslims, British citizens just like you, who have to live their lives every day under a cloud of deep suspicion and distrust all caused by the activities of you and those like you, and - - although of lesser importance - - the vast economic cost caused by your activities in security and otherwise cannot be ignored. This was no noble cause. Your plans were to bring indiscriminate carnage, and bloodshed, and butchery, first in Washington, New York and Newark, and thereafter in the United Kingdom, on a colossal and unprecedented scale. "
Issues of principle
- Conspiracy to Murder carries a maximum sentence of life imprisonment – see section 3(2) of the Criminal Law Act 1977. The first issue of principle is whether it was appropriate to impose a life sentence for this offence. Because it was committed before 4 April 2005, when the Criminal Justice Act 2003 came into effect, the relevant law is that which applied before that date. The criteria that then applied for the imposition of a discretionary life sentence are to be found in the decisions of this court in Attorney General's Reference No. 32 of 1996 (Whittaker)  1 Cr App R (S) 261 and R v Chapman  1 Cr App R 77: (1) the offence had to be very serious; (2) there had to be good grounds for believing that the offender was likely to remain a serious danger to the public for an indeterminate time.
- Mr Macdonald accepted that the offence to which the appellant had pleaded guilty was very serious. He submitted however that the second criterion was not satisfied. He referred us to the judgment of Lord Lane LC in R v Basra (1989) 11 Cr App R (S) 527, a case of conspiracy to murder for political motives. He was sentenced to life imprisonment. Lord Lane CJ, giving the judgment of this court which quashed that sentence said at p. 529:
"In general it should be said that a life sentence, where it is other than mandatory, as was the case here, is to be reserved for cases where the defendant is someone in respect of whom there is some relevant feature which cannot be determined at the time when the judge is passing sentence. The usual example of that will be some mental condition which affects the degree of risk which the release of the defendant into the community will present."
- The judge justified the sentence of life imprisonment that he imposed by the following reasoning:
"…you will represent a serious danger to the public for an indeterminate time. I cannot know when, if ever, you will set aside your burning desire to murder and maim and destroy and thus cannot know when, if ever, it will be safe to release you. The only appropriate sentence is one of life imprisonment…"
Mr Macdonald submitted that political, religious or ideological motivation was not capable of constituting a "relevant and imponderable feature" so as to justify a discretionary life sentence.
- We do not agree. In the case of Whittaker the Attorney-General had challenged as unduly lenient a sentence of seven years imprisonment imposed on a man who, while on home leave from imprisonment which he was serving for murder, had committed as violent assault on a young woman. The judge had ruled out the possibility of imposing a discretionary life sentence on the ground that "there is not any medical evidence of personality disorder or instability or anything like that". The Court of Appeal held the sentence unduly lenient and substituted a life sentence with a period to be served of seven years. Giving the judgment of the Court Lord Bingham CJ held that the judge had been wrong to hold that it was not open to him to impose a life sentence. Such a sentence was justified on the ground that there was good ground for considering that the offender was likely to be a continuing danger for an indeterminate time in the future. The imposition of a life sentence was justified in the present case for precisely the same reason.
- A terrorist who is in the grip of idealistic extremism to the extent that, over a prolonged period, he has been plotting to commit murder of innocent citizens is likely to pose a serious risk for an indefinite period if he is not confined. If he commits an offence that permits the court to impose an indeterminate sentence, this is likely to be the appropriate course.
- We turn to the second limb of the appeal against sentence, namely that the minimum term of 40 years was manifestly excessive. This term was equivalent to a determinate sentence of 80 years.
- The judge said that he had drawn back from imposing a whole life term for two reasons. The first was the appellant's plea of guilty which, albeit entered at a late stage, had saved considerable time, trouble and expense. The second was that the appellant did not achieve any of his objectives, nor had he moved to the final stages of achieving them, albeit that this was only because his intentions had been frustrated by the work of the police and security officers in this country and around the world.
- Mr Macdonald originally submitted that the 40 year term was manifestly excessive on the basis (1) that the Gas Limos Project was far from implementation and (2) that the term was out of line with sentences imposed in comparable cases. After the hearing, but before we had raised the question of the viability of the project, he submitted supplementary written submissions inviting the court to lay down guidelines in respect of sentencing for terrorist offences. His suggested starting point for a determinate sentence for a terrorist conspiracy of which murder was the primary object was between 30 and 50 years imprisonment. Mr Lawson's written response to this submitted that, for a conspiracy to murder of this nature the appropriate starting point was a whole life term.
- After we had raised the question of the viability of the project, Mr Macdonald submitted further written submissions. He submitted that as there was doubt about both whether the project would receive the necessary funding and the practical viability of the project the gravity of the offence was substantially lessened. Mr Lawson responded by submitting that if and to the extent that there was an "amateurish" element to the appellant's plans, they were nevertheless designed to kill entirely innocent people and, if executed, they might well have succeeded. He further submitted that "the failure to implement the intent will not normally be course for indulgence or credit to be accorded to a defendant", relying upon the statement of this court to that effect in R v Shevron Smith  1 Cr A R (S) 212, a case of attempted murder.
- Terrorism of the most extreme kind is unhappily rampant in the world. It is manifested daily by carnage in Iraq. It has led to a number of trials in this country and many more are pending. Those responsible for security warn of many other terrorist plots. It is to be hoped that our security forces will continue to arrest terrorists before they succeed in committing the carnage on which they are bent. We think it desirable to give some guidance on the extent to which the fact that planned murder has not been brought to fruition should have on the sentence of terrorists convicted of attempting or conspiring to commit murder . We will start with some general propositions.
- Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing to which the court must have regard. There is nothing new about this provision; it is declaratory of the position as it was before. These purposes include the punishment of offenders, the reduction of crime (including its reduction by deterrence) and the protection of the public.
- The element of protection of the public is achieved where an indeterminate sentence is imposed. It follows that this factor should not influence the length of the minimum term to be served – see R v M  1 WLR 485 at 491.
- Terrorists who set out to murder innocent citizens are motivated by a perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed some are prepared to kill themselves in order the more readily to kill others. It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment. Punishment is the other important element of the determination of the sentence for offences such as this.
- The appropriate minimum term must depend upon the seriousness of the offence. Section 143 (1) of the 2003 Act provides that in considering the seriousness of any offence, 'the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause and might foreseeably have caused'. Once again this is no more that declaratory of the elements of seriousness. There is a degree of tautology in the provision. Where there is an intention to cause harm, but no harm is in fact caused, the degree of harm that it was intended to cause is a vital element of the culpability. This is of particular relevance when considering the range of inchoate offences that are preparatory to committing a terrorist act.
- In approaching the sentence for an inchoate offence it is appropriate to start by considering the sentence that would have been appropriate had the objective of the offender been achieved. That accords with the course recommended by this court in the judgment delivered by Lord Bingham CJ in R v Martin  1 Cr App R (S) 477, which was intended to give guidance in relation to sentencing for very serious explosion cases. In that case the appellant was a member of the provisional IRA. He had been convicted of conspiring to cause by explosive substances explosions of a nature likely to endanger life or cause serious injury to property contrary to section 3(1)(a) of the Explosive Substances Act 1883. This carried a maximum sentence of life imprisonment. The appellant had conspired, with a number of associates, to cause explosions at six electricity sub-stations and sentenced to 35 years imprisonment on the basis that the primary objective had been to destabilise South East England but that the conspirators were reckless as to the number of people who might be killed or injured as a result of the explosions. The planning had been highly sophisticated and would have been likely to succeed but for the intervention of the security services.
- Lord Bingham observed that the most serious type of case was that where the primary purpose of the enterprise was to endanger life. The court reviewed, with the assistance of Mr David Perry as amicus curiae, a large number of offences of attempting to cause explosions and concluded that the range of sentences for conspiracies to cause terrorist explosions then current was between 20 and 35 years imprisonment. The longest sentence had been that of 45 years imposed in R v Hindawi (1988) 10 Cr App R (S) 104, where the appellant had attempted to blow up a plane by sending his unwitting girlfriend onboard it with a bomb in her suitcase.
- Lord Bingham observed at p. 483:
"…when imposing sentences for conspiracies of this sort, the courts should remind themselves of the term actually served for murder, particularly murder in its most aggravated forms. But there can be no precise equivalence and conduct threatening democratic government and the security of the state, and the daily life and livelihood of millions of people, has a seriousness all of its own."
The court accepted that the bracket should be somewhat wider than 20 to 35 years. It had earlier observed that:
"the appropriate sentence for any given offence will plainly depend on a large number of factors, which will include the likely result of any explosion or the target of any conspiracy, the role of the individual defendant, the nature, size and likely effect of any explosive device, the motivation of the defendant and, where death or injury or damage has been caused, the nature and extent of the death, injury and damage in question"
The appellant's sentence was reduced from 35 to 28 years imprisonment.
- The determinate sentence of 45 years imposed in the case of Hindawi was equivalent, having regard to the release provisions then in force, to a 15 year minimum term, with automatic release after 30 years. It was the highest sentence imposed for an attempt at mass murder before the sentence with which we are concerned. It was imposed in relation to an attempt that came close to success and that would, had it succeeded, have resulted in the loss of 370 lives. The sentence imposed on the appellant was very much higher than that in Hindawi. Mr Lawson asserted and Mr Macdonald conceded that the level of sentencing for terrorist attempts or conspiracies to commit mass murder should rise above the level recommended by this court in Martin. They differed, however, both as to the extent of such rise and as to the reason for it.
- Mr Macdonald submitted that there was a ceiling for inchoate offences such as that with which we are concerned so that, once that ceiling is reached, the same sentence will be appropriate for all such offences, notwithstanding that the facts of one may be more horrific than the facts of another. The possibility that there might be such a ceiling was suggested by this court in R v Taylor and Thomas 16 Cr App R (S) 873 at p. 875, when rejecting appeals against sentences of 30 years imprisonment passed on appellants who, as members of the IRA, had been responsible for a number of explosions and convicted of conspiracy to cause explosions likely to endanger life.
- Mr Macdonald's suggested ceiling was a determinate sentence of 50 years imprisonment and his suggested bracket for terrorist conspiracies of which murder was the primary object was between 30 years and 50 years imprisonment as a determinate sentence. This bracket puts the level of sentencing considerably higher than that considered by this court in Martin. In conceding that there should be an increase in the level of sentences for conspiracy to murder Mr Macdonald was, as we understood the position, accepting that such an increase must reflect the increase made to the lengths of minimum terms where murder sentences are imposed that has resulted from the starting points specified in schedule 21 of the Criminal Justice Act 2003. These starting points came into force in December 2003.
- Mr Lawson's submission that the starting point for terrorist conspiracies to commit mass murder might well be a whole life term reflected his submission that the current wave of international terrorism was of a different dimension to the internal sectarian terrorism that was the subject of the decision in Martin and that it called for more severe sentences.
- The fanaticism that is demonstrated by the current terrorists is undoubtedly different in degree to that shown by sectarian terrorists with which the United Kingdom had become familiar by the time of Martin. IRA terrorists were not prepared to blow themselves up for their cause. It is this fanaticism that makes it appropriate to impose indeterminate sentences on today's terrorists, because it will often be impossible to say when, if ever, such terrorists will cease to pose a danger.
- We consider that Mr Lawson is also correct in submitting that terrorist offences today are capable of being more serious even than the horrifying case of Hindawi. This case demonstrates the search by the terrorists for a means of causing death on an even greater scale than results from the destruction of a passenger plane and the events of 9/11 show that this can be achieved. It is not without significance that in A v Secretary of State for the Home Department  UKHL 56,  2 AC 68 the majority of the House of Lords accepted that the terrorist threat represented 'a public emergency threatening the life of the nation'. For this reason we have concluded that the guidelines suggested by the court in Martin require review.
- In Martin this court held that the level of sentences imposed on those who succeed in committing murder was a relevant consideration when considering the appropriate sentence for breach of section 3(1)(a) of the Explosives Substances Act 1883. It is plainly a relevant consideration when the offence is conspiracy or attempt to commit murder. Section 269 of the Criminal Justice Act 2003 requires the court to have regard to the provisions of schedule 21 of the Act when fixing a minimum term for murder. That schedule provides that where the court considers that the seriousness of the offence is 'exceptionally high' the appropriate starting point is a whole life order. Where the seriousness of the offence is 'particularly high' but not exceptionally high, the starting point is a minimum term of 30 years.
- The effect of section 21 has been to increase significantly the minimum terms being imposed for the most serious murders. It is logical that the sentences for attempted murder or conspiracy to murder should reflect these minimum terms. In R v Kevin Ford  EWCA Crim 1358;  1 Cr App R (S) 36 this court approved the approach of imposing a sentence that would result in the appellant serving for two offences of attempted murder half the period of imprisonment that he would have served had he succeeded in killing his victims.
- It is not possible to adopt an arithmetical approach of that nature when dealing with terrorist attempts to commit mass murder. This is because where mass murder is committed, a whole life term will be imposed. The increase in the level of sentencing for the most serious murders is, nonetheless, a further factor that supports an increase in the level of sentences for terrorist conspiracies and attempts to commit mass murder.
- We would emphasise at this point that we are dealing with an offence of conspiracy to commit murder. In Martin Lord Bingham remarked that the reported cases show 'whatever the precise form of the offence the most severe sentences have been passed in cases involving a deliberate threat to human life'. The appellant pleaded guilty to conspiracy to murder. His co- defendants, bar one, have pleaded guilty to 'conspiracy to cause an explosion or explosions likely to endanger life' in contravention of section 3 of the 1883 Act. We have heard no argument at to whether a distinction, and if so what distinction, should be drawn between these two offences for the purpose of sentencing. Where there has been a trial and the judge has been able to conclude on the evidence in that trial that the defendants intended the explosions to kill, it is not easy to see why there should be any distinction. If there is one, then our remarks must be confined to the offences of attempted murder and conspiracy to murder.
- We consider that a life sentence with a minimum term of forty years should, save in quite exceptional circumstances, represent the maximum sentence for a terrorist who sets out to achieve mass murder but is not successful in causing any physical harm. Such a sentence should be reserved for the terrorist who has been convicted, after trial, of a serious attempt to commit mass murder by a viable method. Where the offence is of conspiracy and the acts of the defendant fall short of an attempt, the sentence should be lower.
- We have already explained why those who are party to a terrorist conspiracy to commit murder are likely to satisfy the criteria for an indeterminate sentence, although each case must be considered on its own facts. The length of the minimum term to be served where such a sentence is imposed will depend upon the facts of the particular conspiracy and the defendant's involvement in it. Where the court is satisfied that the conspiracy was likely to lead to an attempt and the attempt was likely to succeed it may be right to draw little difference between a conspiracy and an attempt. Where, however, the court is unable to be certain that the conspiracy would have been put into practice, or would have lead to a successful attempt to murder, the sentence should be significantly lower than for an attempt.
- Another relevant factor will be the nature of the involvement of the particular defendant in the attempt or the conspiracy. A leader should receive a more severe sentence than a follower. We shall not attempt to summarise aggravating and mitigating factors that are common in the case of most offences. Guidance on these has been provided by the Sentencing Guidelines Council. The Council's Guidelines on giving credit for a guilty plea should be followed, for guilty pleas can be of particular value to the administration of criminal justice where terrorist offences are involved.
- In the light of these comments we turn to the appellant's sentence. He was properly given a life sentence. The minimum term falls to be determined on the basis that there is uncertainty as to (i) whether the conspiracy of which the appellant was part would have resulted in the planned attempt to commit mass murders and (ii) the consequences had it done so. That weighs in favour of a reduction in the term.
- There is much that weighs against the appellant, however. The object of the conspiracy was mass murder of innocent citizens on a massive scale. If the Gas Limos Project had technical deficiencies, this was not through want of trying on the appellant's part. He was the ring-leader of the conspiracy. All his energies were devoted to terrorism, and had been for the last six years. He had been for training to terrorist camps in Kashmir and the Philippines, he had twice been to the United States to research potential terrorist targets and he had been to Pakistan to enlist support for his project from Al Qaida or an associated body. It is at least possible that his project would have been put into practice. Had it been, the result would have been uncertain but at worst it might have resulted in serious loss of life and damage to property as a result of fire and explosions.
- Having regard to all these considerations, we have reached the conclusion that the appropriate minimum term that the appellant should serve before being considered for release on licence is 30 years, (one half of a notional determinate term of 60 years; see R v Szczerba  2 Cr. App. R (s) 86), and that is after making a reduction of approximately 10% to give credit for his late plea of guilty. The 2 years and 94 days spent on remand will count towards this sentence. To that extent this appeal is allowed.
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