Factual and Procedural Background
This opinion arises from a series of appeals concerning offenders convicted and sentenced under section 5 of the Terrorism Act 2006 ("the 2006 Act"). The court identified a lack of detailed sentencing guidance for such offences and noted the existence of an unofficial schedule of terrorist cases used for management and sentencing reference, which was deemed inappropriate for public justice. Given the unlikelihood of imminent guidelines from the Sentencing Council, the court convened a five-judge panel to provide detailed guidance on sentencing under s.5 until formal guidelines are issued.
The opinion addresses the wide definition of terrorism under the 2006 Act, the scope of s.5 offences, and the principles guiding sentencing. It also reviews specific appeals by various appellants convicted under s.5 or related terrorism offences, providing detailed factual backgrounds, sentencing decisions, and appellate conclusions.
Legal Issues Presented
- What sentencing principles and guidance should be applied to offences under section 5 of the Terrorism Act 2006, given the wide range of conduct and culpability encompassed?
- Whether prosecuting authorities should be restricted in charging s.5 offences when other terrorism offences with lesser maximum sentences might apply.
- Whether the purpose or cause motivating terrorist offences, including so-called "noble cause terrorism," is relevant to sentencing.
- How to assess the seriousness of offending and assign levels of culpability and harm for sentencing under s.5.
- The appropriate approach to dangerousness findings and extended or life sentences in s.5 cases.
- Whether specific appeals against sentence in individual s.5 and related terrorism offences were manifestly excessive or otherwise flawed.
Arguments of the Parties
Appellant Sana Khan's Arguments
- The finding of dangerousness was incorrect due to limited evidence and absence of a Pre-Sentence Report, and she was not part of a wider terrorist network.
- The custodial sentence and minimum term imposed were manifestly excessive given her age, background, and the nature of her involvement.
- Submissions requested further background information and reports to better assess risk and appropriateness of sentence.
Submissions on Behalf of the Secretary of State for the Home Department
- Emphasised that the courts cannot distinguish between terrorist organisations for sentencing purposes; all terrorism is proscribed equally.
- Highlighted difficulties in ranking terrorist organisations or causes and the impracticality and impropriety of doing so in court.
- Noted that some offenders may be sentenced for serious terrorism offences without any association to a terrorist group.
Other Parties' Arguments
- Appellants in various cases argued that their sentences were excessive given their individual circumstances, levels of involvement, or mitigating factors such as youth, intelligence, or withdrawal from plans.
- Some appellants contended their conduct was lower on the scale of seriousness or that the nexus to terrorism was weak.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Gul [2013] UKSC 64 |
Confirmed the requirement of specific intent for s.5 offences and clarified the definition of terrorism. |
Used to establish the legal definition of terrorism and the intent required for s.5 offences. |
| R v F [2007] EWCA Crim 243 |
Rejected the notion of "noble cause terrorism" as mitigation. |
Applied to affirm that the motive or cause behind terrorism is irrelevant to sentencing. |
| Sarwar & Ahmed [2015] EWCA Crim 1886 |
Addressed sentencing for s.5 offences involving travel abroad to fight with terrorist groups and confirmed rejection of mitigation based on "noble cause". |
Reinforced the principle that political considerations or the nature of the cause do not mitigate sentence. |
| Barot [2007] EWCA Crim 1119 |
Set increased sentencing levels for serious terrorist offences. |
Guided the court in establishing higher sentencing ranges for serious terrorism cases. |
| Martin [1999] 1 CrAppR(S) 477 |
Previously identified broad sentencing brackets for terrorism offences. |
Referenced as a baseline for sentencing before Barot increased the levels. |
| Iqbal & Iqbal [2010] EWCA Crim 3215 |
Discussed the overlap of offences under terrorism legislation and the scope of s.5. |
Used to reject limitations on prosecution discretion in charging s.5 offences. |
| Roddis [2009] EWCA Crim 585 |
Recognised overlap between s.5 and other terrorism offences. |
Supported the court’s view on the broad scope of s.5 offences. |
| R v Burinskas [2014] EWCA Crim 334 |
Principles on dangerousness and life sentences under s.225 CJA 2003. |
Guided assessment of dangerousness for life sentence considerations. |
| R v Saunders [2013] EWCA Crim 1027 |
Principles on the imposition of life sentences. |
Applied to determine when life sentences are appropriate in terrorism cases. |
| Ibrahim & others [2008] EWCA Crim 880 |
Conspiracy to murder sentencing involving terrorism. |
Illustrated highest level (Level 1) offending for s.5 offences. |
| Abdullah Ahmed Ali & others [2011] 2 Cr App R 22 |
Conspiracy to murder by causing explosions. |
Used as an example of Level 1 offending with life sentences and long minimum terms. |
| Iqbal & others [2014] EWCA Crim 2158 |
Sentencing for s.5 offences involving terrorist training and assistance abroad. |
Illustrated Level 4 offending and sentencing ranges. |
| Tabbakh [2009] EWCA Crim 464 |
Sentencing for attempted bomb making with mental health issues. |
Example of Level 5 offending with determinate sentence range. |
| Attorney General's Reference (No.7 of 2008) [2008] EWCA Crim 1054 |
Sentencing for s.5 offences at lower end of seriousness. |
Used to illustrate Level 5 sentencing range. |
| Martin [1999] 1 CrAppR (S) 477 |
Previous sentencing guideline for terrorism offences. |
Referenced for historical context of sentencing levels. |
Court's Reasoning and Analysis
The court acknowledged the broad scope and varied seriousness of offences under s.5 of the Terrorism Act 2006, which can range from preparatory acts to attempted multiple murder. The court emphasized that sentencing must reflect the offender's culpability and the potential or actual harm caused or intended, applying principles from the Criminal Justice Act 2003 regarding dangerousness and life sentences.
The court rejected any mitigation based on the cause or motive behind terrorism, including so-called "noble cause terrorism," relying on earlier authorities such as R v F and Sarwar & Ahmed. It was held that the courts should not engage in political assessments or rank terrorist causes or organisations, as these matters are for Parliament.
Six levels of offending were identified to guide sentencing, ranging from the most serious involving attempted multiple murder (Level 1) to minor preparatory or peripheral involvement (Level 6). The court provided illustrative cases at each level to assist in categorizing offences and determining appropriate sentencing ranges.
In assessing dangerousness, the court highlighted the importance of the offender's radicalisation and the likelihood of continued risk. The court also stressed that sentencing must serve the purposes of punishment, deterrence, and incapacitation, with rehabilitation playing a limited role except possibly at the lowest levels.
In the specific appeals reviewed, the court applied these principles to evaluate the appropriateness of sentences, adjusting some sentences where they found them to be manifestly excessive or unduly lenient, while dismissing appeals where sentences were appropriate given the facts and offender profiles.
Holding and Implications
The court made the following key rulings:
- The appeal in the case of Appellant Kahar was allowed to the extent that his sentence was increased from 5 to 8 years' imprisonment.
- The appeal in the case of Appellant Ziamani was allowed in part, reducing his extended sentence from 27 years to 24 years (19 years custodial term plus 5 years extended licence).
- The appeal of Appellant Sana Khan was allowed only to reduce the minimum term of her life sentence from 25 to 23 years.
- The appeal of Appellant Eshati was dismissed.
- The applications of Appellants Rashid and Ozcelik were refused.
The decision sets out a structured framework for sentencing under s.5 of the 2006 Act, providing clarity and consistency until formal guidelines are issued by the Sentencing Council. It reinforces that the motive behind terrorism is irrelevant to sentencing, and that dangerousness assessments and sentencing must be fact-specific, reflecting culpability and harm. This judgment will guide future courts in handling terrorism-related offences under s.5, ensuring sentences are proportionate and consistent across cases.