Sherif & Ors, R v [2008] EWCA Crim 2653

[2008] EWCA Crim 2653Case Nos: 200801030 20080119520081194 200801182 200801181200804381
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/11/2008
Before
LORD JUSTICE LATHAMMR JUSTICE OPENSHAWMR JUSTICE BURNETT
Between
RCrownAbdul SherifDefendantSiraj AliDefendantMuhedin AliDefendantWahbi MohamedDefendantIsmail AbdurahmanDefendantFardosa AbdullahiDefendant
Oliver Blunt QC and Mark Summers on behalf of Abdul SherifOwen Davies QC) on behalf of Siraj AliCharles Bott QC and Christopher Henley on behalf of Muhedin AliDavid Spens QC on behalf of Wahbi MohamedJohn King and Anne Faul on behalf of Ismail AbdurahmanJo Cooper (Solicitor Advocate) on behalf of Fardosa AbdullahiMax Hill QC and Emma Gargitter for CrownHearing Hearing dates: 22 October 2008 & 23 October 2008
JudgmentLord Justice Latham :
[1]The first five applicants were convicted after a lengthy trial of offences arising out of the events on the 21st July 2005. That was the day when three devices were detonated on underground trains and a fourth on a Number 26 bus. A fifth device was abandoned near Little Wormwood Scrubs where it was discovered two days later. Each device was carried in a rucksack and contained the primary high explosive triacetone, triperoxide (TATP), light bulbs, batteries, wires and plastic containers. Although four of the devices were detonated, in each case the main charge, which consisted of hydrogen peroxide and chapatti flour, failed to explode. The four whose bombs detonated were Muktar Ibrahim, Hussain Osman, Yassin Omar and Ramzi Mohamed. On the 9th July 2007, they were convicted of conspiracy to murder and each was sentenced to life imprisonment with a minimum term of 40 years. Their applications for leave to appeal against conviction and sentence were refused by this court on the 23rd April 2008. The judgment of the court, given by the President of the Queens Bench Division, is reported as R v Ibrahim and Others [2008] 2 Cr App. R. 23 at page 311.[2]The facts relating to the making of the bombs, their attempted detonation and the bombers’ movements between then and the time of their respective arrests are fully set out in that judgment. They clearly intended to cause carnage on a dreadful scale. Bearing in mind what had happened only a fortnight earlier, the 7th July, the authorities were clearly under immense pressure to do all they could to ensure public safety. These applicants, in one way or another, all knew or believed that one or more of the bombers either intended to commit an act of terrorism, or knew that they had so intended, and not only gave assistance to them, but also failed to give information which either could have been of assistance in preventing the commission of an act of terrorism or could have helped in securing the bombers arrest. They accordingly faced an indictment containing a total of 27 counts charging them with offences contrary to s.38 B (2), in respect of conduct set out in s. 38 (1) (a) and (b) of the Terrorism Act 2000 (respectively relating to prevention of the commission of an act of terrorism, and securing arrest) and contrary to s.4 (1) of the Criminal Law Act 1967, that is assisting an offender with intent to impede arrest or prosecution.[3]They and the sixth applicant have applied for leave to appeal against sentence. Their applications have been referred to the court by the Registrar. We give leave to all the applicants to appeal against sentence. Three, Siraj Ali, Ismail Abdurahman and Muhedin Ali have also applied for leave to appeal against conviction and their applications have likewise been referred to the court by the Registrar. We will deal with those applications after we have set out the facts in relation to the first five appellants. We will deal with the appellant Fardosa Abdullahi separately in the final part of this judgment.[4]Although we have stated that the story of the attempted bombings can be found in the judgment of this court in R v Ibrahim and Others, it may be helpful to set out very shortly the circumstances of the bombers’ arrests. The first to be arrested was Yassin Omar, who left London in disguise in the circumstances set out in the part of this judgment relating to Fardosa Abdullahi, and went to Birmingham. He was arrested there on the 27th July. Ramzi Mohamed and Muktar Ibrahim both hid at 14K Dalgarno Gardens and were arrested there on the 29th July. Hussein Osman was also arrested on the 29th July. He had caught the Eurostar train to Paris on the 26th July, and had travelled from there to Rome. A further background fact which was important to the accounts of some of the appellants was the shooting of De Menezes at Stockwell tube Station on the 22nd July when he was mistaken for one of the suspected bombers.

Siraj Ali

[5]Siraj Ali was charged with and convicted of two offences of failure to disclose information that he had prior to the intended bombings, two offences of failing to disclose information after the intended bombings, and one offence of assisting an offender. The information in question in all four counts under s. 38B of the Terrorism Act was said to be information relating to the activities of Omar and Ibrahim. The count charging him with assisting an offender related to help that he was said to have given to Ibrahim by removing and disposing of incriminating property.[6]Ali and Omar had, as children, been in the care of the same foster parents. At the relevant time they lived respectively at number 65 and number 58 Curtis House, London N11. Ibrahim, who was a friend of both of them, stayed at Ali’s flat from time to time. Ali was arrested on the 25th July, that is before the arrest of any of the intended bombers. His flat was searched, together with the flat of Omar and other areas of Curtis House. It became apparent that number 58 was likely to have been the place where the bombs were assembled. In Ali’s flat, there was a notepad bearing Ibrahim’s fingerprints with calculations relating to detonators and charges, a handwritten note containing steps to martyrdom, a handwritten list, in Arabic, of bomb making equipment, and visitor’s cards from two different suppliers of hydrogen peroxide, which was an essential ingredient in the preparation of the home made bombs.[7]The prosecution case was that these documents clearly demonstrated that the bombers had used the appellant’s flat when making their plans. Furthermore, the prosecution asserted that the process of concentrating the hydrogen peroxide by boiling, gave off such unpleasant fumes that it was likely that this was done at Omar’s flat, with Omar and Ibrahim moving to Ali’s flat. In the communal bins at the back of the flats the police found a large number of empty peroxide bottles, a plastic tub identical to those carried by the bombers to hold the main explosive charge, a pipette containing traces of sulphuric acid (an ingredient in the explosive), some light bulbs and holders (of an identical type to those used by the bombers to detonate the charges) receipts for the hydrogen peroxide and for various electrical components used in the making of the bombs and various documents including a timetable or rota for concentrating the peroxide by boiling, and calculations for determining the concentration of the peroxide.[8]In interview, Ali first denied that he had seen either Omar or Ibrahim for some time. He eventually admitted that Ibrahim had a key to his flat as he stayed there from time to time, indeed some of his clothes were in the wardrobe. But he denied responsibility for any of the items in the flat which he asserted must have been Ibrahim’s, and denied being involved in disposing of any of the items found in the bins. In evidence he repeated those denials and asserted that he had not seen Omar for two months and had last seen Ibrahim one or two months before his arrest. He had not seen either of them after the attempted bombings.[9]He was sentenced to a total of 12 years imprisonment, comprising sentences of 5 years imprisonment concurrently for the prior knowledge offences, 5 years imprisonment concurrent for the post event offences and 2 years imprisonment for assisting an offender. The last two were to be served consecutively to each other and consecutive to the sentences for the prior knowledge offences.

Abdurahman

[10]Abdurahman was charged and convicted of one charge of assisting Osman, and four charges of failing to disclose information after the event, relating to all the bombers.[11]At the time, he was working for a firm of solicitors as an administrative assistant. He lived at 61, Newport Street, London SE11. He had met Abdul Sherif, Osman’s brother, at college. Through him he met Osman. He became friendly with them, although according to him he did not see much of them.[12]The evidence showed that Abdurahman met Osman at Clapham Junction Station on the 23rd July. Osman had been staying in Brighton until then. Abdurahman said that it was a chance meeting. Osman asked if he could have accommodation. Abdurahman took him to his home where Osman stayed until the morning of the 26th July. During that time, the prosecution case was that Abdurahman was prepared to give him shelter even though he knew that Osman had been involved as a bomber, at the very least from having been told by Osman that one of the CCTV images shown on television was an image of him, and from a picture of Osman in the Daily Star found at his home and on which his finger prints were found. His assistance went further. He collected Abdul Sherif’s passport from Abdul Sherif and gave it to Osman. He also collected a video camera which had been used to film suicide messages by the would-be bombers and gave it to Osman. On the morning of the 26th July, he accompanied Osman to the bus stop from where Osman caught a bus to Waterloo station where he purchased a ticket for the Eurostar, and, using Abdul Sherif’s passport, went to Paris. Osman spoke to Abdurahman twice by mobile phone that day and rang him twice on the 27th July when he had reached Italy, the latter two calls were not successful.[13]Abdurahman did not give evidence. His case was based upon the witness statement that he had made to the police on the night of the 27th/28th July in circumstances to which we will return. In that statement he accepted that he had sheltered Osman. He said that the meeting at Clapham Junction station had been entirely by chance. Osman had said to him that the person on the CCTV footage was him; but he, Abdurahman, simply did not believe him. The picture did not look anything like Osman. Osman was called to give evidence by Abdul Sherif, and in cross-examination essentially confirmed this account.[14]He was sentenced to 5 years imprisonment for assisting an offender and 5 years imprisonment for all four offences of failing to give information, to be served concurrently with each other but consecutively to the sentence of assisting an offender.

Abdul Sherif

[15]As we have said, Abdul Sherif is the brother of Osman. He was charged with two counts of failing to disclose information before the bombings relating to Osman and Mohamed, one count of assisting Osman, and two counts of failing to disclose information after the bombings relating to Osman and Mohamed. The jury acquitted him of both counts alleging prior knowledge, and of the post knowledge count relating to Mohamed.[16]The prosecution case on the counts of which he was convicted was based essentially on his providing his brother with the passport to which we have referred when dealing with the case of Abdurahman. He handed the passport to Abdurahman on the 25th July, having arranged to meet him for this purpose. During the period after the bombings, there were numerous phone calls and attempted phone calls between Osman and Abdul Sherif from which the prosecution asked the jury to infer that Abdul Sherif must have had the relevant knowledge or belief.[17]Abdul Sherif gave evidence in which he agreed that he had provided the passport. He accepted that there had been phone calls. From these, and from what Abdurahman told him, he knew that the police were looking for Osman but he believed that his brother’s life was in danger particularly because of the killing of De Menezes. He agreed to hand over the passport in those circumstances. He really did not think about whether his brother was involved in the bombings. He did not say anything to the police about his brother. He was fearful for his own safety because of the death of De Menezes. Osman gave evidence to the effect that his brother had been unwilling to hand over the passport until he, Osman, said to him:
“which do you prefer, your passport or my life?”
He told his brother that he believed that because of what had happened to De Menezes the police were operating a shoot to kill policy because of what had happened to De Menezes.[18]He was sentenced to 5 years imprisonment for assisting an offender and 5 years imprisonment, to be served consecutively, for failing to give information post event.

Wahbi Mohamed

[19]Mohamed was convicted on four counts of offences concerning prior knowledge relating to each of the four bombers. He was convicted on two counts of assisting an offender, one relating to Osman and the second Ramzi Mohamed. He was further convicted on four counts relating to post event knowledge again relating to each of the four bombers.[20]This appellant is the brother of Ramzi Mohamed. The Crown’s case was that he was present at 14K Dalgarno Gardens on the morning of the 21st July as the bombers prepared to set off. He encouraged them to carry out their attacks by showing films. He then took away the video camera used by them to make their suicide videos. He handed the video camera to Abdurahman to give to Osman after the bombings. Also after the bombings he provided his brother with a mobile phone, a SIM card, a charger, and food, whilst his brother remained in hiding with Ibrahim at 14K Dalgarno Gardens. There was evidence of considerable telephone contact between Wahbi Mohamed and his brother and with Osman before the bombings. Within a short time of the bombings having taken place, Muhedin Ali, Osman, and his brother all tried to contact him.[21]He was sentenced to a total of 17 years imprisonment comprising 5 years imprisonment concurrent for the prior knowledge offences, 2 years imprisonment for one offence of assisting an offender, 5 years imprisonment for the offence of assisting an offender and 5 years imprisonment concurrent for failing to give information post event. The last three sentences were to be served consecutively to each other and to the sentence on the prior knowledge offences.

Muhedin Ali

[22]Muhedin Ali was charged with, but acquitted of, two counts of failing to disclose information before the bombings, these counts relating to Osman and Ramzi Mohamed. He was convicted of one count of assisting an offender, which related to Osman and two counts of failing to disclose information after the bombings, relating to Osman and Ramzi Mohamed.[23]Muhedin Ali was a close friend of Osman. Before the bombings, he received Ramzi Mohamed’s suicide note, together with a mass of Islamist audio tapes. He retained the suicide note, indeed it remained in his possession until after his arrest. In the hours and days after the bombings he was involved in a number of telephone calls with Ramzi Mohamed and Osman’s wife, Yeshi Girma. During the course of a telephone call with Osman, when it would appear that Osman was in Brighton, he offered Osman the opportunity to stay in his flat in Chesterton Road, London. This offer of accommodation formed the basis of the count of assisting an offender.[24]He was sentenced to 2 years imprisonment for assisting an offender and 5 years for the failure to give information post event. These sentences were to be served consecutively. The conviction applications 25. Siraj Ali

The conviction applications

[25]It is submitted that in relation to each of the counts on the indictment relating to the failure to disclose information, the judge misdirected the jury as to what they were entitled to take into account when considering whether the applicant had the requisite state of mind, that is either “knowledge” or “belief”. The direction given by the judge, after argument from the defence and the prosecution, was in the following terms:
“The question of whether the defendant “knew or believed” a particular fact or state of affairs arises in respect of each of the 27 counts you have to consider. I give you this direction. The prosecution need only make you sure of either knowledge or belief. The question of whether a defendant knew or believed something is a subjective one, that is did that defendant himself know or believe a particular fact or state of affairs? Knowledge involves having seen, heard or experienced something yourself. Belief involves reaching a conclusion based on credible evidence, often from a number of sources. But let me underline this, please: knowledge or belief is very different from suspicion. Let me give you an example. On count 11, Siraj Ali, assisting an offender, must be proved to have known or believed that M. Ibrahim had committed an arrestable offence such as conspiracy to murder. As I have told you, an arrestable offence includes any arrestable offence relating to the central criminality of the events of 21/7. Suspicion on Siraj Ali’s part, even coupled with the fact that Siraj Ali may have closed his eyes to the circumstances is not enough of itself to prove knowledge or belief. It is open to you to take into account, when considering the finding of knowledge, evidence that a defendant has deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not wish to have his suspicions confirmed. Let me be clear that suspicion is not enough to found any one of these charges.”
[26]It is submitted that this direction, in so far as it referred to a defendant deliberately shutting his eyes, amounted to misdirection. We have been referred to R v Moys 79 Cr App R 72 and R v Forsyth [1997] 2Cr App R 299. It is submitted on the basis of those authorities that the judge was wrong to suggest that the jury could take into account a conclusion that a defendant has deliberately shut his eyes as that in itself cannot amount to any more than suspicion, and a direction to the jury should eschew any attempt go beyond the use of the words “knowledge” or “belief” in such circumstances. The Crown submit that the position is properly set out in the court’s judgment in Westminster City Council v Croyal Grange Ltd 83 Cr App R 155 in which the court said: “it is always open to the tribunal of fact to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not wish to have his suspicions confirmed”.[27]In our view, the judge was fully entitled to give the direction that he did. He made it abundantly plain that it was not sufficient for the prosecution to establish that a defendant had closed his eyes, but that the jury was entitled to conclude, if satisfied that he had deliberately closed his eyes to the obvious because he did not wish to be told the truth, that that fact was capable of being evidence to support a conclusion that that defendant either knew or believed the fact in question. There is nothing wrong with the direction. We refuse leave to appeal against conviction.

Ismail Abdurahman

[28]Abdurahman’s application raises a point of some difficulty. We give him leave to appeal against conviction. As we have already indicated, Abdurahman attended the police station on the 27th July, and was interviewed over a prolonged period into the early hours of the morning of the 28th July. The interview took place without a caution and without the presence of a solicitor. The information obtained was taken down by the interviewing officers, D.C. Vernon and D. C. Stewart in the form of a witness statement. The statement was completed by 5am on the 28th July. The interviewing officers were then instructed to arrest Abdurahman. He was subsequently interviewed on the 30th July in the presence of a solicitor. He then handed the officers a prepared statement and declined to answer any further questions. In the prepared statement he took issue with one or two matters of detail in his witness statement, but essentially repeated the main thrust of his witness statement, which was that although Osman had claimed knowledge of participation in the events of the 21st July whilst he was staying with Abdurahman, he, Abdurahman, did not believe him. He stated that he believed that he had given the police valuable assistance during the course of the interview and in his statement. In his second interview on the 1st August he again declined to answer questions but insisted that he had been assisting from the beginning and did not wish to make any further statements. He was interviewed further on the 2nd August and repeated that he was not and never would be a terrorist and had never played any part in what had happened. In his last interview on the 3rd August he said that everything he knew was contained in his original witness statement.[29]The circumstances surrounding the taking of the statement and the subsequent arrest was the subject of two separate applications on behalf of the appellant. Counsel sought in the first instance to persuade the judge to exclude the witness statement as evidence either on the basis that it was a confession made by Abdurahman in circumstances likely to render any confession unreliable pursuant to s. 76 (2) of the Police and Criminal Evidence Act 1984, or in the exercise of the court’s discretion under s. 78 of the Act. The judge rejected that submission. At the end of the evidence for the prosecution, counsel then submitted to the judge that the prosecution should be stayed as an abuse of the process of the court in all the circumstances. The judge again rejected that submission. Before us, counsel submits that the judge was wrong in both those rulings.[30]Before coming to his decision on admissibility, the judge heard evidence on a voire dire from both DC Vernon and DC Stewart. They accepted that when they first approached this appellant on the afternoon of the 27th July, it was with a view to his assisting the police as a potential witness. It was accepted on this appellant’s behalf that at that stage they had no sufficient information to justify arresting him, or treating him as a suspect. No complaint is therefore made about the fact that he was not cautioned when he was first taken to the police station and interviewed. Both of the officers accepted that some time after 7pm that evening, as a result of the answers that he was giving, they considered that he should be cautioned. They accordingly sought instructions from a senior officer who told them to continue with the interview as if Abdurahman was to be a witness. DC Vernon in his evidence expressed surprise that when the witness statement had been completed at 5am on the 28th July, he was then instructed to arrest the appellant.[31]At trial the prosecution accepted that the witness statement could properly be described as a confession for the purposes of s. 76 of the Act, and accepted that there had been a breach of the appropriate paragraphs of the Code in failing to caution him or offer him the services of a solicitor when the interviewing officer came to the conclusion that they should take instructions from their superior. It should however be said that when he was first arrested on the 28th July, he was asked whether he wanted the services of a solicitor, but declined, saying “No, maybe after interview if it gets serious.”[32]It was submitted on his behalf that he had been induced to make a statement on the basis that he would be a witness, and would be allowed home after the interview was completed. These were circumstances, it was said, which were such as to render his confession likely to be unreliable. This was compounded by the fact that the interview continued into the early hours of the morning when he must have been tired. It is further submitted that even if not rendered inadmissible by s. 76, the judge should exclude under his general discretionary powers under s. 78 of the Act. The judge having ruled the statement admissible in terms to which we will return, counsel submitted that it was clearly unjust and therefore an abuse for prosecution to continue on the basis of the statement which had been taken from this appellant when he believed that he was merely going to be a witness.[33]As we have said, the prosecution accepted that the witness statement amounted to a confession and that the interview, from the moment that the two officers believed that they should arrest him, was carried out in breach of the Code. But, it was submitted, in the subsequent interviews, and at trial, he adopted what he had said in the witness statement as his account, accordingly there was no basis for concluding that it was taken in circumstances which were likely to render it unreliable in that it would be unfair for it to be admitted or for this trial to proceed.[34]The judge, having heard the evidence of the police officers and the submissions, came to the conclusion that so far as s. 76 of the Act was concerned, he was satisfied that nothing was said or done by the police officers which could have rendered the witness statement unreliable. He accepted that the course that the police adopted at that stage was essentially driven by the fact that they believed that at least three of the bombers were still at large and could be motivated to try further attacks.[35]It should be noted that in the case of the bombers themselves, after they were arrested, the interviews were in the first instance conducted in the absence of legal advice, an issue dealt with in the judgment in R v Ibrahim and Others. The police were anxious to obtain as much information as they possibly could. In his prepared statement after he had been cautioned and had had an opportunity to take legal advice, this appellant said after denying any knowledge of the events of the 21st July 2005:
“I totally deplore those events. I was stopped by the police on Wednesday 27th July and agreed to assist them in every way possible. (See my statement witnessed 28 July 2005). I gave them as much detail as possible about somebody known to me as Hamdi.”
That is a reference to Osman. The statement then went on to correct certain matters of detail which were wrong, stating that as the statement was not completed until 5am, he was by then tired.[36]The judge said that this prepared statement helped him to determine whether or not the circumstances were likely to have rendered any confession unreliable, and concluded that the statement indicated that nothing was said or done by the police which would undermine the confession’s reliability. He also declined to exclude it under s. 78 of the Act, essentially on the basis that in the subsequent interviews which were perfectly conducted, this appellant adopted, subject to the matters of details to which we have referred, the contents of the witness statement as his defence.[37]Mr King on behalf of Abdurahman, submits that the judge’s decision was plainly wrong. He submitted that as far as s. 76 of the Act is concerned, the only proper conclusion from the fact that the appellant was being treated as a witness who would be allowed to go home and when it was clear that the police were desperate for any information, was that those circumstances were likely to render any confession unreliable. It was impermissible of the judge to look at the subsequent statement made by him as a means of determining whether the statement was likely to be unreliable. The witness statements should not have gone before the jury. It is impossible to say that the jury would necessarily have come to the same verdicts without it.[38]The way the police behaved is undoubtedly troubling. The decision not to arrest and caution Abdurahman when the officers interviewing him believed that they had material which gave them reasonable grounds for suspecting that he had committed an offence was a clear and deliberate instruction to ignore the Code. But at that stage the police dilemma is understandable. Abdurahman was providing information about Osman which could have been of critical importance in securing his arrest, which was the priority at that time. It seems to us that the judge was entitled to come to the conclusion that the prosecution had established that nothing was said or done which could undermine the reliability of the witness statement. He was entitled to take into account the fact that in the prepared statement he made after caution he asserted that he was seeking to give assistance to the police. That was repeated in the later interviews. He said nothing therefore to suggest that the circumstances were such as to render it likely that what he said was not reliable. It seems to us, therefore, that the judge was also entitled to conclude from all material that Abdurahman with the help of legal advice, was repeating, subject as we have said to some corrections, what was in the witness statement as his account of the part such as it was, that he played in relation to Osman in the days after 21st July. Further given the appellant’s adoption of that witness statement, we do not consider that the judge’s decision to permit the statement to go before the jury in the exercise of his discretion under s. 78 of the Act can be said to be perverse or affected by any error of law.[39]That leaves the argument that the judge was wrong to refuse to stay the proceedings as an abuse of process. The main thrust of the argument on Abdurahman’s behalf is that to prosecute on the basis of a statement that he gave when being treated as a witness is quite simply unfair. He was, it is said, effectively being told that he would not be prosecuted and gave assistance accordingly. The judge in our view rightly rejected this argument. There was no evidence that this appellant made his statement because he believed he was not going to be prosecuted. He gave no evidence to that effect; and there is nothing in the interviews after he was arrested to suggest that that was the reason for his having made the witness statement. On the contrary, he made the witness statement because he wanted to assist the police. In this type of case, the court is only likely to conclude there has been an abuse of process if a defendant can establish that there has been an unequivocal representation by those responsible for the conduct of the prosecution and that the defendant has acted to his detriment: see R v Abu Hamza [2007] 1 Cr. App. R 27, in particular at paragraph 54. That was not the situation here.[40]We accordingly dismiss the appeal against conviction.

Muhedin Ali

[41]Mudedin Ali applies for leave to appeal against his conviction on count 12, that is for assisting an offender, namely Osman. The prosecution case was that he did so by offering him accommodation in London at the time that he was in Brighton. S. 4 (1) of the Criminal Law Act 1967 is in the following terms:
“ Where a person has committed an arrestable offence any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence”
[42]The submission made on behalf of this appellant is that making an offer of accommodation over the telephone cannot in law amount to doing “an act” which is a necessary part of the actus reus of the offence. It is clear that the judge was troubled by this aspect of the matter. As we have already indicated the offer was made in one out of a number telephone calls between this appellant and Osman. The judge considered that the offence could only be made out if the appellant had made the telephone call, on the basis that the act was the making of the telephone call. Receiving a telephone call would not be sufficient. He according directed the jury that they could only convict if satisfied that the offer had been made in a telephone call initiated by this appellant.[43]In our judgment, nothing turns on the question of who made the telephone call. The vice was the making of the offer of accommodation not the making of the phone call. We can see no reason why, on an ordinary construction of the wording of the sub-section, the making of the offer of accommodation cannot be, in itself, an act. It is as much an act as making the offer in writing. The jury’s verdict necessarily means, that it concluded that the offer was made. Accordingly there is nothing which undermines the safety of this conviction.[44]We accordingly see no merit in this application and it is refused.

The appeals against sentence

[45]Before turning to the individual appeals, it is necessary to deal with some issues of principle which have been raised.(a) The offences under s. 38B of the Terrorism Act 2000 carry maximum sentences of 5 years imprisonment. The first general question, therefore, is whether the judge was right to impose, on so many counts, the maximum sentence. It is well established that the maximum sentence for any offence should not be imposed except for the worst type of offending. In this case the bombers planned and attempted murder on an indiscriminate scale. They sought to cause terror not only in London, but also throughout the country. They were each convicted of a conspiracy to murder and they were sentenced to life imprisonment with a minimum term of 40 years. We shall examine the particular criminality of each individual appellant on each particular count, but we have no doubt that the enormity of this crime and the dreadful risk which these bombers posed to the public safety until they were later arrested, is capable in appropriate circumstances, of justifying the imposition of the maximum sentence to either, and even to both, limbs of s. 38 B of the Act. In many cases, it will be the seriousness of the terrorist activity about which a defendant has failed to give information which will determine the level of criminality, rather that the extent of the information which could be provided which will affect the sentence. There is, in the present cases, however some force in the argument that the judge may have applied the maximum sentence to too many offences, particularly in the light of the comment that he made in his sentencing remarks that in his view the maximum sentences were “woefully inadequate”. Whatever our views may be, we are bound by the maxima laid down by Parliament.(b) The second issue of general principle arises out of the fact that consecutive sentences were imposed. It seems to us that there is nothing wrong in principle with imposing consecutive sentences where both limbs of s. 38 B of the Act have been charged. The failure to give information before the act, arguably the more serious offence, and failure to give information afterwards are entirely separate offences, although the failure may arise out of the same state of mind, for example misplaced loyalty. Where, as here, the offence of assisting an offender is charged, however, care needs to be taken to ensure that there is criminality over and above the failure to inform if a consecutive sentence is to be justified.(c) We then turn to consider the relevance of an appellant’s personal circumstances in these cases. There is of course always a place for exceptional personal mitigation even in cases as grave as this. We are very much alive to the personal dilemma that can be presented to someone faced with the unexpected and unwelcome news, or the gradual realisation, that a close family member or friend may be about to participate or has participated in a terrorist outrage. We understand that every encouragement must be given to such people to come forward to tell the authorities what they know, to prevent bloodshed or to bring to justice those responsible. There may be cases where the court may be able to show some understanding and even mercy when someone, if vulnerable either because of age or their particular relationship with an offender, for a time, mistakenly and misguidedly puts loyalty to a family or to a friend before duties to the public or before disclosing what they know to the police. As will be seen, this is undoubtedly a consideration in the appeal of Fardosa Abdullahi. But as to the others, they are all men between 26 and 34 years old. They were not young or vulnerable. The jury determined that each of them knew or believed what the bomber in question was setting out to do or had done and that carnage was intended and had been avoided only by chance. Each knew the extent of public outrage and fear which their conduct had caused even though the bombs had not detonated. Each acted without any regard whatsoever to their public duty. None except Abdurahman made any disclosure at all until they were arrested. None of the men pleaded guilty; none has shown the slightest remorse. (c)(i) All the appellants were ultimately granted bail subject to an electronically monitored curfew. Siraj Ali, Sherif, Mohamed, and Muhedin Ali were all subject to a 24 hour curfew, in other words house arrest. Abdurahman was subject for a time to a curfew between 7pm and 8am, then 10pm to 8am, and finally during trial to 10pm to 7am. Fardosa Abdullahi was subject to a 12 hour curfew. We have been asked to reflect these periods of curfew in our consideration of the sentences that have been imposed as, in particular in relation to those who have been subjected to house arrest, that is a deprivation of liberty which although not as serious as a remand in custody, nonetheless has a similar effect. It is accepted that under the current legislation, there is no statutory provision which requires the court to do so. But s. 21 (4) of the Criminal Justice and Immigration Act 2008, which received royal assent in May introduces a new s. 240 A into the Criminal Justice Act 2003. It came into force on the 8th November 2008. But it provides that, subject to rules to be made by the Secretary of State, the court will, unless it considers that it is not just to do so, give credit against the ultimate sentence of one half the number of days when a defendant has been subject to an electronically monitored curfew of at least 9 hours a day. It is submitted that we should reflect the fact that Parliament has passed this Act in our consideration of these appeals. (ii) The issue arose in R v Glover, Cox and Issitt [2008] EWCA Crim 1782. In that case the relevant appellant had been effectively subject to a 24 hour curfew electronically monitored. Hughes LJ in paragraph 14 of his judgment indicated that it was incorrect to equate time spent under a home curfew with time in prison, because life at home was clearly preferable to life in prison; however, he continued: “It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case”. (iii) It does not appear as though the court was there addressed on the effect that should be given to the passing of the 2008 Act. In our view, until s. 240 A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest. This may justify a modest period of credit in cases such as the present one. The period spent under house arrest were substantial, in the region of 16 months, the figure we consider appropriate is 3 months. But the same considerations do not apply where the curfew is in the night. A curfew period of this sort has been a common place for many years; and whilst the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew.(d) During the course of his sentencing remarks, the judge referred to the death of De Menezes who was mistakenly shot dead by the police whilst they were looking for Osman. We do not think that the judge meant to suggest that he was holding those appellants responsible for that death, still less that he had increased the sentence in consequence. He was merely reflecting the grave threat to public safety which was the result of the bombers remaining at large and gave the example of De Menezes as representing one aspect of the threat to the public which was thereby created by the bombers remaining at large. Siraj Ali[46]The jury concluded that he knew or believed that at least two of the bombers were intending to commit a terrorist act which, as we have said, is the more serious of the offences under s. 38B of the Terrorism Act 2000. For the reasons that we have given we can accordingly see nothing wrong, bearing in mind the nature of the act which was intended, with the imposition of the maximum sentence in his case. It was appropriate for these two sentences to be ordered to be served concurrently. The jury also clearly found that he was involved in clearing up the flat. But that adds little to the failure to give information after the bombings. We conclude that the sentences for giving assistance and of failing to give information should not have been ordered to be served consecutively. We also consider that, taking into account what we have said about house arrest, to which Siraj Ali was subjected to for 479 days, the appropriate sentence for failure to give information in counts 14 and 15 should be one of 4 years imprisonment for each. But these were clearly discrete and separate offences from the offence of failing to inform before the event; accordingly these sentences should be served concurrently, and concurrently with the sentence on count 11, which will remain one of 2 years imprisonment but they should be served consecutively to the sentences imposed on counts 1 and 2. The total sentence is therefore one of 9 years. To that extent this appeal is allowed.

Ismail Abdurahman

[47]The assistance that he gave to Osman was of the utmost significance. We conclude, however, that we can and should reflect the fact that, albeit only after he had been seen by the police, he gave at least some help and information. The sentence for assisting an offender, that is count 12, should therefore be one of 4 years imprisonment. The offence of failing to give information in relation to Osman, count 17 in the indictment, adds little to the criminality involved in assisting Osman. In our view the sentence should be one of 4 years imprisonment but to be served concurrently with the sentence on count 12. As far as counts 16, 18 and 19 are concerned, that is failing to give information about the other four bombers, that is clearly a separate offence that justifies a consecutive sentence. But again we consider that the appropriate sentence should be somewhat shorter than 5 years. We substitute the sentence of 4 years in each case. The consequence is a total sentence of 8 years imprisonment.

Abdul Sherif

[48]He presents a more difficult sentencing exercise. He played a critical part in enabling his brother to escape to Italy, which in our view justifies a very severe sentence which cannot be mitigated, as it was in the case of Abdurahman by his giving any information at any stage to the police. After acknowledging that there must be divided loyalties when a brother is involved in such activity, nonetheless we consider that the total criminality involved justifies, taking into account the fact that he was subject to house arrest for 467 days, a sentence of 6 years and 9 months. We impose that sentence on count 12 of the indictment. But for the reasons that we have already given, the offence of failing to give information adds little to the seriousness of the matter. We impose a sentence of 4 years imprisonment, but order that that be served concurrently. The total sentence is accordingly 6 years and 9 months.

Wahbi Mohamed

[49]Like Siraj Ali he knew or believed that the bombings were to take place and failed to give information accordingly. He knew or believed sufficient to have been able to give information about all four bombers. He was present at 14K Dalgarno Gardens when the final preparations were being made. We can see nothing wrong with the maximum sentence of 5 years being imposed in respect of counts 5, 6, 7 and 8. Those will be served concurrently. After the event, he gave assistance both to Osman and to Ramzi Mohamed. As far as Ramzi Mohamed was concerned, that was particularly important assistance, in that he effectively hid and fed him. The judge clearly concluded that the overall sentence for Mohamed should be substantially greater than for the others because of this closeness to the bombings themselves. However, we think that the present sentence discloses too great a disparity between him and Siraj Ali who also had prior knowledge. We conclude, taking into account the fact that he spent 304 days under house arrest, that the total sentence that he should serve should be one of 13 years. We propose that he should be sentenced to 4 years imprisonment on each of the offences of assisting an offender, that is counts 12 and 13, and failing to disclose information, that is counts 22, 23, 24 and 25. The sentences under counts 12 and 13 are to be served consecutively. But the sentences under counts 22, 23, 24 and 25 are to be served concurrently to each other and concurrently with the sentence imposed on count 13.

Muhedin Ali

[50]He was prepared to give assistance by way of accommodation to Osman when he was on the run. That justifies a far more serious sentence than one of 2 years imprisonment which is what was imposed by the judge. We conclude that the proper sentence would have been in the region of 5 years imprisonment. But taking into account the period of 479 days that he spent under house arrest, we propose to reduce that figure to one of 4 years and 9 months. We conclude that the failure to give information can in this case be said to be subsumed within the criminality of giving assistance, so that we reduce the sentence on counts 26 and 27 to one of 4 years imprisonment and order that they be served concurrently with the sentence on count 12.

Fardoza Abdullahi

[51]At the time she was 17 years old. She was born in Somalia and had been in the United Kingdom for about 6 years before the events with which we are concerned. She was formally engaged to Yassin Omar on 17th July 2005. She was charged in an indictment containing 2 counts, number one of assisting an offender, that is Omar, and one of failure to disclose information after the event. She pleaded guilty to the first count in the indictment that is, assisting an offender. That plea was accepted, and count 2 remained on the file. She was sentenced to 3 years in a young offender institution. The judge indicated that his starting point after trial had been 5 years. He discounted that for the plea and for the powerful mitigation advanced on behalf of the appellant.[52]The assistance that she gave was that she first of all stayed with him in an hotel on the night of the 21st July. She then helped him to escape to Birmingham disguised as a woman in a full length burka. CCTV footage showed her and Omar close to Golders Green coach station which is where he clearly took a coach to Birmingham. She provided him with a mobile phone. It is clear therefore that she gave the utmost practical assistance to Omar, enabling him to escape from London.[53]We consider that the judge was generous in concluding that the right sentence after the trial would have been one of 5 years. This case could have justified a sentence of up to 7 years. But there was powerful personal mitigation. She was a young girl who was clearly under great pressure from Omar who had a powerful personality, and others. Although it was accepted that she could not put forward duress as a defence, the extent of the pressure under which she was placed can properly be reflected in the sentence. The pressure was not helped by the fact that she suffers from post traumatic stress disorder from events in her childhood. The reports before the judge suggested that she may have difficulty in adjusting to an institutional regime. Current reports which we have seen are rather more optimistic. She was at the time of sentence pregnant, and has now given birth to a healthy child whilst in custody. Mr Cooper submits finally, that the judge was wrong to give a discount of only 10%. Although it was a late plea, it was intimated some weeks before trial. He submits that in any event the fact of pleading guilty was a brave thing to do in all the circumstances and showed remorse.[54]In our judgment, the judge in sentencing this appellant to 3 years in a young offenders institution reflected more than adequately all the mitigation that was available to this young woman, particularly bearing in mind the fact, as we have already indicated, that we conclude that 5 years was a generous starting point in all the circumstances. Despite the clear and able submissions from Mr Cooper both in writing and orally, we do not consider that the sentence imposed was manifestly excessive or wrong in principle. Accordingly this appeal is dismissed.

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