Ahmad, R v [2012] EWCA Crim 959

Case No 2011/04510/A2

[2012] EWCA Crim 959

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 25 April 2012

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE OPENSHAW

and

MR JUSTICE IRWIN

Between

R E G I N ACrown

- v -

Between

BILAL ZAHEER AHMAD

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Telephone No: 020 7404 1400; Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

Mr I S Khan appeared for Applicant

Mr M Dennis QC and Miss M Macmillan appeared for Crown

Judgment

Wednesday 25 April 2012

THE LORD CHIEF JUSTICE:

[1]This is a renewed application for leave to appeal against sentence following refusal by the single judge.

[2]The applicant, Bilal Ahmad, is now 24 years old. He has no previous convictions. He was born in England. He is the holder of United Kingdom and Pakistani passports. He is well-educated. He has a degree in Business Information Technology. He has worked with computer data and computer systems. He is familiar with electronic messaging and the internet.

[3]On 13 May 2011 in the Crown Court at Bristol before Royce J the applicant pleaded guilty to five counts in an indictment. Sentence was postponed for the preparation of reports. On 29 July 2011 he was sentenced to an extended sentence of seventeen years, comprising a custodial sentence of twelve years and an extension period of five years. Appropriate orders were made in relation to sections 240 and 240A of the Criminal Justice Act 2003. The applicant was required to comply with the notification provisions in Part 4 of the Counter-Terrorism Act 2008 (notification to the police) for 30 years.

[4]The offences to which the applicant pleaded guilty and was sentenced were as follows: on count 1 (publishing written material with intent to stir up religious hatred), he was sentenced to one year's imprisonment; on count 5 (collecting information likely to be useful to persons committing or preparing acts of terrorism), two years' imprisonment; on count 6 (a similar offence), two years' imprisonment; on count 7 (a similar offence), two years' imprisonment; and on count 9 (soliciting to murder), the extended sentence was imposed in the way that we have indicated. It is to be noted that the sentence imposed was not imprisonment for public protection, nor indeed a discretionary sentence of life imprisonment. The applicant pleaded not guilty to count 2 (soliciting to murder), count 3 (encouragement of terrorism), count 4 (dissemination of a terrorist publication), and count 8 (dissemination of a terrorist publication). The court ordered that those counts were to lie on the file, not to be proceeded with without the leave of the court or the Court of Appeal Criminal Division.

[5]As the bare recital of the counts to which the applicant pleaded guilty demonstrates, this case and his criminality involve terrorism and linked offences. In the context of each of the offences we shall refer to the agreed basis of plea. In reality, although that is the description applied to the document, it is not a basis of plea. In effect it asserts a series of matters of mitigation relied on by the applicant and advanced on his behalf for the consideration of the court.

[6]The facts of count 1 were these. On 20 March 2009, using the pseudonym Abdu Haman (Jahiman), the applicant engaged in an on-line discussion, using the Islamicawakenings.com website, about a college in India, which had decided to ban Muslim students from wearing the burka. This was contrary to the applicant's own religious views. It led him to ask where the Muslims were in this sort of language:

"They should storm these filthy rabid sub-monkeys and stomp on their jaws until they hear the sweet crack and then some"

. He used language that was highly abusive, sensitive and of concern to Hindus. No one acted on what he had posted on-line. When asked about it by the police, he said that it was an emotional response to the relevant news item.

[7]His basis of plea stated:

"The [applicant] made the posting as an emotional response to a news item which stated that Muslim girls at a school were being targeted because of wearing Islamic dress at a school in India. The [applicant] was responding to what he believed was religious hatred on the part of those responsible. Nobody acted upon the [applicant's] posting which was made in February 2009."

[8]Count 5 related to a book entitled "39 Ways to Serve and Participate in Jihad". It was stored on his laptop. It contained a purported justification for participating in violent Jihad, with, importantly, practical instructions on how to do so. The instructions included training in weapons and the best methods of circulating material on the internet. An updated version of the book "44 Ways" was also on the laptop. It was downloaded on 8 February 2010. The applicant said that he believed the document was transferred to his computer from someone else's hard drive. He could not recall reading it. Nevertheless, he pleaded guilty.

[9]The basis of plea states:

"The [applicant] concedes that, by virtue of the document '39 Ways to Serve and Participate in Jihad' being found on his computer, he was in possession of it for the purposes of count 5. The [applicant] believes that this document was one of a number of documents transferred at the same time to his computer from another person's hard drive. The document was not specifically identified as one that the [applicant] wished to acquire. He cannot recall ever reading this document."

[10]Count 6 related to another book found on the applicant's laptop. It was referred to in a number of other terrorist cases. It was entitled:

"Zaad e Mujahid: Essential Provisions of a Mujahid"

. It dealt with Jihad ideology, with practical advice on how to set up, fund, train and service a cell to the point of sending Mujahasou to fight. That appeared to have been downloaded in January 2010. There was a second copy of the book on the laptop, but there was no indication that either copy had been opened for reading. The applicant could not recall downloading it and said that he had not read it. In effect, that is what is contained in the basis of plea.

[11]Count 7 related to a magazine called "Inspire". It was another document stored on the applicant's laptop. It came directly from Al Qaeda in the Yemen. It actively promoted the messages given by Al Qaeda -- their propaganda. It was aimed at young, English speaking adults. Its objective was to enable Muslims to train for Jihad at home. It contained a large amount of ideological material encouraging terrorism. It included instructions, for example, on how to adapt a 4x4 car for an attack on members of the public, and how an indiscriminate gunfire attack on members of the public could be carried out. This magazine was published on 12 October 2010. The applicant downloaded it that same day. He claimed that he had downloaded it without knowing its content, but a fragment of the earlier summer edition, which included advice on "how to make a bomb in your mother's kitchen", was found on the laptop. The applicant claimed that he had not read the full edition. In his basis of plea the applicant accepted that he had downloaded the document onto his computer and was therefore in possession of it for the purposes of the alleged crime. He did so from the Revolutionmuslim.com website, although he had not read it.

[12]Those counts are all contextual. They are serious in their own right, but they provide the background to count 9, soliciting to murder. For this purpose we need to go back to an incident which occurred on 14 May 2010. Mr Stephen Timms MP was working in his constituency surgery. A woman called Roshanara Choudhry visited him at his surgery. While she was there she stabbed Mr Timms twice in the stomach. When she was arrested she admitted that she had intended to kill him because he had voted in favour of the war in Iraq. She said that she wanted to be a martyr. She was charged with and prosecuted for attempted murder. At her trial she refused to recognise the authority of the court. She was not present. She was tried in her absence. Following her conviction on 2 November 2010 she was sentenced to life imprisonment.

[13]That is the context in which, on 1 November 2010, the applicant posted on Facebook the comment that this woman had put men to shame for they too should be doing what she had done. On 3 November he placed an entry on the USA based website "Revolutionmuslim.com" calling on others to take up the Jihad and to attack Members or Parliament who had voted in favour of the war in Iraq. This was no mere idle entry. The applicant provided a list of every MP who had voted for the war, together with a link to a website containing their personal details. He advised that the best place to encounter them for the purposes of killing them would be at their constituency surgery. In addition, he posted a link to a Tesco on-line shopping service which could be used for the purchase of knives. The entry included extracts from Islamic writings promoting Jihad, and attaching a link to the Book of Jihad which emphasised violent Jihad and the virtues of martyrdom which had inspired Roshanara Choudhry. He offered prayers for victory everywhere to the Mujahadin. He called for a renewed attack on Mr Timms, and indeed on the judge who had sentenced Roshanara Choudhry.

[14]This dramatic entry had, as the applicant would have known, an almost immediate worldwide audience. It remained posted on 4 and 5 November. On that day there were reports relating to it in The Times and The Daily Telegraph newspapers. The articles would have been read by people who would have been sympathetic to the views expressed by the applicant, as well as those who were unsympathetic or indeed downright hostile to them. However, there were widespread calls for this website to be closed down. It was removed from the internet in the United States. Nevertheless, it remained a significant topic of debate worldwide.

[15]As it happened, the entry was thought to be potentially counter-productive. The applicant received a recorded message from an Islamic activist in the United States warning him that the entry would lead to his arrest. The applicant tried to remove the entries. It is unclear whether he had managed to do so before the United States authorities stepped in and arranged for or managed to achieve the removal of the entire website from the internet. Subsequent examination of the applicant's laptop showed that he had visited many sites all around the world and had seen articles in relation to his message that United Kingdom Members of Parliament should be killed.

[16]The basis of plea records:

"The [applicant] accepts that he posted the article 'MPs that voted for War on Iraq' on the Revolution Muslim website on 4 November 2010. He did so as an emotional response to what had happened to Roshanara Choudhry and the perceived injustice of her treatment and that meted out to those in Iraq. Nobody acted on the exhortations in the article and he took it down in a very short space of time once he realised what he had done." 17. "

The [applicant] accepts that an analysis of his computer shows that he was engaged in an exchange of views with many people. Of the vast material on the [applicant's] computer, not all of it was unlawful or related to violent extremism. Furthermore [and these are matters of mitigation, not part of a basis of plea]: (1). The [applicant's] conduct did not lead to anyone taking action in any way. (2). [He] did not conceal or seek to conceal his activities (except to the extent that in removing the posting on the Revolution Muslim website he also sought to remove some of the traces of his on-line posting). (3). [He] used his true identity in conducting his activities when the name [that he used] could be traced back to him. (4). When arrested [he] spoke openly, giving a full account and co-operated with the police until there was a change in his legal representation."

[17]We have taken note of the matters raised in the basis of plea.

[18]The applicant was arrested on 10 November 2010. He admitted that he had used his laptop to post the offending website entry. He said that it had been a spur of the moment act done partly as an emotional response to recent events, partly out of insolence, and partly as an ironic gesture. It was "completely irrational" and "tongue in cheek". He was not a member of a terrorist cell. He said that he never intended to incite anyone to injure anyone else. Indeed, he said that he did not support the use of violence to further Islamic beliefs and that he adhered to a "covenant of security" with the citizens of this country and would not harm them.

[19]He was interviewed over several days. For the first three days he answered questions, and thereafter declined to do so.

[20]The police searched his home. They examined his laptop. It was during these searches that they found much of the evidence on which the earlier counts to which we have referred were based, including evidence endorsing violence if necessary against those who were opposed to the views he expressed. As an example, his Facebook account read:

"My message to the West: You are all going to die."

In a laptop file "On the News" he recorded some of his personal exploits, including a photograph of himself "shouting abuse at the Kafir right before we rushed them" during a demonstration outside a Mosque. He referred readers to a quotation of his, referring to blood on the streets of London and New York. He told Muslims to watch the news because they might see a repeat of what had happened to Theodoor van Gogh, who, it will be remembered, was murdered by an extremist in Amsterdam.

[21]In an e-mail posted on "RevolutionMuslim.com" he called for Muslims to write to a head teacher of a Catholic college in Blackburn, who had ejected a veiled parent from a parents' meeting because of a school policy that people should not be veiled. The applicant gave the name of the head teacher, the full address of the school, and set out a letter that he had written to the head teacher stating that the ejected woman was upholding the values of modesty and referring to Catholic priests as "paedophiles".

[22]There were vast numbers of leaflets stored on the applicant's laptop. One, to be distributed at general election time, stated that Muslims must not vote. Also on his computer there were pictures of the Houses of Parliament being blown up and the Twin Towers being destroyed.

[23]When the judge came to pass sentence he was provided with a pre-sentence report. Its conclusions are criticised by Mr Imran Khan, who appears on behalf of the applicant, as effectively insufficiently adequately based and not sufficiently attending to the changes and improvements (perhaps reform) of the applicant following his arrest. The pre-sentence report states:

"Research indicates that of individuals with a similar age, gender, criminal history and social/personal risk factors, about two in ten are known to re-offend violently and two in ten non-violently within two years, representing a low risk of re-offending. However, it is important to put this conclusion in a context given that offences of this nature are of a high level of seriousness and occurred after a process of radicalisation, meaning that predicting future behaviour and the likelihood of re-offending is a difficult task. In terms of minimising that risk these are clearly challenges for criminal justice agencies in how Mr Ahmad is monitored in the future, and what offence focused work he engages with throughout his sentence in order to reduce the potential of re-offending." (1). The commission of similar offences would promote and encourage further extremist violence or acts of terrorism. (2). The risk of violent/physical attacks against political figures/institutions. (3). The increase in religious and racial tension or hatred in communities worldwide. (4). The increased likelihood of recruiting apathetic Muslims into extremist groups. 33. "[The applicant] presented as a young man who appeared remorseful for his behaviour, admitting that he realises what he did was serious and could have contributed to serious physical harm being caused to others."

[24]The judge also heard from Mr Imran Khan in mitigation of the offences. The following matters were noted by the judge. The applicant was a young man who was well educated and came from a respectable family. He had been exposed at a young age to individuals which made him susceptible to the influence of extremist material at a time when he was experiencing problems as a teenager at home. Although he had one relevant caution, he had no convictions and was a man of good character. The criminal culpability for the gravest offence (soliciting to murder) occupied only a short period of time. The judge also noted that the applicant said that he had not opened or read the terrorist material which had been downloaded onto his computer, and that he had made some admissions on arrest and had co-operated during the interviews.

[25]The judge then addressed the applicant's guilty pleas and the discount which it would be appropriate to give for them. Mr Khan submitted that the applicant should be given full credit. The judge rejected that submission. Full credit would have meant a one-third discount. The judge looked at the chronology. The case was listed for trial with an estimate of six weeks. Application was successfully made for two counsel because the amount of work necessary for the preparation of the trial would be substantial. The judge said that there were cases in which there were wholly understandable reasons why pleas were not entered at an early stage. He asked Mr Khan whether he had made clear to the Crown at an early stage that there would be a guilty plea to the offence of soliciting to murder Members of Parliament. Mr Khan was unable to give that indication. Indeed, before us Mr Khan frankly accepted that, in reality, an indication could have been given in relation to the offence charged in count 9, even if the investigation into the remaining counts had not been concluded, and for that matter the indictment was unavailable. The judge indicated that, given all these considerations, if a defendant was to receive full credit it was no good withholding information that there will be a guilty plea to the most important count in the hope that negotiations would lead to the prosecution not pursuing some of the other counts in the indictment. Accordingly, the judge concluded that he would give the applicant credit for his guilty pleas, but that the credit should be reduced from the one-third, which would have been appropriate if the plea had been tendered at the first available opportunity, to 25 per cent.

[26]The judge then considered the submission made by Mr Imran Khan in relation to the gravest offence (count 9): that it should be regarded in the way advanced on behalf of the applicant as an emotional response to what had happened to Roshanara Choudhry following her trial, and that in the end nobody acted on the urging that a Member of Parliament should be killed.

[27]Finally, the judge considered the issue of dangerousness. He concluded that the facts of the offences justified the conclusion that the applicant constituted a danger -- not a danger sufficient to bring into effect a sentence of life imprisonment, nor indeed imprisonment for public protection, but the lower of the three protective sentences, the extended sentence.

[28]In his oral submissions today Mr Imran Khan has identified four matters which, he argues, would justify granting leave to appeal and which would result in a reduction in sentence. They are:(1) that the discount for the guilty pleas was insufficient; the one-quarter discount should have been a one-third discount;

(2) that the judge had failed sufficiently to attend to the mitigating features to which his attention had been drawn;

(3) that the judge was wrong to reach the conclusion that the applicant represented a danger for the purposes of an extended sentence; and

(4) that the seriousness of the offence should be regarded, on an examination of the authorities, as in line with, or much closer to, the level of seriousness identified in cases like R v El-Faisal

[2004] EWCA Crim 456

, rather than R v Tsouli and Others

[2007] EWCA Crim 3300

. The judge had been referred to these authorities. He had in mind that each time there was a terrorist atrocity, each new atrocity required a significantly greater element of deterrence. That was the way in which this court approached cases of this kind.

[29]Mr Imran Khan submits that the judge had, in effect, misread the facts when he put the case into the level of sophistication which would have been appropriate if it had been similar to Tsouli, and that this case lacked any kind of sophistication.

[30]We have carefully considered those submissions. Although this is a renewed application for leave to appeal, our narrative of the facts has been detailed. We must return to what this case is about. The gravamen is to be found in count 9. This is the critical count with which the applicant was charged and to which he pleaded guilty. The other counts provide a somewhat chilling and not irrelevant context. They are not without importance. Taken on their own they are serious offences, but count 9 is the heart of it. It occurred in the aftermath of a murderous attack on an elected Member of Parliament who was undertaking his responsibilities for his constituents. He was doing so in what, if it is to work properly, was and should be a system of open door access by individual constituents, unencumbered by security considerations. In other words, the applicant was urging that advantage should be taken of the procedure of direct and easy access by constituents to their Member of Parliament. The MP's surgery is an essential feature of our democratic processes. Every Member of Parliament, whichever party he or she belongs to, is in the same vulnerable position as Mr Stephen Timms was.

[31]That was the context in which the applicant solicited murder. It was not an idle threat; it was not a joke; nor was it something to be brushed aside as trivial. The applicant intended that Members of Parliament should be killed. That was his objective. He identified each Member of Parliament who had voted in favour of the war in Iraq. He offered personal details about them and he advised how knives should be obtained for the purposes of murder. He urged a renewed attack on the unfortunate Mr Timms and on the judge who had sentenced Mr Timms' assailant. This was an attack on the processes by which our democracy functions and on those whom we elect to represent us in Parliament.

[32]In refusing leave the single

judge made the following observations:

"The judge rightly described you as a 'highly intelligent thinking individual'; he observed that 'you knew what you were about'. The offences to which you pleaded guilty were part of a continuing and focused course of conduct between January 2009 and November 2010. Much of the material which you posted on the internet sought to exchange violent extremism and provided others with a means to access material in which well-known terrorists urged them to commit acts. You posted material on notorious websites where it was widely read. Many of those to whom it was made available shared your ideology, making it more likely that they might be encouraged to act on your suggestions. You were well aware of the potential consequences of your behaviour and, using your significant computer skills, devoted a significant amount of your free time to online activities, the execution of which involved planning and sophistication. The analysis by the judge of the most serious count, count 9 .... properly reflects the nature and ramifications of your acts. The judge in sentencing you carefully considered the relevant authorities....."

We, too, have considered the relevant authorities. We have concluded that the starting point and the way in which the judge approached the assessment of sentence is consistent with those authorities.

[33]In relation to the discount for the guilty pleas, the single judge suggested that there could be nothing in the reasoning of the judge that suggested that the discount he chose was wrong. We agree. The plain fact of the matter is that the full discount is to be given only to those who take the earliest available opportunity to plead guilty. Thereafter, the discount is reduced. It is a matter for the judgment and discretion by the sentencing judge. We can see nothing to be criticised in the decision that here 25 per cent was the appropriate level of discount.

[34]In relation to the submission that the judge had failed to attend to the factors of mitigation, we reject Mr Imran Khan's submission. In the course of our judgment we have narrated the way in which the judge directly addressed those issues one by one and recorded them as factors which he had in mind when considering, as judges must, both the aggravating and the mitigating features of the case. We do not accept that when he assessed sentence the judge had not given full attention to the mitigating features.

[35]Finally, we deal briefly with the criticisms made of the fact that the applicant was found to be dangerous and of the conclusions of the author of the pre-sentence report. The single

judge observed:

"You are and were an intelligent man when you committed these offences. You must have been well aware of what you were doing and its consequences. As the judge observed, the facts of this case of themselves would justify the conclusion that you are a danger."

[36]We agree that the facts of the case justified the conclusion that the applicant constituted a sufficient danger for the purposes of the extended sentence which the judge imposed. Even if the author of the pre-sentence report had reached a different conclusion to that which he expressed, in the end it was a matter for the judge. The judge would have been entitled to reach a contrary conclusion to that of the author of the pre-sentence report. In fact, the author of the pre-sentence report expressed views which coincided with the view reached by the judge.

[37]The facts of this case speak for themselves. That was the view formed by the judge and it is the view which we form. What the long-term future may be is a different question. For this purpose we have had two moving letters from the parents of the applicant, as well as a letter from the doctor who has his care at Her Majesty's Prison Manchester. However, the conclusion that the applicant represents a danger for the purposes of the 2003 Act is, as the single judge observed, well-founded.

[38]Accordingly, the imposition of the extended sentence for the purposes of public protection was an appropriate way to deal with the applicant for the offences to which he had pleaded guilty.

[39]Although we recognise the careful way in which Mr Imran Khan has prepared and advanced his submissions to us, we have come to the conclusion that this sentence was an entirely appropriate sentence for the criminality involved in this case. Accordingly, the renewed application for leave to appeal against sentence must be refused.