Alamgir & Ors, R. v [2018] EWCA Crim 21

[2018] EWCA Crim 21Case Nos: 2017/1243/B5, 2017/1247/B5, 2017/1250/B5 and 2017/1255/B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Topolski Q.C.
T20150445 and 20160037
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/01/2018
Before
LORD JUSTICE TREACYMRS JUSTICE McGOWANHIS HONOUR JUDGE MAYOSitting as a Judge of the CACD
Between
ReginaRespondentMohammed Ishtiq Alamgir1 st AppellantYousaf Bashir2 nd AppellantRajib Khan3 rd AppellantMohammed Choudry4 th Appellant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Sean Larkin QC and Miss Michelle Nelson (instructed by Prosecution Counter Terrorism Division) for RespondentMr Alesdair King (instructed by Usmani King LLP) for 1st AppellantMiss Isabella Forshall QC and Mr David Gottlieb (instructed by Arani LLP) for 2nd AppellantMr Paul Hynes QC and Mr Richard Doman (instructed by Ahmed and Co. LLP) for 3rd AppellantMs Kate O’Raghallaigh (instructed by Ahmed and Co. LLP) for 4th AppellantHearing Hearing date: Tuesday 19 th December, 2017
Judgment As Approved by the CourtLord Justice Treacy :Introduction
[1]The appellant Choudry appeals with the leave of the Single Judge against a sentence of 4 years’ imprisonment for an offence of encouraging support for a proscribed organisation contrary to s.12 of the Terrorism Act 2000. The appellant had been convicted at the Central Criminal Court after a re-trial. A number of co-accused had been convicted of offences contrary to s.12 at the first trial at which the jury did not reach a verdict in Choudry’s case. Alamgir, Khan and Bashir renew applications relating to sentence after refusal by the single judge. They, too, had contested their guilt.[2]On 10 February 2017 all offenders were sentenced. Mohammed Alamgir was sentenced to 6 years’ imprisonment on three counts contrary to s.12; Yousaf Bashir was sentenced to 4½ years for one count contrary to s.12; Rajib Khan was sentenced to 5 years’ imprisonment for one s.12 offence, together with 18 months’ imprisonment to run concurrently for arranging a meeting to support a proscribed organisation; Ziaur Rahman, whose case is not before the court, was sentenced to 30 months’ imprisonment for three counts of arranging a meeting contrary to s.12.[3]The background to the case shows that a group formally known as Al Mujahiroon, now a proscribed organisation (but not described as such at trial), saw Sheikh Omar Bakri Mohammed as their leader and teacher. He was a radical scholar who taught and preached in London and promoted violent jihadi views. After the July 2005 bombings he left the UK and was excluded from re-entry. He personally taught the co-accused Alamgir and Khan. This case concerned persons currently or formerly associated with that group or who, it was alleged, were actively sympathetic to it or its aims.[4]On 20 June 2014 Isis was in that name and in other names designated to be a proscribed organisation. It was common ground that the Caliphate had been purportedly re-established around 29 June 2014 when the leader of Isis, Abu Akbar Al Baghdadi, declared the land seized in Syria and Iraq as a Caliphate or an Islamic State. At the same time he declared himself to be the Caliph.

The Offending Speeches

[5]Between March 2014 and November 2015 an undercover police officer known as Kamal infiltrated a group of people believed to have violent jihadi views. The group was a national one with its main branch in London, but this operation concentrated on the Luton branch. A number of prominent figures who themselves have been convicted of offences under terrorism legislation were speakers in Luton. Alamgir was the head of the Luton branch and Khan was a deputy. They spoke at meetings and held Islamic classes for members of the group and others. Bashir was said to be an enthusiastic member of the group who recorded speeches for dissemination. The group met regularly for speeches and Islamic classes. In addition, Alamgir and Khan promoted their view of Islam at a dawah stall after mosque on Fridays.[6]The focus of the trial was on meetings held and speeches made during the holy month of Ramadan in 2015. The meetings took place in a marquee erected in Rahman’s garden. These meetings were deemed to be more significant than normal and attracted large numbers including members of the national group and children. Numbers attending varied between a few dozen and over 100.[7]On the first anniversary of the declaration of the Caliphate, 29 June 2015, Alamgir gave a talk to an invited audience in Luton. This speech and others made by him and by Khan, Bashir and Choudry during Ramadan had as their primary purpose the encouragement and support of Isis. Khan had also distributed invitations; Rahman had hosted the gatherings and provided food and hospitality. Bashir recorded some of the meetings. We provide below brief summaries of the content of the speeches with led to convictions.[8]Mohammed Alamgir was convicted on three counts relating to separate occasions. Count 1 was a meeting on 29 June 2015. He spoke of the sun setting on the British Empire and starting to rise for the Islamic State. He spoke of Muslims who go to fulfil what he called “the obligation”. He referred to those on the front line as being the best of the best, and how the year which had passed since the establishment of Islamic State represented more success than had been seen in the previous 80 years. He then called for an end to procrastination and spoke of what he called victory in Tunisia and Kuwait. Those were references to recent outrages in both countries, resulting in large numbers of dead and injured. Speaking of those attacks on wholly innocent people he said:
“We feel good. We feel the victory. We see Islam rising. One good example for all of us.”
He invited the audience to wake up and remember the words of Sheikh Omar Bakri Mohammed that “a Muslim without Sharia is like a fish without water”. He closed with a reference to the last great battle, a theme which the Islamic expert, Dr Wilkinson, said was frequently to be seen in the speeches and writings of those who were violent Islamic extremists.[9]Count 2 relates to 7 July. Alamgir announced funeral prayers to be held for Abu Rahin Aziz, a former member of the Luton group, who had just been killed by a drone strike while fighting for Isis in Syria. He described him as the best of martyrs. He returned to the theme of procrastination, speaking of those prepared to go and fight Jihad as those who go forward while the rest get left behind. He exhorted the audience to wake up and realise that they are part of the struggle and part of history, suggesting they are not going to be forgiven unless they answered the call and stood together under the banner. He urged that the best thing to do was to make Hijrah, migration, because he suggested the Muslim community was under attack from the Kufr (infidels), both here and elsewhere.[10]Count 4 took place on 15 July. Alamgir talked about a part of the Muslim Council of Great Britain in the shape of the Quilliam Foundation, a counter-extremism think-tank standing for religious freedom, equality, human rights and democracy. He described it as being made up of idolaters, hypocrites, apostates and supporters of the British government.[11]We turn next to Yousaf Bashir. He was convicted on Count 5, an event which took place on the same date and venue as Count 1 where Alamgir had addressed the meeting. Alamgir’s speech was followed by one made by Bashir. He told a story of someone losing a race because he thought the race was over, when in fact it had another lap to go. He talked about people who might be thought of as being right at the back and doing nothing, who then step forward. Those people step forward with their families and children to “carry the banner for us”. This was said to be a direct reference to a recently-published news story about a Luton family going, together with their children and at least one elderly relative, to join Isis in Syria.[12]Rajib Khan was convicted of Count 6, encouraging support, and Count 7, arranging a meeting to support a proscribed organisation. Both offences related to the same day, 11 July. Khan spoke of the Muslim community having power, “and that is why the whole world is scared of the Muslims right now”. He added that the time for sitting on the fence was over. This was the moment that people had been dreaming of for centuries. He said “the reality is we have a Khalifa, our Khalifa, our State, and we must love it and we must care about the Umma”. He spoke of Abu Rahin Aziz and how his death had surpassed everything that others had done.[13]The count against Mohammed Choudry related to 2 July 2015. At that meeting he spoke of the conduct and behaviour of the Kufr as being disgusting and involving behaving in ways which were worse than animals. The passage was described as both hateful and divisive. He referred to the declaration of the Caliphate as being a blessing and said more than once that neither he nor anyone else should care what the Kufr think and that the Kufr should “die in their own rage”. He stated that “our time will come” and that “a wave is coming”. He asked the audience to be ready for the hardship and struggle to come and said that the time for revenge had arrived. He referred to attending, as a teenage boy, a talk given in London by Omar Brooks, an invited speaker during Ramadan in Luton, a man convicted of terrorist offences and a significant figure in the extreme Islamist world. At the end of Choudry’s long and complex speech there followed a passage which described 40 trucks driving down Oxford Street full of explosives.[14]That speech, as well as the other speeches made by the co-accused during the Ramadan period, was considered against a background of evidence including recordings of speeches to the Luton branch to similar effect made outside the Ramadan period. By way of example, some days before Choudry’s speech another member of the group made a speech, at which all defendants were present, applauding Islamic State’s policy of murdering homosexual men and stating that no one should feel sorry for any Kufr, specifically Britons in Tunisia (where there had been a terrorist outrage) or factory workers in France, one of whom had been beheaded shortly beforehand by an Islamist extremist.

Defences Advanced at Trial

[15]In essence, the defendants accepted that the meetings were arranged and that speeches were given as recorded and transcribed. However, each defendant denied that his purpose was to encourage support for Isis. The collective defence case was that their speeches fell on the lawful side of the line drawn in legislation. The jury’s verdict shows that it was sure that that was not the case.[16]Alamgir did not give evidence. It was not contested at trial that he was a supporter of views which could be considered at the extreme end of Islamic beliefs. We do not need to repeat them. He denied supporting Abu Bakr Al-Baghdadi or the organisation known as Isis.[17]Bashir made no comment in interview and did not give evidence. The case presented on his behalf was that neither his purpose nor his words in any way encouraged or were intended to encourage support for a proscribed organisation.[18]Khan gave evidence and said that although that he originally supported Al-Baghdadi as the new Caliph, he became disenchanted by Isis’s violent methods and by 2015 was not a supporter. He agreed he continued to perform dawah (calling others to Islam) but said he did not support violence and that he subscribed to the non-violent concept of the “covenant of security”.[19]Choudry gave evidence denying that his purpose was to encourage support for Isis or that his speech contravened the legislation. The jury’s verdict showed that they were sure that the purpose of his speech was to encourage support of Isis, a proscribed organisation, and that he knew at the time he spoke that he was encouraging support for it.

Antecedents

[20]Alamgir, Bashir and Khan are all in their late 30s. Choudry is 23. Khan and Choudry had no previous convictions. Alamgir was convicted in 2014 of an offence of violent disorder arising from events on 10 May 2013 in Edgware Road which involved a protest, firstly about the conflict in Syria and then against members of the local Shia community, which culminated in violence. He was sentenced to 10 months’ imprisonment. In addition, at the time of the present offences, he had been on bail for offences of criminal damage.[21]Bashir had two relevant previous convictions for public order offences. In January 2010 he was convicted of using disorderly or threatening behaviour. He and Rahman and some of the Luton group were at an anti-war demonstration in Luton which was, in part, a protest at a parade by an army battalion which had just completed a tour of duty in Iraq. He was heard to shout “British Army: murderers. British Army: go to hell.” He then took up a microphone and led the protest, shouting things such as “British soldiers: terrorists. Muslims rise up. Muslim men stand up. British soldiers, you will pay. Islam for the UK.” In June 2014 he pleaded guilty to affray arising out of violence against members of the English Defence League. Those events took place in London in May 2013. Bashir received a 21-week prison sentence. The Judge’s Sentencing Remarks[22]In passing sentence, the judge said that it was clear that the jury was sure that the defendants had knowingly crossed the line between legitimate and lawful expressions of deeply-held opinions and beliefs and the crime of encouraging support for a bloodthirsty terrorist organisation. He accepted that the offences did not involve direct and explicit encouragement of specific acts of violence. Nor did the evidence show any direct link between what was said and any act of violence by anyone in the audience. There was no evidence that any listener was inspired to commit any particular terrorist act. However, the absence of any direct link between a speech and an act of terrorism did not mean that the offending was not serious, albeit it could not properly be described as the most serious example of its kind. The speeches were clearly supportive of terrorism and specifically of Isis and encouraged their audiences to do the same. The main thrust of the message each defendant was seeking to convey would have been clear to members of the audience. The message was that Al Baghdadi, the Caliphate and Isis should be encouraged and supported in its work. Those who had demonstrated support and encouragement by word and by deed should be celebrated with pride and if possible emulated.[23]The judge, who had heard detailed evidence, spoke of the defendants as long-standing and active supporters of Sheikh Mohammed and his organisation. All defendants were fully aware of the nature of Isis and its call, in September 2014, for lone-wolf attacks against Kufr anywhere in the world. They admired and supported Isis by their activities in encouraging their audience to accept that by doing wrong they would be doing right. It was their intention to persuade their audiences to take up a more radicalised position and act upon it. The atmosphere surrounding the meetings was likely to lead or encourage some to give active support and encouragement to Isis. Whilst the size of audiences was not as large as an on-line audience, the audiences were not insignificant and the impact was likely to be greater. The offending was not spontaneous. The judge also said that none of the defendants had since the trial been prepared to denounce the activities of, or support for, either the Caliphate or Isis. The judge’s analysis of the offending after conducting two trials is to be respected.[24]The judge assessed Alamgir as undoubtedly the leader of the Luton group. He was deeply respected and sought after as a teacher and an activist. It was to him that members of the Luton group turned for help and advice. When he spoke he commanded attention. Although there was no direct encouragement by him of violence, it was very likely that his words would have been influential and that they would have encouraged others to support Isis. His tone and chosen content went beyond intellectual support. It was something far deeper. He was deeply committed to an extreme and violent Jihadi mindset and in that sense he was dangerous.[25]Bashir had been described as extremely knowledgeable but not in a leadership role. He regularly attended meetings at Ramadan in 2014 and 2015. He had chaired a handful of them, and one during the period charged. Although he had a lower profile than Alamgir he was an important long-term and active member of the group. Although the speech which he made had been brief, the judge said it was likely to have been just as powerful in the minds of at least some of the audience as speeches made by other defendants. Bashir had recorded some of the speeches, presumably for future use.[26]The judge said that Khan was clearly highly intelligent, articulate and well-informed about Islam. The judge accepted he had stopped short of actually encouraging acts of violence but found that he was deeply committed to an extreme and violent Islamist mindset. His speech had clearly encouraged support for Isis. He played his part as an important and influential member of the Luton group and others such as Rahman had looked to him for guidance and advice. He played his part, fully intending to encourage support, not merely for a religion, but also for a terrorist organisation. Although the judge thought him dangerous within the ordinary meaning of the word, he said it would be right to draw a distinction favourable to him between himself and Alamgir to mark their respective positions in the Luton group, the number of speeches made, and their respective criminal histories (Khan had an old and irrelevant conviction for affray on his record).[27]Choudry, at 23, was by about 15 years the youngest of the defendants. He was of previous good character. He made a single speech and, whilst this was not his only appearance in activities and events involving the Luton group, it was right to observe that his appearance on the scene in Luton was late in the day although he had been very familiar with, and in some cases connected to, other significant figures. He had appeared at a dawah stall with Omar Brooks and Anjem Choudary, both men convicted of terrorist-related offences, shortly after he made his criminal speech in Luton. Of the Luton group he only knew Khan well. The judge commented that this appellant’s speech was no momentary excess of enthusiasm. It was well prepared and a considered attempt to put himself forward as a new and radical voice prepared to speak in support of violent extremism.

Submissions

[28]On behalf of Alamgir it was submitted that the term of 6 years was manifestly excessive. This was so where insufficient regard had been paid to Alamgir’s genuine beliefs which pre-dated the creation of Isis. Moreover, the limited audience and the nature of the audience had been insufficiently reflected in sentence, as had the absence of any direct link to any violent acts of terrorism.[29]Bashir’s grounds assert that his sentence did not fall sufficiently far short of those imposed on Alamgir and Khan, and would in any event fall to be reduced if their sentences were reduced. He argued additionally that his sentence was unduly longer than that imposed on Rahman. It was emphasised that he was not a leader and that, unlike others, the judge had not described him as dangerous.[30]Khan urged that the judge had failed adequately to reflect a balance of aggravating and mitigating features in the sentence, and that he took account of matters on a basis wider than justified by the indictment or the evidence. He argued that his role, what he had said, and the fact that there was a limited audience, should have led to a lesser sentence.[31]For Choudry it was submitted that the length of sentence imposed was manifestly excessive. It was disproportionate to the gravity of the crime committed, the judge had placed too much emphasis on the appellant’s mindset and had mis-assessed his offending conduct. Moreover, the judge had wrongly stated that the appellant had not denounced or withdrawn support for the Caliphate or Islamic State. In addition, the judge had failed to take account of mitigation and in particular the appellant’s age, good character and a clear prospect of rehabilitation.

Discussion and Conclusions

[32]Section 3 of the Terrorism Act 2000 gives the Secretary of State power to proscribe an organisation if he or she believes that it is concerned in terrorism. As s.3(5) shows, being concerned in terrorism involves the commission or participation in acts of terrorism, preparing for terrorism, promoting or encouraging terrorism, or is otherwise concerned in terrorism. S.3(5A) also includes cases where the activities of the organisation include the unlawful glorification of acts of terrorism, whether future or past.[33]The offences under s.12 of supporting a proscribed organisation are therefore serious offences. The maximum penalty is 10 years. We note that offences of encouragement of terrorism and dissemination of terrorist publications under ss. 1 and 2 of the Terrorism Act 2006 carry a lower statutory maximum of 7 years. Those offences, however, are not targeted at those who, by their actions, support a proscribed organisation. Clearly, in the hierarchy of offending provided by terrorism legislation, the fact that an organisation is proscribed is to be viewed as a matter impacting upon the seriousness of the offence. As was made plain in R v Kahar and Others [2016] EWCA Crim 568 at [12] and [13], the very act of proscribing represents a determination that the organisation in question is concerned in terrorism. Thereafter, there is to be no ranking or league table of organisations, since Parliament has legislated against all terrorism and does not distinguish between causes or aims.[34]There is no sentencing guideline for terrorist offences at present, nor is there any guideline case decided by the Court of Appeal in relation to s.12 offences. In those circumstances, a court should approach sentencing a s.12 offence by reference to a consideration of seriousness, having regard to culpability and harm, as required by the Criminal Justice Act 2003. In considering culpability, a court should consider the position of the offender and whether they are in a position of authority or influence. The persistence of efforts to gain support will be relevant, as will the type of activity involved. In the context of offending of the sort committed here by addressing a live meeting, it will be necessary to consider the size and nature of the audience targeted.[35]In relation to harm, a court should consider the extent of support gained or likely to be gained for the proscribed organisation.[36]There were certain points accepted by the judge below which are common to all the offenders before the court today. The judge found that their offences did not involve any direct encouragement of any specific act of violence. He found that there was no direct link between the speeches made and any terrorist or violent act by any member of the audience. Those are matters of relevance. Had any direct link of the sort referred to been established it would have placed the offence very high on the scale of seriousness. The fact that such direct consequences had not been shown to have occurred does not mean however that the matter is not serious in the context of this offence. The offence is committed if there is an invitation for support for a proscribed organisation and the purpose of the speaker is to encourage support or furtherance of the organisation’s terrorist activities in the future. By definition, such conduct is seriously inimical to the interests of the state. By the jury’s verdicts there was a clear intention by each offender to advance the cause and aims of ISIS.[37]It is also important to consider the nature of the audience addressed. Here, there were live audiences, specially invited at an important time of the religious year. Members of the wider Luton group had been involved in acts of terrorism. Recently, some members of the group had gone to fight in Syria and one of them had died there and had been commemorated. It seems to us therefore that the audiences addressed in this case were likely to be fertile ground for the receipt of the addresses made to them. Some of the audience will have consisted of young adults or even children who might well be particularly receptive to messages of the type conveyed. It may be that some of the audience was already radicalised to a greater or a lesser extent, but that can be no answer where the aim of the addresses would have included deepening any radical views already held by providing support or in furtherance of the organisation’s activities. Indeed, those already radicalised may be more ready to act in support of ISIS’s aims.[38]We consider that the sentencing judge was entitled to take the view that targeting an audience of this sort had the potential to have greater impact than a message sent in a less targeted way by the internet. It was of relevance that these speeches were not spontaneous but were made at planned events orchestrated to maximise the impact of the holy month and/or a particular anniversary.[39]The experience of Kamal, the undercover officer who infiltrated the group, is instructive. His time with the group involved a process of gaining acceptance and being admitted to meetings or events as part of an escalating process of acceptance. Those who attended the meetings during Ramadan represented a selected audience likely to be receptive to the speeches. In effect, it was a specifically targeted audience.[40]Use of the internet may differ in form, targeting and intensity, all of which would require analysis in an appropriate case, but the judge was entitled to take the view he did in the light of general submissions that live meetings of this sort should be regarded as less serious than support provided through the internet. It is important to recognise in this case that the judge had heard a trial of some length and was in a good position to make an assessment, both of the individuals before him, and of the consequences resulting from what they did. He had seen some of these offenders give evidence and had heard a significant quantity of evidence about all of them, and about the group in Luton of which they formed part.[41]It seems to us that all of that information was relevant to his overall assessment of these offenders as individuals committing these particular offences. He came to the clear conclusion that each of them had clearly supported the proscribed organisation through their speeches and was seeking to encourage others, not merely to a similar point of view to theirs, but also to action in support of the organisation. He was entitled to take into account, in assessing their individual culpability, that each had shown himself to be deeply radicalised, that each was fully aware of the nature of Isis’s activities, including the fatwa encouraging the use of violence in the country in which they lived.[42]We do not accept a submission made on behalf of Khan that depth of radicalisation was a factor relevant only to cases brought under s.5 of the Terrorism Act 2000. The nature of offending of this sort is such that a sentencing court will have in mind the need to punish, deter and incapacitate or disrupt criminal activity of this sort in passing a sentence proportionate to the circumstances of the offence and offender. Rehabilitation is not to be ruled out as a relevant consideration, but it is likely only to have significant weight at the lowest levels of offending against this section, and in particular where an offender is naïve or has been coerced or is impressionable and is also a person who is not of mature age who is of otherwise good character. There has been no submission to us in these cases that an immediate custodial sentence was inappropriate. The thrust of the submissions has been that for different reasons the terms imposed were too long.[43]Before turning to the individual offenders, we indicate that our view is that because no immediate consequence was shown linking these speeches to some terrorist or violent act by a member of the audience, this case does not fall at the highest level. Nonetheless, given the nature of the audience addressed, we consider it likely that the speeches would have had the effect of increasing support for Isis and its aims within the audiences. This would place these cases at a mid-level in gravity before assessing individual culpability and personal circumstances.[44]We turn first to Alamgir. He was the leader of the group. It is clear that he was highly respected and that his word was influential. He was a driving force behind the series of speeches, and personally addressed three meetings in terms which the jury found went beyond freedom of expression and trespassed into the unlawful territory of s.12. The judge found that Alamgir was deeply committed to the cause of Isis. He had a relevant previous conviction, and the matter is further aggravated by the commission of an offence whilst on bail. We have already addressed points made on his behalf as to the nature of the audience and the consequences of his speeches.[45]A further matter relied on was his religious beliefs. We are unpersuaded that they can justify or excuse his activities when they crossed the line and became part of a campaign to raise support for a proscribed organisation. Given his position and the fact that he addressed audiences on three occasions, it was clearly just that he received the heaviest of the sentences imposed. His position is aggravated by his previous criminal history. In the circumstances, we are not persuaded that a sentence of 6 years was arguably too long, and this application is refused.[46]The applicant Khan came next in the hierarchy. He was described by the trial judge as being Alamgir’s deputy. He, too, had a position of authority and influence within the Luton group. We note that the judge made a specific finding in his case that Rahman, the co-accused who had provided the venue for some of the meetings, had looked to him for guidance and advice. A particular submission made on his behalf was that the judge had sentenced on a wider basis that the counts on the indictment. In our judgment, the judge was entitled to look into the individual histories of these offenders in order to access the depth of their radicalisation and their degree of commitment to what they did. Amongst other things, this was relevant to whether any particular speech made represented a spontaneous excess of enthusiasm, or something which was part of a carefully planned enterprise by a deeply committed person. The judge clearly came to the latter conclusion which was a relevant one to reach.[47]The judge took care early in his considered and detailed sentencing remarks to make clear his approach to sentencing. He said:
“I am well aware of my duty to sentence these defendants only for the offences in respect of which each of them was convicted by the jury that tried them. These defendants cannot be sentenced for their association with others who are not before the court, or for the conduct of others who are not before the court, nor for conduct of their own which has not been admitted and in respect of which there has been no conviction. Having I hope made that clear, it is also clear that when assessing any defendant’s culpability or wrongdoing, I am perfectly entitled to take into account the totality of the evidence in the case and I shall.”
We are unpersuaded that the judge took an approach which is open to criticism and reject the specific argument made in this respect by counsel for Khan.[48]It was clearly appropriate in Khan’s case to pass a lesser sentence than that imposed on Alamgir, since he was not the leader of the group, had no relevant previous conviction, and had spoken on a single occasion. Balancing all matters, we are unpersuaded that the judge fell into error and refuse this application.[49]Bashir was not a leader within the group and he too made a single speech. It was however clear that he had been an important long-term and active member of the group. He also had recorded speeches in sound and vision. This can only have been done with a view to possible future dissemination of them. He has on his record two relevant previous convictions which serve to aggravate his position. Apart from allying himself to more general submissions already considered, Bashir submitted that there was disparity between the sentence imposed upon him compared with those imposed on Rahman, Alamgir and Khan.[50]We are unpersuaded that there is any arguable disparity in either direction. Rahman had not addressed any meeting but had made his garden available as a venue for meetings. True it is that he had a previous conviction and was on bail for another matter at the time of these offences, but the judge found that he was not an educated man in contrast to the other offenders, all of whom were described as knowledgeable or intelligent. The judge also noted that he had looked to others within the group for guidance and advice and had regard to his particular role. The judge was entitled to form his own impression of Rahman which would have justified a significantly lower sentence. There may have been some element of good fortune in the sentence Rahman received, but there is nothing that can properly bring it into the realms of disparity as interpreted by this court.[51]Clearly, Bashir should have received a lesser sentence than Alamgir and Khan, given their roles in the group, but his case was different from that of Khan in that he had two relevant previous convictions which tipped the balance the other way in comparison with Khan. In sentencing him, the judge indicated that he had sought to balance the factors in his case against other co-accused, particularly Choudry and Khan. We are not persuaded that he got it wrong and refuse his application.[52]We turn finally to the case of Choudry. He gave evidence and so the judge was in a particularly good position to make an assessment of him. He was younger than the others and had not previously been convicted. His involvement with the group had been for a significantly shorter period. On the other hand, the judge concluded from the material before him that his views were as hardline as those of Alamgir and Khan, so that he described him as being deeply radicalised. Significantly, the judge also regarded Choudry’s speech as amounting to a well-considered attempt to put himself forward as a leader of the next generation of radical voices prepared to speak in support of violent extremism.[53]A specific point in his case is that the judge referred to the fact that none of the offenders had denounced Isis at trial or since. Issue was taken with that on behalf of Choudry; it was suggested that in evidence he had effectively done so. Even if that were the case it would be a matter of very little weight. Whilst denunciation and genuine change of mindset prior to trial would be a potential mitigating factor, failure to denounce at trial could not be an aggravating factor and was not treated as such by the judge. Denunciation at trial or prior to sentence would be normally be unlikely to carry much weight as mitigation for very obvious reasons. We note that the jury must have rejected Choudry’s evidence, including any attempts to distance himself from ISIS. Allied to that submission was reference to two reports from custody suggesting that Choudry had begun to consider a change of view. The judge clearly took the view that if there was anything in this at all, it was of very limited value, given the depth and extremity of his previous views and the very early stages described in the reports.[54]The better mitigation for Choudry in our view lies in his previous absence of convictions, his relative youth, and his lack of a leadership role, although in the judge’s view he was clearly bidding for one. There was some other personal mitigation advanced but we did not consider that it carried any real weight. The issue for us is whether the judge made sufficient allowance for Choudry’s situation. This matter has caused us more difficulty than the other cases and is reflected in the fact that this is the only case in which the single judge gave leave. We are however very conscious that the trial judge was better placed than we are to assess individual personalities and their culpability. In the end, we have come to the conclusion that although some judges might have passed a slightly lesser sentence, the judge’s decision was not such as to render the sentence manifestly excessive. For these reasons, we dismiss this appeal.

Cited in 1 later judgment