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FOURTH
SECTION
DECISION
Application no.
28055/08
by Waseem MUGHAL
against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on
21 February 2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 4 June 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Waseem Mughal, is a British national who was born in 8
February 1983 and lives in Evesham. He was represented before the
Court by Mr Martin Backstraw of Bindmans LLP, a lawyer practising in
London. The respondent Government are represented by Ms H. Moynihan,
Foreign and Commonwealth Office.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- Between
June 2005 and their arrest in October 2005 the applicant and two
other men were involved in the purchase, construction and maintenance
of a large number of websites and internet chat forums on which
material was published by third parties which incited acts of
terrorist murder, principally in Iraq. The cost of purchasing and
maintaining the websites was met by the fraudulent use of credit card
details obtained by theft and hacking. The loss to the credit
companies as a result of the fraud was estimated to be GBP 1.8
million. The material on the websites, much of it provided by
Al-Qaeda in Iraq, included assertions that it was the duty of Muslims
to fight and kill the enemies of Islam; films of explicit acts of
terrorist violence, including the beheading of civilian hostages and
attacks on British and American forces in Iraq, and of the last
testaments of suicide bombers; and information about travelling to
Iraq.
- The
applicant, aged 22 at the time of his arrest, was a biochemistry
graduate with good computer skills. The police found CDs including
footage of beheadings and mujahedeen fighting when they searched his
home. It was alleged that his role in the operation was to provide
stolen credit card identities which were used by one of his
co-accused to finance the websites. There was evidence of a
conversation between the two when the applicant stressed the
importance of maintaining the websites to incite Muslims to engage in
Jihad.
- The
applicant and the two co-accused were charged with incitement to
commit an act of terrorism, namely murder, contrary to section 59 of
the Terrorism Act 2000, and conspiracy to defraud.
- The
applicant pleaded not guilty to the counts against him and appeared
on 23 April 2007 before Woolwich Crown Court for trial. Shortly
before the close of the prosecution’s case, the applicant’s
representative sought an indication from the judge as to the length
of the sentence he would receive were he to change his plea to
guilty. The indication of sentence was sought in accordance with the
procedure set out by the Court of Appeal in R v Goodyear (see
below). The applicant’s representative and the prosecution
agreed a written basis for plea, describing the facts of the
offences. The applicant was advised by his representative that he
should only change his plea to guilty if he was guilty and warned
that the sentence that the judge would indicate could still be
increased on appeal, if the Attorney-General considered it to be
unduly lenient. The applicant’s co accused also sought
indications of sentence in the same manner.
- The
trial judge indicated that should the applicant change his plea to
guilty, on the basis of the agreed facts, the maximum sentence that
he would impose would be seven and a half years’ imprisonment.
- On
the basis of this indication the applicant changed his plea to
guilty. On 2 July 2007 the judge directed the jury to return verdicts
of guilty on the terrorism and conspiracy charges, and discharged the
jury from returning any verdict on the remaining charges against the
applicant. In accordance with the indication, the applicant was
sentenced to seven and a half years’ imprisonment for the
incitement to terrorism charge, to run concurrently with a three and
a half year sentence for the conspiracy to defraud offence. It was
also ordered that the time that he had already spent on remand would
count towards the total period to be spent in prison.
- On
31 July 2007 the Solicitor-General, on behalf of the
Attorney-General, applied for leave to refer the sentences to the
Court of Appeal. She acknowledged that it had been a difficult
sentencing exercise, since it had been the first case of its kind and
no sentencing guidelines had been established. However, she
considered that the sentences imposed were unduly lenient, in light
of the scale of the operation; the extreme, explicit and persuasive
nature of the material distributed on the websites; the fact that the
defendants knew that much of the material came directly from Al Qaeda
in Iraq; and the defendants’ intention to incite Muslims to
commit acts of terrorist violence.
- The Solicitor-General was granted leave to refer the
sentences. Following a hearing on 18 December 2007 the Court of
Appeal decided that the sentences passed on all three defendants had
been unduly lenient, in the light of the factors identified by the
Solicitor-General. The Court of Appeal also took into account a
number of mitigating factors, including the defendants’ youth
and the fact that they had all pleaded guilty, albeit at a late stage
in the proceedings. The Court of Appeal increased the applicant’s
sentence from seven and a half to twelve years’ imprisonment on
the incitement to terrorism charge. The sentences of the applicant’s
co defendants were also increased.
B. Relevant domestic law and practice
- The
power of the Attorney-General to make a reference to the Court of
Appeal is contained in section 36(1) of the Criminal Justice Act
1988, which provides as follows:
“36. Reviews
of sentencing.
E+W+N.I.
(1) If it appears to the Attorney
General—
(a) that the sentencing of a person in a
proceeding in the Crown Court has been unduly lenient; and
(b) that the case is one to which this
Part of this Act applies,
he may, with the leave of the Court of Appeal, refer the
case to them for them to review the sentencing of that person; and on
such a reference the Court of Appeal may—
(i) quash any sentence passed on him in
the proceeding; and
(ii) in place of it pass such sentence
as they think appropriate for the case and as the court below had
power to pass when dealing with him.”
- In
R v Goodyear [2005] EWCA Crim 888, the Court of Appeal set out
the procedure to be followed and the safeguards to be applied where a
defendant, during the course of his trial, asks the judge for an
indication of the maximum sentence he would receive upon a plea of
guilty. The Court of Appeal held that such an indication could be
given only on the basis of a set of facts agreed upon by the
prosecution and defence lawyers, describing the offence and the
defendant’s role. If there were discrepancies of fact, the
judge should order a “Newton hearing” to enable the judge
to determine the facts to form the basis for sentencing following a
guilty plea. Whenever an indication of sentence was sought, the
defendant’s representative had to advise the defendant that he
should change his plea to guilty only if he accepted that he was
guilty. The defendant should also be informed that the sentence could
be increased on appeal by means of an Attorney-General’s
reference, if the sentence was considered to be unduly lenient. The
prosecution should not comment on the sentence that the judge was
considering nor express any opinion as to sentence. Once the judge
had given an indication, he or she was bound by this indication and
could not pass a more severe sentence.
COMPLAINTS
- The
applicant complained under Article 3 of the Convention that such a
high increase in sentence, following the indication that he had been
given by the trial judge, amounted to inhuman and degrading
treatment.
The
applicant also complained under Article 6 that the original
indication of plea had been an unfair inducement to plead guilty and
that his right to a fair trial has therefore been violated.
THE LAW
- The
applicant alleged that he was deprived of a fair trial, contrary to
Article 6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...”.
- The
Government did not accept that the criminal proceedings had been
unfair. They emphasised that the process by which the sentencing
indication had been given was initiated by the applicant. He had been
represented by counsel and advised that he should not plead guilty if
he was not guilty and that the sentence could be increased following
a reference to the Court of Appeal. Moreover, the applicant did not
complain before the Court of Appeal that the indication of sentence
procedure had been unfair nor that the Attorney-General’s
reference should be refused on the ground that he had pleaded guilty
on the basis of the trial judge’s indication of sentence.
- The
applicant agreed that the procedure for seeking and being given an
indication of sentence pursued a valid purpose in adversarial
criminal proceedings in encouraging early guilty pleas. He
emphasised, however, that it relied on the sentence indicated being
both fair and realistic. Otherwise, the indication was no more than
an unfair inducement to plead guilty. In his own case,
notwithstanding the warnings he was given, he was entitled to assume
that the sentence indicated by the trial judge was reasonable and he
could not have been expected to contemplate that it would be
increased so drastically: an increase by over a third of the minimum
term of imprisonment.
- The
Court recalls that a person’s right in a criminal case to be
presumed innocent and to require the prosecution to bear the onus of
proving the allegations against him or her forms part of the general
notion of a fair hearing under Article 6 § 1 (see G. v. the
United Kingdom (dec.), no. 37334/08, 30 August 2011). The Court
has, however, held that neither the letter nor the spirit of Article
6 of the Convention prevents a person from waiving of his own free
will, either expressly or tacitly, the entitlement to the guarantees
of a fair trial. However, if it is to be effective for Convention
purposes, such a waiver must be established in an unequivocal manner
and be attended by minimum safeguards commensurate to its importance
(see, mutatis mutandis, Sejdovic v. Italy [GC], no.
56581/00, § 86, ECHR 2006 II; see also Deweer v.
Belgium, 27 February 1980, §§ 49-54, Series A no. 35).
- In
the present case, the applicant waived his right to require the
prosecution to establish before the jury that he was guilty of the
offences charged. He decided to enter a guilty plea at a late stage,
once he had had the opportunity to hear all the evidence against him
and make an assessment of the likelihood of his being convicted.
Although the applicant must have known that a guilty plea would be
taken into account in mitigation of any sentence passed, there is no
evidence of any other inducement, constraint or pressure being
applied to him; indeed, it appears to have been the applicant who
initiated the procedure to seek an indication of sentence from the
judge. The judge indicated that, were the applicant to plead guilty,
he would receive a maximum sentence of seven and a half years’
imprisonment. The trial judge made this indication in good faith, but
without knowing how the Court of Appeal would view the case because
at the time of the trial there were no established precedents or
sentencing guidelines for an offence of this type. The applicant was
advised that he should only enter the plea if he was guilty and he
agreed to the statement of facts which formed the basis of the
sentencing exercise. He was also advised that there was a risk that
the sentence could be increased by the Court of Appeal following a
reference request by the Attorney-General, if the Court of Appeal
considered the sentence to be “unduly lenient”.
- In
these circumstances, the Court considers that the applicant’s
decision to plead guilty and thus waive the right to require the
prosecution to prove his guilt was unequivocal and attended by
sufficient safeguards. It holds that the complaint under Article 6 §
1 must be rejected as manifestly ill founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
- The
applicant also complained that the increase in sentence, following
the indication made by the trial judge, amounted to inhuman and
degrading treatment in breach of Article 3 of the Convention.
- The
Court finds that the imposition of a sentence of twelve years’
imprisonment, in respect of criminal acts of this nature, following
proceedings which complied with Article 6 § 1, does not give
rise to any appearance of a breach of Article 3. It follows that this
complaint must also be rejected as manifestly ill founded, pursuant
to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence
Early Lech Garlicki
Registrar President
