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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Khan, R v [2009] EWCA Crim 1085 (20 May 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1085.html Cite as: [2010] 1 Cr App R (S) 35, [2010] 1 Cr App Rep (S) 35, [2009] EWCA Crim 1085

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 20th May 2009

1. LORD JUSTICE HUGHES: Parviz Khan renews his application for leave to appeal against sentence for terrorist offences.
2. He had pleaded guilty to four counts. The first, count 1, charged him with engaging in conduct with the intention to commit acts of terrorism, contrary to section 5 of the Terrorism Act 2006. That concerned what was referred to as "the soldier plot". Count 3 charged him with a similar offence. That concerned the supply of equipment to the Pakistan/Afghanistan border. Then there were two counts (counts 4 and 5) of possession of documents or records likely to be useful to a person committing or preparing acts of terrorism. Those were offences contrary to section 58(1)(b) of the Terrorism Act 2000. They were documents, in this case, in digital form, not unfamiliar to courts dealing with these offences. One was entitled "How do I prepare myself for Jihad" and the other was "The encyclopedia of Jihad". For those several offences the judge passed a life sentence, with a specified minimum term of 14 years. We will come, in a moment, to how that was made up. That sentence was passed following the defendant's plea of guilty.
3. The defendant was 37. He had no previous convictions. He had been under surveillance for approximately 9 months and his conversations had been monitored. His own words formed the substantial part of the evidence against him. In addition, the sentencing judge, Henriques J, had tried two other men for associated offences. He had accordingly had abundant opportunity to immerse himself in the material.
4. That material demonstrated that Khan was at the centre of a group of terrorists or would-be terrorists in Birmingham. The judge in due course described him as a man "who has the most violent and extreme Islamist views. A fanatic." The judge gave chapter and verse for the reasons for reaching that conclusion. We need say no more about it because, realistically, Mr Wolkind QC, who appears for him, accepts that the judge was entitled to come to that view. This was a man whose self-appointed role was a leadership and recruiting one. He set out to energise the others in terrorist cause.
5. The soldier plot charged in count 1 was a plot to identify and then kidnap a Muslim serving in the British Army, take him to a suitable place, behead him in front of the camera and make a film to be distributed to the news networks of the world. The object, as the defendant was heard to say, was to undermine morale in the British Forces and specifically to deter others, especially those of Muslim faith, from serving in those forces. It was also to strike a political blow at the government.
6. The substance of Mr Wolkind's succinct and well-targeted submissions is this. This was a plot which had still to identify the unfortunate victim of the design. No soldier had yet been identified. Says Mr Wolkind, that means that the sentence which has been passed is too long. That no soldier had been identified seems to be correct. That may be because the others whom Khan had tried to interest in his plot did not share his determination. But he had worked out what it was to be done. He had a plan of action. He had asked two or three others to assist him. One was a co-accused call Gassama, whom it is clear this defendant did his utmost to encourage to identify a suitable Muslim soldier from a group of men of Gambian origin who Gassama could find out about. The defendant had decided that he would need the target's identity card or identity tags in order to demonstrate to the world, through the film, who it was who had been executed in this manner. He had decided how to ensnare the soldier and how to kidnap him and he had been determined to use one of a number of garages to which he and his confederates had access as the place of execution. The transcript of the defendant's conversation with Gassama demonstrates that Gassama was speaking of having identified the home of a suitable target. Whether in fact he had done so or not does remain unclear. There was some discussion in the court below, and has been here, as to whether the defendant and Gassama spoke of the as yet unidentified target by use of a code name "Samson". So far as we can see, it really makes very little difference whether they did or did not.
7. Count 3 was a separate but still very serious activity. It covered a series of shipments to Pakistan of equipment designed for use by Al-Qaeda irregular fighters there and no doubt across the border in Afghanistan. What was sent were not weapons, but there was probably little shortage of those in that area; what was sent was equipment which would be in short supply there: range finders; battery chargers; fire accelerants that could be used in detonators; computer peripherals; flash lights; compasses; medical kits and the like. The list was a long one and the volume of material considerable. There were four shipments, the last two nearly a ton and half a ton in metric weight. The judge, who had studied the surveillance evidence and the tapes of conversation, observed, with some justice, that a very large part of the defendant's life must have been taken up in shopping and collating the equipment. In addition to that he also sent money totalling just under £8,500.
8. The appellant's written grounds challenge the question of whether a life sentence was warranted at all. But that is not the basis on which Mr Wolkind has here addressed us. It is enough to say that this case did satisfy the well-known test for the imposition of a life sentence, set out in R v Hodgson (1968) 52 Cr App R(S) 113 and subsequent cases. This defendant had committed very grave offences and he represented a risk of very grave harm for a period which could not reliably be determined. For all the reasons explained by Lord Phillips in R v Barot [2008] 1 Cr App R(S) 31, a man with this kind of fanatical determination is clearly in that category.
9. Mr Wolkind's submission is simply that the specified minimum term, based on notional determinate terms for the individual counts is too long. The judge arrived at his figure of 14 years in this way. In relation to the soldier plot (count 1) he postulated a notional determinate term of 18 years. That was after plea, so it would have been 27 or thereabouts after trial. In relation to the equipment supplied (count 3), he postulated a notional determinate term of 8 years. That would have been approximately 12 or thereabouts after trial. In relation to the possession of the Jihadist documents, he postulated a notional determinate term of two-and-a-half years, something like three-and-a-half to 4 perhaps after trial.
10. In accordance with the decision of this court in R v O'Brien [2007] 1 WLR 833, the judge took into account the fact that there would have been consecutive sentences in relation to counts 3, 4, and 5 in arriving at his minimum term. That was correct, as is conceded.
11. In the end this case depends upon the proposition advanced by Mr Wolkind that because no specific soldier had been identified, a determinate term overall of 28 years is simply too long. We accept, of course, that it would have been more serious yet if a soldier had been identified and still more if the plot had advanced to the stage of setting out on a particular day to execute a kidnap. But this is an offence which, had it been carried out, would have called, in accordance with schedule 21 to the Criminal Justice Act, for a whole life sentence.
12. In Barot, where the plot was, of course one for mass murder, although, contrary to the defendant's view, it was rather ineffective, a specified determinate term of 30 years upon a very late plea, was imposed by this court. We are unable to say that the judge's sentence of 14 years was too long and in those circumstances, this application must be refused.
13. MR WOLKIND: May it please, my Lord. Notwithstanding the court's ruling, would you be kind enough to consider granting a representation order to cover my appearance and preparation? You do have that power and it would have the attractive effect of putting us on an equal footing with Mr Atkinson who appears instructed and funded by the Crown Prosecution Service. Other nice courts have done so in this situation and I invite you please to consider.
14. LORD JUSTICE HUGHES: It would be entirely contrary to the usual practice of this court, would it not?
15. MR WOLKIND: Actually, the first time it happened I was surprised. There was a group of lost co-defending counsel who got up and asked and the court said they could and I learnt from that.
16. LORD JUSTICE HUGHES: It is always worth asking.
17. MR WOLKIND: I did not take a note of the details. I do not think it was my Lord.
18. LORD JUSTICE HUGHES: No, it probably was not I am afraid.
19. MR WOLKIND: I have seen it on one other occasion. I wondered if the slight difference might be that my opponent comes here fully instructed. It is a bit odd in a way.
20. LORD JUSTICE HUGHES: That has been occasioned by the application. We understand it and it is very charmingly put.
21. MR WOLKIND: Keep it as an exception. (Pause)
22. LORD JUSTICE HUGHES: I am afraid not, Mr Wolkind. Thank you very much indeed for your help though.