Oxford University Press's
Academic Insights for the Thinking World

Sentencing terrorists: key principles

In July 2014 Yusuf Sarwar and his associate, Mohammed Ahmed, both aged 22, pleaded guilty to conduct in preparation of terrorist acts, contrary to s5 of the Terrorism Act. Sarwar was given an extended sentence (for ‘dangerous’ offenders under s226A of the Criminal Justice Act 2013) comprising 12 years and eight months custody, plus a 5 year extension to his period of release on licence. The pair had fought in Syria for a group affiliated with al-Qaeda. Traces of explosives were found on their clothes. His mother, Majida Sarwar, had told the police about a letter from her son in which he said he had gone to “do jihad” in Syria. The police subsequently arrested her son when he returned to the UK. In interviews Mrs Sarwar said she felt the police had betrayed her: “Other mothers are not going to come forward to the police. Nobody’s going to hand their son in, knowing that they’re going to be behind bars. The sentencing is harsh.” The family have said that they will be appealing the sentence.

In Belgium Jejoen Bontinck’s father made national headlines by risking his own life to travel twice to the Syrian war zone to find his son, then aged 18, who was arrested when he did return to Belgium. The trial on terrorism charges of leaders of Sharia4Belgium took place in February in Antwerp with Jejoen Bontinck as a key witness who himself received a suspended sentence of 40 months. The court accepted Bontinck’s claim that he was not actively fighting but an ambulance driver. However, the leader of the group received 18 years and others received sentences from 3 to 15 years. In France Flavien Moreau was sentenced to 7 years and claimed to have spent only 2 weeks in Syria although he was arrested while seeking to return there.

These developments raise several issues. Politicians have generally praised the courts for dealing severely with returned terrorists. The Immigration and Security Minister, James Brokenshire MP, said of Sarwar’s sentence: “This case clearly demonstrates the government’s clear message that people who commit, plan and support acts of terror abroad will face justice when they come back to the UK.” In the UK the main sentencing framework is retributivist so that justice is what is deserved for the seriousness of the offending. Deciding whether Sarwar’s sentence was harsh is, however, no easy matter. Suffice it to say that, whilst the outcome may be deterrent, that should not be the guiding principle but may be considered alongside the goals of punishment and incapacitation for public protection. The judge in this case noted that Sarwar and Ahmed were deeply committed to extremism and with a great deal of purpose, persistence, and determination had embarked on a course intended to commit acts of terrorism. Sarwar was sentenced last December and, the judge argued, the sentence reflects the seriousness of the offence and risk to the public: “The court will not shrink from its duty where, as here, a grave crime has been committed.”

There is no Sentencing Council Guideline on terrorist offences and so guidance is via case law. Some other recent cases suggest that Sarwar’s sentence is not out of line. For example, Imran Khawaja, aged 27, received an extended sentence in Woolwich Crown Court on 6 February 2015, with 12 years in custody and 5 years for the extended licence term. He travelled to Syria for the purposes of jihad against the wishes of his immediate family who urged him to return. In Syria he received combat training including weapons training and participated in promotional jihadist videos to encourage UK Muslims to join him in jihad, including one showing a severed head. While in Syria his sister repeatedly urged him to return to the UK but he made it clear he did not intend to do so. However, he did eventually return, unsuccessfully attempting to conceal his arrival by reporting his death on social media sites. He was apprehended and charged with offences connected with terrorism, the judge noting in this case that a number of sentencing principles in terrorist cases had emerged from cases considered by the Court of Appeal.

In R v F [2007] QB 960 the court made clear that it made no difference to the seriousness of the offence whether the intended acts of terrorism were to take place in the UK or abroad. In R v Khan [2013] EWCA 468 the Court of Appeal stressed that the element of culpability will be very high in most cases of terrorism and the purpose of sentencing for the most serious terrorist offences will be to punish, deter and incapacitate; the starting point for the inchoate offence will be the sentence that would have been imposed if the objective had been achieved. However, Lord Phillips CJ in R v Rahman and Mohammed [2009] 1 CAR (S) 70 observed that:

“It is true that terrorist acts are usually extremely serious and that sentences for terrorist offences should reflect the need to deter others. Care must, however, be taken to ensure that the sentence is not disproportionate to the facts of the particular offence… If sentences are imposed that are more severe than the particular circumstances of the case warrant this will be likely to inflame rather than deter extremism…”

In Khawaja’s case the Court was not convinced he actually took part in the fighting, although he was extremely close to the combat zones and took an active part in assisting those involved in the fighting. It was also clear that he intended to remain an active member of the organisation on his return to the UK and that he posed a significant risk of causing serious harm to the public.

These cases have highlighted the issue of whether the radicalisation of young men and women is best countered by the use of tough sentencing or by other means, such as the development of educative programmes in schools or measures to encourage the cooperation of parents. Sarwar’s mother clearly felt that a reduced sentence would have been more just given her cooperation with the police. To do that might be a pragmatic policy decision but it is very problematic in terms of sentencing law. The courts are able to take personal mitigation – including the impact on family – into account but do not have to do so and they are extremely reluctant when the offending is very serious. In some circumstances – for example when the child of a prisoner is taken into care – the lack of ‘mercy’ might mean the impact of the sentence on the prisoner is very severe and not commensurate with seriousness of the offending.

However, there are also compelling arguments against using sentencing law for political and social purposes, not least because of principles of equity. If two defendants have committed similar crimes the outcome of the case should not depend on the impact on relatives or indeed the efforts of their relatives to prevent offending, but rather they should be assessed on the degree of culpability and seriousness of the offence. On desert theory the actions of the offender is what should be judged and punished if, as in the above cases, the defendants are adults of full capacity. Sarwar, for example, was well educated and had been an undergraduate student at Birmingham City University.

The news in February that three young girls, aged 15 and 16, had travelled to Turkey to join jihadists in the so-called Islamic State has highlighted the issue as to whether parents should themselves go to try and persuade their sons or daughters to return home or the police should be more proactive. In this case the police did have concerns about the girls’ contacts with others in Syria but a letter to the parents did not reach them because it was given (only) to the girls who failed to pass it on.

Another option is to impose bans on foreign travel with powers to confiscate passports. The Counter-Terrorism and Security Act 2015, passed in February, strengthened temporary restrictions on travel for persons where there are reasonable grounds to suspect a person is leaving the UK for purposes related to involvement in terrorist activity outside the UK. Temporary Exclusion Orders will also prevent re-entry to the UK for those already abroad. Applications for return can be made subject to risk assessment and obligations can be imposed on return, for example, participation in a de-radicalisation programme. In some circumstances this might be a way for parents to achieve the safe return of their sons and daughters. Similar legislation has been introduced in France.

There are no easy answers to the issues raised by these cases. They highlight the problems European states face in reconciling civil liberties and freedoms with the continuing threat of terrorism here, demonstrated by the attacks in France, Belgium, and Denmark this year and the active involvement of UK nationals in the murder of hostages overseas.

Headline image credit: Destination Damascus. © gmutlu via iStock.

Recent Comments

There are currently no comments.