Yusuf Sarwar, Mohammed Ahmed v. Regina

Court	Court of Appeal (Criminal Division), Great Britain (UK)
Case number	201405953 A7, 201405956 A7
Decision title	Appeal Judgment
Decision date	9 December 2015
Categories	Terrorism
Keywords	Foreign fighters, Jabhat al-Nusra, Membership, participation, Preparatory Acts, Social Media, Terrorism, Terrorist group
Links	Appeal Judgment
Other countries involved	Syria Turkey Yemen

Summary

Sarwar and Ahmed travelled from the UK to Turkey and then Syria on 15 May 2013. Both had been in communications on social media with a number of figures discussing jihad and their plans to travel to Syria. They deceived their parents as to the purpose of their trip, which, in reality, was to become involved with anti-Assad forces. After their departure, Sarwar’s mother found a letter from him saying he planned to join Jabhat al-Nusra in Syria, and his parents then told the police.

Sarwar and Ahmed were arrested when they returned to the UK on 13 January 2014. A search of Sarwar’s luggage found over 1600 deleted pictures including those of Sarwar and Ahmed in combat zones and pictures of explosives being made. Both pled guilty to the offense of preparation of terrorist acts contrary to section 5(1) of the Terrorism Act 2006 and were sentenced to 17 years and 8 months in prison. Sarwar and Ahmed appealed the decision.

Sarwar and Ahmed claimed that once they arrived in Syria, they disassociated themselves from combat activities and offered humanitarian assistance. The Court found that while there was sustained preparation and travel, the trial court judge reached an incorrect conclusion on their involvement in combat activity. Therefore, sentences were reduced to 15 years and 3 months.

Procedural history

Sarwar and Ahmed returned from Syria to the UK on 13 January 2014 and were arrested (para. 3).

On 5 December 2014, both appellants were given an extended sentence in the Crown Court at Woolwich of 17 years and 8 months for an offence of preparation of terrorist acts contrary to Section 5(1) of the Terrorism Act 2006 (para. 1).

Both appellants appealed the judgment of the Crown Court at Woolwich, contending the length of the custodial term imposed as well as the passing of an extended sentence. Appellants submitted that their Section 5 offences fell into the category of less blameworthy offences because their intention was to fight against President Assad’s forces and defend or protect those being attacked or repressed by him. Appellants claimed there was no intention to commit acts of violence against Syrian civilians (para. 16).

The appeal judgment was entered on 9 December 2015.

Legally relevant facts

On 15 May 2013, Sarwar and Ahmed travelled from the UK to Turkey and then Syria, where they engaged with Islamist forces fighting against President Assad’s forces. Prior to traveling, Sarwar booked and paid for one-way flights and other travel arrangements, and bought a camera, memory card and other items. Sarwar's mother found a letter stating that he was traveling to Syria to join a part of Jabhat al-Nusra. Sarwar's parents told the police (paras. 3-4).

Appellants' computers revealed a high level of commitment to violent Islamist extremism, including large quantities of jihadist material. Social media conversations provided evidence that the true purpose of their journey was to go to Syria to commit acts of terrorism in furtherance of their extreme Islamist views (paras. 5-6).

When they returned to the UK on 13 January 2014 both appellants were arrested. A digital camera found in Sarwar's carry-on included two memory cards with over 1600 deleted images from Syria. Analysis showed many had been taken near combat zones and depicted the preparation of weapons and ordnance and included pictures of Ahmed and Sarwar. Appellants' carry-ons and clothing also contained traces of explosives, more than would be expected from travel to a conflict zone. (paras. 8-9).

Core legal questions

Was the appellants’ custodial term excessive considering that the Crown Court improperly inferred the appellants were involved in combat activity?

Specific legal rules and provisions

Section 5(1) of the Terrorism Act 2006

Court's holding and analysis

The Court of Appeals (Criminal Division) (“the Court”) found a substantial nexus between preparatory activity and what transpired once appellants went abroad, holding appellants showed a deep commitment to jihad over a substantial period and resorted to subterfuge to support jihad (paras. 53-55).

However, the Court found the Crown Court at Woolwich’s inference of appellants’ involvement in combat activity during sentencing to be improper because it rejected appellants’ pleas as manifestly false rather than providing an evidentiary hearing (paras. 48-51).

Although the Court found the mitigating factors of age, naivety, and good character carried correspondingly less weight in these circumstances (para. 55, the Court stated that the Crown Court at Woolwich used too high a starting point for the custodial term of 16 years because of its improper finding on the combat activity issue, and concluded there should be a reduction in sentence, based starting at 13 years (para. 56).

The Court reduced the sentences in each case to 15 years and 3 months from 17 years and 8 months, including a custodial term of 10 years and 3 months and an extension period of 5 years (para. 57).