Ali Naseem Bajwa QC considers the arguments for and against sentence discounts in terrorist cases
On 29th February 2005, Saajid Badat pleaded guilty to a terrorist conspiracy to destroy, damage or endanger the safety of an aircraft. He admitted that in 2001 he had conspired with ‘the shoe bomber’ Richard Reid and a Tunisian, Nizar Trabelsi, in a plot to act as suicide bombers. They had aimed to blow up two airliners bound for the United States. For two months following his plea Badat assisted UK investigators. But he held back a good deal of information. On 21st April 2005, Mr Justice Fulford sentenced Badat to 13 years’ imprisonment. This was said to reflect all of the mitigation which, whilst not stated in open court, included a generous discount for co-operation. This meant that Badat had to serve a minimum term of 6½ years before being eligible for release on licence. Fulford J reminded himself of the case of the 1988 case of R v Hindawi explaining that, but for Badat’s mitigation, the sentence would have been in the region of 50 years’ imprisonment. So Badat received a discount of three-quarters on the `Hindawi sentence’.
The Serious Organised Crime and Police Act 2005 (‘SOCPA’) came into force on 1 April 2006. It provides that a defendant who has, pursuant to a written agreement, assisted or offered to assist the prosecution may have his sentence discounted to reflect the extent and nature of the assistance given or offered. This can be done after an original sentence has been passed.
Badat entered into a written SOCPA agreement with the Crown Prosecution Service (‘CPS’). This stated that he would provide additional assistance and would, additionally, co-operate with US investigators and give evidence in April 2012 at a terrorism trial in New York of a Bosnian, Adis Medunjanin.
Terrorism sentences were subsequently to rise considerably. In May 2007, the Court of Appeal in R v Barot 31 said that a minimum term of 40 years should, save in quite exceptional circumstances, represent the maximum sentence for an unsuccessful terrorist plan to commit mass murder. Barot had pleaded guilty to a non-suicide bombing conspiracy and received a minimum term of 30 years. Since Barot, minimum terms of 40 years were imposed in the cases of the failed ‘21/7’ London bombers and the airline liquid bomb conspirators.
In 2009 CPS referred Badat’s 13-year sentence back to court for reconsideration. The matter came before Mr. Justice Calvert-Smith (the original judge being unavailable) on 13 November 2009. Pursuant to section 75 of SOCPA, the hearing was conducted in secret and a reporting restriction imposed until the commencement of Mudujanin’s trial. Calvert-Smith J reduced Badat’s sentence by a further 2 years to 11 years’ imprisonment, which now meant he would serve a minimum term of 5½ years. Badat was released from prison in March 2010. On 16 April 2012, the reporting restriction on Badat’s referred sentence was lifted and the CPS disclosed the transcript of the 2009 hearing.
The first point of interest in the Badat case is that the sentence was reduced to 11 years’ imprisonment principally because of Badat’s agreement to give evidence in relation to a trial in the US. It is hard to see why Badat should receive a further sentence discount in the UK for belated assistance in another jurisdiction, in particular since Badat is very likely to be expecting to benefit from his co-operation with the US authorities in relation to an outstanding indictment against him in Boston alleging a terrorist conspiracy with Richard Reid.
The second point is the remarkable extent of Badat’s sentence discount. The Court of Appeal, in the 2008 case of Blackburn, said that the normal discount for assistance should be between one-half and two-thirds of the total sentence which would otherwise have been passed, and that only in the most exceptional case would the reduction exceed three-quarters. Badat ended up with a little over three-quarters discount on the Hindawi 50-year sentence and an 86% discount on the Barot 80-year sentence. The point was not lost on Calvert-Smith J, who, in re-sentencing Badat, observed that the public would be “appalled” if his sentence were reduced any further.
The US sentencing model is characterised by a number of features: formal plea bargaining, the prosecution having a say in the sentence that is imposed, extraordinarily lenient sentences for those who co-operate and crushingly long sentences (not infrequently, life imprisonment without the possibility of parole) for those who do not. The referral by the CPS in 2009 of Badat’s already generous sentence to the court and the imposition of an exceptionally lenient minimum term of 5½ years as compared to the very severe minimum terms of 30-40 years imposed for similar offences on other terrorism defendants have inched the UK ever closer to the US model.
A massive discrepancy in sentences imposed for those who co-operate with the authorities and those who do not carries with it a number of risks, not least a manipulation of the system by desperate and/or dishonest defendants. Only time will tell whether it proves to have been the right policy in terrorism cases.