24 November 2010

FOURTH SECTION
Application no. 28055/08
by Waseem MUGHAL
against the United Kingdom
lodged on 4 June 2008

STATEMENT OF FACTS
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.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was arrested in October 2005 and charged with, amongst other offences, incitement to commit an act of terrorism under section 59 of the Terrorism Act 2000, and conspiracy to defraud, a common law offence. He was charged jointly with two other defendants, “T” and “A”.
The prosecution case against the three defendants was that they had jointly been concerned in the purchase, construction and maintenance of a large number of websites and forums on which material was published which incited acts of terrorism, particularly in Iraq. The websites contained extremist material such as footage of terrorist acts including the beheading of hostages. Propaganda material was included, inciting Muslims to kill non-Muslims. Information was also provided on how to travel to Iraq and how to operate weapons. Extremist jihadist ideological material was recovered from the homes of each defendant.
The prosecution did not allege that any of the defendants had written or created the material which was on the websites. It was alleged that the applicant had provided the details of stolen credit cards to T, who had used them to purchase the web-space used for the websites. The loss to the credit companies as a result of the fraud was estimated to be GBP 1.8 million.
The applicant pleaded not guilty to the counts against him and appeared on 23 April 2007 before Woolwich Crown Court for trial. During the course of the 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 in respect of the counts of incitement to commit an act of terrorism and conspiracy to defraud. 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 does not deny that he was advised by his representative that he should only change his plea to guilty if he was guilty. In addition, the applicant does not deny that the procedure followed was in conformity with the procedure under Goodyear, and that he was therefore warned that the sentence that the judge would indicate could still be increased on appeal, if the Attorney-General considered it to be too lenient and sought a review by means of an Attorney‑General’s reference. The applicant’s co-defendants also sought indications of sentence in the same manner, but received different indications.
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. In the agreed basis of plea document, the judge described the applicant’s role in the offences in the following manner:
“[The applicant] passed details of the stolen credit card identities to [T], knowing and intending that he would use the cards to buy web space to host the websites which he knew and intended would be used to publish the jihadi material. There was evidence of a conversation between the two which plainly showed that [the applicant] knew precisely what [T] had in mind.”
The judge accepted that the contents of the websites had not been the responsibility of the applicant and that he had not been involved in their design, but considered that he was fully aware of their purpose and of the activities of his co-defendants.
On the basis of this indication the applicant changed his plea to guilty. On 2 July 2007 the judge therefore 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 years’ 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.
Following the sentences imposed by the Crown Court on the applicant and his co-defendants, the Solicitor-General, on behalf of the Attorney‑General, on 31 July 2007, applied for leave to refer the sentences to the Court of Appeal on the basis that they were unduly lenient. It was argued that the terrorism offence was particularly serious, in light of the extreme and explicit nature of the material distributed on the websites and the fact that the material came directly from al’Qaeda.
The Solicitor-General was granted leave to refer the sentences and on 18 December 2007 the Court of Appeal increased the applicant’s sentence from seven and a half to twelve years on the incitement to terrorism charge. The sentence for the fraud charge remained three and a half years. The sentences of the applicant’s co-defendants were also increased.
B.  Relevant domestic law and practice
In R v Goodyear [2005] 2 Cr. App. R. 20, 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. The indication was also binding on other first judges taking decisions on the case at first instance.
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:
 “Reviews of sentencing.
“(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.”
Section 35(3) of the same act defines the cases in which an Attorney General’s reference can be made:
“3)  This Part of this Act applies to any case
(a)  of a description specified in an order under this section; or
(b)   in which sentence is passed on a person—
(i)  for an offence triable only on indictment; or
(ii)  for an offence of a description specified in an order under this section.”
In R v Farrow [2007] 1 Cr. App. R. (S.) 558, Attorney General’s Reference No. 48 of 2006, the defendant had sought an indication of sentence under the rule in Goodyear, but the prosecution counsel had failed to remind the trial judge of the possibility of the sentence being referred to the Court of Appeal by the Attorney-General. The Court of Appeal increased the defendant’s sentence despite the irregularity in the procedure before the Crown Court.
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.
QUESTION TO THE PARTIES
Did the applicant receive a fair hearing in accordance with Article 6 of the Convention?