R -v- Aine Davis
Central Criminal Court (Old Bailey)CriminalSentencing Remarks
In the Central Criminal Court
13 November 2023
R
-v-
Aine Davis
Sentencing remarks of His Honour Judge Mark Lucraft KC
[1] On 16 October 2023, you pleaded guilty to the three counts on the indictment before this Court: counts alleging the possession of an article, a firearm, in circumstances which give rise to a reasonable suspicion that your possession was for the purpose connected with the commission, preparation or instigation of acts of terrorism, as well as the funding and funding arrangements for the purposes of terrorism, and I must now sentence you for those three offences.
[2] Before last month, you entered pleas of ‘not guilty’ in April 2023, prior to judgment being delivered by this Court on issues raised in the course of a preparatory hearing.
[3] You first appeared in respect of these matters at the Westminster Magistrates Court on 11 August 2022. An application to stay these proceedings as an abuse of process was pursued, as was a separate argument on count 3 of the indictment. Rulings on those issues were delivered by this Court on 10 March 2023, and 18 April 2023. An application for leave to appeal was argued before the Court of Appeal on 13 July 2023. The Court of Appeal refused leave to appeal on all grounds on 8 September 2023, and your case returned to this Court.
[4] The events with which this case is concerned relate to a period now some 10 years ago, the autumn of 2013 and the early part of 2014. During that period you were in Turkey and Syria. On 13 January 2015, an arrest warrant was issued at Westminster Magistrates Court and in March 2015, an Interpol Red Notice was also issued. On 12 November 2015, you were arrested in Istanbul at a house in the company of a number of other men. Following that arrest, you were prosecuted in Turkey for the offence of membership of an armed organisation. At the conclusion of the trial on 9 May 2017, you were convicted and sentenced to 7 and a half years imprisonment.
[5] At the end of that sentence, on 10 August 2022, you were deported to the United Kingdom and then arrested in respect of the offences before this Court.
[6] In the detailed sentencing note prepared on your behalf, Mr Summers KC invites a careful examination of the situation in Syria in the period between 2011 to 2013. It is said on your behalf that you went to Syria then to help and support the Syrian population in their struggle against the regime of Bashar al-Assad. Whilst, it is accepted that what you did amounts to terrorism within the meaning of the Terrorism Act 2000, it is submitted on your behalf that the human necessity for actions such as yours then, was in line with the view of many western and Arab governments of seeking to support those caught up in resisting the onslaught of the regime led by Assad. The note invites me, as the Judge to pass sentence, to re-familiarise myself with the situation in Syria at the time by reading statements made by politicians. Whilst I have done so, it is important to understand that the sentence to be passed today by this Court must reflect your conduct as accepted by your pleas: acts of terrorism as defined by the law of England & Wales.
[7] You were born in London in 1984. Following conversion to the Islamic faith you adopted ‘Hamza’ as your Muslim name. In 2007, you spent some time living in Saudi Arabia and also, with your wife, Amal El-Wahabi, in the UAE. In 2008 the two of you spent some time living in the Yemen. In 2009 you made a further visit to Yemen as well as Egypt that same year and also in 2011, and then a short visit to Turkey in 2012. On 28 July 2013, you left the UK on a flight to Amsterdam. You arrived in Turkey on 5 September 2013 before then travelling on to Syria.
[8] Whilst in Syria you kept in regular contact with your wife through calls and messages. You provided your wife with both Turkish and Syrian mobile phone numbers.
[9] From the messages and images you sent to your wife it is clear that you had been with fighters in Syria and that you were not there for lawful purposes. The WhatsApp exchanges show the types of activity you were engaged in. There are images of you in possession of firearms at the end of November 2013.
[10] You instigated the transfer of funds from this country to yourself in Syria. A close and long-standing friend of your wife, Nawal Msaad, was recruited to carry €20,000 from the UK to Turkey. It would appear that Msaad having been given the cash in large denomination notes by your wife El-Wahabi, was to be met at the airport in Turkey. This €20,000 had been raised in the UK and was destined to support a terrorism cause you were pursuing in Syria with like-minded supporters.
[11] On 16 January 2014, Nawal Msaad was stopped as she was about to board a flight to Turkey. The €20,000 was found hidden about her person. As I have indicated, at the time of the attempted smuggling of the money for terrorism, it appears that you were taking part in the violent conduct that had engulfed large parts of Syria.
[12] Photographs and messages found on the phones of El-Wahabi clearly show you in possession of a firearm and as part of an extremist group and concerned in terrorist activity in Syria. There are a number of photographs of you holding a rifle or other firearm aloft and also in military type clothing. There is also a three minute montage of individuals carrying weapons with music playing and then in Arabic anthems to what you were clearly intending to take part in. The messages sent with the images found clearly demonstrate your commitment to the cause you were supporting. The conduct in count 1 is that between the end of July 2013 and mid-January 2014, you possessed a firearm in circumstances that give rise to a reasonable suspicion that your possession of that item was for a purpose connected with the commission, preparation or instigation of acts of terrorism.
[13] Messages recovered from the seized phones show you and El-Wahabi and also El-Wahabi and Nawal Msaad in contact on numerous between 13 and 16 January 2014 speaking about making arrangements for travel, flights to Turkey, what Msaad was to be paid. The messages on 15 January, are consistent with the delivery of the money to be taken to Turkey by Msaad. That evening Msaad made a search about how much money you are allowed to take on a plane.
[14] The jihadist materials that had been found on various devices seized in 2014 appear to have emanated from you and had been gathered by you in the years leading up to your departure from the UK. The materials show where your sympathies lay. Examples of the materials include speeches by extremist clerics, promoters of extreme Islamic ideology as well as images.
[15] In connection with count 1, there are various messages that have been brought to my attention showing your commitment to a terrorist cause. Images have been doctored in that the faces of others have been hidden. As stated earlier, there are images from November 2013, including one with you and a group of others, to be shown, as an accompanying message makes clear, to your son. One image has 14 individuals including you all holding guns and with ammunition pouch vests. A Nasheed setting out your intentions is also sent.
Sentencing Guidelines
[16] On count 1 of the indictment, the maximum sentence is one of 15 years’ imprisonment. This offence is one where the ‘extended sentence’ provisions for dangerous offenders may apply. The test for ‘dangerousness’ is whether there is a “significant risk to members of the public of serious harm occasioned by the commission by you of further specified offences” – here meaning further specified terrorism offences. I am conscious in considering that test that I am dealing with you for offending that took place now some years ago. I have considered with care the issue of dangerousness. I do not find the test is met. In making that assessment I have considered in particular the passage of time since this offending. Having come to that conclusion, I am obliged to pass upon you a special custodial sentence.
[17] In terms of the relevant terrorism Sentencing Definitive Guidelines, I need first to consider culpability. The prosecution submits that the conduct in count 1 comes within category ‘A’ on the basis that the circumstances of your possession of the firearm indicates preparation for terrorist activity was complete, and also as you were a significant participant in the preparation of an act or acts of terrorism. On your behalf it is submitted that the conduct is such as to bring it into category ‘B’. This is on the basis that the images show you posing with a gun rather than in any combat setting. In my judgment if it is B, then it is towards the top of the range and if in A, towards the lower end of the range and so it may not make very much difference. I place this into B. Turning next to harm, the prosecution identify factors pointing to category 1 and your counsel factors pointing to category 2. In my judgment this is a case that comes within category 1. This article, a firearm, clearly had the potential to endanger life and harm was very likely to be caused. With culpability B and harm 1, the start point in the guideline is one of 7 years’ imprisonment and a suggested range of 6 to 9 years’ imprisonment.
[18] In terms of aggravating factors listed in the guidelines, the article had the potential to endanger many lives and here you were in communication with and in the presence of other terrorists in a conflict zone. I note what is said about the period of time of the offending being a matter of weeks – albeit, even a matter of weeks is not insignificant. I also need to be careful not to ‘double count’ factors that place the case into the category I have. Taking into account the aggravating factors, a sentence of 8 years, before them making a downward adjustment in light of the mitigating factors, to 7 years. Before allowing credit for your plea and other considerations, the sentence on count 1 alone would be a sentence in the region of 7 years imprisonment. The case of R. v. Abdallah [2019] EWCR Crim 407 has been brought to my attention.
[19] I will return to what is said about your change of mindset after considering counts 2 and 3.
[20] On counts 2 and 3, the maximum sentence for each offence is one of 14 years imprisonment. These offences also require the court to pass a ‘special custodial sentence’. The conduct covered by counts 2 and 3 is in my judgment separate to the conduct in count 1 and should be reflected by a consecutive sentence. In saying that I need to have regard to totality and if a consecutive sentence is to be passed, it should take account of the sentence on count 1 and so it may well be the case that any additional period of imprisonment is much shorter than might be the case if the Court was dealing with the offences in counts 2 and 3 alone.
[21] Applying the relevant guideline of the Sentencing Council on counts 2 and 3, the prosecution submit that both come within A as to culpability on the basis that you clearly played a significant role in group activity: you directed the funding arrangement and gave direction to at least two individuals. On harm, they submit that the money was likely to make a significant contribution to furthering terrorism and also, the use or provision of the money to fund or assist activities endangering life. The guideline gives a start point for sentence on each count of 12 years and a range of between 10 and 13 years’ custody. In terms of aggravating factors as set out in the guideline, encrypted messages were used and in giving instructions to your wife, you made reference to the involvement of others in the UK you described as ‘the brothers’. Again I remind myself of the need to ensure one does not double count. On your behalf it is submitted that whilst harm at category 1 is accepted, the culpability is more properly within B as this was essentially individual activity rather than group activity. I note the start point for categories ‘A1’ is 12 years and ‘B1’, 9 years’ custody. In my judgement, this conduct does properly come within category ‘A’ based on the significant role you played where this was, as shown by the conviction of your wife and the prosecution of the person to be the courier, group activity. Allowing for mitigating factors a downward adjustment to 9 years’ imprisonment before plea.
[22] I have seen and read a report from Dr Juliet Cohen. She was instructed to assess you and to report on your experience of detention and ill-treatment in Turkey and the impact on you. She was also asked to consider whether you meet the diagnostic criteria for any form of psychiatric or psychological diagnosis. She sets out a detailed picture of your early life and the period leading up to you becoming a Muslim and then developing your faith in due course.
[23] In her detailed report she sets out the history you have provided as to the circumstances of your detention in Turkey. She has also set out the details of your detention since being placed in HMP Belmarsh. Some tests she has conducted show moderate anxiety and moderately severe depression. You have sought some treatment for difficulty in sleeping. She notes some indications of PTSD. In the summary and opinion section of her report she refers to the lengthy period it is said you spent in solitary confinement in Turkey. She is of the opinion, based on the account she was given and the clinical findings in regard to your mental health, including the triggers identified to your re-experiencing symptoms, that this ill-treatment amounts to torture within the legal definition of that term. She is of the opinion that you need psychological therapy such as CBT which should not be delayed until you are no longer in prison.
[24] I have read and considered with care the detailed sentencing note that has been submitted on your behalf. It is submitted on your behalf that there is much that has been said about you in the media and elsewhere that is not supported by evidence before the court. I make clear that I am to sentence you for the offences that are on the indictment and for nothing else. I have also considered what is said about your time in prison in Turkey. Reference is made to reports of your conduct whilst serving a sentence in Turkey: reports supported by materials provided to me in the course of the legal arguments earlier this year. I note the particular emphasis on how you have been assessed whilst in HMP Belmarsh since your return to the UK. The details set out in paragraph 16 of the sentencing note are ones I have taken into account in not seeking any report as to issues of dangerousness. In addition, I make clear those matters are significant and much to your credit.
[25] On your behalf Mr Summers has underlined many of the key parts of his written submissions. Through him, you tender various apologies. It is said that a lengthy period of reflection leads to apologies to the people of Syria, and also to your family and to the court.
[26] In terms of overall credit for your pleas, in my judgment the appropriate level of credit is of the order of 25%.
[27] In terms of the period of imprisonment you served in Turkey, as the Court of Appeal highlight, there is little, if any overlap, between the offending being dealt with here with that in Turkey. However, in my judgment the overall impact of sentencing you today when you have been in custody for 8 years is something I should and will reflect in the overall sentence passed.
[28] On count 1, as I have set out, before plea a start point of 7 years’ imprisonment. On counts 2 and 3, if I was dealing with those offences only, again before pleas, a start point of 9 years’ imprisonment.
[29] Allowing for totality, together with making some allowance for the period you have been in custody since 2015, in my judgment the appropriate overall sentence before allowing credit for your pleas, is one of 10 years imprisonment. After plea, a sentence of 8 years’ imprisonment. On count 1, there will be a sentence of 5 years’ 6 months’ imprisonment and on counts 2 and 3, sentences of 2 years’ 6 months’ imprisonment to be concurrent to each other, but consecutive to the sentence on count 1. As these are all special custodial sentences [s. 278 of the Sentencing Act 2020] there will be the custodial term of 8 years’ and a further licence period of 2 years.
[30] As there are now no early release provisions for those sentenced for terrorism, you will serve the whole of the custodial period set out. You will then be on licence for a period of 2 years.
[31] If the statutory surcharge applies to your case, then the appropriate order can be drawn up.