R. v Girma (Yeshiembert), [2010] 1 Cr. App. R. (S.

) 28 (2009)

*172 R. v Esayas Girma and others

No Substantial Judicial Treatment

Court
Court of Appeal (Criminal Division)

Judgment Date
15 May 2009

Report Citation
[2009] EWCA Crim 912
[2010] 1 Cr. App. R. (S.) 28
Court of Appeal (Criminal Division)

Lord Justice Goldring , Mr Justice Openshaw and Judge Gilbert Q.C. :

May 15, 2009

Admissibility; Assisting offenders; Co-defendants; Consecutive sentences; Failure to disclose;

Guilty pleas; Terrorist offences; Totality of sentence;

H1 Terrorist offences—failing to disclose information likely to be of assistance in preventing

commission of an act of terrorism—assisting offender guilty of conspiracy to murder—failing to
disclose information about act of terrorism—length of sentence—whether sentences properly made
consecutive.

H2. Sentences totalling 15 years for offences of failing to disclose information likely to be of
assistance in preventing the commission of an act of terrorism, assisting an offender guilty of
conspiracy to murder, and failing to disclose information about an act of terrorism, reduced to
a total of 11 years and nine months.

H3. The fourth appellant was convicted of one offence contrary to the Terrorism Act 2000
s.38B(1)(a) and (2) of failing to disclose information which might be of material assistance
in preventing the commission of an act of terrorism (count 1), assisting an offender who had
committed conspiracy to murder, contrary to the Criminal Law Act 1967 s.4 (1) (count 2) and
failing to disclose information about an act of terrorism contrary to the Terrorism Act 2000
s.38B(1)(b) and (2) *173 (count 3). A number of bombs were detonated in London but failed
to explode. The fourth appellant lived with one of the persons who had attempted to detonate a
bomb and was aware of his extremist views. Following the attempt to detonate bombs the fourth

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appellant assisted this bomber to escape. Sentenced to five years' imprisonment on each count
consecutive (total sentence, 15 years imprisonment)

H4. Held: (considering Sherif (Abdul) [2008] EWCA Crim 2653; [2009] 2 Cr. App. R. (S.)
33 (p.235) the sentencing judge was justified in passing the maximum sentence of five years'
imprisonment on the count charging the fourth appellant with failing to disclose information
which might have been of material assistance in preventing the commission of an act of
terrorism. She was in a position to prevent the act of terrorism by telephoning the police and
chose not to do so. The planned bombing could not be more grave, and the information which
she had was of the first importance. She had done everything that she could have done to assist
the bomber after the failed bombing, and to frustrate the efforts of the police to capture him.
The Court had no doubt that in principle the maximum sentence was justified for the offence
of assisting an offender and failing to give information after the act of terrorism. However, the
Court did not think that the charge of failing to disclose information (as charged in count 3)
added anythingto the charge of assisting an offender (as charged in count 2) and consequently
the sentences for those charges should run concurrently with each other, but consecutively to the
five years for the offence of failing to give information before the intended bombing. The Court
did not consider that there was any scope for mitigating the sentence on grounds of personal
mitigation. The Court would make a small deduction of three months from the sentence to take
account of the fact that the appellant had been released on bail subject to an overnight curfew
which had been electronically monitored for a period of approximately 21 months. Accordingly
the sentence of five years' imprisonment for assisting an offender would be varied to six years
and nine months' imprisonment, (the maximum of seven years, less three months' credit for the
time spent on bail subject to curfew) and the sentence of five years' imprisonment on count 3,
would be ordered to run concurrently with the sentence on count 2, but consecutively to the
sentence on count 1. The overall sentence would therefore be reduced from 15 years to 11 years
and nine months. Similar adjustments would be made to the sentences imposed on the other
appellants.

H5 Cases cited:

Sherif (Abdul) [2008] EWCA Crim 2653; [2009] 2 Cr. App. R. (S.) 33 (p.235)
Glover (Peter) [2008] EWCA Crim 1782
H6. References : terrorist offences, Current Sentencing Practice B13-8.3K.

H7 Representation

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R. v Girma (Yeshiembert), [2010] 1 Cr. App. R. (S.) 28 (2009)

J. Wood Q.C. and P. Panayi , J. Wood Q.C. and P. Mylvaganam , J. Wood Q.C. and E. Sherry
for the respective appellants. *174

Judgment

Goldring L.J.:

Introduction

1. This is a judgment to which all members of the Court have contributed.

2. The fundamental issue in the appeals against conviction is whether the plea of guilty of a co-
defendant, Mohammed Kabashi (“Kabashi”) to count 2 on the indictment was rightly admitted
in the trial of the others; if not, whether in any case the safety of the conviction is affected. A
similar but secondary issue arises in respect of the admission of convictions in an earlier trial
(“the Kingston trial”).

3. On June 11, 2008 in the Central Criminal Court, after a trial of almost four months, the
applicant Yeshiemebet Girma (“Yeshi”) was convicted on count 1 of the indictment. That alleged
that contrary to s.38B(1)(a) and (2) of the Terrorism Act 2000 she:

“on divers days between 1st day of April 2005 and the 22nd day of July
2005, had information which she knew or believed might be of material
assistance in preventing the commission of an act of terrorism by …
Hussein Osman ['Osman'], and, without reasonable excuse she did not
disclose the information …”

4. Yeshi, her brother Esayas Girma (“Esayas”) and her sister Mulumbet Girma (“Mulu”) were
convicted on count 2 of assisting an offender contrary to s.4(1) of the Criminal Law Act 1967
. That alleged, as particularised for the jury, that:

“… Osman, having committed an arrestable offence, namely conspiracy

to murder, on divers days between 19th day of July 2005 and 24th day

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of July 2005 [they] [and Omer Nagmeldin Almagboul ('Almagboul') and

Shadi Sami Abdelgadir ('Abdelgadir')] and others, including … Kabashi,
knowing or believing that … Osman had committed the said offence
or some other arrestable offence, without lawful authority or reasonable
excuse, assisted … Osman by:

(i) collecting Osman from Wandsworth and taking him out of London on
the afternoon of 21st July 2005 [Yeshi and Esayas]

(ii) providing Osman with a mobile telephone and SIM card on 21st July
2005 [Yeshi and Esayas]

(iii) delivering Osman to 8 Southall Avenue, Brighton on 21st July 2005

[Yeshi and Esayas]

(iv) removing property from 40 Blair House, London on 21st July 2005
[Yeshi and Esayas]

(v) withdrawing cash on the evening of 21st July 2005 [Yeshi and Esayas]

(vi) buying medication for Osman's injury, dressing his injury and washing
his clothes on 21st July 2005 [Mulu]

(vii) accompanying Osman on the evening of 21st July 2005 from 8

Southall Avenue, Brighton to 20 The Fairways, Brighton [Esayas and
Mulu]
*175
(viii) providing accommodation for Osman at 20 The Fairways, Brighton
on the night of 21st-22nd July 2005 [Almagboul and Abdelgadir]

(ix) facilitating Osman's use of a Nissan Primera vehicle … on 22nd July

2005 [Abdelgadir]

(x) making a false report of the theft of the Nissan Primera on 23 July 2005
[Almagboul, Mulu and Abdelgadir]

(xi) removing property from the Nissan Primera [Almagboul, Mulu and
Abdelgadir]

(xii) disposing of items of clothing used by Osman [Mulu]

with intent to impede the apprehension or prosecution of the said …

Osman.”

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5. Yeshi, Esayas and Mulu were also convicted on counts 3, 4 and 7 respectively of failing to
disclose information about an act of terrorism contrary to s.38B(1)(b) and (2) of the Terrorism
Act 2000 .

6. Almagboul and Abdelgadir were found not guilty on count 2 and on counts 5 and 8
respectively (of failing to disclose information about acts of terrorism).

7. Kabashi, in circumstances we shall come to, pleaded guilty to count 2 and count 6 (of failing
to disclose information about acts of terrorism).

8. The trial judge, H.H. Judge Worsley Q.C., sentenced the first three applicants as follows:
Count 1 (Yeshi): five years' imprisonment.
Count 2 (Yeshi, Esayas, Mulu): five years' imprisonment (consecutive in the case of Yeshi).
Count 3 (Yeshi): five years' imprisonment consecutive.
Count 4 (Esayas): five years' imprisonment consecutive.
Count 7 (Mulu): five years' imprisonment consecutive.

9. Kabashi was sentenced as follows:

Count 2: four years and six months' imprisonment.
Count 6: four years and six months' imprisonment consecutive.

10. Yeshi's and Esayas' applications for leave to appeal against conviction and sentence have
been referred direct to the Full Court, as has Mulu's application for an extension of time and
leave to appeal against conviction and sentence, and Kabashi's application for leave to appeal
against sentence. We extend time in Mulu's case. We grant leave to Yeshi, Esayas and Mulu to
appeal against conviction. We grant leave in all cases to appeal against sentence.

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The bombings

11. On July 21, 2005, two weeks after the London bombings, three devices were detonated
on Underground trains and a fourth on a No.26 bus. A fifth device was abandoned near Little
Wormwood Scrubs where it was discovered two days later. Each device was carried in a
rucksack and contained the primary high explosive triacetone triperoxide (“TATP”), light bulbs,
batteries, wires and plastic containers. Although four of the devices were detonated, in each
case the main *176 charge, which consisted of hydrogen peroxide and chapatti flour, failed
to explode. The four whose bombs detonated were Osman (Shepherd's Bush), Muktar Ibrahim
(No.26 bus), Yassin Omar (Warren Street) and Ramzi Mohammed (Oval). Osman lived at 40
Blair House, not far from Stockwell tube station and Mohammed lived in Delgarno Gardens.
After the bombings he fled from London to Brighton. He returned to London on July 23. From
there he travelled to Paris and on to Rome where he was arrested on July 29. Omar lived in a
flat at 58 Curtis House (said to be the bomb factory). Ibrahim often stayed there with him. Omar
was arrested in Birmingham on July 27. Mohammed and Ibrahim were arrested at 14k Delgarno
Gardens on July 29. Ibrahim, Osman, Omar and Mohammed were convicted of conspiracy to
murder. Each was sentenced to life imprisonment with a minimum term of 40 years.

12. The person responsible for abandoning the device near Little Wormwood Scrubs, Manfo
Asiedu, pleaded guilty to an offence of conspiracy to cause explosions. He was sentenced to 33
years' imprisonment. Adel Yahya, who had been involved in purchasing the hydrogen peroxide
for use in constructing the bombs, pleaded guilty to an offence of possessing information of a
kind likely to be useful to a person committing or preparing an act of terrorism. He was sentenced
to six years and nine months' imprisonment.

[Paragraphs13–86 have been omitted.]

Sentence

87. We turn to the appeals against sentence. We have very much in mind the matters of principle
set out in [45] of Sherif . They apply equally to the present case. We set the relevant passages
out in full:
(a) The offences under s.38 of the Terrorism Act 2000 carry a maximum of five years'
imprisonment. The first general question, therefore, is whether the judge was right to impose,
on so many counts, the maximum sentence. It is well established that the maximum sentence
for any offence should not be imposed except for the worst type of offending. In this case
the bombers planned and attempted murder on an indiscriminate scale. They sought to cause
terror not only in London, but also throughout the country. They were each convicted of a

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conspiracy to murder and they were sentenced to life imprisonment with a minimum term
of 40 years. We shall examine the particular criminality of each individual appellant on each
particular count, but we have no doubt that the enormity of this crime and the dreadful risk
which these bombers posed to the public safety until they were later arrested, is capable in
appropriate circumstances, of justifying the imposition of the maximum sentence to either,
and even to both, limbs of s.38B of the Act. In many cases, it will be the seriousness of
the terrorist activity about which a defendant has failed to give information which will
determine the level of criminality, rather that the extent of the information which could be
provided which will affect the sentence. There is, in the present cases, however some force
in the argument that the judge may have applied the maximum *177 sentence to too many
offences, particularly in the light of the comment that he made in his sentencing remarks that
in his view the maximum sentences were “woefully inadequate”. Whatever our views may
be, we are bound by the maxima laid down by Parliament.
(b) The second issue of general principle arises out of the fact that consecutive sentences
were imposed. It seems to us that there is nothing wrong in principle with imposing
consecutive sentences where both limbs of s.38B of the Act have been charged. The failure
to give information before the act, arguably the more serious offence, and failure to give
information afterwards are entirely separate offences, although the failure may arise out
of the same state of mind, for example misplaced loyalty. Where, as here, the offence of
assisting an offender is charged, however, care needs to be taken to ensure that there is
criminality over and above the failure to inform if a consecutive sentence is to be justified.
(c) We then turn to consider the relevance of an appellant's personal circumstances in these
cases. There is of course always a place for exceptional personal mitigation even in cases
as grave as this. We are very much alive to the personal dilemma that can be presented
to someone faced with the unexpected and unwelcome news, or the gradual realisation,
that a close family member or friend may be about to participate or has participated in a
terrorist outrage. We understand that every encouragement must be given to such people
to come forward to tell the authorities what they know, to prevent bloodshed or to bring to
justice those responsible. There may be cases where the court may be able to show some
understanding and even mercy when someone, if vulnerable either because of age or their
particular relationship with an offender, for a time, mistakenly and misguidedly puts loyalty
to a family or to a friend before duties to the public or before disclosing what they know
to the police.
(c)(i) All the appellants were ultimately granted bail subject to an electronically
monitored curfew. Siraj Ali, Sherif, Mohamed, and Muhedin Ali were all subject to a
24–hour curfew, in other words house arrest. Abdurahman was subject for a time to a
curfew between 19.00 and 08.00, then 22.00 to 08.00, and finally during trial to 22.00 to
07.00. Fardosa Abdullahi was subject to a 12–hour curfew. We have been asked to reflect
these periods of curfew in our consideration of the sentences that have been imposed
as, in particular in relation to those who have been subjected to house arrest, that is a
deprivation of liberty which although not as serious as a remand in custody, nonetheless
has a similar effect. It is accepted that under the current legislation, there is no statutory
provision which requires the court to do so. But s.21(4) of the Criminal Justice and

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Immigration Act 2008 , which received royal assent in May introduces a new s.240A
into the Criminal Justice Act 2003 . It came into force on the November 8, 2008. But it
provides that, subject to rules to be made by the Secretary of State, the court will, unless it
considers that it is not just to do so, give credit against the ultimate sentence of *178 one
half the number of days when a defendant has been subject to an electronically monitored
curfew of at least nine hours a day. It is submitted that we should reflect the fact that
Parliament has passed this Act in our consideration of these appeals.
(ii) The issue arose in Glover (Peter) [2008] EWCA Crim 1782 . In that case the relevant
appellant had been effectively subject to a 24-hour curfew electronically monitored.
Hughes L.J. in [14] of his judgment indicated that it was incorrect to equate time spent
under a home curfew with time in prison, because life at home was clearly preferable to
life in prison; however, he continued:

“It is possible that in some circumstances a judge might be

persuaded by the facts of a particular case to make some modest
adjustment in the final sentence in circumstances of this kind, but
it seems to us that that is a question of assessment by the judge in
each case”.

(iii) It does not appear as though the court was there addressed on the effect that should
be given to the passing of the 2008 Act. In our view, until s.240A comes into force, a
court should deal with the matter in the way suggested by Hughes L.J. at least in relation
to house arrest. This may justify a modest period of credit in cases such as the present
one. The period spent under house arrest were substantial, in the region of 16 months, the
figure we consider appropriate is three months. But the same considerations do not apply
where the curfew is in the night. A curfew period of this sort has been a common place
for many years; and whilst the court may of course have had regard to the restriction of
liberty, it has not in the past made any formal reduction for such a curfew …

88. Before turning to consider the position of the individual appellants, we should point out
that, at the time of sentencing, the judge did not have the benefit of the guidance given in the
case of Sherif and no criticism attaches to him in passing sentences which can now be seen not
entirely to comply with that guidance.

89. We consider first the position of Yeshi on count 1. It is now said on her behalf by Mr Wood
that the evidence does not establish that she became aware of his intention until very shortly
before the bombing and possibly not even until the day before. That may well be right; however,

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she did know of Osman's intentions before he set out. She had it in her power to prevent the risk
of slaughter and mayhem by telephoning the police and she chose not to do so. As was said in
Sherif , in the passage we have already quoted:

“it will be the seriousness of the terrorist activity about which a defendant
has failed to give information which will determine the level of criminality,
rather that the extent of the information which could be provided which
will affect the sentence”.

*179 Here the bombing could not be more grave, and the information which she had was of
the first importance. We have no doubt that the judge was justified, indeed he was required, to
pass the maximum sentence of five years on that count.

90. We move on to counts 2 and 3 which charged her respectively with assisting Osman and with
failing to disclose information to the authorities which might have been of material assistance
in securing his apprehension, prosecution or conviction, after the bombing. It is quite clear
that Osman rang Yeshi within a very short time of the unsuccessful detonation of the bomb
and he did so as soon as he thought that he had put sufficient safe distance between him and
the scene of the bombing. It is highly significant that he turned immediately to her and that
she immediately responded. Thereafter she did everything that she could to co-ordinate the
steps necessary to secure his rescue and escape. She recruited Esayas. She arranged for Mulu to
provide accommodation for some time. She drove to Wandsworth to pick Osman up. She took
him to Brighton. She arranged for Mulu to tend his wounds and to find somewhere for him to
lie low. Thereafter, she returned to London to remove incriminating material from Blair House.

91. We conclude that she did everything that she possibly could to assist him and to frustrate the
efforts of the police to capture him. We have no doubt, therefore, that in principle the maximum
sentence is justified in respect of both these offences: that is to say seven years on count 2 for
assisting an offender and five years on count 3, for failing to give information after the bombing.
However, we do not think that the charge of failing to disclose information (as charged on count
3) adds anything to the charge of assisting an offender (as charged on count 2) and consequently
for the reasons set out in Sherif , we think that these sentences should run currently with each
other. However the sentences on counts 2 and 3 should run consecutively to the five years on
count 1, since her participation after the bombing is over and above the separate criminality
charged in respect of her participation before the bombing.

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92. We have considered whether to give any weight to her personal mitigation, but there is no
real evidence to suggest that she was trapped in an abusive relationship with Osman or was in
any real sense subservient to him and merely doing his bidding, being powerless to do otherwise;
on the contrary, she was using considerable personal initiative and resource. We are of course
aware that a long sentence of imprisonment upon Yeshi may bear hard upon her children but
that is not an infrequent consequence of the commission of serious criminal offences. Different
considerations might have applied if she had given some information to the police, particularly
before her arrest, or if she had pleaded guilty but she has showed not the slightest regret or
remorse for what happened or for the part she played; in these particular circumstances, for
offences of this gravity, there is really no place for personal mitigation.

93. We have noted the progress which she, and indeed the other appellants, are said to have
made in prison, but it is not so exceptional as to justify any reduction in the sentence otherwise
appropriate.

94. There are a number of other points which we must consider. It is suggested that some
reduction should be made because of the delay in the trial process; it is said *180 that this was
no fault of the appellant. The fact is that the investigation of these complex offences takes a
very long time and before a trial can properly take place further work must be done both by
the prosecution and the defence. Furthermore, the principal offenders had to be tried first; that
trial was followed by the trial of Sherif and others; the trial of the appellant and the others could
only take place after the first two trials had been concluded. This delay could have been entirely
avoided if the appellant had pleaded guilty. In our judgment, the delay was the consequence of
her plea. We do not see this as a mitigating factor.

95. She is of course entitled to credit for the time which she spent in custody but the point is
taken that she should have some credit for the time which she spent on bail. After her release
from custody in September 2006, until her conviction in June 2008, she was on bail subject to
an overnight curfew between 18.00 and 06.00, monitored by an electronic tag. For the reasons
set out in Sherif , we think that a small deduction should be made on account of this fact. We
propose to make a discount of three months.

96. The result is that we quash the sentence of five years on count 2 for assisting an offender
and substitute a sentence of six years and nine months (being the maximum of seven years less
three months credit for the time which she spent on bail, subject to conditions). We uphold the
sentence of five years on count 3; both those sentences will currently with each other but they

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will be consecutive to the five years on count 1. Therefore, the overall sentence on the Yeshi
will be 11 years and nine months rather than 15 years. The total time which she spent in custody
on remand will count towards her sentence as before.

97. We turn to Esayas. He was only aged 20 at the time. No doubt he found it hard to resist
Yeshi's call for help but thereafter he did all that was asked of him. He immediately went to
Yeshi. He was with her when they met Osman; together they took him to Brighton and he came
back with her to London to clear out Blair House. He played an important part in the Osman's
escape but his role was not so prominent as Yeshi's. We think that he should receive a sentence
of five years for assisting an offender. We uphold the sentence of five years of failing to provide
information which may have led to Osman's apprehension. However those sentences will run
concurrently in accordance with the principles laid down in Sherif .

98. We note that he also was on bail subject to conditions for some considerable time until trial
but we have taken this into account in fixing the sentence of five years and no further reduction
is called for. The result is that his sentence will be reduced from 10 years to five years. As before,
he will receive full credit for the time he spent in custody before his release on bail.

99. For sake of completeness we make clear that we have read that the psychiatric report on
Esayas but we do not consider that he has any mental condition, still less mental illness, which
calls for any further reduction of sentence.

100. We turn to Mulu. We note that as part of her active co-operation she was engaged in a
telephone call made directly from Osman to her within a few hours of the bombing; plainly he
believed that he could trust her implicitly. Thereafter she recruited Kabashi; she treated Osman's
wounds, having bought the ointments to do so; she arranged a safe house for him to stay in
Brighton, *181 she acquiesced in Osman acquiring the Nissan car and thereafter she gave the
police a false story about the car to put them off the scent. In our judgment she played an active
and prominent part in permitting Osman to escape and the sentences of five years passed by the
judge were entirely justified. However, for the reasons which we have already given, the charge
of failing to provide information adds nothing to the charge of assisting an offender and those
sentences should be made to run concurrently and not consecutively with the result that she will
serve five years rather than 10 years. The total time which she spent in custody on remand will
count towards her sentence as before.

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101. We turn to Kabashi. The first point to be made is that we must be faithful to the basis of
plea, by which he accepted that he had provided accommodation for Osman at the Fairways
on the night of the July 21/22, that he had facilitated Osman's use of the Nissan motor car and
made a false report of its theft and removed property from the car after it had been abandoned
by Osman. His active participation is therefore considerably less than the others.

102. We reject entirely the argument that the judge was in any way tied by the Goodyear
indication which he gave many months before the trial was listed; such indication must remain
operative until the defendant has had a reasonable opportunity of considering it but thereafter
the indication lapses for all purposes and cannot be used as a springboard to suggest that any
other sentence is excessive or wrong in principle.

103. However, we think that there is considerable force in the argument that he should have
received a greater discount on account of his plea than he apparently did. In a multi-handed
trial, which is likely to last many months, which will be conducted at immense public expense,
particular credit must be given to those who break ranks and plead guilty, particularly in the
context of allegations such as the present. Of course, greater credit will be given the earlier that
the plea is entered; but even with a plea entered only 10 days before the trial very considerable
savings are made. In our view he should have received more than a 10 per cent discount;
something in the region of 20 per cent would have been more appropriate. We think that the
proper sentence on each of the counts which he faced, namely 2 and 6, would have been four
years' imprisonment concurrent, rather than the total of nine years imposed by the judge. We
have already taken into account the time which he spent on bail subject to conditions. He also
will receive credit for the full time which he spent on remand in custody before sentence was
passed.

104. To the extent which we have indicated the appeals against sentence are allowed.

*182

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