The Circuit Court
South Eastern Circuit
Record No. WDDP0052/2017
Director of Public Prosecutions
Sentencing judgement by His Honour Judge Eugene O’Kelly given on the 5th July, 2018.
1. Hasan Bal has pleaded guilty on the 12th of January 2018 to two separate counts. One of providing funds intending that they be used for the benefit or purposes of the terrorist group known as Islamic State and two, attempting to collect or receive funds intending or knowing that they would be used for the benefit of that terrorist group. A terrorist group can be defined as a structured group of persons acting together to commit terrorist offences with the intention of seriously intimidating a population or destabilising or destroying the fundamental, constitutional or social structures of a State. Unfortunately we are all aware of the escalation of acts of terrorism in all its forms throughout the world over the past number of decades. The frequency and seriousness of such acts depend in a large way on the financing that terrorists may obtain. This funding is often done on a transnational basis and for this reason, Ireland along with so many other nations has signed up to various conventions, including the International Convention for the Suppression of the Financing of Terrorism. It is against this legislative background that charges were brought against Mr Bal to which he has pleaded guilty, specifically, Sections 13 (3) (a) and 13 (4) of the Criminal Justice (Terrorist Offences) Act , 2005.
2. I have heard an outline of the evidence given by Superintendent Pettit. Hasan Bal was caught by an undercover newspaper investigation in the United Kingdom. It was, in effect, a classic sting operation. Mr Bal directed his accomplice, who happened to be his brother, and who was an unwitting participant, to collect what he, Mr. Bal, believed was going to be money dropped at a certain location in London. The fact that the money which Mr Bal thought he was dealing with did not actually exist is not relevant to his culpability. He believed that he was dealing with a genuine sympathiser and that this money would, when obtained, be used for the benefit or purposes of Islamic State. Following his arrest and the seizure of his computer, his telephones and other evidence, the details of the other offence came to light. Mr Bal had sent a sum of €400 to a known ISIS operative in Bosnia in October 2015, intending that it be used for the benefit or purposes of terrorist activity. The fact that the sums of money were not great is not of itself highly relevant as to culpability. A few hundred euros in the hands of a determined ruthless terrorist could be used to deadly and devastating effect. It is the intent of Mr Bal's attempt to get funds that goes to the seriousness of his culpability, rather than the amount of money he expected to get or receive. In relation to the €400 he sent to Bosnia, while not itself a significant amount, it nonetheless must have represented a sizeable sum of money to someone who was at the time in receipt of a basic social welfare payment of €100 per week. The legislation provides for a penalty of up to a maximum of 20 years imprisonment on each count. The amount of money involved is, however, relevant and obviously goes to where on the scale of gravity these offences falls. If the sums concerned were millions of Euros, it would nevertheless be the same charge that such an accused would face, just as it would be for an individual raising €50 in a street collection if the purposes were for the aiding of terrorism. If we take these two examples as coming at opposite ends of the scale, then I am fixing Mr Bal's offending on count No. 1 at the upper end of the lower range of seriousness and on count No. 2, I place the offending at the beginning of the mid-range of seriousness on a scale that encompasses possible penalties that go from a wholly non-custodial sentence at the lowest end of culpability and seriousness to 20 years imprisonment at the highest end. Accordingly, I find that the appropriate headline sentence is one of four years imprisonment on count number one and six years imprisonment on count number two.
3. I have however identified a number of aggravating factors in this case and before going into these, it is important to stress at the outset that the intended use of the funds is not itself an aggravating factor. The offences are related to the funding of terrorist groups so that terrorism is itself an essential element of the offence and not something that warrants any additional penalty. The aggravating factors which I identify in this case are:
In light of these 4 aggravating factors I am accordingly increasing the sentence on count 1 to five years' imprisonment and on count 2 to seven years' imprisonment to reflect this aggravation.
(i) The offending appears to be part of a group activity. Mr Bal was not in the higher echelons of ISIS, but neither was he at the lowest level. He had the confidence of significant and prominent members of that terror group and had established his credentials with them by his failed effort to get to Syria to join the group.
(ii) He appears to have deceived his brother, one Adam Loxley, as to the true nature of the collection of “the drop”. His brother was apparently unwittingly drawn into an international incident of terrorist funding which led to, not only his arrest by counterterrorist police but also in the words of his mother, in her letter to the Court "it has ruined his brother's business in London". That is an aggravating factor because of the damage that it has done to him and other family members.
(iii) The use of the internet and the number of messages passing between Hasan Bal shows evidence of significant preparations by Mr Bal to secure delivery of this money over a sustained period of time. Mr Bal encouraged the undercover reporter, whom he believed to be a genuine sympathiser, around several logistical difficulties.
(iv) There is a further aggravating factor in relation to the use of the internet. There appears to have been the deliberate use of false or fake names between the parties in their communications and the use of an encrypted messaging service, Kik, to facilitate the commission of these offences and to avoid detection by preserving the user's anonymity. These false names were referred to the evidence today in Court as the use of "noms de plume", but I note the significant description of these identities in Dr Koehler's report as "noms de guerre", suggesting names assumed under which a person engages in combat. Whichever description one uses, Mr Bal attempted to disguise his identity.
4. In sentencing any convicted person, this Court must find the appropriate sentence, not only for the offence but for the offence committed by the particular offender. In this regard, Mr Ó Lideadha has highlighted the mitigating factors of which I must take into account in arriving at a final sentence. The principal and most significant mitigating factor is that Hasan Bal pleaded guilty to these two charges. While there was overwhelming evidence of his guilt, nonetheless, had he chosen to plead not guilty, the State would have been obliged to prove its case against him. This would, in a prosecution of this nature have entailed very considerable commitment for resources involving not only An Garda Síochána but significant evidence from officers of the London Metropolitan Police, MI5 and the Counterterrorist Units involved, together with forensic and intelligence personnel. There would inevitably be complex legal argument on the admissibility of certain evidence, particularly in circumstances where the undercover operation was conducted by a private agency, a Sunday newspaper. Numerous legal challenges could have been made which would have made the prosecution's task of securing convictions before a jury all the more difficult. The trial itself would inevitably have been a lengthy, complex and costly one, with an uncertain outcome. In such circumstances, the guilty pleas, indicated as Mr Ó Lideadha says “at an early date” and by Superintendent Pettit “at a relatively early date”, deserve a substantial reduction in the sentences. I am accordingly reducing the sentence of five years on count 1 by 14 months and the sentence of seven years on count 2, I am reducing by 20 months in recognition of the guilty pleas. There are of course other factors in mitigation and I will now refer to these.
5. There is the genuine reformative efforts which appear to have been made by Mr Bal, not only in prison but prior to he arriving there. He appears to have availed himself of counselling facilities and undergone a detailed programme with Dr Koehler. Mr Ó Lideadha referred to a Governor's report but I haven't had sight of that and I don't know if it was intended that he wished me to see it. Mr Ó Lideadha referred to Mr. Bal’s good character otherwise from these offences and an absence of prior convictions and noted that having initially been arrested, Mr Bal did not come to any adverse attention of the gardaí in that period leading up to his second arrest. Mr Bal has demonstrated a commitment to changing his ways. Mr Bal has a new role as a husband and a father, his child having been born since he went into prison. Mr Bal has a demonstrated capacity for work and I note that he worked in a number of voluntary capacities as an electrician having trained as such in the United Kingdom. There are 10 testimonials or nine testimonials and his own letter, which have been addressed to the Court. In his own letter, he expresses considerable remorse and sorrow for the wrong that he became involved in. He gives an insight into why he became radicalised. "I became closed minded to the wrong they was doing and I full heartedly believed it was my duty religiously and morally to support them", referring to ISIS. He makes reference to suffering from depression.
For these additional mitigating factors, I will further reduce each sentence by an additional 10 months, to leave a sentence of three years' imprisonment on count No. 1 and on count No. 2, a sentence of four and a half years' imprisonment.
6. This then leads the Court to the final part of the sentencing process, which is to consider whether it is appropriate to suspend any portion of these terms of imprisonment and if so, for how long. Mr Ó Lideadha has laid great emphasis on the expert report of Dr Koehler, a director of the German Institute on Radicalisation and De-radicalisation Studies. This has been particularly helpful to me in the assessment of Mr Bal's radicalisation process and his current mindset.
Dr Koehler states;
And as has been pointed by both Mr Ó Lideadha and Superintendent Pettit, there are positives and negatives in the report, and it is in the words of Mr Ó Lideadha, "a rigorous comprehensive and independent report which identifies not only the positives but many factors of continuing concern." While there is significant insight being shown, Dr Koehler's assessment of Mr Bal's claim that he had and still has, not any specific idea regarding the use of the money he sent to Bosnia, Dr Koehler finds this not credible. The electronic communication with individuals like Abu Isa Amriki as shown in the book of evidence clearly state the purpose of the donation to "help with the expansion of the ISIS caliphate". There are other matters which are of significant concern in Dr Koehler's report, but as I say, there are also positives. Dr Koehler states Mr Bal displayed a credible motivation to critically reassess his own past and take responsibility for his actions, even though Mr. Bal thinks that he already has done so to a full extent and wants to move on. And this is a reference to his guilty pleas, but Dr Koehler finds that taking the guilty plea itself is not necessarily a credible indication for a true critical reflection and motivation to take over responsibility.
"Mr Bal's main driving forces behind his radicalisation process were identified as a deep-rooted, almost pathological sense of guilt and shame resulting in a constant search for repentance and redemption. This sense of guilt and shame was partially the outcome of strict religious upbringing, the shock of his parents divorcing and his own desires to indulge in a western lifestyle. This internal tension created a cognitive opening for the propaganda of ISIS to find the ultimate and perfect option for religious purity. This sense of guilt and shame as well as severe identity struggles, feeling torn apart between being a Muslim and having a western identity are still very much present and visible".
7. It is certainly in the public interest, that Hasan Bal is rehabilitated back into society on his release. He will face many challenges reinserting himself into everyday life, but the hope is that he will be able to participate fully in society. Because of the de-radicalisation programme that he has undertaken with Dr Koehler and the insights he has gained, the hope is that he will be able to participate in society without compromising his religious or cultural values, but at the same time, with a low risk of reengagement with radical Islam. The vast majority of Muslims do not hold the radical views that Mr Bal held, and yet, there is a rise of anti-Islam hate crime and prejudicial sentiment. Such intolerance of people simply on the grounds that they come from a particular religion should have no place in our society, yet it fuels among the young and marginalised, support for the very terrorist groups that promote a radical interpretation of Islam, and this becomes a vicious cycle as the extremists exploit the vulnerabilities of the marginalised, targeting young Muslims who experience anti-Islamic discrimination. The challenge for Hasan Bal is that he can reintegrate himself back into his community without feeling excluded. For that reason, I am prepared to suspend the final year of his three-year sentence on count 1 and suspend the final two years of his four-and-a-half-year sentence on count 2, strictly on condition that he remains entirely disassociated from any group or organisation promoting a radical view of Islam or justifying a violent crusade against non-believers, but also against other Muslims.
8. Without specifically going into it, I refer to the significant concerns raised in that regard by Dr Koehler in relation to the practising of “takfir”, and those who have access to the report will understand what is being referred to. I am also making it a condition of the suspended sentences that Mr Bal engages in a dedicated programme of counselling in de-radicalisation, and I acknowledge that this presents difficulties. I think it is important to read into the record the recommendation in this regard by Dr Koehler.
This is clearly going to present a challenge for the Probation Service, but I am going to direct that they try and organise such counselling, both while Mr Bal remains in prison and for the period of his release and I will direct that he be subject to post-release supervision for the term of the suspension of the sentences which in each case I am fixing at three years post-release. I am directing the accused Mr Bal to follow all directions of the probation service in relation to counselling in de-radicalisation.
"Mr Bal displays an urgent need for structured and professional counselling, either as a participant in a dedicated programme or by specially trained and experienced experts in the field of de-radicalisation. Such counselling must be tailored to the individual radicalisation motives, state of radicalisation and psychological profile of the person in question. A counselling programme needs to be supervised and strategically coordinated by experienced experts in the field of mentoring and de-radicalisation; for example, specially trained probation officers, as well as continuously reassessed in terms of impact, effect, progress and risk of recidivism."
9. I am not going to impose, despite it being the other area of recommendation, by Dr. Koehler, any bail condition in relation to Mr. Bal receiving religious instruction from a suitable religious authority. That is not appropriate for a bail condition, but it is a matter that has been recommended and which Mr Bal should attend to himself if he believes that that would be of assistance to his religious thought process.
10. In relation to the two terms of imprisonment they are concurrent sentences, I am not making them consecutive.
11. Because this is the first case of its kind in Ireland, I would like, in conclusion to pay tribute to Superintendent Pettit and to An Garda Síochána in the investigation of these offences and of course to their counterparts in the Metropolitan Police and the Counterterrorist Unit involved in the UK. I would also like to recognise the role of the investigative reporter from the Mail on Sunday without whose involvement these matters would not have come to light and of course, to the independence of the press who have thankfully the freedom to explore these dark and difficult matters. Finally, I have been most impressed by the conduct of both the prosecution and the defence teams, led by Mr Whelan and Mr Ó Lideadha respectfully, who had to embark on what was largely unchartered waters in this precedent case. Thank you.