A reduced sentence can secure a witness’s help before the prosecution knows how reliable that help will be. When two witnesses later gave some deliberately untrue evidence, the question was who should decide whether to send their sentences back for review. The Supreme Court upheld the prosecutor’s decision to leave the sentences in place.
Robert and David Stewart, brothers and admitted members of a loyalist paramilitary organisation, attended a Police Service of Northern Ireland station in Antrim on 4 August 2008 and admitted involvement in the murder of Thomas English. On 15 October 2008 they made written agreements with Raymond Kitson, a member of the Public Prosecution Service designated as a specified prosecutor. They undertook to assist the investigation, give a truthful account, plead guilty, co-operate throughout, and give truthful evidence. The agreements warned that failure to comply could lead to any sentence being referred back for review under section 74 of the Serious Organised Crime and Police Act 2005.
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On 10 February 2010 they pleaded guilty, including to murder. On 5 March 2010 Hart J sentenced each to life imprisonment. He said that the tariff would ordinarily have been 22 years, applied a 75 per cent reduction for their assistance, and then made a further reduction for their guilty pleas and personal circumstances. The result was a minimum term of three years. Taking account of time on remand, both were released on life licence on 18 August 2011.
Information from the Stewarts led to charges against a number of people. After a long and complex trial before Gillen J, with 14 defendants and 37 counts, all but one were acquitted. The one conviction did not rest on the Stewarts’ evidence. Jason Loughlin, the respondent in the Supreme Court, was among those acquitted. Gillen J accepted that memory, alcohol and drug use, long criminal careers and a tendency to minimise their own roles could explain some unreliable evidence. He nevertheless found that, in a number of instances, the Stewarts had lied to the police and to the court.
The power to refer a sentence back
Section 73 allows a court to reduce a sentence where a defendant has pleaded guilty and has assisted, or offered to assist, under a written agreement with a specified prosecutor. The 2005 Act put an established pragmatic practice on a statutory footing: substantial reductions, even for the most serious offences, are the incentive for assistance which may otherwise not be given because of the risk of reprisals. Section 73(5) permits a reduction below an otherwise prescribed minimum.
Section 74 provides for review of a discounted sentence. A knowing failure to give promised assistance brings the case within the statutory scheme. If the person is still serving the sentence, a specified prosecutor may refer it back where that would be in the interests of justice. The reviewing court, if possible the original sentencing judge, can then increase the sentence up to the term it would have imposed without the agreement.
Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Hughes agreed, identified two stages. First, without a knowing failure to comply, section 74 does not apply. Secondly, even where there has been such a failure, the prosecutor must still decide whether referral is in the interests of justice. He considered it unhelpful to treat that question as one of necessity, and wrong to confine it by a test which the statute does not state, such as whether circumstances have changed since the original sentence.
The decision not to refer
Pamela Atchison, then deputy Director of Public Prosecutions and the designated specified prosecutor, decided not to refer either sentence. She took advice from senior counsel, but the conclusion was hers. In a document of some 260 paragraphs she found that both brothers had knowingly failed, on a number of occasions, to give the assistance promised. Those conclusions broadly followed the instances in which Gillen J had found deliberate lies.
Loughlin said the prosecutor had to examine every part of the witnesses’ accounts anew. The trial judge had already scrutinised their evidence. The prosecutor was entitled to address each specific finding of deliberate lying without repeating the entire trial.
The prosecutor weighed the assistance actually given, the time since sentence, the effect of a return to custody, public confidence and the prospect of the sentencing judge increasing either sentence. The acquittals did not by themselves show what effect the identified breaches had on the trial.
Why the Supreme Court restored that decision
The Divisional Court, Morgan LCJ, Weir J and Treacy J, had quashed the decision not to refer. It treated R v P and Blackburn as meaning that a section 74 review is a fresh process in new circumstances. On that view, the prosecutor’s first task was to ask whether the sentencing court could conclude that circumstances had changed. If it could, the interests of justice pointed towards referral unless there were countervailing considerations.
Lord Kerr held that this reading could not stand. In P and Blackburn, the Court of Appeal used the expression “fresh process” to distinguish a statutory review from an ordinary appeal against sentence, and to explain that an earlier appeal did not prevent a review. That case was also the reverse of the Stewarts’ case: further co-operation had prompted a referral so that a greater discount could be considered. It did not decide that a later failure to comply should normally, or inevitably, produce a referral.
The Divisional Court’s approach would give decisive weight to a change of circumstances. Almost any departure from an agreement would then entail a reference. That would deprive the statutory interests-of-justice test of much of its purpose.
Mrs Atchison’s factors were relevant once her discretion was understood as unrestricted by the Divisional Court’s precondition. She was not merely entitled to examine the interests of justice openly; she was obliged to do so. Lord Kerr held that her report was a careful and legitimate investigation and that her conclusions could not be impeached.
Verdict: The Court unanimously allowed the prosecution’s appeal and dismissed Mr Loughlin’s application for judicial review. The prosecutor’s decision stood, and neither sentence was referred back or increased.
