Michaelmas Term [2017] UKSC 63 On appeal from: [2015] NIQB 33

JUDGMENT
In the matter of an application by Jason Loughlin
for Judicial Review (Northern Ireland)
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
18 October 2017
Heard on 20 June 2017
Appellant Respondent (Loughlin)
Tony McGleenan QC David A Scoffield QC
Peter Coll QC Donal Sayers
(Instructed by Public
Prosecution Service
)
(Instructed by Reavey &
Company Solicitors
)
Notice Party (Stewarts)
Ronan Lavery QC
Andrew McGuinness BL
(Instructed by MSM Law
)
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LORD KERR: (with whom Lady Hale, Lord Wilson, Lord Carnwath and
Lord Hughes agree)
Introduction
1. This case concerns the circumstances in which sentences passed on assisting
offenders (that is, offenders who have given assistance to prosecuting authorities)
should be referred back to the sentencing court under section 74 of the Serious
Organised Crime and Police Act 2005. The Divisional Court in Northern Ireland
([2015] NIQB 33, Morgan LCJ, Weir J and Treacy J) concluded that the decision of
a member of the Public Prosecution Service (PPS) not to refer to the original
sentencing court the sentences passed on Robert and David Stewart should be
quashed. PPS appeals that decision.
The relevant facts
2. Robert and David Stewart are brothers. They had been, by their own
admission, members of a loyalist paramilitary organisation in Northern Ireland for
several years. On 4 August 2008, they went to a station of the Police Service of
Northern Ireland (PSNI) in Antrim. There they admitted having been involved in
the murder of a man called Thomas English. Mr English had been killed on 30
October 2000. After many interviews with police officers, the Stewart brothers
entered into agreements with a specified prosecutor, Mr Raymond Kitson. A
specified prosecutor is a person nominated in section 71(4) of the 2005 Act or a
person designated for the purposes of the section by one of the nominated
individuals. Mr Kitson, who was a member of the PPS, was duly designated as a
specified prosecutor under this provision.
3. The agreements were made on 15 October 2008. Among other things, they
required the Stewarts to “assist … in … the investigation being conducted by the
Police Service of Northern Ireland into offences relating to the murder of Thomas
English on 31 October 2000 … and into other offences connected and unconnected
with [that] incident …”. The agreements also required that the Stewarts participate
in a debriefing process, that they should provide all information available to them
and give a truthful account of the activities of all others involved. It was further
stipulated that the Stewarts plead guilty to the offences to which they had admitted.
It was also required that they maintain continuous and complete co-operation
throughout the investigation and any consequent court proceedings and that they
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give truthful evidence in any court proceedings arising from the investigation. The
agreements stated that failure to comply with their terms could result in any sentence
the Stewarts might receive being referred back to the court for review pursuant to
section 74 of the 2005 Act.
4. On 10 February 2010, the Stewarts duly pleaded guilty to various offences,
including murder, and on 5 March 2010, they were sentenced to life imprisonment.
Hart J, a very experienced criminal judge, stated that, in normal circumstances, the
tariff for these offences would be 22 years. He applied a 75% reduction on that
notional tariff, taking account of the Stewarts’ assistance under the 2005 Act. The
judge then further reduced the period to be served in light of their guilty pleas and
personal circumstances. The final effect was that the Stewarts were required to serve
a minimum term of three years before they could be considered for release on
licence. Taking into account the period that they had served on remand, they were
both released on life licence on 18 August 2011.
5. As a result of the interviews with the Stewarts, a number of persons were
charged with various offences. Following a lengthy trial before Gillen J, all but one
were acquitted of the charges. The single defendant to be convicted was found guilty
on the basis of evidence other than that given by the Stewarts. The respondent, Jason
Loughlin, was one of the accused who was acquitted. He applied for judicial review
of the decision not to refer the case of the Stewarts back to the sentencing court and
it was his application which succeeded before the Divisional Court.
6. A number of observations can be made about the trial:
(i) There were 14 defendants and 37 counts on the indictment comprising
five episodes or instances of alleged criminal behaviour. By any standards,
this was a case of considerable complexity which would have presented
substantial challenges to all involved in it, including the principal witnesses;
(ii) The Stewarts gave evidence over 26 and 30 days respectively. They
were each subject to cross-examination by no fewer than 14 sets of counsel
for the accused; clearly, the opportunity to exploit even minor differences in
evidence and recollection will increase as testimony about a significant
number of historical events is repeatedly – albeit entirely properly –
challenged and scrutinised;
(iii) An application for a direction of no case to answer on all counts was
made to the trial judge at the end of the Crown case. Gillen J held that the
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proper test to be applied was that outlined in R v Courtney [2007] NICA 6,
which had applied the principles set out in R v Galbraith 73 Cr App R 124,
R v Shippey (1998) Crim LR 767 and Chief Constable v Lo [2006] NICA 3.
The judge therefore held that he must “look at all the evidence whether
supportive of the Stewart brothers or otherwise and ask myself whether that
evidence is not so weak or so discredited that it could not conceivably support
a guilty verdict” – para 15 of the judgment on the application for a direction
[2012] NICC 3. He refused an application on all but two counts.
(iv) None of the accused gave evidence on their trial;
(v) The judge expressed himself as not having “the slightest difficulty [in]
accepting in general terms” the statement by the Stewarts throughout their
evidence that a variety of circumstances had contributed to faulty
recollections on their part – para 252 of his principal judgment [2012] NICC
5;
(vi) The judge concluded that the Stewarts had lied to the police and to the
court. He conducted a wide-ranging, painstaking examination of their
evidence. Frequently, in his judgment, he acknowledged the extreme
difficulty in reaching conclusions about whether accounts he found to be
unreliable were the product of imperfect memory, the ravages that alcohol
and drug consumption had wrought on both witnesses, the circumstance that
both had been engaged in long careers of criminal offending, a natural
inclination to understate their own role and to exaggerate that of others, or
plain fabrication. But it is unquestionably true that in a number of instances,
the judge found that the Stewarts had not been truthful.
The 2005 Act
7. The background to the 2005 Act is well explained in the judgment of the
Court of Appeal in R v P and Blackburn [2007] EWCA Crim 2290. At para 22 the
court said this:
“There never has been, and never will be, much enthusiasm
about a process by which criminals receive lower sentences
than they otherwise deserve because they have informed on or
given evidence against those who participated in the same or
linked crimes, or in relation to crimes in which they had no
personal involvement, but about which they have provided
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useful information to the investigating authorities. However,
like the process which provides for a reduced sentence
following a guilty plea, this is a longstanding and entirely
pragmatic convention. The stark reality is that without it major
criminals who should be convicted and sentenced for offences
of the utmost seriousness might, and in many cases, certainly
would escape justice. Moreover, the very existence of this
process, and the risk that an individual for his own selfish
motives may provide incriminating evidence, provides
something of a check against the belief, deliberately fostered to
increase their power, that gangs of criminals, and in particular
the leaders of such gangs, are untouchable and beyond the
reach of justice. The greatest disincentive to the provision of
assistance to the authorities is an understandable fear of
consequent reprisals. Those who do assist the prosecution are
liable to violent ill-treatment by fellow prisoners generally, but
quite apart from the inevitable pressures on them while they are
serving their sentences, the stark reality is that those who betray
major criminals face torture and execution. The solitary
incentive to encourage co-operation is provided by a reduced
sentence, and the common law, and now statute, have accepted
that this is a price worth paying to achieve the overwhelming
and recurring public interest that major criminals, in particular,
should be caught and prosecuted to conviction.”
8. The 2005 Act placed the common-law position on a statutory footing. In its
material parts, section 73 of the Act, dealing with reductions in sentences which may
be passed on assisting offenders provides:
“73. Assistance by defendant: reduction in sentence
(1) This section applies if a defendant –
(a) following a plea of guilty is either
convicted of an offence in proceedings in the
Crown Court or is committed to the Crown Court
for sentence, and
(b) has, pursuant to a written agreement made
with a specified prosecutor, assisted or offered to
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assist the investigator or prosecutor in relation to
that or any other offence.
(2) In determining what sentence to pass on the
defendant the court may take into account the extent and
nature of the assistance given or offered.
(3) If the court passes a sentence which is less than it
would have passed but for the assistance given or
offered, it must state in open court –
(a) that it has passed a lesser sentence than it
would otherwise have passed, and
(b) what the greater sentence would have
been …”
9. As the facts of this case illustrate, substantial reductions in sentences, even
for the most serious crimes, may be achieved under this section. Indeed, as the
Divisional Court pointed out, section 73(5) of the 2005 Act permits the sentencing
court to decide on a reduction which would have the effect of imposing a sentence
of less than the minimum term that is otherwise prescribed by law.
10. Since sentences passed on those who have entered agreements under section
74 will, at least usually, be imposed before any assessment of their adherence to the
terms of the agreement can be made, it is unsurprising that the 2005 Act provides
for possible review of the sentences passed. The circumstances in which such a
review may take place are provided for in section 74 which, so far as is material,
provides:
“74. Assistance by defendant: review of sentence
(1) This section applies if –
(a) the Crown Court has passed a sentence on
a person in respect of an offence, and
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(b) the person falls within subsection (2).
(2) A person falls within this subsection if –
(a) he receives a discounted sentence in
consequence of his having offered in pursuance
of a written agreement to give assistance to the
prosecutor or investigator of an offence but he
knowingly fails to any extent to give assistance
in accordance with the agreement …
(3) A specified prosecutor may at any time refer the
case back to the court by which the sentence was passed
if –
(a) the person is still serving his sentence, and
(b) the specified prosecutor thinks it is in the
interests of justice to do so.
(4) A case so referred must, if possible, be heard by
the judge who passed the sentence to which the referral
relates.
(5) If the court is satisfied that a person who falls
within subsection (2)(a) knowingly failed to give the
assistance it may substitute for the sentence to which the
referral relates such greater sentence (not exceeding that
which it would have passed but for the agreement to
give assistance) as it thinks appropriate …”
11. Two aspects of this section deserve special mention. First, so far as the
Stewarts are concerned, it was a prerequisite of consideration whether to refer their
sentences that they knowingly failed to give assistance in accordance with the
agreement. (Sub-paragraphs (b) and (c) of section 74(2) prescribe other
circumstances in which a referral may be made but they are not relevant here.)
Unless, therefore, it is concluded that the Stewarts had knowingly failed to comply
with the agreements, they do not come within section 74(2) and the section does not
apply to them.
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12. The second feature of the section which should be noted is that, even when it
is concluded that assisting offenders such as the Stewarts have knowingly failed to
give the assistance in accordance with the agreement, the specified prosecutor must
address the question whether it is in the interests of justice to make the reference. It
is only when she or he thinks that it is in the interests of justice that this should
happen, that the reference may be made.
13. Before the Divisional Court, some debate was engaged about whether the test
was that the interests of justice required that the sentences be referred. For reasons
that I will give presently, I do not consider that it is useful to approach the question
of what is in the interests of justice as one of necessity. But it is equally undesirable,
in my view, to constrain the specified prosecutor’s consideration of whether the
interests of justice indicate one course or the other, by reference to a test which has
not been referred to in the statute, such as whether the circumstances have changed
from those in which the original sentences were passed. Again, I will give my
reasons for that conclusion later in this judgment.
The specified prosecutor’s consideration of whether to refer
14. Pamela Atchison was the deputy Director of Public Prosecutions for Northern
Ireland at the time that consideration was undertaken as to whether the sentences
passed on the Stewarts should be referred to the original sentencing court. She was
designated as the specified prosecutor to consider whether such a reference should
be made. Mrs Atchison took the advice of experienced senior counsel on some
aspects of her decision but she has stated that the conclusion that she reached was
hers alone.
15. The reasons she decided not to refer the Stewarts’ case were outlined by Mrs
Atchison in a lengthy document of some 260 paragraphs. In it, she explained that
she had concluded that both Stewarts had knowingly failed on a number of occasions
to give the assistance which they had undertaken to provide. Her conclusions
broadly reflected those in which Gillen J had decided that the witnesses’ evidence
was deliberately mendacious. The respondent has claimed that this fell
impermissibly short of the proper examination of this issue. In effect, the respondent
argued that the specified prosecutor was required to examine minutely every
conceivable aspect of the Stewarts’ accounts, both during their evidence in court and
in their interviews before the trial. The Divisional Court did not accept that
argument. Nor do I.
16. Quite apart from the impossible logistical burden which this would have
imposed on the specified prosecutor, the respondent’s argument rested mainly on
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the proposition that, because the trial judge had referred in general terms at various
points in his judgment to the Stewarts having lied, this should have prompted the
specified prosecutor to examine their accounts intensely to decide whether there
were instances of a failure to comply with the agreements into which they had
entered and which had not been referred to by the judge. The lack of realism of this
submission is exposed when one considers that Gillen J’s judgment on the
application for a direction of no case to answer consisted of 85 paragraphs and his
final judgment ran to 556 paragraphs. Both judgments were carefully considered by
Mrs Atchison and every specific instance in which the judge found that the Stewarts
had lied was analysed by her in detail. It was entirely reasonable for her to conclude
that the judge had examined meticulously all the evidence on the question of whether
the Stewarts had lied. The specified prosecutor was therefore perfectly entitled to
concentrate on those passages of the judgments which dealt directly with that issue.
17. On the question of whether it was in the interests of justice that the case be
referred to the sentencing court, the specified prosecutor outlined a number of
reasons which led her to the conclusion that it should not be. Of the five breaches
by David Stewart of the undertakings that he had given, she said that these either
did not attribute criminal conduct to the accused (beyond that which had otherwise
been alleged) or were self-serving lies which undermined his credibility rather than
imputing criminal conduct to an innocent individual. To put the significance of
Stewart’s lies further in context, Mrs Atchison at para 247 of her decision document
said this:
“… the issue of lies was only one of several issues that impacted
negatively upon the credibility of [David Stewart]. Further
issues, all of which were significant, included his previous bad
character, his abuse of alcohol and drugs, the possibility of
contamination, his difficulties with memory, and his tendency
to confuse incidents and the details of those participating in
them. In these circumstances, I do not consider it possible to
conclude that the breaches per se were in any way determinative
of the outcome of the trial.”
In other words, even if David Stewart had not told lies about these incidents, the
other frailties in his testimony were just as likely to lead to the same result. In a
word, it was impossible to conclude that the fact of lying was in any way pivotal.
18. Mrs Atchison identified five factors which, she said, were of primary
importance in deciding not to refer David Stewart’s case to the court which had
sentenced him. These were:
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a. The nature and extent of the assistance provided.
She concluded that David Stewart had given very significant evidence
to the police and that this was a factor in his favour.
b. The time which had elapsed since the original sentence had been
passed.
The duration of any return to custody, if ordered, was likely to be short,
in her estimation, given the nature and materiality of the breaches and
the fact that more than 18 months had elapsed between his release from
prison and her consideration of whether to refer the case back to the
sentencing court. (Her report was prepared in April 2013.)
c. Whether the imposition of a revised sentence might be considered
oppressive.
In this context, medical evidence suggested that, if he was returned to
prison, there was a risk to David Stewart’s life. While Mrs Atchison
accepted that this consideration was not determinative of whether the
case should be referred, it was a factor of some weight against taking
that course.
d. The potential damage to public confidence in the justice system if a
referral was not made.
The specified prosecutor accepted that public confidence might be
undermined if it was perceived that an assisting offender had failed to
comply with undertakings on which a discounted sentence was based.
But this was offset by the consideration that the failure to comply did
not result per se in the acquittal of the defendants. Moreover, in light
of the risk that a referral would not result in an increase in the
sentences, there was a chance that, so far from increasing confidence
in the 2005 Act regime, it would have the opposite effect.
e. The prospects of a successful application to the reviewing court.
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Mrs Atchison pointed out that, section 74(5) invests the reviewing
court with a discretion as to what, if any, sentence it should substitute
where there had been a breach of the section 73 agreement. The court
was likely to have regard to the same or similar factors which had
influenced her decision. The prospects of a referral resulting in a
change in sentence were low, therefore, in her view.
19. The specified prosecutor carried out a similar analysis in relation to Robert
Stewart. In his case, only two instances of deliberate untruths were identified. For
similar reasons to those expressed in relation to his brother, Mrs Atchison decided
that his case should not be referred.
The Divisional Court’s judgment
20. Central to the Divisional Court’s decision was its consideration of R v P and
Blackburn [2007] EWCA Crim 2290. The court considered that the critical passage
from the Court of Appeal’s judgment was para 33. This is what Morgan LCJ said
about it in para 56 of his judgment:
“At para 33 the court indicated that a review under section 74
is a fresh process which takes place in new circumstances. We
consider that this analysis is helpful in understanding how the
prosecutor should approach the interests of justice test in
section 74(3)(b) of the 2005 Act. If the prosecutor concludes
that the failure to give assistance is such that the court could
not conclude that the circumstances had altered as a result, the
interests of justice would rarely require referral. If, as is
generally likely to be the case where there has been a failure or
refusal to provide assistance, the court could take the view that
the circumstances had changed the interests of justice would
point towards a referral unless there were countervailing
considerations. It is with those principles in mind that we
examine the approach of the prosecutor in this case.”
This statement suggests that, absent “countervailing considerations”, where there
had been a “change in circumstances”, a referral to the original sentencing court
should occur. That proposition, if correct, would involve a radical circumscription
of the specified prosecutor’s consideration of where the interests of justice lay. A
close examination of what the Court of Appeal in fact said in P and Blackburn is
therefore necessary.
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21. Before conducting that examination, it should be observed that passages from
the Divisional Court’s judgment put beyond doubt that the critical question for that
court was whether circumstances had changed. At paras 63 and 64 of his judgment,
the Lord Chief Justice said that “… the first task of the prosecutor is to determine
whether the court [to which the sentence might be referred] could conclude that the
circumstances had changed” and “[t]he prosecutor did not ask whether the court
could conclude that the circumstances had changed”.
22. These statements suggest (i) that the specified prosecutor, in deciding where
the interests of justice lay, must first address the question whether it was possible
that the sentencing court might conclude that there had been a change in
circumstances from those which obtained when the original discounted sentence had
been passed; and (ii) that if she decided that such a possibility existed, unless there
were countervailing circumstances, she was bound to conclude that it was in the
interests of justice that the cases be referred to the original sentencing court. For
reasons that I will give later, I do not consider that either of these propositions is
right.
R v P and Blackburn
23. In the case of P, he had been charged with offences arising from the
importation of controlled drugs. While awaiting trial, he instructed his solicitor to
contact police officers investigating a murder, which had occurred some years
earlier. A meeting was arranged between the applicant and a senior investigating
police officer. During the meeting, P provided information relating to the murder.
He also told police about unrelated criminal activity by a major drug dealer. In due
course, he pleaded guilty to various charges. All of this took place before the coming
into force of the 2005 Act and, although the trial judge was informed of P’s cooperation, it was clear that this had not led to any police investigation of the crimes
which P had told the police about nor to any particular risk to him. A sentence of 17
years was imposed.
24. After he had been sentenced, P contacted the police again. He provided
information relating to a current murder investigation and agreed to give evidence
against those persons alleged to be responsible for the murder, as well as detailing
the criminal offences which he had personally committed. The led to a document
being prepared by a senior police officer for the purposes of P’s appeal against
sentence. As a result his sentence was reduced to 15 years’ imprisonment. Again,
this took place before the coming into force of the 2005 Act.
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25. After that Act came into force in April 2006, P entered an agreement with a
specified prosecutor. This was in similar terms to the agreements made with the
Stewart brothers in this case. P not only supplied information about the criminal
activity of others, he admitted to a series of offences which had not been involved
in his earlier appearances before the courts. He and his family were considered to be
at serious risk as a consequence of the information which he supplied about crimes
committed by others.
26. P came before the criminal courts again, firstly, to be sentenced in relation to
the offences that he had lately admitted but also on a reference back under section
74(3) of SOCPA by the specified prosecutor for a review of the sentence of 15 years’
imprisonment, as substituted by the Court of Appeal for the original sentence. This,
then, was the converse of the situation in which a reference back to the original
sentencing court in the case of the Stewarts was considered. As a result of the further
co-operation given by P, plainly the specified prosecutor considered that a reduction
of the sentence of 15 years should be considered. The judge agreed. As well as
sentencing P for the newly admitted offences, he reviewed the sentence of 15 years
and substituted for this one of five years’ imprisonment. The Court of Appeal did
not disturb this sentence but it reduced the sentence for the offences to which P had
been required to admit as a result of his involvement in the agreement made under
the 2005 Act.
27. Blackburn’s case is less directly relevant to the issues which arise in this
appeal. He had entered an agreement under the 2005 Act with a specified prosecutor
before he appeared before Simon J. He was sentenced to four years’ imprisonment
and his appeal was, essentially, confined to the argument that this did not entirely
reflect the appropriate discount for the assistance which he had given and that the
overall starting point was too high. The Court of Appeal accepted those arguments
and reduced the sentence to two and a half years’ imprisonment.
28. A clear insight into the circumstances in which the Court of Appeal
considered that it should review the substituted sentence is critical to the outcome
of this appeal. Did it suggest that a change in circumstances from those which
existed at the time that the originally discounted sentence was passed would
normally call for a reference back to the sentencing court? The answer to that
question must begin with an examination of what the Court of Appeal actually said
in para 33:
“33. P’s appeal raises a specific question relating to the
involvement of this court. The original 17-year sentence was
reduced to 15 years when this court exercised its powers under
section 9 of the Criminal Appeal Act 1968. The jurisdiction to
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conduct a review of sentence on the basis of post-sentence
assistance is vested in the Crown Court. Its decision on the
review is subject to appeal to this court. Therefore, the review
itself is not an appeal against sentence, whether imposed in the
Crown Court or this Court. It is a fresh process which takes
place in new circumstances. Accordingly, the process of review
is not inhibited by the fact that this court has already heard and
decided an appeal against the original sentence, whether the
sentence is varied on appeal or not. This Court may be required
to address either a sentence imposed in the light of the written
section 73 agreement, or a review conducted in accordance
with section 74, or, as here in the case of P, where the assistance
provided may impinge on both decisions.”
29. From this passage, it is clear that the Court of Appeal was referring to the
“fresh process” in order to distinguish it from a conventional appeal against sentence
and to make the point that the review could proceed, unconstrained by the fact that
an earlier appeal had taken place. The court did not suggest that a change in
circumstances should normally precipitate a referral to the sentencing court. In fact,
of course, in the case of P there was a change in circumstances in that he had latterly
decided to give useful information to the police and had agreed to testify against
former colleagues. It was this which had prompted the decision to refer. Clearly, P’s
change of heart and his willingness to assist in the police operation against serious
criminals was considered to warrant the referral. But it is wrong to extrapolate from
this that, where a change in circumstances (such as a failure to comply fully with an
agreement made with a specified prosecutor) occurs, this will inevitably, or even
usually, lead to a decision to refer.
30. As I have said earlier, P’s case was the obverse of the Stewarts. The enhanced
level of his co-operation prompted a referral in order to secure a greater discount on
his sentence. In the case of the Stewarts, the question was whether their failure to
live up to the expectations generated by the agreement required a referral “in the
interests of justice”. In a case such as the Stewarts, it is difficult to think of a situation
in which a referral back to the sentencing court would be contemplated unless
circumstances had changed. Indeed, from the statements contained in paras 63 and
64 of the Divisional Court (referred to in para 20 above) it is clear that the court
considered that, if the specified prosecutor believed that there was a possibility that
the sentencing court might consider that the circumstances had changed, it was her
duty to refer. In effect, any lapse from the co-operation expected of an assisting
offender would require the specified prosecutor to refer. How otherwise could she
conclude that there was no possibility that the sentencing court would conclude that
circumstances had not changed? If the Divisional Court’s formulation was correct,
the decision of the specified prosecutor as to whether it was in the interests of justice
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to refer the case back to the sentencing court would have no meaningful content. If
there was the merest deviation by the assisting offender from the agreement made
with the specified prosecutor, the case would have to be referred.
Discussion
31. The Divisional Court’s view that the predominant factor in deciding where
the interests of justice lay was whether a change in circumstances had occurred
between those which obtained at the time that the agreement with the specified
prosecutor was made and the time at which consideration of whether to refer the
case back to the original sentencing court took place cannot be upheld.
Consideration of the interests of justice in this context involves an open-ended
deliberation. Section 74(3) imposes no explicit constraint on how the specified
prosecutor should approach the question and there is no warrant, in my opinion, for
implying a fetter on the exercise of the unrestricted discretion for which the statute
clearly provides.
32. It is not difficult to envisage a wide range of factors beyond the question of
whether circumstances had changed which might be pivotal in deciding if the
original sentence should be referred back to the court which imposed it. Reasons for
a failure to strictly adhere to the terms of the agreement with the specified prosecutor
could range over a broad spectrum of possibilities. If a change of circumstances is
considered to occur when the assisting offender gives testimony which is at odds
with the account that he originally gave to the police, what if, despite this, a number
of the accused were convicted on the basis of his evidence? Could it be said that the
interests of justice inevitably require referral back to the sentencing court? Or, if the
witness, because of a well-established fear of attack on his family, recants on the
evidence that he had agreed to give, is that to be left out of account in deciding
whether the interests of justice demand that there be a referral to the original
sentencing court?
33. It is not suggested that the factors which Mrs Atchison took into account were
irrelevant to a consideration of where the interests of justice lay, provided that
consideration is untrammelled by the precondition which the Divisional Court
believed should apply. Hers was an open examination of that question. In my view,
she was not only entitled to approach the issue in that way, she was obliged to do
so. I consider that her report demonstrates a careful, perfectly legitimate
investigation of the question of the interests of justice in these particular cases and
that her conclusions cannot be impeached.
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Other incidental arguments
34. The appellant submitted that the challenge in this case was to a species of
prosecutorial decision, analogous to that as to whether to instigate criminal
proceedings. Mr McGleenan QC argued that cases such as R v Director of Public
Prosecutions, Ex p Manning [2001] QB 330; Mohit v Director of Public
Prosecutions of Mauritius [2006] UKPC 20; [2006] 1 WLR 3343; In re Lawrence
Kincaid [2007] NlQB 26; Sharma v Brown-Antoine [2007] 1 WLR 870; McCabe
[2010] NIQB 58; and In re Mooney’s Application [2014] NIQB 48 all impelled
reticence on the part of a court in reviewing any prosecutorial decision. I do not feel
it necessary to address this argument. The decision under challenge here is certainly
one taken by a prosecutor. Whether it is truly analogous with a decision whether to
instigate criminal proceedings (as in the cited cases) is significantly less clear. Many
considerations which touch on the question of whether proceedings should be
instituted are not relevant in the present context.
35. For the respondent, Mr Scoffield QC submitted that the overweening
consideration in the interests of justice consideration was that an “appropriate
sentence” be passed on the Stewarts for their admitted egregious crimes and that this
should be primarily a matter for a court, rather than the specified prosecutor, to
decide. I reject this argument principally because of its implicit premise which
replicates the approach of the Divisional Court that the specified prosecutor should
defer to the sentencing court’s possible view that a different sentence would be
appropriate. The specified prosecutor may well have to consider many factors which
would not be directly relevant to a conventional sentencing exercise. Factors quite
extraneous to the personal circumstances of the individuals who might be subject to
a referral might properly influence the specified prosecutor’s decision. It might well
be relevant, for instance, that a decision to refer could affect the possibility of others
offering the type of assistance which assisting offenders such as the Stewarts said
that they were prepared to provide.
36. It was argued that, at various points in the document in which Mrs Atchison
explained why she had decided not to refer the Stewarts’ case, she had stated that
the interests of justice did not “require” that the cases be referred. It was suggested
that this betokened a view that unless the interests of justice positively required a
referral, it should not take place. The specified prosecutor repudiated that
suggestion. She explained that this was merely a form of words which she
customarily used when reaching a decision as to where the interests of justice lay.
There is no reason to invest the use of these words with the significance that the
respondent has sought to ascribe to them.
Page 17
Conclusion
37. I would allow the appeal and dismiss the respondent’s application for judicial
review.