21 April 2015

The Divisional Court today quashed a decision of a prosecutor not to refer the cases of Robert Stewart and Ian Stewart back to the court which sentenced them for their role in the murder of Tommy English after it was claimed they failed to comply with the terms of their agreements under the Serious Organised Crime and Police Act 2005 (“the 2005 Act”). This Act established a scheme for the reduction of sentences of offenders who offered to assist in the investigation and prosecution of offending by others and the review of the sentences of those co-operating offenders in certain prescribed circumstances.

On 4 August 2008 Robert and Ian Stewart approached the police and admitted a role in the murder of Tommy English in 2000 and named other persons whom they said had been involved. Each brother expressed a wish to become an assisting offender under the terms of the 2005 Act and entered into an assisting offender agreement with a prosecutor (“the agreements”).

Under the agreements, the Stewarts agreed to “assist the investigator in relation to the investigation being conducted by the PSNI into offences relating to the murder of Thomas English on 31 October 2000 and … other offences connected and unconnected with [that] incident”. This assistance would include participation in a debriefing process; provision of all the information they had and provision of a truthful account of the existence and activities of all others involved; and pleading guilty to the offences they admitted. The agreements also required the Stewarts to maintain continuous and complete co-operation throughout the investigation and any consequent court proceedings and to 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.

The Stewarts pleaded guilty on 12 February 2010 in accordance with the agreements to such of the offences admitted by them which the PPS deemed met the test for prosecution including in each case the murder of Mr English. On 5 March 2010 the sentencing court identified a tariff starting point of 22 years. Taking account of their assistance under the agreements, the court applied a 75% reduction to the starting point, taking the tariff down to 5 ½ years. A further reduction was then made in light of their guilty pleas and personal circumstances with the effect that both were required to serve a minimum term of 3 years’ imprisonment before they could be considered for release on licence.

The Stewarts gave evidence at the trial of R v Haddock and others. There were 37 counts. The trial judge convicted one defendant on counts of possession of an item for terrorist purposes (a sledgehammer) and doing an act with intent to pervert the course of justice. Neither of those convictions depended on the evidence of the Stewarts. The rest of the charges were dismissed. The trial judge said the Stewarts’ evidence was so flawed that he was unable to exclude the real possibility that it was false in its implication of one or more of the accused:

“In summary these are dishonest witnesses of very bad character who have lied to the police and to the court, on some occasions wrongly implicated a number of men who were clearly not present at the crimes suggested, on other occasions at worst falsely embellished or at best wildly confused the roles and words of those whom they alleged were present, have clear difficulties distinguishing one crime scene from another, have obviously colluded to produce certain parts of their testimony and have given evidence which is flatly contradicted by unchallenged independent evidence throughout the process. Weighing up all these factors I have come to the conclusion that the evidence of the Stewart brothers, on which the core of the prosecution case rests, is so unreliable … that any supportive or additional evidence relied on by the prosecution evidence, is insufficient to satisfy me beyond a reasonable doubt as to the guilt of any of the accused on any of the remaining counts.”

The applicant, Jason Loughlin, was one of those tried and acquitted. He sought to challenge the decision of the prosecutor to decline to refer the cases of the Stewarts back to the sentencing court under section 74 of the 2005 Act. This provision permits the court to substitute a greater sentence where it is satisfied that a person has knowingly failed to give assistance as specified in the agreement.

The Lord Chief Justice, delivering the judgment of the Divisional Court, said there was a long -standing and entirely pragmatic convention by which criminals received lower sentences than they otherwise deserved because they had informed on or given evidence against those who had participated in the same or other crimes. He noted that the review arrangements in the 2005 Act provided an important safeguard against dishonest manipulation of the process by the defendant.

The Divisional Court noted that a review under section 74 is a fresh process which takes place in new circumstances. It considered that this analysis is helpful in understanding how the prosecutor should approach the interests of justice test in 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.”

The Lord Chief Justice said the starting point, therefore, is to establish the circumstances as identified by the trial judge when he passed sentence on the Stewarts on 5 March 2010. In his judgment, the trial judge noted that the Stewarts had admitted their part in a very large number of offences, many of a very serious nature. He noted the investigations were continuing into the murder of Thomas English and that the prosecution regarded the assistance provided by the Stewarts as evidence which would greatly assist in those investigations and any prosecutions flowing from them. The trial judge considered that the extent of the assistance which they had given to the police and had at that time undertaken to give by way of evidence was such that there should be a very substantial reduction in the sentence which they would otherwise have received. He accordingly reduced the minimum term by 75% to represent that assistance. The Lord Chief Justice commented that this represented a discount at the very top end of the range but added that in this case the assistance comprised past co-operation by way of debriefing and pleas of guilty to offences, including offences where the police had no reason to suspect the involvement of the Stewarts, and an undertaking to provide future assistance.

The applicant argued that it was insufficient for the prosecutor to review the judgments in the Haddock case for the purpose of analysing those lies found by the learned trial judge and determining whether each constituted a breach of the agreements. The Divisional Court did not agree. It accepted that the task of the prosecutor was to identify from the available material any breaches of the agreements but considered that there was a degree of discretionary judgement available to her as to how she should approach that task. The Lord Chief Justice said that the judgments were a careful analysis of the manner in which the Stewarts had given their evidence by reference to among other things the debriefing material and that any false statements to police which impinged on their credibility were likely to have been exposed in the trial process. The extent and range of the judgments showed the detailed analysis carried out by the trial judge:

“In those circumstances the decision by the prosecutor to conduct an investigation by reference to the terms of the judgments in the Haddock case was well within the boundary of the range of approaches that she could have adopted.”

The Lord Chief Justice said that the first task of the prosecutor should be to determine whether the court could conclude that the circumstances had changed and that this is a decision which is plainly reviewable on a traditional basis by the court. He commented that in this case the prosecutor did not ask whether the court could conclude that the circumstances had changed:

“She noted that the breaches of the agreement did not in either case attribute criminal conduct to an innocent person. She concluded that each of the brothers had lied about their motivation in coming forward to police and recognised that the learned trial judge found that to be an important matter affecting their credibility. She concluded that the breaches of the agreement were not determinative of the outcome of the trial and represented a small proportion of the many difficulties with the evidence. As a result of this analysis she concluded that any substitution of the discounted sentence in either case was not likely to be significant. She further concluded that the prospects of what she called a “successful application” were low. In support of that view she relied upon the nature and extent of the assistance actually provided by both Stewarts. We accept that this can be a relevant consideration in determining whether a court could conclude that circumstances had changed but, if the court could so conclude, then where it did so the extent of assistance actually provided would only be relevant to the court's determination of sentence on the review.”

The Lord Chief Justice said the prosecutor also considered that the time which had elapsed since the date the original sentence was passed was a relevant consideration. The Divisional Court doubted whether that was a matter which should have carried any weight: “The fact that the prosecutor becomes aware that an assisting offender has breached his agreement sometime after he had been released from custody, but during the currency of the sentence, generally should not of itself diminish the public interest in ensuring that the changed circumstances are recognised by an appropriate sentence.”

The Lord Chief Justice noted that a further consideration taken into account by the prosecutor was that any failed attempt to have the discounted sentences substituted was unlikely to improve public confidence in the Serious and Organised Crime regime of the criminal justice system as a whole. The Court considered that this proposition is inconsistent with the statutory purpose of the scheme:

“Where a court could conclude that there was a change of circumstances it is for the court and not the prosecutor to assess the impact upon the sentence unless there is some countervailing factor. It is the transparency of the reviewing court delivering open justice that provides the necessary public confidence. Any decision to interfere or not to interfere with the sentence once referred would be the subject of reasoned decision.”

The Lord Chief Justice accepted that the prosecutor was entitled to take into account the medical circumstances in relation to each of the Stewarts in determining whether it would be oppressive to refer the sentences but considered that those circumstances were not decisive in either of these cases.

The Divisional Court concluded that the prosecutor did not ask the right question when considering whether it was in the interests of justice to refer the sentences to the court. It further considered that she took into account irrelevant considerations in her determination of that issue. Accordingly it quashed the decision.