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.