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
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Appellant
Tony McGleenan QC
Peter Coll QC
(Instructed by
Public Prosecution Service)
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Respondent
(Loughlin)
David A Scoffield
QC
Donal Sayers
(Instructed by
Reavey & Company Solicitors)
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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 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
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 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 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
(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.
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
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:
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.
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.
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
co-operation, 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.
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 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 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.
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] NIQB 26; Sharma v Brown-Antoine [2007] 1 WLR 780; 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.
Conclusion
37.
I would allow the appeal and dismiss the respondent’s application for
judicial review.
