England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/06/2010

The Lord Chief Justice of England and Wales:

1. This is an application for leave to appeal against the result of a review of sentence under section 74 of the Serious and Organised Crime and Police Act 2005 (the 2005 Act).
2. It arises in this way. Following information provided by the authorities in Spain, the applicant was arrested some years ago for his involvement in the large scale importation of class A drugs into this country. The evidence of his guilt was clear, and the details need no further recitation. The street value of the drugs recovered in the course of the investigation ran to many millions of pounds.
3. Following his arrest the applicant absconded and lived abroad. He was not re-arrested and brought before the court for some 3 years. He pleaded not guilty to the indictment and thereafter indulged in a course of conduct described by the trial judge, and rightly so in our view, as playing the system. It was not until very shortly before the date fixed for trial that he changed his plea to one of guilty. In sentencing the judge allowed a discount of just under 20% for the guilty plea and made an appropriate direction under section 240 of the Criminal Justice Act 2003 in relation to days in custody.
4. After this sentence the applicant conveyed some willingness to provide intelligence to the Serious Organised Crime Agency. In the meantime, however, he sought leave to appeal against sentence. When the application was refused, he renewed it, but again it was refused by the Full Court on the basis that the sentence was fully justified.
5. In the course of his discussions with the authorities the applicant provided them with information about the identity of another criminal. He was asked, but refused to give evidence against him. However careful investigation of the material the applicant provided eventually produced sufficient evidence ultimately leading to a successful prosecution. For present purposes this assistance, as far as it went, was obviously relevant to the calculation of sentence if and when the applicant entered into a written agreement with a specified prosecutor in accordance with the terms of the Act. And in due course, following the unsuccessful application for leave to appeal against sentence, the applicant entered into what we shall describe as a SOCPA agreement, that is, a written agreement under section 73 of the 2005 Act.
6. Under the agreement he agreed to provide details of everything within his knowledge or belief about the drug trafficking activities of some 32 individuals and similar details in relation to the criminal activities of 4 individuals suspected of involvement in money laundering and investment of the proceeds of crime in property; full details of his knowledge of methods of concealment and drug transportation routes; any material bearing on these questions; continuous and complete co-operation throughout the subsequent investigations and any prosecutions.
7. At the same time, he did not agree to give evidence against anyone, and apart from fully admitting his own involvement in the matters which would be investigated, he did not provide the authorities with full and complete admissions of all his own criminal activities.
8. On the basis of this agreement the applicant provided the information he had agreed to provide. He was de-briefed over a period of 17 days. He provided information relating to a number of individuals and the organised importation of large quantities of class A drugs from South America, which came via Europe into the United Kingdom, together with names and addresses of those involved in the importation of such drugs and money laundering. In addition he provided tactical and strategic intelligence on the methods used by some of the groups involved in organised drug importation and money laundering. The information he provided was accurate, and resulted in a number of inquiries by the authorities as well as some general disruption of criminal activity. No arrests have yet taken place.
9. The case was restored to the list for a review of sentence. The judge was satisfied that the applicant had fully co-operated with the authorities. He deducted what he described as a further discount from the sentence he had originally imposed to allow for the assistance given by the applicant, which he assessed "in the region of 25%".
10. It is submitted by Mr David Waters QC on behalf of the applicant that this discount was too low, insufficient to reward the applicant for the assistance he had provided. Relying on the guideline decision of this court R v P; R v Blackburn [2008] 2 Cr App R(S) 5 he posed two questions:

"(i) whether in circumstances where an individual provides information of considerable value, does everything asked of them by SOCA and fulfils their end of the "contract" in entirety, they are entitled to the "normal" discount of between 50%-66% of the sentence that would have been passed after a trial.

(ii) is it the case that because the individual has given information which is not of a nature which could readily be converted into admissible evidence to be given from a witness box, and he is accordingly not asked to give evidence, the reduction in sentence should be less than 50%".

11. The relevant statutory requirement is found in section 74(6) of the 2005 Act. When the applicant was sentenced there had been no discount for any assistance he might have given to the authorities because at that date he had given none. This therefore was a "review" of that sentence, and in conducting it, the court was entitled to "take into account the extent and nature of the assistance given or offered", and substitute "such lesser sentence as it thinks appropriate". These provisions were examined in R v P; R v Blackburn, and guidance was given about the approach to these questions in the context, not of a review of the sentence of an individual, like the applicant, who had provided assistance after sentence, but of sentences imposed on defendants after they had entered into an agreement governed by the terms of the Act, and who argued that the sentencing court had made insufficient allowance for the assistance they had provided. Unsurprisingly Mr Waters concentrated his attention on a sentence at the end of paragraph 41 of the judgment, which reads:

"It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed, and the normal level would continue as before, to be a reduction of somewhere between one half and two thirds of that sentence".

12. Mr Waters acknowledged that cases would fall outside this "normal level" and that the court had emphasised that the sentencing decision in each case was fact-specific. Nevertheless he urged that there was nothing to suggest that this was anything other than an ordinary case of its kind. The applicant had complied with the terms of his agreement, and he had therefore earned the normal level of discount. However, as it seems to us as a matter of principle, the extent of any discount must be based on the value to the administration of justice of the performance by the defendant of his statutory agreement, and not on the simple fact that the agreement, so far as it goes, has been performed.
13. In this case the applicant performed his agreement, and provided valuable information, but nevertheless it was a limited agreement. He did not describe his own full criminality. He was not prosecuted for it. He did not agree or offer to give evidence against anyone. He declined to give evidence against the criminal he identified when he first approached the authorities with a view to acting as a possible informant. In short, as he was entitled, the agreement he entered into was much less comprehensive than it might have been, and certainly much less so than the agreement entered into and performed by the defendants in R v P; R v Blackburn. It would therefore be surprising if he were entitled to the same level of discount. In any event, he is not entitled to be treated as if he had offered to provide evidence, or had provided evidence, merely because, according to his instructions to Mr Waters, he was not invited to do so.
14. In R v P; R v Blackburn it was emphasised that particular value attached to the defendant who provided evidence, or agreed to give evidence at any subsequent trial, and if so, it also followed that the defendant would have to admit the full extent of his own criminal activities, and if appropriate, beprosecuted and sentenced for them. In such cases there was not the slightest doubt that his former colleagues or those brought to justice as a result of his efforts would know of his involvement in the process, and where the cases involved major criminal, gangland activity, the consequent risks both to the defendant and to his family would be very high indeed. We recognise that although the level of risk in this case is not as serious as it can sometimes be, and every effort is being made to ensure that the applicant's co-operation with the authorities is kept hidden from view, some risk inevitably remains, and there is a danger that his activities would become known to former colleagues, who in the context of the present case, would be likely to be merciless. Again, however, that risk is less serious than that faced by the defendant who has provided a witness statement or given evidence against criminals with similar vicious characteristics.
15. Addressing Mr Waters' further submissions, we recognise that there may be cases when information and intelligence may be offered which will be of inestimable value to the administration of justice, and about which, for example the defendant cannot, even if he wished, provide admissible evidence at any subsequent trial. Again, it does not necessarily follow that the absence of any arrest consequent on the provision of information automatically renders it less valuable than it might reasonably be expected to be. These are all questions for the assessment of the judge. Finally, the mere fact of delay does not result in an automatic reduction of discount. In the present case the information or intelligence provided by the applicant was provided after he had sought, unsuccessfully, to manipulate the system to his advantage. His co-operation only began after sentence had been imposed on him and he had been in custody for over a year. Naturally he could not be blamed for the delays which arose after he decided to co-operate, but the delay for which he was responsible diminished the value of the information he provided. To the extent that it has, then the level of discount must be reduced proportionately.
16. In the result, the answer to the questions posed by Mr Waters are (i) that such an individual is not so entitled and (ii) that the reduction in sentence should not necessarily be less than 50% merely because the individual has given information which cannot readily be converted into admissible evidence. As we explained in R v P; R v Blackburn "what the defendant has earned by participating in the written agreement system is an appropriate reward for the assistance provided for the administration of justice". That, in the end, is always fact-specific.
17. There was some further discussion about the way in which the judge conducting the review should approach the reconsideration of the sentence imposed before the defendant had begun to co-operate with the authorities, and entered into the written agreement. As it seems to us, in accordance with R v P; R v Blackburn, the judge should once again go back to the original starting point, that is, the appropriate sentence to reflect the criminality of the defendant, and such mitigation as is available, before taking account of any guilty plea. From that figure the sentence should be discounted to allow for the assistance provided by the defendant, and the notional sentence then discounted to make appropriate allowance for the guilty plea. Thus, to illustrate the method of calculation by example: let us take the hypothetical case where a sentence of 30 years' imprisonment is appropriate. The level of assistance merits a 50% discount. That brings the figure down to 15 years. The guilty plea was offered at the earliest opportunity. A further 33% discount would then be allowed from the 15 year term. The end result would be 10 years' imprisonment. In the present case, of course, the allowance for the guilty plea had already been made. But in a case such as this, the approach to be taken by the judge (who will generally be the trial judge) is to start again by reminding himself of the notional starting point, then apply the discount for the assistance offered by the defendant, and then, assuming there was a guilty plea, apply the level of discount which was applied when the defendant was first sentenced.
18. In the result, the judge decided that an appropriate allowance for the assistance given by the applicant was "somewhere in the region of 25%". Although his assessment of sentence did not follow the method we have just suggested, and despite the careful argument advanced by Mr Waters, in the result, no basis for interfering with the assessment, and no error in the overall result of the review has been shown. Accordingly the application will be dismissed.