ZTR, R v

Several years ago the applicant was convicted of murder and a number of other serious offences. He was sentenced to life imprisonment for the murder with a significant minimum term. He was given determinate sentences in respect of the other serious offences.

A number of years later, after the coming into force of s.73-75 of the Serious Organised Crime and Police Act 2005 (the 2005 Act), the police asked the applicant, who was serving his sentence in a prison, whether he could provide assistance to them in matters which had arisen a significant period of time after his conviction for murder. It is clear from the information put before the court, that that help was significant.

In those circumstances, about which it is not necessary to set out in this judgment any more detail, the question arises as to whether this court ought, in the exercise of its appellate jurisdiction, to make a reduction to the minimum term of the life sentence for murder.

The regime prior to 2003

Prior to the coming into force of s.73-75 of the 2005 Act, the courts had, where a person convicted of a crime had offered assistance to the law enforcement authorities, taken that assistance into account when sentencing, in accordance with well established principles as set out in the judgment of Lord Bingham of Cornhill, CJ in R v A and B [1999] 1 Cr App R(S) 52 and other decisions.

S.73-75 of the 2005 Act established a statutory scheme under which a defendant who pleaded guilty entered into a written agreement with a specified prosecutor under which he assisted law enforcement authorities. He could then have that fact taken into account on sentencing. It was decided by this court in R v P and Derek Blackburn [2007] EWCA Crim 2290, [2008] 2 Cr App R(S) 5 that the enactment of this statutory scheme did not have the effect of abrogating the common law power. As Lord Judge, CJ observed in giving the judgment of the court, “pragmatism still obtains”.

In considering the position of the applicant therefore it is necessary to examine both the common law power and the statutory scheme.

The statutory scheme under the 2005 Act

The position under the statutory scheme can be dealt with briefly. It is inapplicable to this applicant as under s.74(13) the statutory scheme does not apply because (1) he was a person who was convicted of an offence for which the sentence was fixed by law and (2) he did not plead guilty to the offence for which he was sentenced.

The principle at common law: the assistance must be given prior to sentence

We therefore turn to consider, in the light of that statutory scheme, the position at common law.

The leading authority in which the common law principles are set out is the judgment of Lord Bingham of Cornhill, CJ in R v A and B to which we have referred. At page 56 of the report Lord Bingham set out five relevant principles. In the third principle Lord Bingham made clear the long standing practice of the court for a discount to be accorded where help had been given or was expected to be given to the authorities. The extent of the discount would ordinarily depend on the value of the help given or expected to be given. The court would also take into account the exposure of any defendant or his family to personal jeopardy.

However, Lord Bingham made clear:

“If a defendant denied guilt but was convicted and sentenced following a contested trial without supplying valuable information before sentence or expressing willingness to do so, the Court of Appeal, Criminal Division would not ordinarily reduce a sentence to take account of information supplied to the authorities after sentence (see Waddingham (1983) 5 Cr.App.R.(S.) 66; Debbag and Izzett (1991) 12 Cr.App.R.(S.) 733; and X (1994) 15 Cr.App.R.(S.) 750. The reason for this rule was clear. The Court of Appeal, Criminal Division was a court of review; its function was to review sentences imposed by courts of first instance, not to conduct a sentencing exercise of its own from the beginning. It ordinarily relied entirely, or almost entirely, on material before the sentencing court. A defendant who denied all guilt and withheld all co-operation before conviction could not hope to negotiate a reduced sentence in the Court of Appeal by co-operating after conviction. In such a situation the defendant must address representations to the Parole Board or to the Home Office.”

Lord Bingham went on to say that there was an apparent but partial exception to this principle. In a case where information was given prior to sentence, but the value of that information could be reassessed by facts that had subsequently emerged, the court could adjust the sentence.

The principle set out in paragraph 10 has been followed in a number of further cases. In R v A [2006] EWCA Crim 1803, [2007] 1 Cr App R(S) 60, this court reduced the sentence of a defendant who had agreed to give evidence and had given evidence at the trial of a person some time after the defendant had been convicted. The court held at paragraphs 8 and 9 that the court had jurisdiction under s.11(3) of the Criminal Appeal Act 1968. The Vice-President (Latham LJ) in giving the judgment of the court continued:

“It is plain from that section that, despite the general rule, the court is not precluded in exceptional cases from taking into account material which has arisen subsequently. We would wish, however, to reiterate that the remarks made by Lord Bingham in relation to defendants who deny guilt and subsequently decide to improve their position by giving information remain valid. But that is not this case. Quite the opposite. This is a case where the appellant has maintained the same account as to the substance of his involvement in the drug trading in question right from the beginning and carried it through into the evidence that he gave at the trial of Michael Watson.”

It is clear from this passage and a more detailed examination of the facts in that case that the appellant in that appeal was carrying on providing the assistance that he had given and agreed to give prior to the original sentence being passed. It is therefore, in truth, no exception to the general rule. A similar illustration of the application of the apparent exception is R v K [2002] EWCA Crim 927.

The question that has therefore been raised in this appeal is whether we should consider again the principle set out by Lord Bingham in R v A and B.

Submission of the applicant

The principal argument advanced before us on behalf of the applicant was that in current circumstances and in the light of the decision by Parliament in the 2005 Act to allow an agreement which would have the effect of reducing a sentence on account of assistance provided after sentence, the common law principle should recognise the utilitarian and pragmatic rationale behind the common law.

The utilitarian and pragmatic rationale behind the common law principle of reducing sentences on account of assistance given to the law enforcement authorities had been made clear by Lord Judge, CJ in R v P and Blackburn (to which we have referred at paragraph 5 above). He had explained at paragraph 22 that the pragmatism was founded upon the necessity of finding an effective means to prosecute and convict major criminals and gang leaders; upon providing a sufficient incentive to persuade those associated with major criminals and gang leaders to give evidence, in circumstances where they risk death or torture for helping in prosecutions; and upon therefore using a ready means of so doing by reducing sentences.

It was clear, it was submitted on behalf of the applicant, that the principle of reducing sentences for assistance provided did not operate on the basis of remorse; that would have meant that it would only be relevant to the position taken by a defendant when sentenced. On the contrary it operated on pragmatic considerations that a reduction should be offered whenever it might encourage a person to provide the necessary assistance to the authorities. It could therefore be offered at any time assistance was offered, whether before or after sentence. The common law could therefore adopt, on the basis of pragmatism and utilitarianism, the principle in the 2005 Act which permitted a sentence to be reduced for assistance given subsequent to the time of the sentence.

The legislative history of the 2005 Act

The 2005 Act had been preceded by a White Paper, One Step Ahead – A 21^st Century Strategy to Defeat Organised Crime (Cm 6167) in which the Home Office had asked, by reference to the passage which we have set out at paragraph 10 above, whether a new power ought to be created for the prosecution to be able to refer cases back to the original trial judge for consideration of resentencing where a convicted criminal provided material assistance after conviction and sentence. Unfortunately the responses to the Consultation are no longer available.

Nor is there anything in the explanatory notes to the Bill or the debates in the House which cast light upon the restriction in the Act of the power of the court to alter a sentence fixed by law. Nor is there anything on the reasons why provision was made for a power of review of a sentence where information was provided after conviction and sentence.

The decision in R v H

In R v H and R v Yasser Chaudhury [2009] EWCA Crim 2485; [2010] 2 Cr App R (S) 18, Lord Judge, CJ, giving the judgment of this court, observed:

“Where, however, the offender wishes to limit his co-operation to the text regime, it is normally unrealistic for him to anticipate any reduction in sentence on appeal to the court if he has pleaded not guilty and has not set this process in motion by the time the Crown Court has sentenced him.”

After setting out the passages in R v A which we have set out at paragraph 10 above, Lord Judge continued:

“This exception to the rule is a recognition of the need for a need in practice of an element of flexibility in the approach of this Court where the offender has sought to provide assistance and take advantage of the text regime before sentence has been passed. Where assistance justifying the provision of a text has been given by the offender, but through oversight or misadventure, by, for example, the prosecuting authorities, the judge is ignorant of it, this Court will consider text material which should have been before the Crown Court and take it into consideration on an appeal.”

Our conclusion

In the light of the legislative history of the 2005 Act and the clear submissions made by Mr Keleher QC, we have considered whether we should modify the common law. Although we see the force of the argument, good reasons would be needed to change so clearly established a principle. We have carefully considered the arguments based on utilitarianism and pragmatism; these have, as is evident from the judgments of Lord Bingham and Lord Judge, always been present. We can see no good reason to depart from the established principles. There are also two countervailing considerations. First this court would not be acting as a court of review, but rewarding someone for good behaviour during his sentence. That is not this court’s function. Second, experience has shown that some may be motivated to manufacture assistance after conviction in the hope of a reduction in a long sentence. Nothing should be done which might encourage this.

We therefore have reached the firm conclusion that we should not alter well established principles.

As we have concluded that this court should not, in the circumstances of cases such as this, exercise any jurisdiction it might have at common law and as the Parole Board has no power to reduce the minimum term, it must remain open to an applicant such as this to consider applying to the Home Secretary to exercise powers under s.30 of the Criminal Justice Act 1997. The power of the Secretary of State under s.30 of that Act was considered in R v McLoughlin [2014] EWCA Crim 188; [2014] 2 Cr App R (S) 40 at paragraphs 31-36. We express no view on whether circumstances arise on the facts of this case which would entitle the Secretary of State to exercise his power under s.30.