| CRIME — Sentence — Offenders assisting investigations and prosecutions — Sentencing guidelines — Serious Organised Crime and Police Act 2005, ss 71-75
R v P; R v Blackburn [2007] EWCA Crim 2290
CA: Sir Igor Judge P, P:itchers J and Sir Richard Curtis: 22 October 2007
The Court of Appeal, Criminal Division, gave guidance as to the proper approach, pursuant to ss 71-75 of the Serious Organised Crime and Police Act 2005, to the sentencing of offenders who assisted investigations and prosecutions.
The Court of Appeal, Criminal Division, allowed appeals by P and Derek Stephen Blackburn against sentences which had taken account of assistance they had given in relation to murder investigations which had resulted in the prosecution and conviction of those responsible.
SIR IGOR JUDGE P said that ss 71-75 of the Serious Organised Crime and Police Act 2005 created a statutory framework which formalised and developed well-established common law principles, formerly embraced by the well-understood phrase “Queen’s evidence”. The essential feature of the new statutory framework was that the offender had publicly to admit the full extent of his own criminality and had to agree to participate in a formalised process. Section 73 governed the arrangements for a reduction in sentence for a defendant who in specified circumstances had provided assistance and addressed sentencing decisions following assistance provided by the defendant. S 74 introduced a new process, a “review” of a sentence which had already been imposed. The sentence passed in the Crown Court was reviewed in a judicial process on a reference back to the court by a specified prosecutor. In particular the review process could arise following a sentence discounted for assistance if the defendant reneged on the written agreement which produced the original reduction, and provided an important safeguard against dishonest manipulation of the process by the defendant. It might also arise for the defendant who had not previously offered to provide assistance and decided, after all, to do so. Non compliance with the written agreement was not a separate crime, nor an aggravating feature of the original offence; the penalty was that the defendant would be deprived of the reduction of sentence which would have been allowed if he had complied with the agreement. Unlike the common law arrangements by which discounts for a guilty plea should normally be reflective of the time when it was tendered, for the purposes of a review any discount should continue to reflect the extent and nature of the assistance given or offered. At the conclusion of the review, the decision might then be reconsidered in the Court of Appeal. The review process was not inhibited by the fact that the Court of Appeal had already heard and decided an appeal against the original sentence, whether the sentence was varied on appeal or not. The legislation did not abolish a well-understood feature of the sentencing process; there would be occasions when a defendant had provided assistance to the police which did not fall within the new arrangements, and in particular the written agreement. He was not thereby deprived of whatever consequent benefit he should receive. The 2005 Act did not include any direct provision suggesting the level of discount to be provided to the defendant who entered into and performed the agreement pursuant to s 71 and no hard and fast rules could be laid down for what was a fact specific decision. When it applied, the discount for the guilty plea was separate from and additional to the appropriate reduction for assistance provided by the defendant. Accordingly the discount for the assistance provided by the defendant should be assessed first, against all other relevant considerations, and the notional sentence so achieved should be further discounted for the guilty plea. In only the most exceptional case would the appropriate level of reduction 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.
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