UKSC: NI DPP accurately considered interests of justice in deciding not to resentence dishonest witnesses

Overturning the High Court’s finding that the matter of sentencing should be remitted to the DPP for a fresh decision, Lord Brian Kerr was satisfied that the DPP conducted “a careful, perfectly legitimate investigation of the question of the interests of justice” and that her decision could not be impeached.

Assisting offender agreements

In August 2008, Mr Robert Stewart and Mr Ian Stewart, former members of loyalist paramilitary group, the UVF, turned themselves in to the PSNI and entered “assisting offender agreements” with a specified prosecutor, Mr Raymond Kitson, pursuant to the Serious Organised Crime and Police Act 2005.

Those agreements required them to provide information and assistance to ongoing investigations, truthful evidence in the trials of accomplices, and guilty pleas to offences they admitted.

They pleaded guilty to various offences including the murder of Thomas English in 2000 and membership of a proscribed organisation.

The minimum tariff of life sentences for the offences was reduced by 75% in recognition of the assistance they provided. As such, from a starting point of 22 years and once further reductions for their guilty pleas and personal circumstances had been taken into account, they each had to serve a minimum of three years. They were both released on life licence in August 2011.

Evidence at trial of accomplices

Both men gave evidence at the trial of 12 alleged accomplices, one of which was Mr Jason Loughlin who brought the present application for judicial review.

The trial ultimately ended with the acquittal on all counts of 11 of the defendants, including Mr Loughlin. The twelfth was convicted on evidence other than the Stewarts’ testimony.

In the High Court, Gillen J concluded that the Stewarts had lied to the police and to the court.

In his judgment, Gillen J “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”.

The question of re-sentencing

It fell to the DPP to decide whether the assisting offender agreements had been breached and whether the Stewarts should be referred back to the sentencing court pursuant to s.74 of the Serious Organised Crime and Police Act 2005.

The DPP decided not to refer them for re-sentencing, and consequently Mr Loughlin brought judicial review proceedings against the DPP’s decision.

The High Court granted the application and quashed the DPP’s decision, remitting the matter to the PPS for a fresh decision; it was this decision that was ultimately appealed to the Supreme Court. Central to the High Court’s decision was its consideration of R v P and Blackburn EWCA Crim 2290.

Supreme Court

The PPS appealed the decision of the High Court, and in the Supreme Court, the following question had to be considered: “In exercising the discretion in s.74(3)(b) of the Serious Organised Crime and Police Act 2005, is the Specified Prosecutor required to ask him/herself whether the sentencing court could conclude that the circumstances applicable when the sentence as passed had changed as a result of knowing failures by the assisting offender to give assistance in accordance with the assisting offender agreement?”

Delivering the unanimous judgment of the Court, Lord Kerr stated “it is unquestionably true that in a number of instances, the judge found that the Stewarts had not been truthful”.

Lord Kerr found that the Court could not uphold the High 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”.

Section 74(3) imposes no explicit constraint on how the specified prosecutor should approach the question of the interests of justice and it was Lord Kerr’s opinion that there was “no warrant… for implying a fetter on the exercise of the unrestricted discretion for which the statute clearly provides”.

According to Lord Kerr, the reasons for a failure to strictly adhere to the terms of the agreement with the specified prosecutor could involve “a well-established fear of attack on his family”.

Lord Kerr was satisfied that the DPP produced a report which was “a careful, perfectly legitimate investigation of the question of the interests of justice in these particular cases and that her conclusions cannot be impeached”.

Allowing the appeal, and dismissing the application by Mr Loughlin for judicial review, the Supreme Court rejected the High Court’s conclusion that the prosecutor was bound to conclude that it was in the interest of justice to refer the case if there had been a change of circumstance since the original sentence had been passed.