Loughlin, Re Application for Judicial Review (Northern Ireland) [2017] UKSC 63

The Stewart brothers received heavily discounted life sentences for murder after agreeing to assist prosecutors under the Serious Organised Crime and Police Act 2005. After acquittals at trial, the specified prosecutor declined to refer their sentences back for review. The Supreme Court upheld that decision, rejecting a 'change of circumstances' test.

Facts

Robert and David Stewart, self-confessed members of a loyalist paramilitary organisation, admitted in August 2008 to involvement in the October 2000 murder of Thomas English. They entered written agreements on 15 October 2008 with a specified prosecutor under section 73 of the Serious Organised Crime and Police Act 2005 (SOCPA), undertaking to plead guilty, provide truthful information, and give truthful evidence in any ensuing proceedings.

On 5 March 2010, Hart J sentenced them to life imprisonment with a notional 22-year tariff, applying a 75% reduction for assistance plus further reductions for guilty pleas and personal circumstances, producing a three-year minimum term. They were released on licence on 18 August 2011.

At the subsequent trial before Gillen J (involving 14 defendants and 37 counts), all but one accused were acquitted, the sole conviction not depending on the Stewarts’ evidence. Gillen J found on multiple occasions that the Stewarts had lied. The respondent, Jason Loughlin, was among those acquitted.

Pamela Atchison, the designated specified prosecutor, considered whether to refer the Stewarts’ sentences back to the sentencing court under section 74 of SOCPA. In a 260-paragraph decision document, she concluded that, although both brothers had knowingly failed in certain respects to give assistance in accordance with the agreement, it was not in the interests of justice to make a referral. The Divisional Court ([2015] NIQB 33) quashed that decision. The PPS appealed to the Supreme Court.

Issues

The principal issue was the proper approach a specified prosecutor must take under section 74(3)(b) of SOCPA when deciding whether it is in the interests of justice to refer back to the sentencing court the sentence of an assisting offender who has knowingly failed to give assistance under a section 73 agreement. In particular, whether the prosecutor must first determine if the sentencing court could conclude that circumstances had changed, and whether, absent countervailing considerations, such a change required referral.

Arguments

Appellant (PPS)

The PPS argued that the specified prosecutor’s decision was an open-ended evaluation of the interests of justice, unconstrained by any ‘change of circumstances’ precondition. It contended that the decision was a species of prosecutorial decision warranting judicial restraint, citing authorities including R v DPP, Ex p Manning and Sharma v Brown-Antoine. Mrs Atchison’s analysis of factors—including the nature of assistance provided, time elapsed, potential oppression, public confidence, and prospects of a successful application—was a legitimate exercise of her discretion.

Respondent (Loughlin)

The respondent argued that the specified prosecutor had failed to undertake a sufficiently minute examination of every aspect of the Stewarts’ evidence and interviews. It was further argued that the overriding consideration was that an ‘appropriate sentence’ be imposed for the Stewarts’ admitted crimes, this being primarily a matter for the court rather than the prosecutor. The respondent also relied on Mrs Atchison’s repeated language that the interests of justice did not ‘require’ referral as betraying a misdirection.

Judgment

Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Hughes agreed, allowed the appeal and dismissed the application for judicial review.

The statutory framework

Section 74 applies only where an assisting offender ‘knowingly fails to any extent to give assistance in accordance with the agreement’ (section 74(2)(a)). Even where that threshold is satisfied, the specified prosecutor must consider whether it is in the interests of justice to refer the case (section 74(3)(b)). The Court emphasised that the statutory test imposes ‘no explicit constraint’ on how the prosecutor approaches the interests of justice, and there was no warrant for implying a fetter on this unrestricted discretion.

The ‘change of circumstances’ test rejected

The Divisional Court had relied on paragraph 33 of R v P and Blackburn [2007] EWCA Crim 2290, treating a review under section 74 as a ‘fresh process which takes place in new circumstances’, and concluding that where the court could find circumstances had changed, referral would be required unless countervailing considerations existed.

The Supreme Court held this misread P and Blackburn. The Court of Appeal had used ‘fresh process’ to distinguish a section 74 review from a conventional appeal against sentence, not to indicate that any change of circumstances should normally precipitate referral. Adopting the Divisional Court’s approach would render the prosecutor’s interests-of-justice assessment meaningless, as even the ‘merest deviation’ from the agreement would compel referral.

The specified prosecutor’s analysis

Lord Kerr held that Mrs Atchison’s report demonstrated a ‘careful, perfectly legitimate investigation’ of the interests of justice. She had reasonably concentrated on the passages of Gillen J’s judgments dealing directly with whether the Stewarts had lied, rather than undertaking the impossible task of re-examining all the evidence. Her five identified factors—nature and extent of assistance provided, time elapsed since sentence, potential oppression (including medical risk to David Stewart), impact on public confidence, and the prospects of any successful application—were all properly relevant. Her conclusion that the lies were not pivotal to the trial outcome, since other significant frailties (bad character, alcohol and drug abuse, memory difficulties, possibility of contamination) impacted the Stewarts’ credibility, was open to her.

Other arguments

The Court did not find it necessary to determine whether the decision was strictly analogous to a decision to institute proceedings. The respondent’s argument that an ‘appropriate sentence’ was a matter for the court was rejected because the prosecutor may legitimately consider factors extraneous to a conventional sentencing exercise, such as the impact on willingness of others to provide assistance. The use of ‘require’ in Mrs Atchison’s document was a customary form of words and did not betray any erroneous test.

Implications

The decision clarifies the proper approach to section 74(3)(b) of SOCPA. A specified prosecutor’s assessment of the interests of justice is an open-ended discretion unconstrained by any precondition that the prosecutor first decide whether the sentencing court could conclude there had been a change in circumstances. The decision affirms that a wide range of factors may properly be considered, including the nature and extent of assistance actually provided, time elapsed, potential oppression, public confidence in the assisting offender regime, and the realistic prospects of a successful referral.

The judgment confirms that R v P and Blackburn should not be read as establishing a presumption in favour of referral where circumstances have changed; it merely distinguished a section 74 review from a conventional appeal against sentence.

The decision matters principally to prosecutors exercising section 74 functions and to defence practitioners advising assisting offenders. It also affirms a degree of restraint in judicial review of such prosecutorial decisions, although the Court did not resolve definitively whether the analogy with decisions to prosecute is exact. The judgment recognises the pragmatic public interest underpinning the assisting-offender regime, namely that without discounted sentences major criminals would often escape justice, and that an inflexible referral rule could deter future co-operation.

Verdict: The appeal was allowed and the respondent’s application for judicial review was dismissed. The decision of the specified prosecutor not to refer the sentences of Robert and David Stewart back to the original sentencing court was upheld as a lawful exercise of her statutory discretion under section 74(3) of the Serious Organised Crime and Police Act 2005.

Source: Loughlin, Re Application for Judicial Review (Northern Ireland) [2017] UKSC 63