CRIMINAL LITIGATION

The court considered the Serious Organised Crime and Police Act 2005 (SOCPA 2005), ss 71–75 holding that, provided they admit their own criminality in full, the process is not confined to offenders who provide assistance in relation to crimes in which they were participants, or with which they were otherwise linked.

Where a review under s 74 arises from the defendant’s failure to provide assistance in accordance with the agreement, the sentence which would have been imposed but for the assistance offered should be imposed. Only in exceptional circumstances would it be right for that sentence to be reduced, but it should not be increased by way of punishment because the defendant has backed away from the agreement (non-compliance is not an aggravating feature of the original offence).

Where the review occurs because a defendant who had not previously offered to provide assistance decides to do so after all, the court will have to consider why the offer to give assistance was delayed, and whether the delay may have diminished its value. Any discount should reflect the extent and nature of the assistance given or offered; unless the delay has diminished the value of the assistance, the defendant should not be penalised by a lesser reduction.

The process of review is not inhibited by the fact that the Court of Appeal has already heard an appeal against the original sentence, whether or not that sentence was varied on appeal. Where a defendant has provided assistance to the police which does not fall within the new arrangements, he may still be given a discount in sentence. So far as the sentencing decision itself is concerned, the first factor is the criminality of the defendant. Thereafter, the quality and quantity of the material provided by the defendant in the investigation and subsequent prosecution of crime has to be considered.

Particular value should be attached where the defendant provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, and does so, with added force where the information either produces convictions for the most serious offences, or prevents them, or leads to disruption to major criminal gangs. Also relevant are the nature and extent of the personal risks faced by the defendant and members of his family. When it applies, the discount for the guilty plea is 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, and the notional sentence so achieved should be further discounted for the guilty plea.
 

The SOCPA procedure requires the defendant to reveal the whole of his previous criminal activities. This will almost inevitably mean that he will plead guilty to offences which would not otherwise have been attributed to him; sentencing for such offences should normally be dealt with by the imposition of concurrent sentences. The court emphasised that the process under ss 73 and 74 does not provide immunity from punishment and, subject to appropriate discounts, an effective sentence remains a basic characteristic of the process. 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 reduction should be between half and two-thirds of that sentence.