The Supreme Court has dismissed an application for judicial review by an acquitted defendant in a trial brought about as a result of two brothers, former Ulster Volunteer Force (UVF) members, who turned ‘supergrass’ for the Police Service of Northern Ireland (PSNI). The brothers’ information subsequently resulted in the conviction of only one of a large group of defendants. Following a decision by the Director of Public Prosecutions (DPP) not to refer the brothers for re-sentencing, one of the acquitted defendants brought judicial review proceedings against the DPP’s decision. Lawyers from Hodge Jones & Allen and Corker Binning, and a leading counsel, discuss whether the decision to not refer the sentence back was wrong, its implications for public confidence in the justice system, and the potential practical effects.
In August 2008, brothers and former UVF members Robert and Ian Stewart turned themselves in to the PSNI and entered into ‘assisting offender agreements’ to give evidence against others accused of UVF membership, shootings and hijackings in south-east Antrim.
They pleaded guilty to various offences, including murder and membership of a proscribed organisation. In return for their co-operation, the tariff of their life sentences was reduced by 75%, which meant they each served three years in prison.
They subsequently gave evidence at Belfast Crown Court at the trial of 12 alleged accomplices. Eleven of the defendants were acquitted on all counts (the 12th was convicted on other evidence). The trial judge found the Stewarts’ evidence unreliable and often dishonest.
Judicial review application on re-sentencing
Following the acquittals, the DPP had to decide whether the assisting offender agreements had been breached. Despite the judge having concluded that the brothers had lied both to the court and to the police, she decided not to refer the Stewarts for re-sentencing.
Jason Loughlin, one of the acquitted defendants, applied for, and was granted, a judicial review quashing the DPP’s decision. The DPP appealed to the Supreme Court.
Supreme Court ruling
The DPP had identified five factors relevant to her decision not refer back the decision regarding the Stewarts:
- the nature and extent of assistance provided
- the time which had elapsed since the original sentence had been passed
- whether the imposition of a revised sentence might be considered oppressive
- the potential damage to public confidence in the justice system if a referral was not made
- the prospects of a successful application to the reviewing court
The Divisional Court had considered the question to be whether circumstances had changed since the original sentence was passed, suggesting the DPP must first consider whether there had been a change of circumstances, and, if so, refer the case in the interests of justice.
The Supreme Court rejected this conclusion and allowed the DPP’s appeal. It said that to require the DPP to refer a sentence back where there had been a change of circumstance would entail a reference of deviation by the assisting offender from the agreement. The requirement that the referral be in the interests of justice would then, it considered, have no meaningful content.
Meeting the tests on breach of agreement and interests of justice
Raj Chada, partner at Hodge Jones & Allen, comments: ‘This case concerns the circumstances in which sentences passed on assisting offenders should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act 2005 (SOCPA 2005).
‘The Supreme Court is fairly critical of how the Divisional Court had approached its task on interpreting these provisions and the relevant case law. In my view, the Supreme Court sought to re-assert the two-stage test set out in SOCPA 2005, s 74. The two-stage involved confirming that the individual (in this case the Stewarts) had knowingly failed to give assistance in accordance with an agreement, and that it is in the interests of justice to do so.
‘In this case, it seems agreed that the first test was met. The subjects of the agreement failed to give truthful evidence at the trial. However, the Divisional Court seems to have got itself into a mess about the second test–the interests of justice. The Divisional Court seemed to suggest either that if the agreement had not been kept, that it would have to be in the interests of justice, or that as there was a change of circumstances for the sentencing court, there would have to be a referral.
‘This is a strange formulation, and the Supreme Court rightly picked them up on it. If a party fails to keep to the agreement, one would think that invariably leads to a change of circumstances for the sentencing court, and so the words “interest of justice” would be obsolete. The better analysis is that adopted by the Supreme Court in which “interest of justice” is given a much broader meaning.’
‘The right legal analysis but the wrong result’
He concludes: ‘The prosecutor considered “interests of justice” in the light of five factors that she considered in turn. In a narrow legalistic view, the Supreme Court has adopted the better reasoning.
‘The tragedy, though, is that I still think the prosecutor’s decision not to refer was wrong. The Stewarts lied on oath in their evidence. While she says this may not have been determinative about the trial, that seems a difficult call to make. It surely does fundamentally damage the public’s confidence in the justice system that a referral was not made, and it seems to me that insufficient weight was given to that factor.
‘I think the Supreme Court had the right legal analysis but ended up with the wrong result.’
‘A foolish error’
David Corker, partner at Corker Binning, says: ‘The NI prosecutor made a foolish error which he/she is unlikely to repeat. Their error was to have the Stewarts sentenced prior to them testifying as Crown witnesses. The prosecutor should instead have sought, after them pleading guilty, a deferral of their sentencing hearing until after they had testified. A sentencing hearing then would have enabled the sentencing judge to have decided upon their performance or compliance with their obligations. Thus the prosecutor would not have had to make this onerous and invidious decision. This also would have prevented the decision about the Stewarts’ sentence from being amenable to a judicial review.’
‘The buck will stop with a crown court judge’
He continues: ‘The policy of the courts recently is to be hostile to any invitation to assess the quality of CPS/prosecutorial decision-making—whether this be a CPS decision to prosecute or not, and now a decision not to refer back a sentence. The high threshold of Wednesbury unreasonableness (Wednesbury Corporation and Others v Ministry of Housing and Local Government (No 2)  3 All ER 571) is being rigorously applied. This judgment continues this policy of making a prosecutorial decision which calls for an exercise of judgment in a complex case almost unappealable.
‘Putting these factors together, in future prosecutors will be more unlikely to make these decisions, while the appellate courts would like them to. The buck will therefore stop with a crown court judge.’
‘Unrestricted discretion of the prosecutor’ confirmed
Paul Keleher QC, of 25 Bedford Row, says the context of the case is important to understanding the judgment and the potential practical effects: ‘The Divisional Court took the view that given the “change in circumstances”, the prosecutor should have referred the cases, relying heavily upon the use of that phrase in R v P & Blackburn  EWCA Crim 2290,  All ER (D) 325 (Oct).
‘The Supreme Court disagreed and said that a change in circumstances was much too narrow a test and that a consideration of the interests of justice, as required by SOCPA 2005, s 74(3), involves an open-ended deliberation, and there was no warrant for implying a fetter on the exercise of the unrestricted discretion for which the statute clearly provides.
‘This case therefore emphasises the unrestricted discretion of the prosecutor in deciding whether or not to refer a case. There are unlikely to be many cases where an applicant seeks to overturn a decision not to refer a case. It is more likely that defendants would wish to prevent a referral. Given that it is difficult to see how a referral would be made unless there has been some “change in circumstances”, the confirmation by the Supreme Court that the prosecutor has in those circumstances an unfettered discretion whether to do so will provide no ammunition for anyone seeking to avoid a referral.’
Source: In the matter of an application by Jason Loughlin for Judicial Review (Northern Ireland)
The article first appeared in the LexisNexis, October 2017.