Section 73 of SOCPA – What Happens When Terms Are Not Met?
The case Loughlin  UKSC 63 was an application for judicial review of a decision not to refer discounted sentences back to the sentencing court under section 74(3) of SOCPA 2005. The Supreme Court, reversing the Divisional Court’s decision, refused to quash the prosecutor’s decision. Consideration of the interests of justice in this context required an open-ended deliberation, and section 74(3) did not impose constraints on how the prosecutor should approach the task.
In 2008 two brothers, Robert and David Stewart, approached police. They had been members of a loyalist paramilitary organisation and had played a part in the murder of Tommy English in 2000. In due course, the Stewarts entered into assisting offender agreements under section 73 of SOCPA 2005. They pleaded guilty to murder. On sentence, the judge applied a 75% discount for their assistance, with guilty pleas and other mitigation taking the tariff down to just 3 years.
Part of the agreement was that the Stewarts gave truthful and accurate evidence in any court proceedings flowing from the investigation. In 2012, fourteen defendants stood trial, the prosecution relying largely on the Stewarts’ testimony. All defendants except one were acquitted, the case against the only convicted defendant not being dependant on the Stewarts’ evidence. The trial judge (quoted in the High Court of Northern Ireland’s judgment) could not exclude the possibility that the Stewarts’ testimony had been false; they were dishonest witnesses of very bad character who had lied to the police and to the court; they had obviously colluded to produce certain parts of their testimony; and parts of their testimony had been flatly contradicted by unchallenged independent evidence.
Section 74 of SOCPA gives a prosecutor the power to refer a case back to the sentencing court. So far as relevant here, the conditions are that the offender knowingly fails to give assistance in accordance with the agreement, is still serving his sentence and the prosecutor thinks it is in the interests of justice to refer the case back. Here, the Stewarts were still serving life sentences (but had been released from custody), and the prosecutor concluded that on a number of occasions they had knowingly failed to give assistance which they had undertaken to provide (although she did not conclude that the failures were determinative of the outcome of the trial). However, after extensive analysis, she did not consider it in the interests of justice to refer the sentences back.
Robin Loughlin, one of the acquitted defendants, successfully applied for judicial review of the prosecutor’s decision. The Divisional Court in Northern Ireland took the view that a change of circumstances would point towards referring the case back, unless there were countervailing considerations. The Public Prosecution Service for Northern Ireland (PPS) appealed to the Supreme Court.
In the Supreme Court, Lord Kerr gave the sole judgment. He noted that on a careful examination of the judgment in R v. P  EWCA Crim 2290, the Court of Appeal did not suggest that a change in circumstances should normally precipitate a referral to the sentencing court. Lord Kerr opined that section 74(3) imposed no explicit constraint on how the specified prosecutor should approach the question, and so there was no warrant for implying a fetter on the unrestricted discretion of the prosecutor. There could be a wide range of factors, beyond the question of whether circumstances had changed, which might be pivotal in deciding if the original sentence should be referred back in the interests of justice.
The PPS had sought to go further. It submitted that the challenge was a species of prosecutorial decision, analogous to the decision to instigate criminal proceedings, which the courts were reticent to interfere with. However, Lord Kerr did not feel it necessary to address this argument; he stated it was unclear whether the decision in issue here was truly analogous with a decision whether to instigate criminal proceedings.
Therefore, in summary, the Supreme Court refused to be prescriptive about the factors to be taken into account by a specified prosecutor acting under section 74(3), but did not engage with the PPS’ submission on whether the test on judicial review should be akin to other cases involving prosecutorial discretion.
The Stewarts, who had lied, colluded and knowingly reneged on their assisting offender agreements, might count themselves lucky.