Sentencing Discounts for Informers
Lord Justice Fulford, Vice-President of the Court of Appeal (Criminal Division), revealed a partial judgment on behalf of himself and two unnamed judges in a case in which the defendant was not named: T v The Queen [2021] EWCA Crim 1474
There were strong public interest reasons for not revealing the identity or role of the appellant as an informer. No material was included in the hand-down which would have enabled the appellant to be identified including the names of the judge and counsel, the hearing date in the Court of Appeal or the names of the other judges, all of which would have enabled the appellant’s identity to be discovered.
The appellant had pleaded guilty to serious offences for which he had been sentenced but contended that he did not receive sufficient credit for his mitigation which warranted a greater reduction in sentence because he had provided valuable information and intelligence to the authorities over a significant period.
His efforts and the information supplied were expressly held in high regard by his handlers. The text provided in confidence described the benefit to the authorities of the information received as being valuable.
In R v A and B[1] Lord Bingham observed that those who helped in the investigation of crime could expect a discount depending on the value of the help given, and similarly if a defendant exposed himself or his family to personal jeopardy, that would be suitable recognised.
In R v Yvan Nshuti[2] the Court distilled the following principles from the authorities:
- The assistance should be valued and discounted from the starting point before credit was given for a plea of guilty;
- The overriding principle was one of totality, namely, that the sentence when reduced should reflect fully the value of the assistance and credit for a plea;
- The total credit available would generally be between 50 and 66 per cent, with the greatest credit being served for the maximum assistance and in particular those who put themselves at most risk for so acting.
In the present case the judge indicated he took a starting point of X years but took account of the assistance but only to a limited extent. It seemed to him that the defendant had been paid for that already. It reduced the sentence by one year.
In the view of the appeal court the judge needed to look at all the factors in the round when considering the extent, if at all, of any reduction in sentence for information provided to the authorities.
Whilst it was legitimate to consider the extent of any financial reward already received by the accused in that context, it must be remembered that those two incentives (a financial reward and a reduction in sentence) were a complementary means of demonstrating to offenders that it is worth their while to disclose the criminal activities of others for the benefit of the law-abiding public in general (Simon(1988) 87 Cr App R 407 at 411).
Unless financial rewards had been exceptionally generous, that factor would play only a small, if any, part in the judge’s calculation.
The Court had to consider the quality and quantity of the material disclosed, its accuracy, the extent to which it enabled serious criminal activity to be stopped and the perpetrators brought to justice, as well as a willingness on the part of T to give evidence against them and the degree of risk to himself and his family.
The steps to be followed were long established and in this case the Fraud Guideline applied. The offence category should first be identified followed by the starting point and category range, including the factors increasing and reducing seriousness, along with personal mitigation. Then a reduction should be made for assistance provided to the prosecution, and finally a reduction for guilty pleas. Then the judge should consider totality.
The judge allowed a reduction of 31.25%. The applicant’s role as informer was well-known and there had been threats to his life in prison.
Greater allowance should have been made for the notable assistance he provided and payments made to him should not have had a significant impact on the credit afforded to him.
It was not a strict mathematical exercise. A shorter sentence was substituted.
[1] [1999] 1 Cr App R (S) 52
[2] [2012] EWCA Crim 1530