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Supreme Court rejects judicial review application in Belfast ‘supergrass’ case

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 LLP 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 LLP, comments: ‘This case concerns the circumstances in which sentences passed on assisting offenders should be referred back to the sentencing court under the Serious Organised Crime and Police Act 2005 (SOCPA 2005), s 74.

‘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.’

Please see Part Two here.