AXN v The Queen

An offender who seeks sentence credit for assistance to the police has no right to require a detailed police response. The police must notify the sentencing court if they will not provide a confidential text, but may simply say that they will provide no information. They need not explain their decision, and the sentencing court must not investigate it.

A dispute about the contents or accuracy of a text should not ordinarily be tried at sentence. An adjournment to obtain confirmation should generally be refused if the offender made the request late. Assistance which is not used may mitigate only where, on the facts, it had intrinsic value. A court of review will ordinarily not give credit for information first offered after conviction and sentence.

AXN and ZAR made renewed applications for permission to appeal against conviction and sentence following guilty pleas to serious class A drug offences in the Crown Court.

Both applicants contended, among other matters, that assistance given or offered to the police should have attracted further sentencing credit. Their cases raised wider questions about the police obligation to provide a confidential confirmation of assistance, the court’s response to a disputed or absent confirmation, and adjournments sought to obtain one.

AXN received 31 months’ imprisonment for possession of cocaine with intent to supply. ZAR received nine and a half years’ imprisonment for conspiracy to supply class A drugs. ZAR also challenged the adequacy of the police text following a later supplementary text obtained after an IPCC complaint.

1. The renewed applications were refused. AXN’s proposed fresh evidence and conviction grounds were without merit. Neither applicant established that the sentence imposed was manifestly excessive or that further credit was due for police assistance.

2. The common-law system of sentence credit for assistance remains available alongside the statutory scheme in Serious Organised Crime and Police Act 2005. The police obligation identified in R v Piggott (transcript, 2 December 1994) is limited. As a matter of case management, the police must tell the court if they will not provide a text. A senior officer may do so by letter, without explaining the decision or disclosing whether the police engaged with the offender.

3. Confidentiality, operational safety, ongoing investigations and possible duties owed to informers justify leaving the extent of any response to the police’s judgment. A sentencing court must not question the reasons for refusing a text. External investigatory bodies, rather than the sentencing process, provide the appropriate safeguards against error or malpractice.

4. The court reaffirmed R v X [1999] 2 Cr App R 125. A dispute over a text should not normally lead to evidence, cross-examination or a trial of its accuracy. An officer may exceptionally be asked for clarification where a text is unclear or fails to address a matter independently established, but not to defend its factual accuracy.

5. An offender should seek police confirmation at the earliest opportunity. A sentencing court should not readily adjourn unless the request was timely and the delay resulted despite the police’s efforts. As the Court of Appeal is a court of review, assistance first offered after conviction and sentence will ordinarily not found a sentencing reduction.

6. AXN’s recording and asserted willingness to give evidence had no intrinsic value and therefore carried no material mitigation. ZAR’s information was, where true, low-grade and added little to police intelligence. His leading role in a large heroin conspiracy was amply supported. The court made a 30-day loss of time order against ZAR because his wholly unmeritorious applications wasted substantial judicial resources.

• Court of Appeal (Criminal Division) — renewed applications for permission to appeal against conviction and sentence refused: [2016] EWCA Crim 590.
• Crown Court — AXN pleaded guilty to possession of cocaine with intent to supply and was sentenced to 31 months’ imprisonment. ZAR pleaded guilty to conspiracy to supply class A drugs and was sentenced to nine and a half years’ imprisonment.