In the matter of an application by Jason Loughlin for Judicial Review (Northern Ireland)

Where an assisting offender knowingly fails to provide agreed assistance, section 74(3) of the Serious Organised Crime and Police Act 2005 gives the specified prosecutor an unrestricted discretion to decide whether referral to the sentencing court is in the interests of justice. The decision requires an open-ended assessment of all relevant circumstances.

A change in circumstances is neither a preliminary test nor the predominant consideration. The prosecutor need not refer merely because the sentencing court might find that circumstances have changed. Relevant considerations may extend beyond conventional sentencing factors and include the nature of the assistance and breach, the likely practical outcome, oppression, public confidence and the effect on future co-operation by offenders.

Two assisting offenders received substantial sentence reductions after agreeing to provide truthful and continuing assistance under the Serious Organised Crime and Police Act 2005. Following a lengthy criminal trial, the trial judge found that they had deliberately lied in several respects, although numerous other weaknesses also affected their evidence.

A specified prosecutor concluded that they had knowingly breached their agreements but decided that referral of their sentences to the sentencing court was not in the interests of justice. An acquitted defendant successfully challenged that decision. The Divisional Court, in [2015] NIQB 33, quashed it because the prosecutor had not first asked whether the sentencing court could conclude that circumstances had changed.

The central issue was whether section 74(3) required that change-of-circumstances approach or instead conferred an open-ended discretion upon the specified prosecutor.

1. The appeal was allowed unanimously and the application for judicial review was dismissed. Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Hughes agreed, held that the specified prosecutor had lawfully concluded that referral was not in the interests of justice.

2. Section 74(2)(a) of the Serious Organised Crime and Police Act 2005 makes knowing failure to give assistance in accordance with the agreement a prerequisite to considering referral. Even after that prerequisite is satisfied, section 74(3) requires the specified prosecutor to decide separately whether referral is in the interests of justice. The prosecutor found knowing failures by both assisting offenders, so the remaining question was whether referral should occur.

3. The interests-of-justice assessment is an open-ended deliberation. Section 74(3) imposes no express constraint upon the prosecutor's approach, and the court could not imply a fetter upon the unrestricted statutory discretion. A possible change in circumstances is neither a mandatory first question nor a predominant consideration which ordinarily requires referral unless countervailing circumstances exist.

4. R v P and Blackburn [2007] EWCA Crim 2290 did not establish such a change-of-circumstances rule. Its description of a section 74 review as a fresh process taking place in new circumstances distinguished that review from an ordinary sentence appeal. It showed that an earlier appeal did not inhibit the review. It did not suggest that every change, or every failure to comply fully with an assistance agreement, should ordinarily prompt referral.

5. The prosecutor could consider a wide range of matters. These included the nature and extent of the assistance, the significance of the lies, elapsed time, the likely duration of renewed custody, health risks, possible oppression, public confidence and the prospects that referral would produce a different sentence. Relevant considerations could also extend beyond conventional sentencing factors, including the possible effect of referral upon other offenders' willingness to assist prosecuting authorities.

6. The prosecutor was entitled to concentrate upon the trial judge's specific findings of deliberate untruthfulness. She was not required to investigate minutely every conceivable aspect of the offenders' accounts after carefully analysing the two lengthy criminal judgments. Her report demonstrated a careful and legitimate examination of the interests of justice, and its conclusions could not be impeached.

• United Kingdom Supreme Court: In [2017] UKSC 63, unanimously allowed the Public Prosecution Service's appeal and dismissed the application for judicial review.
• High Court of Justice in Northern Ireland, Divisional Court: In [2015] NIQB 33, quashed the specified prosecutor's decision not to refer the assisting offenders' sentences to the original sentencing court.