R v BHR & Anor

An offender relying on the text procedure for a reduction in sentence must provide, or at least offer, assistance to law-enforcement authorities before sentence. The Court of Appeal reviews the sentence imposed on the material before the sentencer. It cannot reduce an otherwise unimpeachable sentence solely because assistance was first offered or given afterwards.

Post-sentence developments may be considered where they develop assistance already given or offered before sentence, including where its eventual value greatly exceeds that anticipated, or where material pre-sentence assistance was wrongly withheld from the sentencer. A post-sentence informer may instead use the statutory route under Sentencing Act 2020 section 388 if eligible.

BHR and BMV each sought an extension of time and leave to appeal against sentence. After sentence, each had provided important information and assistance to law-enforcement authorities. Neither had made a formal written agreement with a specified prosecutor, and neither sentencing judge knew of the prospective assistance.

The applications were heard together because they raised a common issue of principle. The central question was whether the Court of Appeal could reduce a sentence through the non-statutory text procedure where assistance was first offered or provided after sentence.

1. The applications were refused. Neither applicant could obtain an extension of time or leave to appeal because post-sentence assistance did not provide a basis for challenging a sentence that was proper on the material before the sentencing judge.
2. The settled general rule, reaffirmed in R v Royle, R v AJC, R v BCQ [2023] EWCA Crim 1311, is that an offender seeking credit through the text procedure must provide, or at least offer, assistance before sentence. The rule applies equally to offenders who pleaded guilty and those convicted after trial.
3. The rule follows from the Court of Appeal’s reviewing function. An appeal against sentence ordinarily concerns whether the Crown Court’s sentence was wrong on the information then available. Section 11(3) of the Criminal Appeal Act 1968 does not permit the court to reopen an otherwise unchallengeable sentence solely because of later events unknown to the sentencer.
4. There are limited applications of, rather than true exceptions to, the rule. The court may adjust a sentence where post-sentence assistance substantially exceeds assistance already credited at sentence, or where pre-sentence assistance or an offer to assist should have been disclosed to the sentencer but was not. Those later events develop circumstances that were, or ought to have been, before the sentencing judge.
5. Although a wholly exceptional case may very rarely justify departure, pragmatic and public-interest arguments cannot enlarge the court’s jurisdiction. An offender who first assists after sentence must not be led to expect that the text procedure will support an appeal. If eligible, the appropriate route is a referral under section 388 of the Sentencing Act 2020.

• Court of Appeal (Criminal Division): applications for an extension of time and leave to appeal against sentence refused: [2023] EWCA Crim 1622.
• Crown Court: each applicant was sentenced without the sentencing judge being told that post-sentence assistance would be provided. The judgment appealed citation is not stated in the judgment.