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England and Wales Court of Appeal (Criminal Division)
(Nov 22, 2023)
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[2023] EWCA Crim 1622
Case Information
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BHR & Anor, R. v
Smart Summary (Beta)
Factual and Procedural Background
Two applicants seek reductions in their sentences on the basis that, after sentencing, they provided important information and assistance to law enforcement authorities. Neither applicant entered into a formal statutory agreement with a specified prosecutor, and the sentencing judges were unaware of the assistance at the time of sentencing, so it was not taken into account. Their applications for extensions of time to apply for leave to appeal against sentence have been referred to the full court by the Registrar. Due to the shared legal principle involved, their cases have been listed for hearing together, though they are otherwise unrelated. A risk of harm from identification as informers necessitated anonymisation of their identities and reporting restrictions under section 11 of the Contempt of Court Act 1981.
Legal Issues Presented
- Whether this court has the power to hear an appeal against sentence and reduce a sentence where important information and assistance was provided by an offender after sentencing but without a formal statutory agreement with a specified prosecutor.
- Whether exceptions exist to the general rule that assistance must be provided before sentencing to justify sentence reduction on appeal.
- The scope and application of the common law "text procedure" and the statutory procedure under sections 74-75 and 387-391 of the Sentencing Code relating to sentence review for post-sentence assistance.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v A and B [1999] 1 Cr App R (S) 52 ("A and B") | Established principles on sentence reduction for informers, including that assistance must generally be provided before sentencing; set out exceptions where post-sentence assistance significantly exceeds expectations or was not known to the sentencer. | Used to confirm the general rule and clarify the limited nature of exceptions; reaffirmed that the court is primarily a court of review relying on material before the sentencing judge. |
| R v K [2002] EWCA Crim 927 ("K") | Reinforced that assistance given after sentencing, where no prior indication was made to the judge, does not justify sentence reduction on appeal. | Applied to dismiss appeals relying on post-sentence assistance not known at sentencing; emphasized the court's review function. |
| R v A [2006] EWCA Crim 1803, [2007] 1 Cr App R (S) 60 ("A") | Confirmed that the court may take into account post-sentence assistance in exceptional cases, particularly where assistance was not known or offered before sentencing. | Applied to allow sentence reduction where assistance was given after trial and sentencing but was consistent with prior accounts and not a new basis for appeal. |
| R v P and Stephen Blackburn [2007] EWCA Crim 2290, [2008] 2 Cr App R (S) 5 ("P and Blackburn") | Clarified statutory procedure for sentence review where assistance is given post-sentence under a written agreement; confirmed continued use of the "text procedure" pragmatically for cases outside the statutory scheme. | Interpreted to confirm that the text procedure remains available in limited circumstances but does not expand the court’s jurisdiction beyond established rules. |
| R v H, R v D, R v Chaudhury [2009] EWCA Crim 2485, [2010] 2 Cr App R (S) 18 ("H, D and Chaudhury") | Reiterated that sentence review on appeal is generally not available for post-sentence assistance unless the assistance or offer was made before sentencing but was unknown to the sentencer. | Applied to reduce sentence where appellant had expressed willingness to assist before sentencing but the judge was unaware. |
| R v ZTR [2015] EWCA Crim 1427, [2016] 1 Cr App R (S) 15 ("ZTR") | Rejected pragmatic and utilitarian arguments to expand the text procedure to allow sentence reduction for assistance given only after sentencing. | Applied to confirm the general rule and caution against encouraging manufactured assistance post-conviction; emphasized the court’s role as a reviewing court. |
| R v Royle, R v AJC, R v BCQ [2023] EWCA Crim 1311 ("Royle") | Reviewed principles relating to sentence reductions for assistance; reaffirmed the distinction between the text procedure and statutory procedure; summarized the law on timing of assistance. | Used as the most recent authoritative statement of the general rule and exceptions; foundation for the court's conclusion in the present cases. |
Court's Reasoning and Analysis
The court began by reaffirming the established principle that sentence reductions for assistance to law enforcement generally require that such assistance be provided or at least offered before sentencing. This principle applies equally to offenders who plead guilty and those convicted after trial. The rationale is grounded in the court's role as a reviewing body, which reviews sentences based on the information available to the sentencing judge.
The court acknowledged limited exceptions recognized in precedent, such as where post-sentence assistance significantly exceeds what was anticipated or where the offender had offered assistance before sentencing but the sentencer was unaware. These exceptions are not departures from the rule but applications of it, confirming that the sentencing judge must have had the opportunity to consider the assistance or offer thereof.
The court rejected submissions advocating for a broader exception allowing post-sentence assistance to justify sentence reduction absent a formal statutory agreement. It emphasized that the statutory procedure under section 388 of the Sentencing Code provides a proper route for sentence review in cases of post-sentence assistance where a written agreement exists. Expanding the common law "text procedure" beyond its established limits would improperly transform the court's function from review to re-sentencing based on new, post-sentence material.
The court also noted policy considerations, including the risk of manufactured assistance and the need to preserve the integrity of the sentencing process. While pragmatic arguments in favor of flexibility were acknowledged, they could not override the fundamental jurisdictional limits of the court.
Consequently, the court concluded that offenders who provide or offer assistance only after sentencing and without a formal statutory agreement cannot rely on the text procedure to seek sentence reduction on appeal. The statutory procedure remains the exclusive mechanism for such post-sentence reviews where applicable.
Holding and Implications
The court REFUSED the applications for extensions of time and leave to appeal against sentence in both cases.
The direct effect is that neither applicant may obtain a sentence reduction based solely on assistance provided after sentencing without a formal statutory agreement. No new exceptions to the general rule were recognized, and no precedent was set for expanding the court’s jurisdiction beyond its established review function. The statutory procedure under the Sentencing Code remains the exclusive avenue for sentence review based on post-sentence assistance where a written agreement exists.
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