The response in England and Wales to the sentencing of Gary Haggarty, a loyalist terrorist, who was facing over two hundred charges, including five of murder was somewhat and characteristically muted. Haggarty, who admitted the offences, was sentenced to a mere six and a half years. This was as a result of an agreement he entered into with the state under the provisions of the Serious Organised Crime and Police Act 2005 (or SOCPA). However, the use of these agreements is not confined to terrorist cases, nor is England and Wales immune from them. Indeed, the published figures suggest that over the three-year period of 2013 to 2016, there were a total of 58 such agreements authorised by the current Director of Public Prosecutions during her tenure.
Serious Organised Crime and Police Act 2005: an overview of Part II, Chapter II.
The courts have understatedly recognised that “there never has been, and never will be, much enthusiasm about a process by which criminals receive lowers sentences than they otherwise deserve”, let alone immunity (as the understandable reaction in Northern Ireland to Haggarty’s sentence bears testimony). However, balanced against this is the “stark reality” that without such persons providing information against their former associates “major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would, escape justice”. The handful of provisions in sections 71 to 75 of SOCPA create the framework within which immunity from prosecution and reduction in sentence to reflect assistance given or offered by an individual facing prosecution or who has been convicted operates.
Immunity: ss 71 and 72, SOCPA
Only a specified prosecutor, who is either the Director of Public Prosecutions for England Wales or Northern Ireland, the Director of Revenue and Customs, the Director of the Serious Fraud Officer or a prosecutor designated by one of these office holders, may offer an individual immunity from prosecution within the jurisdiction of their office, by providing written notice (an immunity notice).
A specified prosecutor is also empowered to provide an undertaking (a restricted use undertaking) that information provided by a person will not be used against him or her in any proceedings to which the undertaking applies. Of the 58 agreements referred to above, none related to immunity.
Reduction in, or review of, sentence: ss 73 and 74, SOCPA
Any agreement under section 73 for a reduction in sentence must be pursuant to a written agreement with a specified prosecutor and may be in respect of any offence, not just those before the court. The reduction in sentence will be based on the extent and nature of the assistance given or offered. Under section 73(3), if the court is reducing the sentence, unless there are public interest reasons for not doing so, it must state in open court – as it did in Haggarty’s case – that a lesser sentence has been passed and what the sentence would otherwise have been. Any reduction is in addition to the discount that the individual may be entitled to as a result of a guilty plea.
Section 74 provides for a review of the reduced sentence where the individual reneges on, or fails to fulfil, his or her obligations under the agreement or where subsequently a sentenced prisoner wishes to offer or provide assistance. This was previously the responsibility of the Parole Board and Home Office.
The need for immunity or reduction in sentencing agreements
There are a number of authorities both prior to and after SOCPA came into force. In Sinfield (1981) 3 Cr App R (S) 258 a pre-SOCPA case, the Court of Appeal made it clear that a discount, possibly a substantial discount, on sentence could be expected where significant assistance has been given to the authorities, especially where it results in the apprehension of offenders or the prevention of other offences. The extent of any discount will vary in accordance with the circumstances of the case. It will be affected by the quality, quantity, accuracy and timeliness of the information provided and whether the individual is prepared to give evidence and whether he or she has placed either himself or those close to him in jeopardy by electing to cooperate.
In R v Sivan (1988) 10 Cr App R (S) 282 the Court of Appeal made it clear that the purpose of the discount is to demonstrate to convicted persons that it may be worthwhile providing similar assistance. The leading authority post-SOCPA remains R v P; and R v Blackburn  EWCA Crim 2290. In this case, the Court of Appeal emphasised that the purpose of the new framework was to ensure that the previous difficulties caused by ‘private’ arrangements relating to the provision of texts, as they were known and that the “formalities” of the new regime “should avoid later questions to which any kind of private arrangement can be subject”. SOCPA does not abolish the established features of the sentencing process in this area. The ‘text’ system still exists for those unwilling to enter into a formal process but defendants will receive less of a reduction and post-conviction reviews will only be permitted where, through oversight by the prosecution for example, the sentencing judge is unaware of any assistance provided.
In terms of sentencing principles, the Court held that “no hard and fast rules can be laid down’”and that each case would be fact specific. The first factor was the criminality of the defendant and weight given to such mitigating and aggregating features that exist. Thereafter, the Court must assess the “quality and quantity of the material provided by the defendant”. Particular value should be attached to cases where the defendant provides and is prepared to give evidence especially where this leads to convictions for the most serious offences (such as terrorism or murder) or the disruption or break up of organised criminals. The risk arising to the defendant or his or her family by providing the information is also a relevant factor.
Quite apart from public disquiet on the use of agreements, other issues have arisen largely around the question of the reliability of the person offering their assistance. The process attracts what the courts have described as those of a “manipulative and cynical” nature who might “self-interestedly [do] a deal or [enter] into…a Faustian pact”. This abuse of the scheme is not one way, law enforcement will often flirt with persons in custody and talk of entering into an agreement but in the absence of authority from a specified prosecutor, such talk is unlikely to result in a reduced sentence and the individual can expect to be “pumped (for information) and dumped”. Difficulties can also arise where the person entering into the agreement is a covert human intelligence source but these are outside the scope of this article.
Seeking out what underlies the Haggarty deal
Since the currency of such agreements is based on the intelligence value derived from entering the agreement and not necessarily the number of convictions that follow, even in the presence of reasons for a reduction in sentence, victims, their families and the wider public, can experience a palpable sense of injustice where as in the Haggarty case, the reduction is so significant and they do not know, for secrecy reasons, what the extent of the intelligence was. It may be little comfort to those affected by Haggerty’s terrorist activities but it is reasonable to conclude that the intelligence he provided the authorities must have been of the highest quality, likely to have a major impact on the long-term stability of Northern Ireland.