Assisting the police: a change to the Rules and a job half done

An amendment to the Criminal Procedure Rules has formalised the procedure to be adopted by the Court and the prosecution when an offender has provided assistance to the investigators. Such a change is long overdue and practitioners would do well to master the new scheme. More work remains to be done, however.

When a defendant provides assistance to the police, two routes exist to produce a commensurate reduction in sentence: the less formal, long-standing “text” process under common law and the statutory procedure now contained in ss74-75 and ss387-391 of the Sentencing Code (embodied in the Sentencing Act 2020). But the precise obligations on the investigators (ordinarily the police) in these circumstances have been obscure. Practitioners will know that the approach of differing police forces and police teams can vary widely. Texts can be full and reasoned at their best, cursory and dismissive at their worst.

The Court of Appeal in R v Royle [2023] EWCA Crim 1311 made an appeal for the rules to be tightened up: “we invite the Criminal Procedure Rules Committee to consider whether any amendment of rule 28.1 may be necessary or desirable, either to confirm that it is confined to the statutory procedure, or explicitly to extend the duty to the text procedure.”

The change to Rule 28.11 and the addition of rule 28.12 clear things up, to an extent. These rule changes apply to both the common law and statutory schemes and therefore apply before or after sentence for assistance provided before or after sentence.

The new rule 28.12 is reproduced at the end of this article for convenience but the central features of the changes that practitioners will want to note:

• The text must be provided by an “officer who has not been involved in the investigation or prosecution in respect of which the defendant is to be sentenced”. My emphasis added here. This significant step should improve the integrity of the procedure, removing the primary investigators from the production of a text.
• The text must include a much more detailed and specified accounting of the assistance than hitherto has been the norm.
• In particular, the text must include an assessment of “the risk, if any, to the defendant or to the defendant’s family or associates occasioned by the assistance provided”. This aspect of assistance has often been ignored before now.
• The arrangements for provision of the text in secrecy to the Court of Appeal is now codified.

These changes should be welcome to all practitioners working in very serious crime, prosecutors and defence counsel alike.

Frustratingly, however, the circumstances in which defence advocates may see and, in appropriate circumstances, be afforded the opportunity to make representations about the contents of the text have not been fully codified.

The rules do indicate that the text must include “a statement of whether the defendant does or does not wish any legal representative or advocate acting for the defendant to be made aware of the existence of the text”. There will be circumstances where a defendant is so worried about the provision of assistance, she or he does not want his representatives to know about it, but such a case is rare. There appears to be no specific provision however that defence representatives should read the text in full. A much more typical case is where a defendant disputes the investigator’s assessment of the assistance provided. The police will sometimes downplay the significance of the assistance, or will have failed to follow up on information provided in a timely and rigorous fashion, or will have neglected to recognise the risk to which the defendant or the defendant’s family is exposed. What then is then is the recourse for the defence in such circumstances?

Defence practitioners will need to insist on a hearing when the contents of a text are in dispute. How safely and secretly to communicate to the Court that such a hearing is necessary? The hearing that may follow can itself be perilous for the defendant since, in very practical terms, the Judge will need to organise a forum which preserves the secrecy essential to the process. Consideration needs to be given to the timing, the venue and the number of people involved. Typically, the matter is conducted in the Judge’s chambers with a recording device. This unexplained interruption to the normal sentencing process often occurs on the day of sentence and, particularly in a multi-handed case, can be awkward and may (indeed in my experience does) raise suspicions in the minds of co-defendants. More work needs to be done by the Rules Committee here to provide a safe and secure forum to litigate a disputed text.

[Assistance to an investigator, etc.: confidential information for the sentencing court

28.12.—(1) This rule applies where in the exercise of its inherent power the court can reduce a sentence that it passes in a case in which the defendant has assisted an investigator or prosecutor before being sentenced.

(2) An officer who has not been involved in the investigation or prosecution in respect of which the defendant is to be sentenced must prepare a text for the sentencing court which—

(a) describes the capacity in which the defendant provided assistance, and in particular whether the defendant is a covert human intelligence source with the meaning of the Regulation of Investigatory Powers Act 2000;

(b) gives details of the assistance provided;

(c) describes the effort expended by the defendant in obtaining such information as has been supplied;

(d) gives an indication of whether the defendant is willing to give evidence in support of a prosecution;

(e) assesses the risk, if any, to the defendant or to the defendant’s family or associates occasioned by the assistance provided;

(f) assesses the benefit already derived by investigating or prosecuting agencies in consequence of the assistance provided, and in particular give details of any related arrest, conviction or recovery or confiscation of property;

(g) gives details of any financial reward received by the defendant for the assistance;

(h) assesses the potential future use of assistance provided or expected from the defendant; and

(i) includes a statement of whether the defendant does or does not wish any legal representative or advocate acting for the defendant to be made aware of the existence of the text.

(3) Before the court passes sentence—

(a) the officer who prepared the text must—

(i) arrange for its delivery in confidence to the sentencing court and for its subsequent return to the officer, and

(ii) ensure that the prosecution advocate is aware of the existence of the text and of its content; and

(b) the sentencing court—

(i) must consider the content of the text,

(ii) by signature, initial or other endorsement on the text must indicate that it has been considered, and

(iii) must not make, or allow to be made, any other court record of the receipt and consideration of the text.

(4) When passing sentence the court must not—

(a) refer, directly or indirectly, to the text; or

(b) include in the explanation of sentence required by rule 24.11(9) or rule 25.16(7) any indication of the extent, if any, of the effect on sentence of the content of the text.

(5) In the event of an appeal in which the defendant’s sentence is or may be in issue—

(a) the officer who prepared the text must arrange for its delivery in confidence to the appeal court and for its subsequent return to the officer; and

(b) the appeal court must take such measures as may be required to maintain the confidentiality of the text.

[Note. Under section 26(8) of the Regulation of Investigatory Powers Act 2000 a person is a covert human intelligence source if that person (a) establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within (b) or (c); (b) covertly uses such a relationship to obtain information or to provide access to any information to another person; or (c) covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.]]