The case of Royle: A Study in Sentencing and Informer Anonymity

The appeal of Royle (Criminal Division) [2023] EWCA Crim 1311, looks at the intricate balance between sentencing considerations and the protection of informers.

What were the issues raised in the Royle case regarding sentence reduction for offenders who assist law enforcement authorities? How did the court handle the anonymity of informers AJC and BCQ? What implications does this case have for the principle of open justice? The case presents a fascinating confluence of criminal law, sentencing principles, and the delicate task of safeguarding informers.

The appeals raised the same issues and were heard together. Royle’s assistance was already public knowledge, but AJC and BCQ remained anonymous. It resulted in guidance on the relevant principles to be applied when sentencing defendants who provide information.

There are several reasons why informers often receive a reduction in sentence:

1. Assistance to Law Enforcement:

When an offender provides valuable information that helps in solving crimes or preventing further offences, it demonstrates their cooperation with the justice system.

2. Deterrence and Public Interest:

Rewarding cooperation incentivizes others to come forward with crucial information, so the public interest is better served.

3. Balancing Leniency and Accountability:

The sentencing exercise requires a delicate balance between punishment and rehabilitation. Recognizing cooperation attempts to strike this balance. Although offenders are held accountable for their crimes, a reduction acknowledges their potential for reform.

How is a reduction applied?

The judge will use the regular sentencing guidelines to arrive at a starting point. Aggravating and mitigating factors will be applied. A reduction will then be given to appropriately reflect the assistance provided. A further reduction will be given if a guilty plea was entered. The fact of a trial may be a factor in determining the extent of the reduction.

To what extent should the sentence be reduced?

This requires a fact specific assessment of all relevant circumstances. The court identified the following factors:

(i) The quality and quantity.

Were the offences serious or trivial? The risk to the informer is greater where the offences are more serious and the information may have been of more benefit to investigators and prosecutors in serious cases.

(ii) The period of time over which the information is provided.

Generally, information provided over long periods results in greater risk and more results.

(iii) Were others arrested and prosecuted?

Did the information result in arrests and prosecutions where they would not otherwise have happened? Did the information prevent crime or assist authorities in recovering property?

(iv) The degree of assistance.

How much useful information was provided and did the informer provide corroborative information?

(v) The exposure to risk.

How much risk did the informer expose themselves and their family to in providing the information? When informers face genuine risks, derogations from open justice may be necessary. The court’s orders prohibiting the identification of AJC and BCQ exemplify this delicate balance. The fact of Royle’s assistance was already public knowledge.

(vi) The nature of the crimes.

How serious were the crimes in which the informer was involved? To what extent did they admit their involvement in the wrongdoing?

(vii) Has there been a previous reduction?

An informer can only expect to advance the information and obtain a reduction on one occasion. The informer cannot normally rely upon the same information to secure a reduction in two cases.

(viii) Was the informer paid for the information?

If so, how much? A reduction in sentence and a financial reward are complimentary in achieving the objectives, but unless the reward is exceptionally generous, it should only play a small part in the judge’s decision.

Does the judge have to state the reduction in open court?

The Sentencing Act 2020, section 52 sets out the general duty to explain reasons for the sentence, but does not require a judge to explain a reduction for information provided. This is reflected in rule 25.16 of the Criminal Procedure Rules 2020. However, rule 28.1 of the CrimPR requires that the judge must either state what the sentence would have been without the reduction or to provide the prosecutor with the information if it is not in the public interest to disclose the matter in open court.

The current rule 28.1 applies to the statutory procedure and not the text procedure. As a consequence, the requirement under the text procedure is confined to the section 52 duty to give reasons ‘in general terms’.

Risk to the informer?

Under the text procedure, stating the reduction is very likely to produce risk to the offender. It may also act as a deterrent to others who would otherwise provide information. The long-standing practice under the text procedure has been to provide the reduction without stating that a reduction has been made.

In the text procedure, does the judge have to provide the prosecution and defence with a written statement explaining the reduction? The court stated that the judge may do so in assisting representatives to provide advice on appeal. Currently, rule 28.1 does not require it. The court recognised the difficulty and invited the Criminal Procedure Rules Committee the need for an amendment to rule 28.1; either confining the need to the statutory procedure or extending it to the text procedure.

Conclusion

The case underlines the need for practical considerations when recognising cooperation. Informers must be safeguarded if the system is to work, but there is clearly a delicate balance between this and serving the interests of justice when sentencing an informer.