There is a long-established practice of reducing the sentence which would otherwise have been imposed on an offender to reflect the fact that he has provided information and assistance to the police. The justification for doing so is purely pragmatic.
A former Lord Chief Justice explained the reason for giving such sentencing discounts in these terms:
“There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities.
However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention.
The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases certainly would, escape justice. … The solitary incentive to encourage cooperation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.”
What procedure should be followed?
The sentencer should first identify, by reference to any applicable guideline, the appropriate starting point, which should then be adjusted upwards or downwards to reflect the balance of any aggravating and mitigating factors. Having thus arrived at the sentence which would otherwise be imposed, the sentencer should reduce the sentence to the extent which appears appropriate in the light of information and assistance given to the police. That reduced sentence should then be further reduced as appropriate to reflect a guilty plea.
A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided. The fact that an offender has contested his trial may, however, be one of the factors relevant to the extent of the reduction made.
What reduction in sentence can be expected?
In one case the Lord Chief Justice referred to the risk to informers of suffering violent reprisals, and observed that it is to the advantage of the public that criminals should be encouraged to inform upon other criminals. He continued:
“Consequently, an expectation of some substantial mitigation of what would otherwise be the proper sentence is required in order to produce the desired result, namely the information.
The amount of that reduction, it seems to us, will vary, as [counsel] submitted to us, from about one half to two thirds reduction according to the circumstances…”
To expand upon that, in another case, the Court of Appeal commented:
“The extent of the discount will ordinarily depend on the value of the help given and expected to be given. Value is a function of quality and quantity.
If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal.
If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial.
Hence little or no credit will be given for the supply of a mass of information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be.
Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.”
How is the significance of the information provided to be assessed?
The following factors which may be relevant to the decision as to what reduction is appropriate in a particular case:
i) the quality and quantity of the information provided, including whether it related to trivial or to serious offences (the risk to the informer generally being greater when the criminality concerned is more serious);
ii) the period of time over which the information was provided;
iii) whether it assisted the authorities to bring to justice persons who would not otherwise have been brought to justice, or to prevent or disrupt the commission of serious crime, or to recover property;
iv) the degree of assistance which was provided, including whether the informer gave, or was willing to give, evidence confirming the information he had provided;
v) the degree of risk to which the informer has exposed himself and his family by providing the information or assistance;
vi) the nature and extent of the crime in which the informer has himself been involved, and the extent to which he has been prepared to admit the full extent of his criminality;
vii) whether the informer has relied on the same provision of information and assistance when being sentenced on a previous occasion, or when making an application to the Parole Board: in our view, an informer can generally only expect to receive credit once for past information or assistance, and for that reason the text should where applicable state whether particular information and assistance has been taken into account in imposing a previous sentence;
viii) whether the informer has been paid for the assistance he has provided, and if so, how much; but it is important to note that a financial reward and a reduction in sentence are complementary means of showing offenders that it is worth their while to disclose the criminal activities of others: a financial reward, unless exceptionally generous, should therefore play only a small, if any, part in the sentencer’s decision.
Whether to cooperate with the authorities in order to secure a potentially substantial discount in a sentence is to be carefully judged against the clear personal risks to the defendant and, quite possibly, his wider family.
It is not a decision to be rushed or taken lightly, and before entering into any discussion with the authorities, legal advice should always be sought.