The long-established common law practice of making a reduction in sentence to offenders who have provided information and assistance (“informers”) to the law enforcement authorities (“the police”) in the light of a text from the police outlining assistance given (“the text procedure”) is now also embodied in a statutory procedure in sections 74 to 75 and sections 382 to 391 of the Sentencing Act 2020 which involves an offender’s entering into a written agreement offering to assist the police, but which is rarely used. The rationale for making a reduction is the same whether the text procedure or statutory procedure is engaged. The Sentencing Council’s General Guideline: Overarching principles directs sentencers, at step 3, to take into account section 74 and any other rule of law by which an offender may receive a discounted sentence in consequence of assistance given to the prosecutor or investigator. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction, although the differing circumstances of individual cases may result in a difference in practice (paras 1, 8, 9–11, 16, 21).

The rationale for making a reduction is the same whether the information provided relates to the offence of which the informer has been convicted or to some other criminal activity and whether it is provided before or after his apprehension. The information must be provided before the informer is sentenced in the Crown Court. On appeal, the function of the Court of Appeal (Criminal Division) is to review the sentence passed and it may only apply a partial exception to reflect the true value of assistance provided or to be provided after sentence if it exceeds that which the sentencer expected (paras 12–14).

Under the text procedure, the text is seen by a prosecuting authority senior lawyer but although the informer’s legal representatives are often aware of the text, it cannot be assumed that they are because the informer may not wish them to know he has provided information and assistance. A judge who is uncertain as to who knows of the text is inhibited from making any enquiry of the defence advocate because of the risk of inadvertent disclosure. It is important that the text should state if the informer does not wish his legal representative to know that there is a text or its contents (para 24).

Consistent with the structure of the Sentencing Council Definitive guidelines, the procedure to be followed when making a reduction in sentence to informers, as is clear from case law, is that the sentencer should identify by reference to any applicable guideline the appropriate starting point and adjust it upwards or downwards to reflect the balance of any aggravating or mitigating factors. The sentencer should then 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 reduced further, as appropriate, to reflect a guilty plea (para 26).

In determining the appropriate level of reduction to reflect a guilty plea the court is required by section 73 of the 2020 Act to take into account the stage in the proceedings at which the informer indicates the intention to plead guilty and the circumstances in which it is given. The Sentencing Council’s Reduction in sentence for a guilty plea: Definitive guideline sets out the principles to be applied and requires the sentencer to state the amount of the reduction. A guilty plea is not an essential prerequisite for the making of a reduction for information and assistance provided but the fact the defendant has contested his trial may be one of the factors relevant to the extent of the reduction made (paras 27–28).

Although the reference to a reduction of between one half to two thirds of the sentence has been referred to repeatedly in cases, neither that nor any other level of reduction is a standard or conventional discount to which an offender invariably will be entitled. The decision as to the appropriate reduction requires a fact-specific assessment of all the relevant circumstances. The value of the assistance given is likely to be a crucial factor in the court’s decision as to whether a reduction in the range of half to two thirds is justified (paras 30–31).

Having regard to the case law, the factors which may be relevant to the decision as to the appropriate reduction in a particular case are (i) the quality and quantity of the information provided including whether it relates to trivial or serious offences (generally, the more serious the criminality, the greater the risk to the informer); (ii) the period of time over which the information is provided; (iii) whether it assisted the authorities to bring to justice persons who would not otherwise have been caught, to prevent or disrupt the commission of serious crime, or to recover property; (iv) the degree of assistance provided including whether the informer gives, or is willing to give, evidence confirming the information he provides; (v) the degree of risk to which the informer exposes 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 because an informer can generally only expect to receive credit once for past information or assistance and the text should state, where applicable, 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 reduction in sentence are complementary means of showing offenders that it is worth their while to disclose the criminal activities of others and a financial reward unless exceptionally generous should play only a small, if any, part in the sentencer’s decision. The weight to be given to the provision of information and assistance is for the sentencer in the Crown Court to assess. The Court of Appeal (Criminal Division) will only interfere with his or her findings if the decision involved an error of law or principle, was outside the proper scope of the sentencer’s discretion or was fundamentally lacking in any underlying reasoning (paras 33–34).

There is no requirement in the court’s general duty when passing sentence under section 52 of the 2020 Act, as reflected in r 25.16(b) of the Criminal Procedure Rules, to state the extent of any reduction made to an informer. The informer having entered into a formal written agreement pursuant to section 74 of which the prosecutor and his legal representatives are aware and to which the court can refer in open court, or where the public interest requires in writing, there is a clear statutory intention as to what the court must do when the statutory procedure applies. Crim PR r 28.1 only applies to the statutory procedure and not to the text procedure (paras 16–17, 35–37, 40–41).

When the text procedure applies, the duty is on a sentencer to explain in general terms pursuant to section 52 the reasons for a sentence without having to state the precise approach or arithmetic by which the sentence has been reached. Judges will generally pass a reduced sentence without stating in open court that the reduction has been made. There are unlikely to be many cases under the text procedure in which a statement that a specific reduction in sentence has been made to reflect information or assistance provided to the police could be given in open court without risk to the informer. The section 52 duty will be discharged if the judge makes clear that the court has considered all the matters of mitigation which have been brought to its attention (paras 41–42).

For the judge to provide a written statement of the fact and extent of the reduction made to the prosecution and defence would give rise to significant practical difficulties especially if the informer indicated he did not wish his assistance to the police to be revealed to his legal representatives. Such a requirement is not essential to the fair resolution of any appeal (para 44).

Per curiam. The Criminal Procedure Rules Committee is invited to consider whether the judge should provide the Crown and defence with a written statement of the fact and extent of the reduction to be made, taking into account the views of all the bodies who may be affected by the legal and practical implications of a possible amendment to the Crim PR r 28.1 (para 45).