Where a defendant who has pleaded guilty or been convicted after trial provides important information and assistance (“assistance”) to the law enforcement agencies (“the police”) after being sentenced without entering into any formal statutory agreement with a specified prosecutor to do so, he cannot avail himself of a reduction in sentence under the common law text procedure unless the later events are an addition to or developments of circumstances which were or should have been made known to the sentencing judge.

On an appeal against sentence, the jurisdiction of the Court of Appeal (Criminal Division) is to review the sentence imposed by the Crown Court on the basis of the information and material before the sentencing judge. Wholly exceptional cases may arise which, on rare occasions, may justify a departure from the general rule and the reviewing function of the court may sometimes extend to the consideration of post-sentence developments for example where reports available to the court demonstrate that a young defendant has made good progress in custody.

Although section 11(3) of the Criminal Appeal Act 1968 empowers the Court of Appeal (Criminal Division) to act as if it thinks the defendant should be sentenced differently it cannot be invoked where no complaint is made about the sentence imposed by the Crown Court and a defendant is seeking to rely on post-sentence events of which the sentencing judge knew nothing.

Section 388 of the Sentencing Act 2020 will, in most cases, be available to a defendant who decides, post-sentence, to provide assistance subject to the limits set by Parliament of a review in the Crown Court and the potential for an appeal in which the Court of Appeal (Criminal Division) would act as a court of review cannot be regarded as justifying an expansion of the text procedure so as to require the court to exercise a different function and which could only be available if the defendant had not previously appealed against sentence on other grounds. Nor does r 28.11 of the Criminal Procedure Rules which applies where the Crown Court can review sentence support the expansion of the text scheme since it only applies to the statutory procedure. There are no other circumstances in which the Crown Court can review a sentence on the basis of assistance provided post-sentence. Submissions seeking to rely on the post-sentence provision of assistance as a form of exceptional progress in custody are misconceived and pragmatic considerations, however cogent, cannot enlarge the court’s jurisdiction beyond being that of a court of review.

An offender who wishes to rely on the text procedure must provide or offer assistance before he is sentenced. If he offers or provides assistance for the first time after he has been sentenced or is invited to, he must not be told or given to understand that he will be able to engage in the text procedure and rely on that assistance as the ground for an appeal to the Court of Appeal (Criminal Division) relying on the text procedure. In such circumstances he may be able to engage in the statutory procedure under section 388 of the Sentencing Code (paras 1, 21–30).