The Supreme Court has dismissed an application for judicial review by an acquitted defendant in a trial brought about as a result of two brothers, former Ulster Volunteer Force (UVF) members, who turned ‘supergrass’ for the Police Service of Northern Ireland (PSNI). The brothers’ information subsequently resulted in the conviction of only one of a large group of defendants. Following a decision by the Director of Public Prosecutions (DPP) not to refer the brothers for re-sentencing, one of the acquitted defendants brought judicial review proceedings against the DPP’s decision.

In August 2008, brothers and former UVF members Robert and Ian Stewart turned themselves in to the PSNI and entered into ‘assisting offender agreements’ to give evidence against others accused of UVF membership, shootings and hijackings in south-east Antrim. They pleaded guilty to various offences, including murder and membership of a proscribed organisation. In return for their co-operation, the tariff of their life sentences was reduced by 75%, which meant they each served three years in prison.

They subsequently gave evidence at Belfast Crown Court at the trial of 12 alleged accomplices. Eleven of the defendants were acquitted on all counts (the 12th was convicted on other evidence). The trial judge found the Stewarts’ evidence unreliable and often dishonest.

David Corker, partner at Corker Binning, says: ‘The NI prosecutor made a foolish error which he/she is unlikely to repeat. Their error was to have the Stewarts sentenced prior to them testifying as Crown witnesses. The prosecutor should instead have sought, after them pleading guilty, a deferral of their sentencing hearing until after they had testified. A sentencing hearing then would have enabled the sentencing judge to have decided upon their performance or compliance with their obligations. Thus the prosecutor would not have had to make this onerous and invidious decision. This also would have prevented the decision about the Stewarts’ sentence from being amenable to a judicial review.’

He continues: ‘The policy of the courts recently is to be hostile to any invitation to assess the quality of CPS/prosecutorial decision-making—whether this be a CPS decision to prosecute or not, and now a decision not to refer back a sentence. The high threshold of Wednesbury unreasonableness (Wednesbury Corporation and Others v Ministry of Housing and Local Government (No 2) [1965] 3 All ER 571) is being rigorously applied. This judgment continues this policy of making a prosecutorial decision which calls for an exercise of judgment in a complex case almost unappealable.

‘Putting these factors together, in future prosecutors will be more unlikely to make these decisions, while the appellate courts would like them to. The buck will therefore stop with a crown court judge.’

This article was originally published in LexisNexis and can be accessed here.