Supplying Texts to the court

An offender who gives assistance to the police will ordinarily receive a discount from his sentence [R v Sinfield 3 Cr. A. R. (S) page 258 and Archbold para 5-175]

The quantum of the discount will vary according to a number of factors; the value of the assistance given, the degree of assistance provided and the degree of risk to which the offender exposes himself or his family to personal jeopardy [R v King 7 Cr. A. R. (S) page 227]

Ordinarily all mitigation is given in open court to the sentencing tribunal. However, where an offender wishes to rely upon the help he has given to the police over the criminal activity of others, the courts have long accepted the need for such mitigation to be drawn discretely to the attention of the sentencing tribunal [see R v Sivan 1988 10 Cr. A. R. (S) page 282].

The mechanism for achieving this is the provision to the court of a Text written under the authority of the Director of Intelligence (or Registrar of Informants) setting out:

• details of the assistance given,

• the outcome of any police investigations triggered by the assistance given,

• the extent to which the assistance given contributed to the success of those enquiries,

• the level of risk to which the offender/offender’s family was exposed,

• the level of any financial reward paid to, or requested by, the offender.

If the offender wishes to rely in mitigation upon the assistance he has given to the police then they must provide a Text to confirm what assistance has been provided. The Court of Appeal in R v Piggott (judgement delivered on December 2, 1994) was concerned in part with the repeated failure of the police until the last moment to confirm that information provided by the offender of his assistance to them was correct. The court stated:

“We reject any suggestion that the decision whether to provide a Text or not is simply a matter for the discretion of the police. In principle, if a defendant seeks to put material before the court by way of mitigation, which the court will not begin to consider unless confirmed in writing by the prosecuting authority, then accurate information in the appropriate form confirming or refuting the assertions made by or on behalf of the defendant should be made available to the sentencing court by the prosecution.” (Judge J at page 7)

The position of an offender who disputes the account provided by the police of his assistance or the value of it was considered by the Court of Appeal in R v X (1999 2 Cr. A. R. page 125). The Court’s view was that:

“If the defendant wishes to disagree with the contents of such a document, it is not appropriate for there to be cross examination of the policeman, whether in court or in chambers. The policeman is not a Crown witness; he has simply supplied material for the judge, at the request of the defendant. It would no doubt be possible, in an appropriate case, for a defendant to ask for an adjournment to allow any opportunity for further consideration to be given to the preparation of the document. Otherwise, if the defendant does not accept what the document says, his remedy is not to rely on it.” (Hughes J at page 128, letter D)

At hearings where Texts are presented, the court in X emphasised that normally there should be no question of evidence being heard or of an issue being tried concerning the extent of the assistance given. Expeditions to the judge’s chambers should not be necessary.

In most cases, prior to the sentencing hearing, an offender will inform his legal representatives that he has asked the police to provide a Text. However there will be occasions when an offender, who is entitled to a Text, does not want his representatives to know that he has assisted the authorities.

This may be because the defendant has provided intelligence in relation to co-defendants or other persons represented by the same solicitor or barrister.

The Lord Chief Justice has agreed that in cases where the defendant is in fear for his safety, should his team be informed of the existence of the Text, his repres