In this issue
Welcome
Lessons to be learnt - Pell v The Queen [2020] HCA 12
Financial Crime Appeals
Appeals against Conviction; England and Wales
Appeals against Sentence; England and Wales
Caribbean Case Summary
Northern Ireland Case Summary
CORONAVIRUS: GUIDANCE REGARDING APPEAL CASES
Northern Ireland Case Summary
By Paul Taylor QC
 
DPP appeal – serious terrorist offences – historic – assisting the authorities – SOCPA - unduly lenient sentence - appropriate tariff
 
The Queen v Gary Haggarty
[2020] NICA 22
 
This is an important case in which the NICA sets out the step by step approach to sentencing.
 
This reference arose as a result of the imposition of an effective tariff of 6½ years for a wide range of serious terrorist offences committed by GH between 1991 and 2007. He was a member of the UVF.  He pleaded guilty to 202 counts including 5 murders, 5 attempted murders, one count of aiding and abetting murder, 23 counts of conspiracy to murder, various serious offences involving firearms, explosives and punishment beatings and 4 counts of directing terrorism.  In addition he has asked for 301 offences to be taken into account. 
 
The Director of Public Prosecutions submitted that the tariff is unduly lenient and should be increased. 
 
After arrest, GH had indicated a willingness to assist the authorities. He later entered into an agreement with a Specified Prosecutor pursuant to section 73 of SOCPA. In interviews he set out in detail his own involvement in the commission of over 500 offences.  He has also provided specific details of the identity and roles of others who participated in the offences.  Without those admissions there would not have been sufficient evidence to have sustained a prosecution against him. 
The NICA set out the sentencing principles that should apply:
 
(a) For the convictions for murder the court was obliged to pass a life sentence and fix a minimum term pursuant to Article 5(2) of the Life Sentences (Northern Ireland) Order 2001. The minimum term is usually referred to as the tariff.
 
(b) Guidance on the approach to the determination of the tariff was given by this court in R v McCandless and others [2004] NICA 1.  
 
Whole life tariffs
The sentencing judge referred to R v Hamilton [2008] NICA 27.  That was a case where this court quashed a whole life order and imposed in the alternative a tariff of 35 years. The sentencing judge identified three reasons for not imposing a whole life sentence in this case.  His final reason was that he was not aware of any terrorist offences in this jurisdiction in which a whole life tariff had been imposed.  “In our view the absence of any case justifying such tariff in the past ought not to prevent the imposition of a whole life tariff where it was appropriate.  In the absence of mitigating factors we are quite satisfied that this was a case for a whole life tariff.” 
Mitigating features
 
The NICA commented on the various mitigating features:
 
(a) GH had pleaded guilty and accepted responsibility for his crimes.  “We recognise that the weight to be given to this factor must vary with the circumstances.” 
 
(b) GH’s responsibility for many of the crimes could not have been established without his admissions and in a large number of cases was not known even on an intelligence basis.  “That is a factor which in our view gives greater weight to the plea in this instance.”
 
(c) The NICA agreed that the sentencing judge was entitled to have some regard to the fact that to impose a whole life sentence would defeat the objects of the SOCPA scheme which gives statutory recognition to the well-established principle of discounting the sentences of those defendants who provide assistance to the prosecuting authorities.  
 
(d) GH had acted as a covert human intelligence source allowing police to take prior action in approximately 44 potential incidents.  The NICA stated “The offender was of course remunerated in respect of his information and continued to operate at a high level within this terrorist organisation.  There is no doubt that his position within the organisation made useful information available to him which he passed to police but it is also clear that he felt at liberty to engage in serious terrorist activity during this period.” [The trial judge allowed 15% for the assistance given before he entered into the SOCPA agreement.  That is clearly a very significant discount but we cannot take issue with it as it reflects the potential saving of a number of lives.]
In terms of the appropriate starting point for the tariff the NICA stated that “in our view where a whole life term is moderated by mitigating factors the appropriate minimum term before taking into account mitigation will normally be 40 years.  That is the figure we consider appropriate in this case.”
 
The sentencing judge allowed a discount of 60% under the 2005 Act.  The NICA did not accept that it should have been higher. “Although the offender was willing to give evidence the assessment was that the test for prosecution would only be met where there was corroboration. That was material in assessing the discount.” 
 
The judge allowed a discount of 25% for the guilty pleas.  “We consider that was generous taking into account that the plea was part of the reason for not imposing a whole life term.  We cannot say, however, that it lay outside the boundary of what was properly within the discretion of the sentencer.” 
 
“We are satisfied, therefore, that the tariff of 6 ½ years was unduly lenient given the catalogue of infamy and murder of which he was guilty.  We substitute a tariff of 10 years.  That represents a very considerable discount from a 40 year starting point and provides a generous incentive for those who are prepared to assist in combating terrorist violence.”  

 

 

If you would like to speak to Paul Taylor QC about this case, please email here.