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Queen's Evidence - Immunities, Undertakings and Agreements under the Serious Organised Crime and Police Act 2005

Introduction

1. This guidance sets out the procedures to be followed by prosecutors when exercising their powers under sections 71 to 74 of the Serious Organised Crime and Police Act 2005 ("the 2005 Act") in relation to offenders who are willing to assist in the investigation or prosecution of others. These powers are intended to be used in relation to serious offending only, that is in relation to indictable offences (whether indictable only or triable either way).

2. The guidance consists of three Parts. Part A contains the general principles that are applicable to all prosecutors when exercising these powers. Part B provides an overview of the provisions, again of general application. Part C contains practical instructions specific to the prosecuting authority in question.

3. Powers under sections 71 to 74 were originally given to the following specified prosecutors: the Director of Public Prosecutions; the Director of Revenue and Customs Prosecutions; the Director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland. Specified prosecutors are permitted to designate other prosecutors for the purpose of exercising these powers.

4. The 2005 Act has been amended by the Coroners and Justice Act 2009. This extends the powers under sections 71 to 74 to the Secretary of State for Business, Innovation and Skills (BIS) and the Financial Services Authority (FSA). They will designate a "chief prosecutor" or "deputy prosecutor" to act as a specified prosecutor.

5. This guidance sets out the common approach of the specified prosecutors to the exercise of their powers under sections 71 to 74. It has been agreed by the Attorney General.

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Part A - General Principles

Accomplices generally to be prosecuted

6. As a general rule, where sufficient evidence exists to provide a realistic prospect of conviction, the public interest will normally require that an accomplice should be prosecuted, whether or not he or she is to be called as a witness. Therefore, a written agreement under section 73 (or section 74, where assistance is to be given after sentence) rather than a restricted use undertaking should be the first option considered by investigators and prosecutors. Only in the most exceptional cases will it be appropriate to offer full immunity.

7. The need to protect an informant will not justify per se the grant of immunity or the giving of a restricted use undertaking. The same principle applies to protected assisting offenders (sources who are in some form of custody). Offenders of this kind are always prosecuted before being used as witnesses. There are two main reasons for doing so. First, it is nearly always in the public interest to prosecute a person responsible for a large number of major crimes; and secondly, if such a person were not prosecuted, allegations of a "deal" could reduce their credibility as a witness and, hence the weight of their evidence.

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Criteria to be applied when considering immunity etc.

8. The decision on when it is appropriate to offer a formal written agreement in any particular case is entirely a matter for the discretion of the specified prosecutor and nothing in the 2005 Act creates a right for the defendant to insist that assistance given or promised is recognised in this way.

9. Criteria to be considered in determining whether it is appropriate to grant immunity to a witness were set out by the then Attorney General in a written answer to the House of Commons on 9 November 1981. They are as follows:

a. Whether, in the interests of justice, it is of more value to have a suspected person as a witness for the Crown rather than as a possible defendant;
b. Whether, in the interests of public safety and security, the obtaining of information about the extent and nature of criminal activities is of greater importance than the possible conviction of an individual;
c. Whether it is very unlikely that any information could be obtained without an offer of immunity and whether it is also very unlikely that any prosecution could be launched against the person to whom the immunity is offered.

10. These criteria may be applied when considering whether to make any formal agreement with an offender who is willing to assist the prosecution.

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Assessing reliability and credibility

11. A prosecutor should endeavour to assess, in cooperation with the investigating agency, the reliability and credibility of the potential witness. In doing so, prosecutors should consider, amongst other things, the following:

a. the consistency and accuracy of the accounts provided (this should be assessed by analysing the debrief material against other available evidence, information and/or intelligence);
b. the readiness of the potential witness to change their account (consider also the frequency of change and any explanation provided);
c. any deliberate distortion of the roles of others;
d. whether the potential witness is minimising their own role;
e. the scale of Bad Character - have they led a 'life of crime' and is there material to demonstrate a propensity to lie?
f. the honesty, motivation and demeanour of the potential witness (this should be explored in debriefing and the views of the investigator will be important in making this assessment);
g. any tendency to confuse (although might this just be a consequence of the potential witness' long-term criminality);
h. any issues around the medical health of the potential witness, following any assessment made of their medical records.

12. In order to properly assess these factors, it will be necessary to establish the full criminal history of the witness, including full details of all his or her contacts with the police, whether or not these resulted in a criminal conviction. In addition, when appropriate, prosecutors should liaise with investigators to establish the medical history of the witness - in particular any mental health issues, substance abuse or other medical issues which might be relevant to the question of reliability and credibility. Whilst the presence of such issues may not necessarily, of themselves, mean a cooperating witness is not credible, it is essential that all relevant information is obtained by the investigator and considered by the prosecutor so that an informed decision can be made with regards to how to proceed with an offender who is prepared to cooperate.

13. The following factors will also be relevant:

a. the seriousness of any offence(s) concerning which the evidence, information, co-operation, assistance or other benefit would be provided; as a rule non-prosecution agreements should only be considered in serious cases;
b. the seriousness of any offence(s) which the potential witness might have committed, in comparison with 'a' above, including the extent to which the potential witness had coerced or incited another person to take part in the offence(s) under investigation.

14. In addition, prosecutors should assess the strength of the prosecution case with and without the information from the potential accomplice/witness and should be satisfied that the person is able and prepared to provide reliable evidence on significant aspects of the case. In making this judgement, some or all of the following factors may be relevant:

a. the importance and value of the evidence, information, co-operation, assistance or other benefit to be provided;
b. whether it is possible to obtain the evidence, information, co-operation, assistance or other benefit from another witness, or in another manner;
c. the strength of the prosecution case without the evidence that it is expected that the witness can give; and, if some other charge could be established against the defendant without the witness' evidence, the extent to which that other charge would reflect the defendant's criminality;
d. the impact of the evidence that it is expected that the witness can give on the prospects of conviction in the case taken as a whole (the prospects of the conviction may actually be reduced because of the bad character and lack of candour of the witness when giving evidence);
e. whether there are other indicators tending to confirm that the evidence or information that the witness might give is true;
f. the number of occasions and the circumstances in which any agreement has been made with the witness in the past; the expectation of a discount in sentence should not be seen as a licence to continue to commit offences;
g. whether the interests of justice (including the protection of the public and the interests of the victim) would be better served by obtaining the proposed evidence, information, co-operation, assistance or other benefit; or by the conviction of the person with whom it is proposed to make an agreement.

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Role of the Attorney General in cases of full immunity

15. The Attorney General should be consulted by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of the Serious Fraud Office or a prosecutor designated by them, before any decision is made on the granting of a full immunity under section 71 of the 2005 Act.

16. No immunity can be granted under section 71 of the 2005 Act by a Chief or Deputy Prosecutor at BIS or the FSA unless the Attorney General has given his or her consent to the granting of the immunity in accordance with section 71(6)(c).

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Desirability of Assisting Offender having legal representation and an Appropriate Adult

17. Although not a prerequisite for any of the agreements, it is clearly preferable in the interests of justice, that the assisting offender has legal representation. Further, it is likely that subsequent challenges to the terms of any agreement will be easier to rebut if the offender had the benefit of legal advice before entering into the agreement. Therefore, before an assisting offender is invited to sign any form of agreement he or she should be advised by the investigator of their right to seek independent legal advice on its terms and effect.

18. This consideration is even more relevant where any of the provisions of the PACE Codes of Practice would require the potential assisting offender to have the assistance of an appropriate adult. Although 17 year olds do not require an appropriate adult on the grounds of age, young people generally may be particularly prone in certain circumstances to providing information that is unreliable, misleading or self-incriminating (R v Stratford Youth Court ex p DPP [2001] EWHC 615 (Admin)).

19. Where there is any doubt that, because of his or her mental state or capacity, the potential assisting offender may not understand the significance of the procedure or what is being said, he or she should be treated as mentally vulnerable and an appropriate adult should be provided as well as the offer of legal assistance. Any discussions or interviews with such a person should take place in the presence of an appropriate adult unless there are compelling reasons to do otherwise. It is also good practice for the appropriate adult to be present when the assisting offender is invited to sign the agreement with the specified prosecutor. Given the age and potential vulnerability of young persons, all reasonable steps should be taken to secure transparency and to guard against allegations of undue pressure or inducement. In this regard, consideration should be given to video-taping all discussions and interviews with the potential witness. Guidance on this aspect can be obtained from the Achieving Best Evidence handbook.

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Witness care and protection issues

20. Consideration should also be given to the duty of care that arises between the prosecution team and potential witnesses, particularly those who are connected with or known to the defendant. Prosecutors must have regard to rights of witnesses under the European Convention on Human Rights, particularly the right to life (Article 2), the protection from inhuman treatment (Article 3) and the right to respect for private and family life (Article 8). Witness protection arrangements are a matter for the police and other law enforcement agencies but, ordinarily, the type of 'protection' that should be applied for will be the subject of discussion between the police/law enforcement officer and the prosecutor at the pre charge stage. Prosecutors should seek to ensure that, wherever possible, an assisting offender is given the requisite protection.

21. In some very serious cases the risk to witnesses is so great that they need to relocate to another part of the UK and even change their identity. Witness protection, as described within the 2005 Act, is generally directed to those persons who have provided crucial evidence and against whom there is a substantial threat. This does not preclude police forces and law enforcement agencies from offering protection measures to other witnesses, and others at risk.

22. Some police forces have Witness Protection Units staffed by specially trained officers who provide protection measures to witnesses to whom senior officers have afforded protected person status under the 2005 Act or otherwise find themselves at risk as a result of their involvement in the criminal justice process. Not all forces or law enforcement agencies have dedicated Witness Protection Units. Some areas have a single person who acts as a specific point of contact to deal with enquiries about this type of work.

23. The ramifications for individual witnesses - and their families - who have to participate in Witness Protection are immense and the costs to the CJS are significant. It should only be used sparingly. Investigators will advise the prosecutor if a witness has been afforded Witness Protection.

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Requirement for 'cleansing' of Assisting Offender

24. In order to benefit from immunity, a restricted use undertaking or a witness agreement a person must:

a. fully admit their own involvement in the crime or crimes under investigation;
b. provide the investigators with all information available to them regarding the matters under investigation and those involved;
c. agree to maintain continuous and complete co-operation throughout the investigation and until the conclusion of any criminal or other proceedings arising from the said investigation, including giving evidence in court where appropriate.

25. In every case where an accomplice or potential co-defendant indicates that he or she is willing to assist the prosecution, the terms under which this assistance is to be given, the range of assistance that is to be provided and any benefit to the offender should be reduced to writing with as much precision as is possible. In any subsequent reference by the prosecutor for review of a reduced sentence, the sentencing court will need to have unequivocal evidence of what was agreed in advance so that the alleged default can be clearly demonstrated.

26. Although it is not a statutory requirement, as a matter of good practice those offenders who are to give evidence for the prosecution and who wish to benefit from a written agreement should be required to admit their criminality fully. This process, often called "cleansing", should be part of the de-briefing process carried out by the investigating agency in the process of obtaining the evidence of the potential assisting offender. Cleansing protects the integrity of the informer system, countering the suggestion that unscrupulous "deals" have been struck between the offender and the prosecution, just to obtain testimony against others. From a tactical point of view, cleansing minimises the risk that the value of assisting offender's evidence will be reduced to nothing by cross-examination on criminal activities he has not admitted but which are well known to his former accomplices. It follows that the requirement for an offender to fully admit their criminality may be somewhat less important where the offender is willing to provide assistance by way of intelligence only and is not prepared to give evidence in court.

27. Cases may arise where an assisting offender is not prepared to admit all his other criminality but his evidence is considered of such importance that it should not be refused on this ground alone. Any decision to use as a witness an assisting offender who has refused to fully admit their criminality must be recognised as a high risk strategy and very careful consideration will have to be given to the credibility of the witness in front of the jury. Cases where it is appropriate to proceed with such a witness should be thought of as truly exceptional: R v P; R v Blackburn [2007] EWCA Crim 2290. In every case the sentencing court will look to the prosecution for an indication of the extent of the de-briefing process followed with the assisting offender and the extent to which the prosecution believes that cleansing has taken place. Defendants who do not fully admit their criminality cannot expect to receive the fullest discount available: R v D [2010] EWCA Crim 1485, at paragraph 13.

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Legal Professional Privilege

28. In some cases, it may be appropriate to consider asking the potential witness whether they are prepared to waive legal professional privilege (LPP), in order to support the process of 'cleansing'. Information received following the waiving of LPP may be of assistance in assessing the overall credibility of the potential witness and their suitability for consideration of a written agreement under SOCPA.

29. Decisions on whether or not to request a waiver of LPP will be taken on a case-by-case basis. If it is considered that requesting such a waiver is appropriate as part of the cleansing process and the potential witness refuses such a request, the prosecutor must assess the issues that are likely to arise in connection with the witness's credibility and consider whether it remains appropriate to enter into an assistance agreement. The refusal by a potential witness to waive LPP will not necessarily mean however that they cannot be considered for a written agreement.

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Proffer letters and scoping interviews

30. Formal notices and agreements should usually only be signed after the person has been interviewed under caution and provided at least a version of the information available. However, in section 72, 73 and section 74 cases, there may be circumstances where it is appropriate to sign an agreement after the witness has been through a 'scoping interview' and before full debriefing under caution. In such cases, the agreement should set out clearly what is expected from the potential cooperating witness and indicate that failure to repeat their account in interview under caution will result in revocation. An invitation to take part in a 'scoping interview' may take place following the issuing of a 'proffer letter'. Further details are set out in Part C of this guidance.

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Prosecuting as a consequence of false evidence

31. An agreement is always made on the basis that the witness will provide truthful information or evidence. All notices of immunity, restricted use undertakings and written agreements with co-operating offenders should contain an express condition requiring that what the witness or intelligence source (as applicable) communicates to the prosecution is true to the best of their knowledge and belief. Where subsequently it can be demonstrated (on the criminal standard of proof) that the evidence or information is false the agreement can be rescinded for failure of this condition. The agreement should state the consequences of such failure.

32. In addition, the giving of false evidence in court following a formal agreement may give rise to a prosecution for perjury or for attempting to pervert the course of public justice. When reviewing such a case in accordance with the Code for Crown Prosecutors, prosecutors should bear in mind that neither an immunity notice nor a restricted use undertaking will include immunity from, nor preclude the use of any evidence in, such a prosecution. Subject to the evidential stage of the Code Test being satisfied, prosecution will normally be required in the public interest. Any discount in sentence that has been obtained pursuant to formal agreement should also be reviewed using the power provided by section 74 of the 2005 Act.

33. The fact that an immunity notice or a restricted use undertaking has been issued does not prevent the bringing of a private prosecution against the recipient of the notice. Nevertheless, the public interest in securing the cooperation of accomplices is such that it would seldom, if ever, be right to permit a private prosecution to continue in the face of an immunity notice or undertaking. While every case must be judged on its own merits, the Director of Public Prosecutions is likely to exercise his power under section 6 of the Prosecution of Offences Act 1985 to take over such a prosecution with a view to discontinuing it.

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Immunity and the proceeds of crime

34. The granting of immunity or the issuing of a restricted use undertaking can result in the loss of opportunities to confiscate criminally obtained assets following conviction or recovery under Part 5 of the Proceeds of Crime Act 2002. Section 72(2) of the 2005 Act provides that the issuing of a restricted use undertaking can prevent the use of the information obtained as a result of the undertaking in both criminal proceedings and for the purposes of civil recovery action or cash seizure under Part 5 of the Proceeds of Crime Act 2002.

35. The desire to avoid confiscation through co-operation may be a powerful incentive for some offenders, but this motive can substantially reduce their credibility as witnesses by providing a considerable benefit in return for their testimony. It would also damage public confidence in the criminal justice system if criminals were routinely being allowed to keep the profits of their criminal activities in return for co-operation with the prosecution.

36. Prosecutors must always take into account the potential impact on the ability to recover the proceeds of criminal conduct when deciding if it is in the interests of justice to issue an immunity, a Restricted Use Undertaking or to enter into an agreement with a potential assisting offender that results in the dropping of offences that would otherwise trigger the confiscation provisions or invoke the criminal lifestyle presumptions. Only in very exceptional circumstances will it be absolutely necessary in the public interest to agree to apply the undertaking to Part 5 proceedings. Further, it should be made clear that if the undertaking is extended to Part 5 proceedings it is restricted to the benefits derived from the investigation and charges specified in the agreement. The suggested template at Annex C provides a form of wording for this.

37. Special care should also be exercised where there is a possibility of overlapping investigations involving more than one prosecuting authority. Investigators should be asked if they know whether any other authority has an interest in the assisting offender, to minimise the risk that a non-prosecution undertaking given by one prosecutor will prevent another authority pursuing a proceeds of crime confiscation.

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Relationship between the statutory scheme and existing common law rules

38. The statutory arrangements under the 2005 Act do not preclude the continuing use of prosecutorial discretion to secure the co-operation of potential co-defendants in an informal and strategic manner in accordance with existing common law. Examples of the exercise of this discretion might include:

a. a review decision to prosecute only the main offenders and to call peripheral offenders as witnesses;
b. informing the court, when an accomplice or other witness gives evidence, that the witness will not be prosecuted on the basis of anything he may say in the course of truthful evidence on that occasion. This situation may arise at short notice when the court of its own motion warns the witness against self incrimination during the course of their testimony. (Note: it is preferable for such ad hoc non-prosecution undertakings to be expressly limited to offending of which the prosecution is aware or which the offender has already admitted in the course of his evidence; blanket undertakings not to prosecute any offending which is revealed should never be given).
c. where a prosecutor also has regulatory powers, by dealing with some of the offenders by way of a civil administrative sanction before calling them as witnesses.

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Relationship between the statutory scheme and the 'Texts' procedure

39. The 2005 Act is also silent on the status of 'texts', the procedure by which the police, with the concurrence of the prosecution, make the sentencing judge aware, in confidence, of assistance given by an accused to the prosecution whether in relation to the present case or more generally. It was not intended that the Act should prohibit this practice and texts may continue to be supplied under existing procedures: R v P; R v Blackburn [2007] EWCA Crim 2290; R v H; R v D; R v Chaudhury [2009] EWCA Crim 2485.

40. However, given the intention of the 2005 Act to place sentencing discounts on a statutory basis and to provide for the possibility of sentence reviews, it is generally preferable for assistance given during the course of the present investigation or prosecution to be made subject to a formal written agreement between the co-operating defendant and the specified prosecutor. This is especially so where it is envisaged that the assisting offender will give evidence in court, but as a matter of law a written agreement for the purposes of section 73 may also cover assistance by way of intelligence information only.

41. Texts may continue to be of relevance in cases which fall outside the statutory scheme either because the defendant is unwilling to sign an agreement or because they have pleaded not guilty but are nonetheless convicted and want credit for any assistance they may have given during the investigation. (An example of this situation might be an assisting offender who gives substantial information about the involvement of co-accused or the whereabouts of a weapon or stolen property and who goes on unsuccessfully to plead not guilty on the basis of duress). Texts may also continue to be used in the case of a registered informant who wants credit for past assistance of a general nature but who is not suitable for an agreement to provide future assistance in relation to any specific offence - for example, if they no longer have access to current relevant intelligence.

42. Defendants who prefer to rely on texts must take the consequence that any discount of sentence may be correspondingly reduced, simply because the value of assistance provided in this form is likely to be less, and is in any event less readily susceptible to a safeguarding review under s. 74(2) than it would if provided under the formal arrangements now available under s. 73: R v P; R v Blackburn [2007] EWCA Crim 2290, at paragraph 34; R v H; R v D; R v Chaudhury [2009] EWCA Crim 2485, at paragraph 4.

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Part B - Overview of the Provisions

Full immunity from prosecution under section 71

43. Section 71 of the 2005 Act provides that if a 'specified prosecutor' thinks that for the purposes of the investigation or prosecution of any offence it is appropriate to offer any person immunity from prosecution, he may give that person an immunity notice. As to the appropriate level of authority to issue the notice and the procedure to be followed, see Levels of Decision Making below in Part C.

44. The Attorney General should be consulted by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of the Serious Fraud Office or a prosecutor designated by them, before any decision is made on the granting of a full immunity under section 71 of the 2005 Act.

45. No immunity can be granted under section 71 of the 2005 Act by a Chief or Deputy Prosecutor at BIS or the FSA unless the Attorney General has given his or her consent to the granting of the immunity in accordance with section 71(6)(c).

46. Details of the procedure to be followed in cases requiring the Attorney General to be consulted or to give consent are given below in Part C (Procedure for consulting the Attorney General where full immunity is contemplated).

47. Although it is contained within an Act directed towards serious organised crime the only statutory limitation on this provision is that it cannot be applied in relation to an offence under s. 188 of the Enterprise Act 2002 (cartel offences) [s.71(7)]. Section 113 of the Coroners and Justice Act 2009 amends section 71 (and section 72) of the 2005 Act to ensure that these provisions are only to be used for the investigation or prosecution of serious criminal offences. While a person who assists the authorities under those powers can be offered immunity in respect of any offence they may have committed, the assistance must be in relation to the investigation or prosecution of an offence that is capable of being tried in the Crown Court (that is, it is either an indictable only offence or an indictable offence triable either way).

48. It should be noted that only a specified prosecutor can give such a notice, not the police or other investigators; (reflecting the practice at common law, see R v Turner and Others (1975) 61 Cr. App. R. 67).

49. Immunity notices must be in writing [s.71(1)]. An example of an Immunity Notice is attached at Annex B. Where a person is given an immunity notice, no proceedings for the offence specifically described in the notice may be brought against that person except in circumstances specified in the notice [s.71(2)].

50. The ability to make the giving of an immunity notice subject to specific conditions distinguishes the statutory scheme from previous arrangements in which immunity, once granted, was absolute. Under s.71(3) an immunity notice ceases to have effect if the person to whom it relates fails to comply with any condition specified in the notice. Where this occurs, a formal notice of revocation should be issued to avoid any uncertainty. A draft revocation notice is attached at Annex E.

51. Case law relating to pre-statutory immunities established that the Crown had no power to make a prospective grant of immunity to cover future offending (see R v DPP ex parte Pretty and Another [2001] UKHL 61). Nothing in the 2005 Act alters that position. Accordingly, immunity notices can only be granted in respect of offences which have already been committed. No immunity notice can be granted which condones, requires, or purports to authorise, or permits the commission of an offence in the future, whether by a particular person or a group of people. This may be contrasted with the power contained in section 27 of the Regulation of Investigatory Powers Act 2000 to authorise surveillance officers and human intelligence sources to engage in specific limited conduct which would, in the absence of that authorisation, make them liable to civil or criminal proceedings.

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Restricted use undertakings under section 72

52. Section 72 provides that if a 'specified prosecutor' thinks that for the purposes of the investigation or prosecution of any offence it is appropriate to offer any person an undertaking that information of any description will not be used in any criminal or confiscation proceedings or civil recovery under Part 5 of the Proceeds of Crime Act 2002 (civil recovery of the proceeds of unlawful conduct - but see further the section on Immunity and the Proceeds of Crime, below) he may give that person a restricted use undertaking. Any such undertaking must be given in writing [s.72(1) and s.72(2)].

53. As with section 71, section 72 has been amended by section 113 of the Coroners and Justice Act 2009 to provide that while a person who assists the authorities under those powers can be offered immunity in respect of any offence they may have committed, the assistance must be in relation to the investigation or prosecution of an offence that is capable of being tried in the Crown Court (that is, it is either an indictable only offence or an indictable offence triable either way).

54. The information obtained following the grant of the undertaking must not be used against that person except in circumstances specified in the notice [s.72(3)] but a restricted use undertaking ceases to have effect if the person to whom it relates fails to comply with any conditions specified in the undertaking [s.72(4)].

55. This form of undertaking does not prevent a witness from being prosecuted where other evidence which justifies a prosecution is, or becomes, available. 'Other evidence' may include evidence from another source obtained directly or indirectly as a result of information given in reliance on a restricted use undertaking. Any undertaking which is given should include an express reservation to this effect. However, a decision to initiate a prosecution in reliance on this reservation would only be justified in exceptional circumstances and where the interests of justice clearly called for it. Moreover, a prosecution based solely on evidence obtained as a result of what the suspect said in response to a restricted use undertaking is likely to be challenged on the basis that it amounts to an abuse of process.

56. As with the immunity notice a restricted use undertaking may be made subject to conditions which are specified in the undertaking. Substantial breach of any of these conditions may lead to the revocation of the undertaking (marked by the issue of a formal revocation notice - see Annex E). An example of a Restricted Use Undertaking is attached at Annex C. The draft contains examples of what are likely to be the usual conditions, namely to provide full and truthful information and to give evidence. It is suggested that it will be very rare for either a full immunity notice or a restricted use undertaking to be granted without a requirement to give evidence, if court proceedings follow.

57. The procedure for issuing a restricted use undertaking and the appropriate level of decision making are discussed below in Part C (Restricted Use Undertakings).

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Agreements for plea and reduction in sentence under section 73

58. These agreements relate to those co-operating defendants who have not benefited from an immunity from prosecution or a restricted use undertaking but who have, nonetheless, assisted or offered to assist in the investigation or prosecution of others. A defendant who pursuant to a written agreement with a specified prosecutor has provided or who has offered to provide assistance to an investigator or prosecutor is eligible to receive a reduction in sentence provided he has entered a guilty plea [s.73(1)].

59. Guidance on this aspect of the statutory scheme has been provided by the Court of Appeal (Criminal Division) in R v P; R v Blackburn [2007] EWCA Crim 2290 and R v H; R v D; R v Chaudhury [2009] EWCA Crim 2485. The latter case also provides guidance on the limited extent to which post-sentence assistance can be reflected, outside the statutory scheme.

60. Sentencing reductions are only available in the Crown Court but a defendant who pleads guilty at a plea before venue hearing in the Magistrates' court may still be eligible for a reduction if committed to the Crown Court for sentence [s.73(1)(a)]. Sentencing discounts for assistance may be applied to the 'tariff' element of a sentence fixed by law or to a mandatory minimum sentence [s.73(5)] and in addition to other forms of sentencing discount including the discount for an early guilty plea [s.73(6) and see R v P; R v Blackburn [2007] EWCA Crim 2290 at paragraph 39].

61. The 2005 Act does not make a reduction in sentence mandatory. Rather, section 73(2) provides that in determining what sentence to pass on the defendant the court may take into account the extent and nature of the assistance given or offered. Although sentence discounts are well established in practice, prosecutors should be careful to avoid giving any impression that a reduction in sentence will follow automatically upon the giving or offering of assistance. The choice of sentence is a matter for the court alone, not for agreement between the prosecution and defence: R v Dougall [2010] EWCA Crim 1048.

62. No hard and fast rules can be laid down for what, as in so many other aspects of the sentencing decision, is a fact specific decision. However, the approach the court will take in cases involving SOCPA agreements was explained in R v P; R v Blackburn [2007] EWCA Crim 2290; and see also R v Bevens [2009] EWCA Crim 2554, R v Kiely [2009] EWCA Crim 756 and R v D [2010] EWCA Crim 1485 for illustrations of how the Court of Appeal have applied those principles in cases involving serious offending by the assisting offender). The discount for the assistance provided by the defendant should be assessed first, against all other relevant considerations, and the notional sentence so achieved should then be further discounted for the guilty plea: R v D [2010] EWCA Crim 1485, paragraph 17.

63. Where a defendant's case is to be listed for consideration of a discounted sentence, due diligence must be exercised to ensure that proper levels of confidentiality are maintained, consistent with the normal requirement for open justice. Early liaison with the court listing officer is recommended so that, where appropriate, the court is aware of the sensitivity attached to the case. This is particularly important where the judge is to be asked to exercise his or her power under section 73(4) not to disclose that the sentence is to be discounted.

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Subsequent review of sentences under section 74

64. One of the most important innovations in the 2005 Act is the power contained in section 74 which allows a specified prosecutor to refer a sentence back to the sentencing court (i.e. the Crown Court) for review if certain conditions are met and the defendant is still serving the sentence (including any period served in the community) [s.74(3)(a)]. Before referring a case for review of a discounted sentence the specified prosecutor must be of the opinion that it is in the interests of justice so to do [s.74(3)(b)].

65. The review process is directed towards a sentence which has already been imposed. It may take place "at any time" after the legislation came into force, The Act provides a comprehensive framework of general application for reviews of sentences, whenever imposed, and whenever the crime or crimes in question were committed.

66. The review itself is not an appeal against sentence. It is a fresh process which takes place because new circumstances have arisen. Accordingly the process of review is not inhibited by the fact that the Court of Appeal may have already heard and decided an appeal against the original sentence, and whether the sentence was varied on appeal or not. The sentence imposed after a review may also be subject to a separate appeal.

67. Reviews are permitted in the following circumstances [s.74(2)]:

a. the defendant received a reduced sentence on the basis of a written agreement to assist, but then knowingly failed to any extent to give assistance in accordance with the agreement (note that even partial non-performance permits the sentence discount to be reviewed);
b. the defendant received a reduced sentence on the basis of a written agreement to assist, and then in pursuance of a separate agreement gives or agrees to give further assistance;
c. the defendant did not receive a discounted sentence but in pursuance of a written agreement subsequently gives or offers to give assistance in connection with investigating or prosecuting an offence.

68. Where condition (a) is met the reviewing court has the power to increase the sentence originally imposed up to a term not exceeding the level that the court indicated would have been the sentence but for the agreement to give assistance. If the assisting offender is found by the court to have failed to comply with an agreement, the sentence to be imposed will normally be that previously indicated by the judge at the original sentencing hearing. Only in exceptional circumstances should the sentence indicated at the earlier stage be subject to any reduction, but equally it should not be increased by way of punishment for a defendant who has backed away from the agreement. In other words a defendant who reneges on an agreement will in future run the risk of losing any discount they had obtained but will not receive any additional punishment for breaching the original agreement.

69. Where a reference takes place under conditions (b) or (c) the likely outcome is that the defendant's sentence will be reduced in return for further or new assistance. It is hoped that this power for ex post facto reviews and discounts to sentences not normally available under the common law will encourage some defendants who have been imprisoned to reconsider their earlier reluctance to assist in the prosecution of others. However prosecutors and investigators must be alert to the possibility of defendants manipulating the system by holding back information known to them at the time of the original sentencing in the hope of increasing their discount by having two bites at the process, or those facing lengthy sentences, who create their own mitigation by passing on false or manufactured information in order to try and get an ex post facto discount e.g. by arranging for associates to place weapons where they can then inform law enforcement that they can be found.

70. Under section 75(2) the Crown Court has discretion to exclude the public from any proceedings relating to or arising in consequence of an application to review a discounted sentence. The court may also impose such reporting restrictions as it deems appropriate. Instances may arise where the very fact that a sentencing review was being sought would draw attention to the fact that someone serving a custodial sentence had, or was about to provide assistance to the prosecution in a manner that would endanger their safety. An order under section 75(2) can be made in such circumstances provided the court is satisfied that it is necessary to do so to protect the safety of any person and, moreover, that the order sought is in the interests of justice.

71. The power to exclude the public and the press from sentence review hearings should be used with great caution, particularly where the review arises under section 74(2) following failure to fulfil an agreement to provide assistance. Where practicable alternatives are available to closed hearings they should be adopted if possible.

72. In any event a full transcript of the entire hearing of the proceedings should be prepared immediately after its conclusion, and retained in appropriate conditions of secrecy by the specified prosecutor, and kept available for further directions by the court in relation to publicity if and when the public interest so requires, at least until further order by the court, and in any event until the end of the sentence.

73. Following a sentencing review both the defendant and the specified prosecutor may appeal with leave to the Court of Appeal Criminal Division against the decision of the Crown Court [s.74(8)].

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Part C - Practical Guidance

Request for an agreement

74. Formal requests to CPS to issue immunity notices or restricted use undertakings will be made in writing by an officer of Assistant Chief Constable rank or its equivalent. Requests for other written agreements for the purposes of section 73 may be made in writing by an officer of at least the rank of superintendent (or equivalent) who is independent of the particular investigation.

75. Formal notices and agreements should usually only be signed after the person has been interviewed under caution and provided at least a version of the information available. However, in section 72, 73 and section 74 cases, there may be circumstances where it is appropriate to sign an agreement after the witness has been through a 'scoping interview' and before full debriefing under caution. In such cases, the agreement should set out clearly what is expected from the potential cooperating witness and indicate that failure to repeat their account in interview under caution will result in revocation.

76. Save in exceptional circumstances, no notice or undertaking will be issued on the basis that the person will only divulge information once an immunity or undertaking has been given. Any decision to grant a notice or undertaking before information has been divulged must be authorised by a Chief Crown Prosecutor or Head of a Casework Division.

77. The process of 'recruiting' or 'turning' an offender into a witness or intelligence source may begin with preliminary discussions between investigators and potential sources or their legal representatives. Investigators will normally approach the prosecutor at this stage to seek a preliminary view on the possibility of recruiting the offender to assist the prosecution. Such early consultation with a prosecutor is vital, as it is important to obtain details as to the information or evidence the potential cooperating witness is willing and/or able to give, before an assistance agreement is made.

78. Having obtained a provisional view from the prosecutor, investigators should proceed to conduct a "scoping interview" interview to ascertain, among other things, the reason(s) for the assisting offender requesting or agreeing to be interviewed and the extent to which the offender can give evidence or intelligence. The scoping exercise will enable senior officers in consultation with the prosecutor to decide whether the potential assisting offender should be admitted to the full debriefing procedure. As previously indicated, there may be circumstances where an agreement can be signed prior to the full debriefing interview, with provision being made in the agreement for its revocation if the account given in the 'scoping interview' is not repeated in the debriefing interview under caution.

79. The cooperating witness should ideally be legally represented through recruitment, scoping and debriefing and there should be full engagement with the prosecutor who can provide assistance.

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'Scoping' and the proffer letter

80. Scoping interviews should be audio recorded (to avoid later allegations of inducement) and should ideally take place under caution in accordance with the PACE Codes of Practice.

81. However, the requirement for a formal caution may considerably inhibit some potential cooperating witnesses from providing the full and frank disclosure that the SOCPA regime (and its common law counterpart) relies on. Indeed, a potential cooperating witness may not wish to "admit the full extent of his own criminality and agree to participate in a formalised process" (said to be an essential requirement of the SOCPA regime in R v P and Derek Stephen Blackburn [2008] 2 Cr. App. R. (S.) 5, page 32 at paragraph 27) if there is a risk that those admissions may be used against them in court.

82. As a result, the potential cooperating witness may be prepared to provide only the vaguest of indications about their past conduct and the assistance they can offer. It follows that investigators and prosecutors, unable to assess the true value of the potential witness, may therefore find it difficult to decide whether an assistance agreement will be appropriate.

83. To address this difficulty in section 72, 73 and 74 cases, prosecutors should consider whether it is appropriate to send a 'proffer letter' to the potential cooperating witness, in order to facilitate their participation in the process. The proffer letter should explain the purpose of the interview is to help with the decision as to whether to enter into an assistance agreement, not to obtain admissions in relation to offences under investigation. The letter should also indicate that the 'scoping interview' will not be under caution. An example proffer letter is attached at Annex A.

a. The proffer letter should make it clear that neither the letter itself nor the subsequent 'scoping interview' represent any promise or undertaking on the part of the prosecutor as to how the offender will eventually be dealt with. This serves to distinguish the proffer letter from a formal restricted use undertaking under section 72 of SOCPA and the offender should be in no doubt that the effect of the letter is limited to preliminary discussions only.
b. Guarantees as to confidentiality can also be given, subject to disclosure of relevant material to a co-accused if required by law. The prosecutor can undertake not to use the fact that the offender is willing to be interviewed, or the content of the interview, as evidence against the offender. Importantly, however, as an exception to this, the prosecutor can reserve the right:

  • to rely upon matters stated by the offender in the interview as evidence against them in any subsequent prosecution for perjury or perverting the course of justice;
  • to rely upon evidence obtained from enquiries conducted as a result of the provision of information by the offender in the interview.

84. Using a proffer letter enables investigators to proceed to interview the suspect without caution. Prosecutors should be aware however, that this rules anything that is said in the interview inadmissible, and it also renders potentially problematic (under s.78 PACE) any subsequent cautioned interview and any prosecution evidence which is obtained separately, as a consequence of what was said in the interview without caution. This risk can be mitigated by serving a notice on the suspect prior to the interview under caution reminding them that their earlier interview was not under caution and that, other than in the circumstances specified, the prosecution will not seek to use the contents of that earlier interview against the suspect. In some circumstances, it may be decided that the interview without caution should only be used where it is reasonably likely that the assisting offender will provide no information at that stage if cautioned and where the discussions will be purely exploratory, and exclude any discussion of the facts or evidence.

85. As an alternative to a proffer letter, consideration could be given to obtaining the information through the offender's legal representative. However, this brings with it other potential problems, namely:

  • it will not be appropriate where the defendant is represented by the same lawyer as those against whom he or she wishes to give information or evidence, if he or she does not wish the co-defendants to know of the assistance provided; and
  • the prosecutor has no direct control over what the defendant is being told about the benefits of cooperation, and the defence representative may have led the client to expect outcomes which may not either be within the prosecutor's gift or ever been contemplated.

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Debriefing

86. It is a matter of good practice that the cooperating witness should be required, through the terms of the written agreement, to reveal the whole of his previous criminal activity and this is particularly important where the cooperating offender will give evidence. Such 'cleansing' should be part of the de-briefing process. It also protects the integrity of the informer system, countering the suggestion of "shady deals" and tactically, cleansing minimises the risk that a cooperating witness' evidence will be undermined by cross-examination.

87. The debriefing process should be conducted and documented in accordance with the relevant ACPO debriefing guidance manual. In particular, although interviews with assisting offenders produced under section 41 of the Crime (Sentences) Act 1997 are not subject to the general parts of PACE regarding police detention, such interviews should be audio recorded and under caution (R v Clark and Others [2001] EWCA Crim 975).

88. Prosecutors must also be alert to the danger that a co-operating witness' evidence may have become tainted during the process of 'debriefing' that is part of the process of conversion from accomplice to Crown witness. Investigators will as a matter of routine, provide information on the content of interviews that have taken place including any benefits provided to the potential witness. These reports will also include an assessment by the investigators of the quality and potential value of the assistance offered and the Senior Investigating Officer's view on whether the process of debriefing the potential witness should continue.

89. Deciding to call a cooperating witness who has refused cleansing is a high risk strategy and truly exceptional (following R v Blackburn and R v P and R v H; R v D; R v Chaudhury) and prosecutors must carefully consider whether the evidence will be sufficiently credible, and of such importance before seeking to rely on a 'non-cleansed' witness. A cooperating witness offering intelligence but refusing to fully admit criminality is likely to receive a smaller sentence discount and this should be made clear prior to signing any agreement.

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Proportionality and existing common law rules

90. Circumstances may arise where it is not possible to put an assisting offender through the full debriefing system before accepting them as a witness. Examples include:

i. where a person indicates their willingness to give evidence against co-accused only as their trial is about to begin; or

ii. where on the day of trial, one defendant pleads guilty and offers to give evidence.

91. Every case must be judged carefully on its own particular facts but prosecutors can take a pragmatic approach when considering whether the full scoping / debriefing procedure is proportionate for such 'last minute' offers of assistance.

92. Notwithstanding the fact that calling an offender without a proportionate debriefing is a high risk strategy, in cases which do not involve significant criminality or complexity, it may be more appropriate to consider securing an adequate guilty plea from a defendant in order to secure their evidence against others. In such cases, prosecutors should, as a minimum, ensure sufficient police checks can be made to establish that the offender has not been involved in any other offending for which he or she has not been investigated.

93. As set out at paragraph 38 above, the 2005 Act does not preclude the continuing use of prosecutorial discretion to secure the co-operation of potential co-defendants in accordance with existing common law rules.

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Confidential reports for the purposes of sentencing

94. In order to assist the court in sentencing it will be necessary for the prosecution to supply a report setting out the quantity and quality of the assistance given, the results arising from it (e.g. arrests or prosecutions directly attributable to the assisting offender's information) and an assessment of the risks that the assisting offender and his family face as a result of his or her co-operation. The report should also indicate the extent to which the offender has admitted his criminality and what steps the prosecutor has taken to secure full cleansing.

95. This report should be prepared as far as possible in the same way as a text produced for sentencing purposes. However, unlike a text, a section 73 report will be signed on behalf of the CPS by the signatory of the section 73 agreement itself. In cases of emergency where that person is not available the report may be countersigned by another Level E lawyer having knowledge of the case.

96. Once prepared, the report will be retained under secure conditions by the investigators or the prosecutor in accordance with locally agreed handling procedures, for use in the sentencing exercise. Arrangements will also have to be agreed to ensure that the report is made available to the Court of Appeal in the event of an appeal against sentence.

97. Where a judge passes a sentence which is less than it would have been but for the assistance given or offered this fact must normally be stated in open court and the judge must state what the greater sentence would have been in the absence of the assistance [s.73(3)]. This is to allow for the possibility of future review of the sentence on the application of the specified prosecutor.

98. However, circumstances may arise where it would not be in the public interest for it to be generally known that an accomplice had or was providing assistance. For instance, the assisting offender may decline to give evidence against his accomplices (which would make his co-operation obvious) but may be prepared to provide intelligence material in confidence. Where such circumstances are established to the satisfaction of the court the trial judge does not have to announce in open court that the sentence has been reduced. Instead, notice in writing of the fact and of the greater sentence may be given to the prosecutor and the defendant. Prosecutors must be alert at an early stage to the need to apply this measure of protection to co-operating witnesses and be prepared to make appropriate applications to the judge in advance of any sentencing hearing [s.73(4)].

99. In this context it is important to remember that following the decision in R v Goodyear [2005] EWCA Crim 888 defendants may ask the judge for an indication of sentence at a preliminary stage in the trial process. Prosecutors must be alert to this possibility and be in a position to assist the court with an indication as to whether the defendant would be eligible for a discounted sentence where appropriate. It is not necessary that an assisting offender should have pleaded guilty before an agreement under section 73 is signed. There is no fixed time by which an agreement must be signed but as the section requires that the assistance must be provided "pursuant to a written agreement" it is desirable that the agreement is concluded as early as possible. In practice this is likely to be between the initial contact and/or the scoping interview and the full debriefing procedure.

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Duplication and safe handling of documentation

100. Where it is proposed to issue a notice of immunity, a restricted use undertaking or a written agreement for assistance, only one copy of the relevant document will be prepared, for security reasons. This will be signed by the specified prosecutor and the assisting offender. Once prepared, the agreement will be retained under secure conditions by the prosecutor or the investigators in accordance with locally agreed handling procedures.

101. Further copies will only be produced where there is a clear operational need to do so. It may sometimes be necessary to give a copy of the agreement to the legal representatives of the offender. However, before doing so, the prosecutor must be satisfied that this does not pose any unacceptable risk to the investigation, the assisting offender or to other persons. It will usually be necessary to take the advice of the investigating officers on this matter. Prosecutors should always be prepared to make the agreement available to the court.

102. The agreement and the confidential report for sentencing (see above) and any subsequent notice in writing made by a Judge concerning a sentence reduction not announced in court, must bear the protective marking appropriate to the consequences of any compromise of its contents, in accordance with the Government protective marking system. Prosecutors should ask investigators to provide information on the perceived level of risk in order to ensure that documents are appropriately marked. Where compromise of the information contained in the document would directly threaten life in relation to a police informant or other witnesses, the document should be marked "Secret" and handled accordingly. (See also, the section below headed Procedure for Referring a Case to the Director of Public Prosecutions or a Head of Division.

103. Further details of the Government protective marking system and handling procedures can be found in chapter 2 of the CPS Security Manual and in the booklet "Handling Protectively Marked Material". Both are available on the CPS Infonet: see Security Homepage.

104. Staff should bear in mind that Outlook and CMS are only able to produce and store information up to and including Restricted. For information which meets 'Secret' or 'Top Secret' criteria, advice should be sought from the Departmental Security Unit.

105. Once the case is finalised all relevant documents should be linked with the original case file for storage.

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Proceeds of Crime issues within CPS

106. No agreement should be made which could have the effect of protecting the defendant from civil recovery or cash seizure under Part 5 of the Act without first consulting the head of the Proceeds of Crime Unit in OCD. Further, it will rarely, if ever, be appropriate as part of an assisting offender agreement under section 73 or 74 to agree that the prosecutor will not ask the court to proceed to consider confiscation under section 6 of POCA. Such an agreement could not in any event bind the court which, under section 6(3)(b), must proceed if it considers it appropriate to do so.

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Disclosure issues

107. Full and accurate records should be kept of this entire process, including the circumstances surrounding the exercise of these powers, and the reasoning behind any decisions taken. The decision to refer a case back to the Crown Court for review of sentence also has the potential to create disclosure obligations, either under the Criminal Procedure and Investigations Act 1996 or under common law (see R v DPP ex parte Lee [1999] EWCA Admin 242).

108. The normal legal and procedural rules governing the disclosure of unused material apply as much in the context of accomplice evidence as they do to any other class of case. Accordingly, investigators and prosecutors should make all reasonable enquiries to identify material which might "reasonably be considered" capable of undermining the prosecution case or of assisting the case for the accused.

109. Disclosure or non-disclosure of witness agreements is most likely to be an issue when the party to an agreement with the specified prosecutor is to be called to give evidence in accordance with the terms of that agreement.

110. Where an offender gives evidence pursuant to an agreement, the fact that he has signed such an agreement will almost always be disclosable as a matter that may undermine the prosecution case. This is because it represents an inducement or benefit to the witness, since implicit in the agreement is that it is entered into with the intention of either avoiding prosecution (s.71 and s.72) or seeking a reduction in sentence for his/her own offending (s.73 and s.74).

111. How such disclosure is to be made should be determined on a case to case basis. The inclusion of brief details about the existence and general terms of the agreement in the assisting offender's statement of evidence (served with the prosecution case) can have tactical advantages. It enables the offender to be frank about his involvement with the prosecutor, any discount in sentence he has obtained and the consequences of failing to give truthful evidence. It may also be advisable to make a formal admission covering the terms of the agreement, to go to the jury. However it is achieved, the objective should be to bring the fact of the agreement to the attention of the jury and to inform them (if it is the case) that the offender has been or will be sentenced for other matters that they have admitted, and that any discount in sentence they have received or are to receive can be reviewed if they fail to give complete and truthful evidence in the present case.

112. The written agreement itself should be treated as if it were sensitive material, and recorded on the MG6D. In most cases the terms of the agreement are unlikely to assist or undermine and will therefore not require to be disclosed. Where the contents of the agreement do pass the disclosure test, however, application for PII should be made. In such circumstances, any partial disclosure by way of redaction or formal but partial admission which holds back disclosable material will have to be approved by the judge as part of the PII application (R v H, R v C [2004] UKHL 3).

113. The rationale for this is as follows. Where the substance of the agreement goes no further than the matters about which the offender is to give evidence in open court it could be argued that the agreement is not sensitive since it does not contain any information which will not be aired in public when the person gives evidence.

114. However, it is likely that many agreements will not be limited in this way and will also contain or promise to provide further information about other offending and/or other offenders beyond the immediate case in which evidence is to be given. The fact that the person has, or has promised to give, information on a wider scale, will invariably be sensitive on three bases:

a. the intelligence or information regarding other offences or offenders will not be public knowledge and release of such information would prejudice further investigations;
b. the disclosure of the extent of the person's assistance to the authorities will be prejudicial to their interests and could increase any risks to the personal safety of them and their family;
c. in the same way that the disclosure of informants generally is avoided, because confidentiality is essential to the maintenance of the necessary flow of information to law enforcement, so the disclosure of the extent of information provided over and above that about which a person is prepared to give evidence should be protected.

115. If disclosure of such an agreement is made only when it contains information restricted to the evidence that the assisting offender is to give, any case in which disclosure is either refused or made in redacted form will immediately indicate that the person has given information on a wider basis, with no relevance to those proceedings.

116. Therefore, to avoid this difficulty, it is CPS policy that all agreements made for the purposes of sections 71-74 of the 2005 Act are sensitive material and will not be disclosed. It follows that witness agreements should be recorded on the MG6D schedule of sensitive materials. See also Duplication and Safe Handling of Documentation above.

117. The sensitive nature of witness agreements is not confined to cases where the co-operating offender intends to give evidence for the prosecution. Agreements may be used in cases in which the assisting offender gives intelligence only, without ever being called to give evidence. Despite the fact that the party to the agreement is not destined to be a witness, disclosure may well become a potential issue if the defence, in a related prosecution which was led or based, in part at least, on that intelligence, argue that the existence of the informant and/or the information passes the disclosure test. Such agreements, entered into for intelligence purposes only, will also be sensitive for essentially the same reasons set out above.

118. More detailed guidance on this topic may be found in the Disclosure Manual, elsewhere in the Legal Guidance.

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Procedure for consulting the Attorney General where full immunity is contemplated

119. As a matter of policy and good practice, the Attorney General should be consulted by the Director of Public Prosecutions before any agreement for full immunity under section 71 is signed.

120. In such cases it is essential that the Attorney General is allowed sufficient time to consider the case. The length of time will depend on the nature and complexity of the case and the quality of the notification. Reference to the Attorney General should be made not less than 14 days before the immunity agreement is required, unless there are exceptional reasons why a decision needs to be taken more quickly.

121. Reference of the case to the Attorney General should include a detailed report which analyses by reference to the general criteria for the granting of immunity (see above in Part A) whether in the view of the specified prosecutor:

a. in the interests of justice, it is of more value to have a suspected person as a witness for the Crown rather than as a possible defendant;
b. in the interests of public safety and security, the obtaining of information about the extent and nature of criminal activities is of greater importance than the possible conviction of an individual; and
c. whether it is very unlikely that any information could be obtained without an offer of immunity and whether it is very unlikely that any prosecution could be launched against the person to whom the immunity is offered.

122. The report should also detail:

a. Any known aliases of the defendant;
b. liaison with other prosecuting authorities in respect of the person to whom it is proposed to grant immunity, in particular, the investigations, prosecutions or any potential future dealings of those other authorities in respect of any offence;
c. the extent of the de-briefing process followed with the person to whom it is proposed to grant immunity, whether full "cleansing" has taken place (see paragraphs 86 - 89 above and Departmental Guidance on De-Briefing), the evidence gathered from de-briefing and any concerns about that process or the evidence;
d. the full name and address of the person it is proposed to grant immunity, contact details of the case lawyer and details of any press interest in the case.

123. Supporting documentation will include copies of evidence gained in the investigation, full Code for Crown Prosecutors analysis of the evidence gained in respect of each proposed defendant and the person for whom immunity is sought, summary of the facts, draft charges where appropriate, draft immunity prosecution notice, counsel's advice where it has been obtained and the antecedents of the proposed defendants and the person for whom immunity is sought.

124. If at any time after the Attorney has been consulted, any of the information provided changes in any significant respect or any significant new information comes to light which, if known at the time of reference might have affected the Attorney's view, the prosecutor must inform the Attorney General of the changes as soon as possible.

125. After any grant of immunity, the Attorney should also be kept up to date on the progress of the case as key stages such as charge, committal, plea and case management hearing and so on are reached.

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Levels of decision making

126. Within CPS the powers described in this guidance may be exercised personally by the Director of Public Prosecutions in any case as the specified prosecutor within the 2005 Act. The Director has also restricted the exercise of the powers of 'specified prosecutors' to certain other post holders and individuals for these purposes. The extent of this restriction is set out in the succeeding paragraphs. Only persons so designated may exercise the powers provided by sections 71 to 74 of the Act.

A. Immunity notices (section 71)

127. The following persons are authorised to give immunity notices:

a. The Director of Legal Services

b.The Heads of the Organised Crime and Special Crime and Counter Terrorism Divisions, in respect of cases handled by their own divisions. In the absence of a head of division, the head of another division can exercise the powers on their behalf.
c. The Director of Public Prosecutions in respect of cases referred from CPS Areas.
d. A nominated prosecutor, who is a Senior Civil Servant or Senior Legal Manager, if specifically approved by the Director, for a specified period of time. (This is intended to cover the situation when the post holders authorised in accordance with sub-paragraphs (a) and (b) above are unavailable).

128. The Attorney General's Office should always be consulted before any decision is made on the granting of full immunity.

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B. Restricted use undertakings (section 72)

129. The following persons are authorised to give Restricted Use Undertakings:

a. The Director of Legal Services

b. The Heads of the Central Caswork Division, in respect of cases handled by their own divisions. In the absence of a head of division, the head of another division can exercise the powers on their behalf.
c. The Director of Public Prosecutions in respect of cases referred from CPS Areas.
d.In addition the Director may specifically authorise named Senior Civil Servants or Senior Legal Managers, upon application by the heads of the Organised Crime and Special Crime and Counter Terrorism Divisions or the Director of Public Prosections.

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C. Written witness assistance agreements (sectiona 73 and 74)

130. In addition to the DPP, the following persons are authorised to sign written agreements with assisting offenders in accordance with s.73(1)(b) and agreements under which existing sentences may be reviewed in accordance with sections 74(2)(b) and 74(2)(c) because of new or further assistance:

a. The Director of Legal Services

b. Chief Crown Prosecutors or Deputy Chief Crown Prosecutors (for cases prosecuted within their CPS area).

c. The Heads of the Central Caswework Divisions and Deputy Heads of Central Casework Divisions in respect of cases handled by their own divisions.

d. Prosecutors of Level E or above. In areas this power is delegated to prosecutors of Level E or above who have been specifically nominated for this purpose by a Chief Crown Prosecutor. Crown Prosecutors of Level D or below who are deputising for a designated Level E lawyer cannot exercise this power. Where there is no other authorised Crown Prosecutor in the Area, requests to enter into written agreements should be referred to the Director of Legal Services.

131. As a matter of good practice Area prosecutors to whom this power has been delegated should advise their Chief Crown Prosecutors whenever this power is used.

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D. Revocation notices

132. Prosecutors should apply the criminal standard of proof to the determination of breach of an agreement or a restricted use undertaking since revocation may result in the referral of the offender back to the Crown court for review of and de facto increase in, the original sentence. In cases where it has been determined that an assisting offender has failed to fulfil their obligations under an existing agreement or undertaking a formal notice revoking that agreement or undertaking should be issued (see Annex E for an example) Cases where this is considered necessary should be referred through line management for determination and signature by a Head of Division or the Chief Crown Prosecutor as appropriate.

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E. Referring a case back to court for review of sentence

133. The procedure for referring cases back to court for a review of sentence under s.74 is discussed above. A distinction can be drawn between cases in which the purpose of the referral is to enable the court to reduce or further reduce the sentence in recognition of new or additional assistance given by the offender and those cases where the offender has already received a discount pursuant to an agreement to assist but is said to be in breach of one or more of the conditions of that agreement.

134. The first type of case is covered by s.74(2)(b) and s.74(2)(c) of the 2005 Act. Where, following sentence at the Crown Court an offender in pursuance of a written agreement subsequently gives or offers to give assistance for the first time or gives or offers to give further assistance, a specified prosecutor may refer the original sentence back for review if it is in the interests of justice to do so. The assisting offender must first enter into a written agreement with a specified prosecutor. Decisions on this type of referral for review (which might be thought of as a "beneficial" referral) may be taken by:

a. Lawyers of Level E or above. In areas this power is delegated to prosecutors of Level E or above who have been specifically nominated for this purpose by a Chief Crown Prosecutor.
b. Crown Prosecutors of Level D or below who are deputising for a designated Level E prosecutor cannot exercise this power. Where there is no other authorised Crown Prosecutor in the Area, requests to enter into written agreements should be referred to the Director of Public Prosecutions.

135. Section 74(2)(a) deals with situations where an offender who received a discounted sentence pursuant to a written agreement to assist has reneged on it to a material degree. Here the purpose of referral is essentially "punitive". It is to enable the court to reconsider whether the discount should be withdrawn and the offender re-sentenced up to the putative sentence originally indicated by the sentencing judge. This option should be considered in every case where a revocation notice has been issued. Power to determine whether it is in the interests of justice to refer the case back to the court for a review of sentence to take place has been delegated to the following post holders only:

a. The Director of Legal Services

b. The Heads of the Central Casework Divisions, in respect of cases handled by their own divisions. In the absence of a head of division, the head of another division can exercise the powers on their behalf.
c. The Director of Public Prosecutions on behalf of the CPS Areas.
d. In addition the Director may specifically delegate this power to named lawyers who are Senior Civil Servants, upon application by the Director of Legal Services or Heads of the Central Casework Divisions..

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Procedure for referring a case to the Director of Public Prosecutions or a Head of Division

136. When referring a case in any of the preceding circumstances, the reviewing lawyer or Chief Crown Prosecutor or Deputy Chief Crown Prosecutor, as the case may be, should include with the full file a short report setting out the basic facts of the case and the reasons underlying the recommended course of action. The papers should be accompanied by a copy of any report from the police and all other relevant information which the Head of Division or Director of Public Prosecutions will need to take into account.

137. Given the particularly sensitive nature of these documents, and in accordance with departmental security policy, applications for the signing of an Immunity Notice or Restricted Use Undertaking must be transferred securely between an Area and the Director of Public Prosecutions using the Private Office mailbox. Material marked OFFICIAL SENSITIVE may be transferred by Royal Mail Recorded Delivery. Material marked SECRET and above must be delivered by trusted hand only and not sent by post or DX. In any event, the material must be double enveloped, with the protective marking identified on the inside cover, and must not be left unattended during the journey whatever the method of transmission. Confirmation of receipt must also be sought by the sender.

138. Where an Area case is being referred which is connected to a case being handled by one of the Central Casework Divisions, the Director of Public Prosecutions will liaise with the relevant Head of Division to determine an agreed approach.

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Liaison with CPS Press Office

139. Many cases will require complete confidentiality to be maintained throughout. However, in other cases, particularly high profile cases, the use of an assisting offender to give evidence for the prosecution will attract considerable interest in the media. In appropriate cases, prosecutors should contact their Area Communication Manager or the CPS Press Office as soon as the potential for media interest is appreciated, so that an effective press strategy can be developed.

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Preparing for the hearing

Section 73 hearing

140. CPS will provide the judge with the usual case papers and sentencing bundle and additionally:

  • A Plea and Sentence Document or other Prosecution Note to assist the judge in understanding the SOCPA law as it relates to the particular case, and any further points that should be drawn to his/her attention re the law and/or facts;
  • relevant sections of SOCPA (sections 71 to 75);
  • R v P; R v Blackburn [2007] EWCA Crim 2290;
  • R v H; R v D; R v Chaudhury [2009] EWCA Crim 2485 and R v D [2010] EWCA Crim 1485 (if appropriate);
  • signed SOCPA agreement; and
  • investigator's report containing details of the value of assistance given

141. The defence will be provided with all the above documentation apart from the signed SOCPA agreement. For reasons of security the investigator's report will only be served at court on the day of the hearing.

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Section 74 hearing

142. Whether before the original sentencing judge or not, CPS will ensure that the judge's bundle includes, in addition to the documents listed above:

  • a transcript of the original sentencing hearing (to include opening, mitigation and
  • sentencing remarks);
  • original Indictment;
  • original Case Summary;
  • basis of plea (if any); and
  • any other documents that were provided to the judge prior to the original sentence (previous SOCPA agreements, police/investigator's reports, texts etc).

143. The defence will be provided with all the above documentation apart from any previous SOCPA agreements and police/investigators' reports, which for reasons of security will only be disclosed/served at court on the day of the hearing. For these reasons it is important to ensure there is ongoing liaison with the defence.

144. When preparing for the hearing it is advisable to establish the earliest date of release for the assisting person, and the expiry date of their sentence. It is important to be familiar with the sentencing provisions that applied at the date of sentence.

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Reporting restrictions - section 75

145. In sentence review cases (section 74), applications can be made under section 75 of SOCPA to exclude people from court, impose reporting restrictions or for the court to sit in camera. Prosecutors need to be aware of the risks and sensitivities when preparing applications and only apply where it is necessary to protect the safety of any person and it is in the interests of justice to do so. Accordingly, if practicable alternatives are available, (e.g. anonymising proceedings), then these should be adopted.

146. The judge and court should be notified of any potential s.75 application in advance of the hearing and it is important that prosecutors ensure the avoidance of any unnecessary publication of sensitive information in court lists.

147. Where the court is on notice, the formal application should be made at the start of the hearing and in the absence of the public.

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Disclosure and/or PII

148. Disclosure under the CPIA does not apply post conviction but prosecutors should be mindful of the general common law duty of the prosecution to act fairly and assist the administration of justice.

149. In certain exceptional cases it may be necessary to redact material (e.g. the police report) in order for it to be disclosed to the defence. Where there are matters which cannot be disclosed, prosecutors should consider whether it is more appropriate to make a public interest immunity application or simply put the judge on "notice" of the position in writing. In either case, the judge will also need to see both the full and redacted material.

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Recording and Reporting

150. HQ Policy is responsible for monitoring the number of notices of immunity, restricted use undertakings, written agreements, Proffer letters and revocation notices which are issued. Data on the number and type of agreements made is also collated for annual publication.

151. Accordingly, Areas and Divisions are requested to report the use of these powers, using the SOCPA Monitoring Form attached at Annex F and also available on the Infonet.

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Annexes

Annex A: Draft proffer letter

Address Block

Invitation to take part in a Scoping Interview
Serious Organised Crime and Police Act 2005 Sections 72, 73 and 74

I understand that you may be willing to be interviewed by [insert name of investigating agency] about matters arising from [insert appropriate identification] and that you wish us to consider whether to offer you an assistance agreement under Sections 72, 73 or 74 of the Serious Organised Crime and Police Act (SOCPA) 2005. I am prepared to authorise such an interview ("the scoping interview") to take place.

The purpose of the scoping interview is to obtain information with a view to deciding whether to enter into an assistance agreement (either under sections 72, 73 or 74 of the 2005 Act). It is NOT intended to use the scoping interview to obtain admissions from you about the matters under investigation. The scoping interview will be audio recorded but will not be conducted under caution.

In assessing whether or not you will be suitable for an assistance agreement I [or 'the specified prosecutor' if he/she is not the author of the proffer letter] will need to assess your credibility as a potential witness. You will therefore be expected in the course of the scoping interview to reveal any other criminal activity you have been involved in in addition to the matters which are the subject of this investigation.

My authorisation of this scoping interview is subject to the following conditions:

  1. You will respond truthfully and completely to any and all questions or inquiries that may be put to you during the interview;
  2. Except as otherwise provided in paragraph 3 below, the prosecution will not seek to use in evidence against you the fact that you are willing to be interviewed or the contents of any statement made by you during the scoping interview;
  3. Notwithstanding condition 2 above, the prosecution may use:

a. Anything that you say during the scoping interview as evidence against you in any subsequent prosecution for perjury or perverting the course of justice;
b. Other evidence obtained from enquiries conducted as a result of the information you provide in the scoping interview, as evidence against you.

Any information that you provide during the scoping interview will be treated as confidential. However, nothing in this letter will prevent [insert name of prosecuting authority] from making any disclosure required by law.

The decision to enter into an assistance agreement under SOCPA will be based (to a large extent), on what you say in this initial scoping interview.

If such an offer is made, you will then be invited to a de-briefing interview(s) which will be conducted under caution. The purpose of the de-briefing interview(s) is for you to provide information to [insert name of investigating agency]. It will be a condition of the assistance agreement that you will be expected to repeat in the de-briefing interview, under caution, any incriminating admissions made in the scoping interview. Any failure to do so is likely to result in the immediate revocation of the agreement.

In return for your assistance the [insert name of prosecuting authority] may be able to [insert appropriate text as follows]:

[a restricted use undertaking under section 72 of SOCPA an agreement not to use certain information in any criminal or confiscation proceedings against you.

OR

to refer this matter to court for a judge to consider [either] a possible reduction in sentence (under section 73 of SOCPA which allows the court to take into account the extent and nature of any assistance given or offered in considering sentence) [or] a review of an existing sentence (under section 74 of SOCPA) based on any assistance provided.]

However, I can give no advance undertaking or indication as to how any actual or potential criminal proceedings against you will be finalised. No understandings, promises, agreements and/or conditions have been entered into with respect to the scoping interview or with respect to any future disposition of any charges pending against you other than those expressly set out in this letter.

I strongly suggest that before you sign the declaration below you obtain independent legal advice about the contents and effect of this letter. You may, if you wish, be accompanied by your legal adviser during the scoping interview.

Signature Block of Prosecutor,

Declaration

I, [name of potential assisting offender] have read the agreement contained in this letter and confirm that I fully understand its contents. No other promises or inducements have been made to me other than those contained or referenced in this letter.

Dated:

Signature:

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Annex B: Draft immunity from prosecution

Serious Organised Crime and Police Act 2005
Notice under Section 71(1)

This agreement does not apply in relation to proceedings in Northern Ireland.

This Immunity from Prosecution (the Immunity) Notice is entered into pursuant to the provisions of section 71 of the Serious Organised Crime and Police Act 2005 (the Act).

I, (name of specified prosecutor), am a specified prosecutor for the purposes of section 71 of the Act [a Crown Prosecutor and a specified prosecutor designated by Director of Public Prosecutions under section 71(4), of the Act.]

I hereby give written notice that the Crown will not pursue criminal proceedings against [name of witness] of [address] for any of the following offences committed in the circumstances described by [name of witness] in the course of [an] interview[s] given on [insert date(s)] :

Offence
Offence

Immunity from prosecution under this notice is confined to the offence[s] set out above and on the basis of the account given by [name of witness] in the interview(s) specifically mentioned in this notice. It does not extend to offences or conduct not disclosed whether orally or in writing by the said [name of the witness] to the prosecutor prior to the giving of this notice/before entering into this agreement. Nor does it extend to offences that the witness may commit after this notice is signed.

The grant of immunity from prosecution is made and remains conditional on [name of witness] satisfying and continuing to satisfy each of the conditions set out below.

[Name of witness] must admit participation in the offence(s) described in paragraph 3 of this notice.

[Name of witness] must provide the investigator with all facts, statements, documents, evidence or any other items ('Information') available to him/her relating to the said offence(s) and the existence and activities of all others involved.

[Name of witness] shall maintain continuous and complete cooperation throughout the investigation of the said offence(s) and until the conclusion of any criminal proceedings arising as a result of the investigation. Such cooperation includes but is not limited to [Name of witness]:

  1. voluntarily and without prompting, providing the investigators with all Information that becomes known to him/her or available to him/her relating to the said offence(s), in addition to any such Information already provided;
  2. providing promptly, and without the prosecutor using powers under any section of the Act, all Information available to him/her wherever located, requested by the investigator in relation to the said offence(s), to the extent that it has not already been provided;
  3. giving truthful evidence in any court proceedings arising from the investigation of the said offence(s).

(Include only if offender prosecuted for other matters.) Failure to comply with the terms of this agreement may also result in any sentence of the court that [name of witness] has received in relation [specify offence and date of sentence if applicable] being referred back to the court for review pursuant to section 74 of the Act.

This immunity notice will cease to have effect if [name of witness] fails to any extent to comply with any of the conditions specified in the notice. In particular, if the Specified Prosecutor determines that the conditions set out in this notice have not been fully complied with, or that [name of witness] knowingly or recklessly provided Information that is false or misleading in a material particular to the investigator or prosecutor, or conspired with or procured another so to do, the specified prosecutor may revoke the grant of immunity from prosecution. On revocation, the grant of immunity will cease to have effect and any Information provided by [name of witness] may be used against him/her in criminal proceedings and/or recovery actions under Part 5 of the Proceeds of Crime Act 2002.

Irrespective of whether, the specified prosecutor has revoked the grant of immunity, all Information provided to the investigator by [name of witness] shall remain in the possession of the investigator.

This notice sets out all of the terms and conditions on which the grant of immunity from prosecution to [name of witness] for the said offence(s). It supersedes all prior understandings, if any, from whatever source whether oral or written, relating to the said offence(s).

The signatories below acknowledge acceptance of the terms and conditions set out above which shall only take effect when both parties have signed this letter in duplicate, one original to be retained by each party.

Signed by the witness ___ Signed by the Specified Prosecutor


Dated this___ day of______ ___ Dated this___ day of______


Notes

1. This notice must be given in writing.
2. It must be entered into only by the DPP or a prosecutor specifically designated by him.
3. The Attorney General must be consulted before any agreement for immunity is signed.
4. An immunity must not be given in relation to an offence under section 188 of the Enterprise Act 2002 (cartel offences).
5. This is a sample agreement. The contents of an immunity will vary according to the facts of each case.

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Annex C: Draft restricted use undertaking

Serious Organised Crime and Police Act 2005
Notice under Section 72(1)

This agreement does not apply in relation to proceedings in Northern Ireland.

This Restricted Use Undertaking is entered into pursuant to the provisions of Section 72 of the Serious Organised Crime and Police Act 2005 (the Act).

I am a specified prosecutor for the purposes of section 72 of the Act [I am a Crown Prosecutor and as such a specified prosecutor under section 71(4) and 72(7) of the Act.]

I hereby give notice that nothing said by [name of witness] of [address] to officers of the [details of police /SOCA], nor any written statement signed by him/her and given to such officers, nor any documents or other evidence produced by him/her and given to any such officers, nor any oral or other evidence given by him/her, all in connection with [details of the offence under investigation], will be used as evidence in any subsequent criminal proceedings against the said [name of witness] [or proceedings under Part 5 of the Proceeds of Crime Act 2002] (include only if it is expressly intended that the undertaking will have this double effect; and delete last sentence) arising out of the [details of the investigation], save as set out below. However nothing agreed herein shall be taken to preclude or prejudice the commencement of any proceedings under Part 5 of the Proceeds of Crime Act 2002 or the use of such material in proceedings under that part of the act.

This restricted use undertaking is granted and remains conditional on [name of witness] satisfying and continuing to satisfy each of the conditions set out below.

[Name of witness] must fully admit his/her participation in the matters under investigation and described above.

[Name of witness] must provide the investigator with all facts, statements, documents, evidence or any other items ('Information') available to him/her relating to the said investigation and the existence and activities of all others involved.

[Name of witness] shall maintain continuous and complete cooperation throughout the investigation of the said matters and until the conclusion of any criminal proceedings arising as a result of the investigation. Such cooperation includes but is not limited to [name of witness]:

  1. voluntarily and without prompting, providing the investigators with all information that becomes known to him/her or available to him/her relating to the said investigation, in addition to any such information already provided;
  2. providing promptly, and without the prosecutor using powers under any section of the Act, all information available to him/her wherever located, requested by the investigator in relation to the said investigation, to the extent that it has not already been provided;
  3. giving truthful evidence in any court proceedings arising from the investigation of the said investigation.

(Include only if offender prosecuted for other matters.) Failure to comply with the terms of this agreement may also result in any sentence of the court that [name of witness] has received in relation [specify offence and date of sentence if applicable] being referred back to the court for review pursuant to section 74 of the Act.

This notice will cease to have effect if [name of witness] fails to any extent to comply with any of the conditions specified in the notice. In particular, if the specified prosecutor determines that the conditions set out in this notice have not been fully complied with, or that [name of witness] knowingly or recklessly provided Information that is false or misleading in a material particular to the investigator or prosecutor, or conspired with or procured another so to do, the specified prosecutor may revoke the restricted use undertaking. On revocation, the restricted use undertaking will cease to have effect and any Information provided by [name of witness] may be used against him/her in criminal proceedings and/or recovery actions under Part 5 of the Proceeds of Crime Act 2002.

Nothing in this undertaking affects the right of the Crown Prosecution Service to make use of any information provided by [name of the witness] in order to discover or acquire derivative information or documents from a source other than [name of the witness].

Similarly, nothing in this undertaking affects the use that the Crown Prosecution Service may make of any information or document obtained from a source other than [name of the witness], notwithstanding that the form or content of that information or document may be similar or identical to that provided by [name of the witness] or that any information or document provided by [name of the witness] led directly or indirectly to the discovery or acquisition of the information or document obtained from the other source. Such material may be used to prosecute [name of witness] for an offence(s) arising from the said investigation.

Irrespective of whether, the specified prosecutor has revoked the restricted use undertaking all Information provided to the investigator by [name of witness] shall remain in the possession of the investigator

This notice sets out all of the terms and conditions on which the restricted use undertaking from prosecution to [name of witness] in respect of the [description of inquiry]. It supersedes all prior understandings, if any, from whatever source whether oral or written, relating to the said offence(s).

The signatories below acknowledge acceptance of the terms and conditions set out above which shall only take effect when both parties have signed this letter in duplicate, one original to be retained by each party.


Signed by the witness ___ Signed by the Specified Prosecutor


Dated this___ day of_________ Dated this___ day of______


Notes

1. This notice must be given in writing
2. It must be entered into only by the DPP or a prosecutor specifically designated by him
3. This is a sample agreement. The contents of a restricted use undertaking will vary according to the facts of each case.

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Annex D: Draft agreement with co-operating defendant [future assistance]

Serious Organised Crime and Police Act 2005
Agreement under Section 73

The parties to this agreement are:

[Name and address of co-operating defendant]

[Name and work address] a Crown Prosecutor, and a specified prosecutor under section 71(4) and 73(10) of the Serious and Organised Crime and Police Act 2005.

It is hereby agreed that [name of defendant] will assist the investigator and/or prosecutor in relation to the investigation being conducted by [SOCA/police force] into [details of Operation, suspects and likely offences].

Assistance under the terms of this agreement will include the following:

[Name] will participate in a debriefing process. He/she undertakes during that process, which will audio recorded and conducted following a caution, to fully admit and to give a truthful account of his/her own involvement in [the above matters under investigation] or [any crimes]

What is appropriate will depend on extent to which it is necessary to "cleanse" the defendant in order to enable him/her to be use as a witness as desired. Full "cleansing" will be required if witness is to be called in respect of multiple offending and offenders as an assisting offender.

[Name] will plead guilty to such of the offences he/she has admitted as will be determined by the prosecutor after the conclusion of the debriefing process.

[Name] must provide the investigator with all facts, statements, documents, evidence or any other items ('Information') available to him/her relating to the said investigation/offence(s) and give a truthful account of the existence and activities of all others involved.

[Name] shall maintain continuous and complete cooperation throughout the investigation of the said offence(s) and until the conclusion of any court proceedings arising as a result of the investigation. Such cooperation includes but is not limited to [name of witness]:

  1. voluntarily and without prompting, providing the investigators with all Information that becomes known to him/her or available to him/her relating to the said offence(s), in addition to any such Information already provided;
  2. providing promptly, and without the prosecutor using powers under any section of the Act, all information available to him/her wherever located, requested by the investigator in relation to the said offence(s), to the extent that it has not already been provided;
  3. [Name] will give truthful evidence in any court proceedings whatsoever arising from the investigation of the said offence(s)

[Name of prosecutor] will ensure that full details of the assistance provided by [name] under the terms of this agreement are placed before any court before which [name] appears for sentencing.

Failure to comply with the terms of this agreement may result in any sentence of the court that [name] may receive in relation to offences admitted under this agreement being referred back to the court for review pursuant to section 74 of the Act.

[Name of witness] specifically authorises the specified prosecutor to disclose the existence of this agreement to his/her legal representative.

OR

[Name of witness] specifically requests that his legal representative is not informed of the making of this agreement.


Signed by the witness ___ Signed by the Specified Prosecutor

Dated this___ day of______ 201___ Dated this___ day of______ 201


Notes

1. This agreement must be in writing
2. It must be entered into only by the DPP or a prosecutor specifically authorised by him.
3. This is a sample agreement. The contents of an agreement will vary according to the facts of each case.
4. The version of Paragraph 6 which does not apply is to be deleted.

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Annex E: Draft notice of revocation

Serious Organised Crime and Police Act 2005 ("The Act")

Notice under Section 71(1) / 72(1) / 73

On [date] the attached immunity from prosecution / restricted use undertaking / co-operating defendant agreement ("the agreement") was entered into by [name of specified prosecutor] and [name of witness].

Pursuant to paragraph [insert paragraph number] of the agreement, [name of witness] agreed to [set out contents of the paragraph].

[Name of witness] has failed to comply with paragraph [insert paragraph number] of the agreement by [set out details of the breach].

The effect of this breach is that the agreement is hereby revoked with immediate effect by the specified prosecutor.

Pursuant to paragraph [insert paragraph number], the information provided by [name of witness] may now be used against him/her in criminal proceedings.

The sentence passed by the Crown court sitting at [insert name of court] on [insert date] will now be referred back to the court for review pursuant to section 74 of the Act.

Signed by the Specified Prosecutor


Dated this___ day of______ 201

delete as appropriate

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Annex F: SOCPA Monitoring Form

This form is for CPS operational purposes and is not available to the public.

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