Assistance provided by Offenders

• Introduction
• Available routes
• Prosecutorial Discretion
• What to consider
• Steps to take when considering these routes
• Disclosure obligations
• Protection of assisting offenders
• Covert Human Intelligence Sources (CHIS)
• Sentencing
• Unduly Lenient Sentences
• Media Handling

Introduction

A person who has, or is suspected to have, committed a criminal offence may indicate a willingness to offer assistance to the authorities. These persons will be referred to in this guidance as an ‘assisting offender’. This assistance may take one of two forms: the provision of information, meaning intelligence or giving evidence as a prosecution witness.

The assisting offender may want their assistance to be placed before a sentencing court for the judge to consider whether to reduce any sentence they serve (by a text or through sections 74 or 388 Sentencing Act 2020 (SA 2020)) or, exceptionally, for them not to face prosecution or be given an undertaking that information will not be used to prosecute them (by section 71 or 72 Serious Organised Crime and Police Act 2005 (SOCPA 2005)). The SA 2020 repealed sections 73 and 74 SOCPA 2005 (but left sections 71 and 72 in place), replacing them with section 74, and sections 387 and 288, respectively.

Prosecutors should address as part of their case strategy the potential for assistance in appropriate cases. These may be cases where the most culpable offenders remain at large or are unidentified, or where illicit items could be recovered. This should form the basis of early discussion with investigators about the potential to obtain information of value. This may be by whichever of the provisions below are appropriate.

If an assisting offender seeks to enter into an agreement the prosecutor should assess the likely benefit of the information to be given. It is a matter for the prosecutor whether to pursue an agreement or not. However, there is no right of an assisting offender to enter into an agreement and if the prosecutor decides the information to be provided does not merit a formal agreement, then no agreement will follow (the offender may still provide assistance and ask for that to be reflected in a text).

This guidance sets out the routes available for prosecutors to consider, when to consider these and the steps to take when obtaining the assistance of an offender. This includes setting out the levels of authorisation required, in addition to guidance available from the Director of Legal Services team from time-to-time in individual cases.

Available routes

A text

The common law ‘text’ regime relates to the provision of a highly confidential letter by the police or other investigator to the court through the prosecution. The letter will contain details of the assistance given to the police or other investigator by the assisting offender who is awaiting sentence. It should also address the current and future value of the assistance, the risk to the offender, and whether they received any reward for their assistance. The CPS, which has conduct of the prosecution, must see the letter before it is placed before the judge. The contents of a text must be approved by a Senior District Crown Prosecutor or above. They need to ensure its contents are clear. The sentencer must decide what weight, if any, to attach to the text at sentence but the CPS must ensure the information put before the court can readily be understood and assessed by the sentencer. The CPS should also see the text in case it gives rise to questions relating to its obligations concerning disclosure. Furthermore, the fact of assistance itself may be relevant material particularly where there are other offenders. Finally, the CPS must know of the existence of the text, and its contents, in case the sentence is considered to be potentially unduly lenient. Part 28 of the Criminal Procedure Rules sets out detail which must be included within the text and its delivery to the court.

The text is prepared by the police at the request of the defendant. In some circumstances the police may refuse to provide a text. The principle of how a text should be set out was established in R v X (No. 2) [1999] 2 Cr App R (S) 294.

• It should be prepared carefully and be complete and accurate;
• It should only very exceptionally contain information that would require a PII application;
• It should be shown to defence counsel to confirm that the judge has not been told something potentially adverse to the defendant without counsel's knowledge [however, the defendant is entitled to insist that the text is not brought to the attention of defence counsel, should they so wish, in which case the defendant should personally have sight of the contents of the letter];
• Officers should not be called upon to elaborate on the contents of the text [by the defendant etc. – part of the role of the CPS in respect of texts is to ensure they contain sufficient detail and are clear;
• If the defendant is dissatisfied with the content and the police are not prepared to amend it, the only option open to the defendant is to have the text withdrawn;
• The judge will not make reference to the text, merely mention that they have taken all the information regarding the defendant into account.

At paragraph 7 of R v AXN and ZAR [2016] EWCA Crim 590, the Court of Appeal provided a checklist for the content of a text.

The text should contain the following information:

• The offender's status, and whether they are a CHIS;
• Details of the assistance provided - the intelligence provided and whether they are willing to be a witness;
• The effort to which the offender has gone to obtain the information;
• An assessment of the benefit derived by the police as a result of the assistance given, including any arrests or convictions or property recovered;
• An assessment of the extent to which that assistance contributed to the benefit gained;
• An assessment of the risk to which the defendant or other family members were exposed as a result of providing assistance;
• An assessment of the informant's likely future value; and
• Details of any financial award paid or requested.

To this, the court in Royle [2023] EWCA Crim 1311 added that the text should make clear if the offender does not wish their legal representative to know of the text or its contents.

The text regime is suitable for use where an assisting offender is unwilling to sign an agreement or has already given assistance to the police in relation to their own or another’s offending prior to an agreement or where there are time or safety constraints that mean the SOCPA process cannot take place and therefore falls outside of the SOCPA 2005/SA 2020. It is available whether or not the offender has pleaded guilty and the offender does not have to meet any requirements of an agreement but simply has to provide assistance to the police. While the formality and structure of the statutory regime is preferable, it is not always a viable option.

As to when the police decide not to provide a text, or when its contents is disputed, see: R v AXN and ZAR [2016] EWCA Crim 590.

Royle [2023] EWCA Crim 1311 and R v BHR [2023] EWCA Crim 1622 set out the relevant considerations for a judge when deciding how much reduction to afford an offender, and when an offender can appeal a sentence in reliance on the text procedure, and prosecutors should draw these authorities to the court’s attention as appropriate.

The police produce a text. They will hand deliver it to the CPS for a prosecutor at the appropriate grade to review, and to record the fact of their review. The police are then responsible for producing the text at court. The prosecutor must be shown the text at court, discreetly. They must have sight of it for the reasons set out above. Defence counsel must also be shown the text unless the defendant does not wish for this to happen. Care must be taken in multi-defendant cases to ensure co-defendants and their counsel are not aware that a text is being provided to the judge. The prosecutor should then ensure the judge has sight of the text. The judge will endorse the text to indicate they have had sight of it. The police will retrieve the text from the court.

Texts should be reviewed and endorsed, not kept nor record made of them or their existence. The “need to know” principle must be applied if reference is made to the text. Under no circumstances should emails or electronic records be made of texts, nor should they be copied. Texts should be in hard copy, hand delivered and – save for very limited viewing as appropriate by the prosecutor, defence counsel and/or judge – always remain in the custody and control of the police. No information should be recorded about them on CMS. Where a case is referred as an unduly lenient sentence prosecutors should refer to the chapter which provides detail on how to reference the use of a text in reports to the Attorney General.

A reduction in sentence pursuant to section 74 Sentencing Act 2020

When an assisting offender makes a written agreement with the prosecutor to assist or provides an offer to assist; by way of giving information or evidence, the court may take account of the extent and nature of the assistance given or offered pursuant to the agreement and pass a reduced sentence. It is a matter for the sentencing judge how much reduction to give and the decision is a fact specific decision for the court: R v P and R v Blackburn [2007] EWCA Crim 2290.

Such an agreement can only be entered into if the assisting offender has pleaded guilty to an offence, was convicted in the Crown Court, or committed to the Crown Court for sentence. The assistance provided can be as part of the same proceedings in which the assisting offender has pleaded guilty or been convicted or in respect of other investigations or proceedings.

This magistrates’ court cannot exercise the powers given under section 74 SA 2020, but the Crown Court can do so where the case is committed for sentence.

A written agreement under section 74 SA 2020 must be authorised by a Deputy Chief Crown Prosecutor, Deputy Head of Division or above.

An offender who receives a discounted sentence based on assistance they have agreed to provide, who then does not do so, may have their sentence reviewed: section 387 SA 2020.

A review of a sentence pursuant to section 388 Sentencing Act 2020

Under section 388 SA 2020 where an offender is serving their sentence, it may be reviewed if they enter into an agreement to provide assistance.

This referral can be made at any time provided:

• the person is still serving a sentence (including any period served in the community); and
• it is in the interests of justice to do so.

The review itself is not an appeal against the 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 or 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.

In cases where a referral is being made to consider a previously reduced sentence (section 387 SA 2020), the reviewing court has the power to increase the sentence originally imposed. This can be increased up to a term not exceeding the level that the court indicated would have been the sentence but for the agreement to provide assistance (section 387(4) SA 2020). 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 reneged from the agreement.

A decision to refer a case back to the Crown Court for review under section 387/388 SA 2020 must be authorised by a Deputy Chief Crown Prosecutor, Deputy Head of Division or above.

Note that both the defendant and the prosecution may appeal with leave to the Court of Appeal against the review decision of the Crown Court (section 389(1) SA 2020)).

Immunity from prosecution pursuant to section 71 Serious Organised Crime and Police Act 2005

A prosecutor may grant immunity from prosecution to secure the assistance of an offender. The notice must be given in writing and specify the offence(s) to which the immunity will apply.

An immunity notice ceases to have effect if the assisting offender fails to comply with any condition specified in the notice. Where this occurs a formal notice of revocation should be issued.

Immunity notices can only be granted in respect of offences which have already been committed. The relevant criteria to be considered include those set out by the Attorney General in a written answer to the House of Commons on 9 November 1981:

• whether in the interests of justice it is of more value to have a suspected person as a witness for the Crown than as a possible defendant
• 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
• 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.

It would be highly exceptional for an assisting offender to receive an immunity notice for the provision of information only.

A decision to give an immunity notice under section 71 SOCPA 2005 must be authorised by the Director of Public Prosecutions or Director of Legal Services. Any case where this is being considered should be referred at the early stages to the Director of Legal Services.

As a matter of policy, the Attorney General should be consulted in good time (14 days or more) before the CPS takes a final decision to grant immunity, unless there are exceptional reasons why a decision needs to be taken more quickly.

There is no requirement for the Attorney General to approve the immunity. The purpose of consultation is to ensure that the criteria for immunity are being applied appropriately.

The Attorney General should be provided with a confidential report, marked official sensitive, which includes:

• the background and scope of the investigation;
• an analysis of the case as a whole, examining the evidence and public interest to the case against each defendant as well as the offender, including proposed charges and any advice obtained from counsel;
• an assessment of the value of the offender’s assistance, and application of the criteria set out by the Attorney General to Parliament in 1981;
• the precise terms of the immunity to be offered; and
• confirmation that the report has fully and frankly addressed the relevant issues, including any material potentially undermining the value of the evidence to be given, and any risks in the decision to grant immunity.

The Attorney General may indicate in response to this report that they consider the criteria for immunity are being applied appropriately; or if not, a meeting with the AGO should be arranged to consider any concerns. The Attorney General should be kept appraised of any significant changes or developments in the case.

Restricted use undertaking pursuant to section 72 Serious Organised Crime and Police Act 2005

A prosecutor can provide an undertaking that information provided by an assisting offender will not be used in any criminal proceedings against that person. They cease to have effect if the assisting offender fails to comply with any conditions specified in the undertaking.

A restricted use undertaking notice does not prevent the assisting offender from being prosecuted where other evidence (apart from the material provided by the assisting offender) becomes available. This may include evidence from another source obtained directly or indirectly because of information given in reliance on a restricted use undertaking notice. A restricted use undertaking notice must explicitly address this possibility, expressly reserving the right to follow lines of enquiry which follow from what the assisting offender says.

A decision to grant a restricted use undertaking under section 72 SOCPA 2005 must be authorised by the Director of Legal Services.

Prosecutorial Discretion

Examples of prosecutorial discretion, which are untouched by SOCPA 2005 or SA 2020, are:

The prosecution, having decided to prosecute the primary offenders, is not precluded from calling persons who have not been charged as witnesses (the use of section 74 is also not required for any person to give evidence).

A situation may arise at short notice when the court warns a witness against self-incrimination in their testimony. The prosecution may inform the court that the witness will not be prosecuted based on anything they may say during truthful evidence on that occasion. The prosecution should be clear about this undertaking: to what offending it relates (usually that of which the prosecution is aware or can anticipate will be address in the offender’s testimony) and the reserved right to follow reasonable lines of inquiry which follow from the testimony.

A situation may arise at short notice where a defendant decides to plead guilty and offers to give evidence for the Crown.

Blanket undertakings not to prosecute any offending which is revealed should never be given.

Any decision to exercise prosecutorial discretion in this way should be approved by a Deputy Chief Crown Prosecutor, Deputy Head of Division or above. This may not be possible with a decision taken at short notice: in those circumstances a suitably senior lawyer who is available should take the decision with the appropriate grade being briefed as soon as possible thereafter.

What to consider

When an offer of assistance is made by an assisting offender prosecutors must consider:

• the value of the assistance offered
• whether it is necessary at all
• the relevance of evidence being offered
• the credibility and reliability of the offender
• the inherent risk of calling a criminal to give evidence
• the risk to the offender or others in providing assistance
• the seriousness of the offence(s) which the offender is offering assistance with

The prosecutor should seek the police assessment of each.

Steps to take when considering these routes

Neither SOCPA 2005 nor SA 2020 prescribe the steps a prosecutor should take when deciding whether or not to enter into an agreement and to progress any such agreement. The process below may be followed, although not all these stages may be required, and the appropriate process will be established on a case-by-case basis. Prosecutors and investigators must work together to agree what is required and the level of security required when discussing these matters. The process is particularly likely to be different where an assisting offender is to be a witness compared to where they are providing information only.

The process set out below is considered best practice:

1. Obtaining the investigator’s Provisional View (in writing if required)
2. Conducting a Scoping Interview
3. Obtaining authorisation to proceed
4. Preparing a draft agreement
5. Completing the Debriefing/Cleansing process (if required)
6. Issuing the written agreement
7. Evidence or intelligence provided by assisting offender

Some or all these stages may be required. This will largely depend on the nature of the individual case, and whether the assisting offender is providing intelligence or evidence. If the later, is it more likely that most of the above stages will need to be followed. Prosecutors and investigators must work together from the outset and agree on a process appropriate to the circumstances of the case.

Each step should be approved at the appropriate level set out in this guidance and the Consents to Prosecute prosecution guidance.

Provisional view

The prosecutor should decide, having received the police assessment, on the seven factors set out under

What to consider.

Scoping interviews

The scoping interview should be carried out by nationally trained and accredited officers under the direction of an accredited Debrief Manager, following the prosecutor’s provisional view to proceed. The purpose of a scoping interview is to determine what evidence or intelligence the assisting offender can provide in sufficient detail to enable the prosecutor, having consulted with the investigators, to decide whether any written agreement should be pursued, and the full debriefing procedure undertaken.

Scoping interviews should be audio and/or video recorded (to avoid later allegations of inducement) and conducted under caution unless a proffer letter has been issued. A transcript of the scoping interview should be provided to the prosecutor and stored appropriately, taking advice where necessary, consistent with its sensitivity. It must be made clear to the offender, prior to the scoping interview, that the interview does not represent any promise or undertaking on the part of the prosecutor in relation to how the assisting offender will eventually be dealt with (and it does not represent an agreement under SOCPA 2005 or SA 2020).

The assisting offender is not required, under SOCPA 2005 or SA 2020, to have legal representation before entering into a written agreement. However, they should be advised by the investigator of their right to seek independent legal advice. Where an assisting offender is a vulnerable individual, for example, they have a mental health condition/disorder or are a child, they should be advised of their right to an appropriate adult for any discussions or interviews unless there are compelling reasons to do otherwise.

Information can be obtained via the assisting offender's legal representative. This is not recommended, however, as there is no control over what, specifically, the assisting offender is saying by way of cooperation, nor over what they are being told about the process of cooperation.

There may be instances where the assisting offender is reluctant to speak to the debrief team under caution: a potential assisting offender may offer only general or vague indications of the assistance they can provide if there is a risk that those admissions may be used against them in court. Prosecutors may decide not to proceed with an agreement where the offender is not willing to provide this detail. In some cases, having assessed this risk, the prosecutor may be prepared for the scoping interview to not be under caution. In such a case the prosecutor may send a proffer letter to the offender. This letter will make clear the interview is not in any form an undertaking as to what will happen, i.e. whether an agreement will follow or not, and that the interview will not be under caution.

Authorisation to proceed

The prosecutor, should reach a decision on how to proceed with the assistance provided by the offender and then seek the approval at the appropriate level within the CPS (these can be found in the Consents to Prosecute prosecution guidance), should assess the contents of the interview and decide whether to proceed. Again, they must assess the questions under What to consider.

If the prosecutor decides to proceed, the investigator must seek written authorisation, from an officer of Assistant Chief Constable rank or equivalent, (and, if required, a cleansing interview).

Draft agreement

The draft agreement is written by the prosecutor and should include the terms under which the assistance is to be given, the nature of the assistance to be provided and any benefit to the assisting offender in cooperating. This should have an appropriate security classification in light of the specific nature of the document and having taken advice as necessary.

If the agreement is for the provision of information only, the next step is for the agreement to be finalised. If the agreement is for the offender to give evidence, the next step is almost always cleansing.

Cleansing

The “cleansing” process means the offender must admit their criminality in full under caution before a final agreement is entered into to be relied upon in court as a witness. The draft agreement will therefore include this as a condition before entering a final agreement where the assistance to be provided is the giving of evidence.

This may mean asking the offender to waive legal professional privilege or other protections so that the investigator can have sight of all material relevant to their criminality.

A decision to sign an agreement with someone who has refused fully to admit their criminality is a high-risk strategy and very careful consideration will have to be given, particularly to their credibility if giving evidence. Cases where it is appropriate to proceed with an uncleansed assisting offender should be thought of as exceptional.

Nonetheless, circumstances may arise where it is not possible to put an assisting offender, who is providing evidence, through a full cleanse. This may happen very shortly before, or during, their trial.

A pragmatic approach should be taken when considering whether the full cleansing is proportionate for such ‘last minute’ offers of assistance. Prosecutors should consider whether that decision meets the disclosure test. Prosecutors should refer to the paragraph below titled Disclosure obligations.

During the cleansing interview the assisting offender will give full details of all the criminal offences that they have committed. In the cleansing interview the assisting offender must:

• fully admit their own involvement in the criminality under investigation,
• provide the investigators with all information available to them regarding the matters under investigation and those involved and
• 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.

It follows that the assisting offender may be considered for prosecution for offences admitted as part of this process. When an assisting offender has confessed to the crimes they are charged with or are being investigated for, prosecutors must review all the charges according to the Code before concluding a final written agreement. They need to make a definitive decision on how to proceed against the assisting offender. This decision should be clearly recorded, and disclosure obligations considered. In Hutchinson v R [2024] EWCA Crim 997 the Appeal court said ‘It was wholly impermissible for the prosecution to adopt the “wait and see” position. It would have been unfair to the Appellant for them to have called Pycroft as a witness whilst he still faced a charge of murder (and indeed remained jointly named in the murder count on the indictment against the Appellant).’

Scoping, cleansing and full debriefing can be separate stages in the process, or they can be carried out together if appropriate.

Final Written Agreement

The Final Written Agreement must specify what is required in terms of the debrief and/or giving of evidence which follows it.

All written agreements should contain an express condition requiring all evidence or intelligence from the assisting offender to be true to the best of their knowledge and belief.

The agreement should not have the effect of negating or affecting the value of a confiscation order or civil recovery without consultation with the Chief Crown Prosecutor of CPS Proceeds of Crime. Only in exceptional circumstances should any agreement include a condition which avoids confiscation or civil recovery.

The agreement should be signed before the assistance is given and authorised at the appropriate level (see section titled Authorisation to proceed above).

Once prepared, the agreement will be retained under secure conditions by the prosecutor or the investigators in accordance with handling procedures agreed between investigator and prosecutor, having taken advice as appropriate. For security reasons only one copy of the signed written agreement should be prepared. Further copies should only be produced where there is a clear operational need to do so (for instance it may be necessary to provide a copy to the legal representatives of the assisting offender) and where both the prosecutor and investigators are satisfied this does not pose an unacceptable risk to the investigation, the assisting offender, or third parties. The written agreement should always be available to the court.

A protective marking should be applied to the agreement and the confidential report for sentencing consistent with the level of sensitivity of their contents. This will determine the way the material is conveyed and stored. For instance, where compromise of the information contained in the documents would directly threaten life in relation to an informant or other witnesses, it is usually appropriate to mark the documentation ‘Secret’ and handle accordingly (see guidance on Government Security Classifications).

Debrief

The full debrief should be conducted and documented. Whilst interviews with assisting offenders are not subject to PACE provisions regarding police detention, such interviews should be audio or video recorded and under caution (R v Clark and Others [2001] EWCA Crim 975).

Following the debrief, investigators will provide a report detailing the content of the debrief, 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. This must address lines of inquiry which have been followed and whether the resulting evidence corroborates or contradicts what the offender has said.

Disclosure obligations

Any material provided by an assisting offender must be considered in line with the disclosure obligations on the prosecution. Prosecutors should refer to the Disclosure Manual. The agreement will need to be assessed as to whether it should be on the non-sensitive or sensitive schedule of unused material. In either case, where the existence of an agreement is to be disclosed, this should be through a document setting out the disclosable contents, rather than provision of the document itself. The document may contain other material which is sensitive but is not disclosable. Disclosing the agreement itself in some cases and not in others risks the perception that in the latter category further assistance has been given. A document setting out the disclosable contents ensures the prosecution focus on what is disclosable within the agreement. The material generated by the process of providing assistance must also be considered in line with the prosecution’s disclosure obligations.

Protection of assisting offenders

Prosecutors must have regard to rights of assisting offenders under the European Convention on Human Rights (laid down in the Human Rights Act 1998), particularly the right to life (Article 2), the right to protection from torture or to inhuman or degrading treatment or punishment (Article 3), and the right to respect for private and family life (Article 8).

Wherever possible, an assisting offender should be given the requisite support and protection. Protection arrangements are a matter for the law enforcement, but the type of protection should be discussed between the investigator and the prosecutor at the pre-charge stage and the risk to the assisting offender is a relevant consideration to whether or not to enter into an agreement. In some instances a law enforcement risk assessment may be useful.

In serious cases the risk may be so great that the assisting offender is required to relocate to another part of the UK and change their identity. Chapter 4 SOCPA 2005 has specific provisions for the protection of a witness and other persons. In general, it is directed to those persons who have provided crucial evidence and against whom there is a substantial threat. This does not preclude law enforcement from offering protection measures to other witnesses and others at risk.

Protection arrangements made under chapter 4 SOCPA 2005 for people judged to be at risk of serious harm is provided by the UK Protected Persons Service (‘UKPPS’), which is part of the National Crime Agency with aligned units in Metropolitan police, Police Scotland and Northern Ireland police services. Referrals should be made by law enforcement and if a witness has been afforded protection the prosecutor should be advised of this.

Where the fact that an assisting offender is a protected person meets the test for disclosure, a PII application will be required and the assistance of the UKPPS should be sought to ensure that the application outlines wider public policy risks should such information be disclosed. Prosecutors should refer to chapter 38 of the Disclosure Manual for more information.

Covert Human Intelligence Sources (CHIS)

An assisting offender is not thereby a CHIS. A CHIS is subject to a separate regime. However, prosecutors should be alert to anything within the assistance to be provided which might engage the CHIS provisions. A person is a CHIS if they establish or maintain a personal or other relationship with a person for the covert purpose of either using that relationship to obtain information or to provide access to any information to another person, or covertly disclosing information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship: see section 26(8) Regulation of Investigatory Powers Act 2000. Investigators and prosecutors must therefore take care if the assistance to be provided by an offender might cause them to act as a CHIS. For instance, if their assistance might include continued assistance by providing information obtained from their relationship with another person. In such circumstances immediate referral to a CHIS Authorising Officer is appropriate.

Sentencing

The nature of a sentencing hearing for an offender who has signed a section 74 SA 2020 agreement will depend on whether that offender’s assistance is common knowledge e.g. because they have given evidence which has included the fact, they are an assisting offender, or remains covert. In the former case, the court is likely to announce the discount applied in open court: section 74(3). In the latter case, the court is likely to consider it is not in the public interest to do so: section 74(4). It is plainly in the public interest to preserve confidentiality where information has been provided in confidence. Where the assistance remains covert, the prosecution should ensure the judge has sight of the section 74 agreement and an assessment by the police of the value of the assistance provided. This should be in the form of hard copy documents which are retrieved at the end of the hearing.

For section 387 and 388 SA 2020 sentencing hearings, the prosecutor should provide the court with a transcript of the original sentencing hearing (to include opening, mitigation, and sentencing remarks) together with any other document which will assist the court to understand the original sentencing hearing, including the relevant agreement.

Where it is necessary to protect the safety of any person and it is in the interests of justice, the Crown Court has discretion under section 390 SA 2020 to exclude the public from, or impose reporting restrictions on, any proceedings pursuant to Sections 387 and 388 SA 2020.

Unduly Lenient Sentences

The CPS may refer a relevant sentence which was imposed under sections 74, 387 or section 388 SA 2020, and a member of the public may also request review of any sentence within the unduly lenient sentence scheme. In either case where a relevant sentence is referred to the Attorney General’s Office (AGO), the CPS should ensure in their report that the statement in either section 74(3), 74(4), 387(6), 388(8), 388(10) SA 2020 or a text or any other material that has a bearing on the sentence and was seen by the judge is drawn to the attention of the AGO. Prosecutors should refer to the Unduly Lenient Sentence prosecution guidance for more information.

Media Handling

Cases involving an assisting offender who is to give evidence may attract considerable media interest. Where this is likely contact should be made with the CPS Press Office as soon possible, consistent with the expectation that the assisting offender will give evidence, so that an effective press strategy, which maintains the confidentiality of the assisting offender process can be developed.