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

Updated 16/11/2020|Legal Guidance, International and organised crime

Introduction

This guidance sets out how powers under sections 71 to 74 of the Serious Organised Crime and Police Act 2005 (‘SOCPA’) may be used by prosecutors to secure intelligence or evidence from offenders to assist in an investigation or prosecution (of an indictable offence or an offence triable either way). Offenders who provide such assistance are known as ‘assisting offenders’ and under SOCPA these may receive:

  • Immunity from prosecution (section 71)
  • Restricted use undertakings (section 72)
  • Reduction in sentence (section 73)
  • Review of sentence (section 74)

Each of these powers under SOCPA are outlined in further detail below, with further guidance on the use and process of the most commonly used powers under sections 73 and 74 to reduce or review sentences.

The assistance provided by the offender under SOCPA may be for the purposes of providing evidence in court (‘Queen’s evidence’) or, more commonly, for intelligence purposes (or both).

These powers could be used concurrently for example someone who receives a s 72 undertaking could go on to receive a section 71 immunity.

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.

Note that the powers under SOCPA should be considered as part of a range of options to secure the co-operation of offenders including potential co-defendants, this includes the use of the common law ‘text’ regime as a basis for the court to consider reduction in sentences (see Alternatives).  

Immunity from Prosecution (Section 71)

Under section 71 SOCPA a prosecutor may grant conditional immunity from prosecution to secure the assistance of an offender. This immunity must be:

  • for the purposes of an investigation or prosecution of an indictable offence or an offence triable either way; and
  • given in writing (section 71(1)) in an ‘immunity notice’, the immunity notice must specify the offence to which immunity will apply;
  • an immunity cannot be applied in relation to an offence under section 188 of the Enterprise Act 2002 (cartel offences) (section 71(7));

It is only in the most exceptional cases that it will it be appropriate to offer full immunity. Where an assisting offender is given an immunity notice, no proceedings for the offence specified in the notice may be brought against that person except in circumstances specified in the notice (section 71(2)).

However, an immunity notice ceases to have effect if the assisting offender fails to comply with any condition specified in the notice (section 71(3)). Where this occurs a formal notice of revocation should be issued.

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.

Criteria for Immunity

The criteria to be considered in determining whether it is appropriate to grant immunity to a witness were set out by the Attorney General in a written answer to the House of Commons on 9 November 1981. These (non-exhaustive) criteria should still be applied when considering whether an immunity notice under section 71 SOCPA would be appropriate in assisting an investigation or prosecution:

  • 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;
  • 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; and/or
  • whether it is unlikely that any information could be obtained without an offer of immunity and whether it is also unlikely that any prosecution could be launched against the person to whom the immunity is offered.

Delegated Levels of Authority

A decision to give an immunity notice under section 71 must be authorised by the Director of Public Prosecutions.  In addition, the Attorney General must be consulted before any decision is made by the CPS on the granting of immunity under section 71.

Attorney General Consultation

As a matter of policy the Attorney General should be consulted not less than 14 days before the immunity notice is required, unless there are exceptional reasons why a decision needs to be taken more quickly. The Attorney General is not required to approve the immunity. The Attorney General should be provided with a report which considers the general criteria for the giving of the immunity notice (above). The report should also detail:

  • the full name and address of the assisting offender, including any known aliases
  • liaison with other prosecuting authorities in respect of the assisting offender, in particular, the investigations, prosecutions or any potential future dealings of those other authorities in respect of any offence;
  • 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, the evidence gathered from de-briefing and any concerns about that process or the evidence;
  • details of any media interest in the case.

Supporting documentation should include copies of evidence gained in the investigation, full analysis in accordance with the Code for Crown Prosecutors including analysis of the evidence held in respect of each proposed defendant and assisting offender, summary of the facts, draft or substantive charges where appropriate, the draft immunity notice, counsel's advice where it has been obtained, and the antecedents of the proposed defendant(s) and the assisting offender. Issues of note should be highlighted particularly where they may not be immediately apparent.

The Attorney General must be informed as soon as possible of any of significant changes in information or significant new information which comes to light which may affect the Attorney General's view of the case.  After an immunity notice is given the Attorney General should also be kept up to date on the progress of the case as key stages such as charge, sending/dismissal, arraignment and case management hearings etc. are reached.

Restricted use Undertaking (Section 72)

Under section 72 SOCPA an undertaking that any information will not be used in any criminal proceedings against the offender (or proceedings under Part 5 of the Proceeds of Crime Act 2002 (‘POCA’)) may be used to secure the assistance of an offender. This must be:

  • For the purposes of an investigation or prosecution of an indictable offence or an offence triable either way; and
  • Given in writing (section 72(1)) in a ‘restricted use undertaking notice’, this contains examples of what are likely to be the usual conditions, namely to provide full and truthful information and to give evidence.

Where an assisting offender is given a restricted use undertaking notice, information obtained following the grant of the undertaking must not be used against that person except in circumstances specified in the notice (section 72(3)).

However, a restricted use undertaking notice ceases to have effect if the assisting offender fails to comply with any conditions specified in the undertaking (section 72(4)).

A restricted use undertaking notice does not prevent the assisting offender from being prosecuted where ‘other evidence’ justifying a prosecution 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 notice. A restricted use undertaking notice must include an express reservation to this effect. However, 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.

An agreement under section 72 SOCPA must not include a condition which avoids confiscation as this would be akin to the prosecution paying for evidence.

Delegated Levels of Authority

A decision to grant an undertaking on restricted use under section 72 must be authorised by a Deputy Chief Crown Prosecutor (‘DCCP’) or Deputy Head of Central Casework Division (‘DHoD’) or above.

Reduction in Sentence (Section 73)

Under section 73 SOCPA an agreement on sentence reduction may be used to secure the assistance of an offender.

This may be used where the offender:

  • is willing to enter into a written agreement with a prosecutor concerning assistance in an investigation or prosecution which they have provided, or are expected to provide; and,
  • has entered, or is expected to enter a guilty plea; and,
  • will be, or is expected to be sentenced in the Crown Court (including where they pleaded guilty before the Magistrates' Court but are committed to the Crown Court for sentence).

An agreement under section 73 SOCPA must not include a condition which avoids confiscation as this would be akin to the prosecution paying for evidence.

Level of Discount

Sentencing discounts for assistance may be applied to the 'tariff' element of a sentence fixed by law or to a mandatory minimum sentence (section 73(5)) and in addition to other forms of sentencing discount including the discount for an early guilty plea (section 73(6)). The discount for the assistance provided by the assisting offender should first be assessed against all other relevant considerations. Following this, the notional sentence should then be further discounted for the guilty plea (see R v D [2010] EWCA Crim 1485). However, SOCPA does not provide for the level of discount appropriate and the sentencing decision is a fact specific decision for the court (see R v P; R v Blackburn [2007] EWCA Crim 2290). The court may take into account the extent and nature of the assistance given or offered, but a reduction in sentence is not mandatory.

Therefore although sentence discounts are well established in practice a reduction in sentence will not necessarily follow automatically upon the giving or offering of assistance. Accordingly, prosecutors should be careful to manage expectations. The choice of sentence is a matter for the court alone, not for agreement between the prosecution and defence (see R v Dougall [2010] EWCA Crim 1048).

Sentencing Reports

To assist the court in sentencing it will be necessary 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 co-operation. The report should also indicate the extent to which the offender has admitted criminality and steps taken to secure full cleansing.

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 by the prosecutor who signed the written agreement under section 73 (or if not available a Level E lawyer or above with knowledge of the case).

Where a judge passes a sentence which is less than it would have been but for the assistance given or offered this fact may be stated in open court and in doing so, the judge must state what the greater sentence would have been in the absence of the assistance (section 73(3)).

However, in most cases 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 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 offenders and be prepared to make appropriate applications to the judge in advance of any sentencing hearing (section 73(4)).

In this context, 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 (although they must do so for the agreement to take effect and be considered by the court).

Delegated Levels of Authority

A decision to enter into a written agreement under section 73 must be authorised by a Level E or above.

Subsequent Review of Sentences (Section 74)

Under section 74 SOCPA an agreement to refer a sentence back to the Crown Court may be used to secure the assistance of an offender, where they:

  • have already been sentenced in the Crown Court (except where that sentence is fixed by law), and are willing to enter into a written agreement with a prosecutor concerning assistance which they have provided in an investigation or prosecution since the sentence was passed, or have offered to provide in future;
  • have already received a reduced sentence on the basis of a written agreement with a prosecutor to assist and then in pursuance of a separate agreement has given or offers to give further assistance (section 74(2)(b)).
  • It is also possible to use section 74 to refer a previously reduced sentence back to the Crown Court where an offender received a reduced sentence on the basis of a written agreement to assist, but then knowingly failed to give assistance in accordance with the agreement (even partial non-performance permits the sentence discount to be reviewed) (section 74(2)(a)).

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 74(2)(a)), 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. 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.

The intention of a written agreement to assist and be eligible for a possible further (section 74(2)(b)) or a new (section 74(2)(c)) possible reduction in sentence is to encourage defendants who are already imprisoned to reconsider earlier reluctance to assist in the prosecution of others. However, consideration should be given to defendants seeking to manipulate the system by holding back information known to them at the time of the original sentencing. This may be in the hope of increasing their discount by facing lengthy sentences or by creating their own mitigation by passing on false or manufactured information in attempt to receive an ex post facto discount.  Consideration must also be given to competing public interest issues in relation to the assisting offender and the victim(s) of the original crime(s) for which the assisting offender is serving a sentence.

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 74(8)).

Exclusion of Public

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 75 SOCPA to exclude the public from, or impose reporting restrictions on, any proceedings relating to or arising in consequence of an application to review a discounted sentence under section 74.

Applications should only be sought where it is necessary to protect the safety of any person and it is in the interests of justice to do so. Practicable alternatives are available (e.g. anonymising proceedings) and should be adopted where possible.

Where the court makes such an exclusion or restriction, a full transcript of the entire hearing of the proceedings should be prepared immediately after its conclusion. This should also be retained in appropriate conditions (marked as “Secret” in the case of immunity from prosecution) by the prosecutor and kept available for further directions by the court. The transcript remains available until further order by the court or until the end of the sentence for disclosure purposes.

Victims

The Victim Contact Scheme (VCS) provides information to victims of serious and violent offences where the offender is sentenced to 12 months or more in custody.  Victims who opt into the scheme will receive information about the offender’s sentence and be updated on key changes in their sentence, and be entitled to give their views on licence conditions.  They will be told the month the prisoner is due for release, relevant licence conditions, the date the licence ends or if they are recalled.  Victims will also be supported in making a Victim Personal Statement to the Parole Board.

The hearing relating to a subsequent review of the assisting offender’s sentence under section 74 is usually anonymised and subject to reporting restrictions under section 75. Therefore the victim will not be informed or be made aware that a review of the sentence has taken place. The victim can be informed after the sentence review hearing that the offender’s sentence has been changed but cannot be told anything about the agreement or the hearing as this would be in breach of the terms of the section 74 agreement and the assisting offender’s right of confidentiality.

Delegated Levels of Authority

A decision to refer a sentence to the Crown Court under section 74 must be authorised by a Level E or above.

Process

SOCPA sets out the criteria for agreements under section 71-74, but does not prescribe how such agreements are reached between the prosecutor and the assisting offender. In particular the process used when securing assistance for the purposes of providing evidence in court or for intelligence purposes only may differ substantially.

The process set out below is considered best practice:

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

Some or all of these stages may be required.  Prosecutors and investigators must work together from the outset and agree on a process appropriate to the circumstances of the case.

The Prosecutor’s Provisional View

Written agreements under SOCPA should start with investigators seeking a provisional view from the prosecutor. Early consultation with a prosecutor is vital as it is important to obtain details in relation to the information or evidence the potential assisting offender is willing and/or able to give before an agreement is made. For section 72 agreements a decision to proceed must be agreed in writing.

The investigator will seek to obtain sufficient information to assist a specified prosecutor to decide if an agreement is suitable; this will either be through the offender's legal representative or through direct contact with the offender.

The debrief is usually undertaken by a separate team, often referred to as the “debrief” team.

Scoping Interviews

A decision for law enforcement to conduct a scoping interview with the potential assisting offender should be agreed following a provisional view from a prosecutor (above). The prosecutor who approves scoping must be a Level E or above.

The purpose of a scoping interview is to determine what evidence or intelligence the offender can provide in sufficient detail to enable the investigators to inform the CPS of the extent of the information the offender is able to provide. The scoping exercise will enable the prosecutor, having consulted with the investigators, to decide whether a written agreement should be proposed and the full debriefing procedure pursued (see Assessing Reliability and Credibility).

Scoping interviews should be audio recorded (to avoid later allegations of inducement), and conducted under caution. A transcript of the scoping interview should be provided to the prosecutor.The cooperating witness should ideally be legally represented through recruitment, scoping and debriefing.

Scoping interviews not under caution

Ideally scoping interviews should be conducted under caution but sometimes the assisting offender is reluctant to speak to the debrief team if they will be cautioned. This is because a formal caution may considerably inhibit potential assisting offenders from providing the full and frank disclosure required. Indeed, a potential assisting offender may not wish to “admit the full extent of his own criminality and agree to participate in a formalised process” (R v P; R v Blackburn [2007]) if there is a risk that those admissions may be used against them in court. It follows that vague indications of past conduct and the assistance on offer will mean investigators and prosecutors will be unable to assess the true value of the potential assisting offender and will find it difficult to decide whether a written agreement will be appropriate.

The debriefing should be carried out by nationally trained and accredited officers from the Assisting Offender Team under the direction of a nationally trained and accredited Debrief Manager once the prosecutor agrees to enter into an agreement (see below). 

If the assisting offender does not wish to speak to the debrief team under a caution or it is considered likely that the offender will be inhibited in providing the relevant information with a caution the prosecutor may choose to proceed with the use of a proffer letter 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.

Proffer Letter

If it is agreed that a SOCPA agreement should be pursued, the prosecutor and investigator may wish to consider whether it is appropriate to send a ‘proffer letter’ to the potential assisting offender. A proffer letter could be useful:

  • when the assisting offender or their legal representative seeks assurances in writing in advance of offering any assistance or
  • when a scoping interview is to be conducted, not under caution or
  • When a section 72 undertaking is being considered

The proffer letter is an optional part of the process and may not always be necessary. A proffer letter sets out the basis and purpose of a ‘scoping interview’ (see below). 

The letter should:

  • state that the scoping interview will not be under caution (this is to encourage full and frank disclosure);
  • state that neither the letter itself nor the subsequent scoping interview represent any promise or undertaking on the part of the prosecutor in relation to how the offender will eventually be dealt with (i.e. it is not any form of written agreement under SOCPA);
  • provide guarantees as to confidentiality, subject to disclosure required by law.
  • make it clear that the agreement will be disclosable to the defence

The letter may also undertake not to use the fact that the offender is willing to be interviewed or the content of the scoping interview as evidence against the offender. However as an exception to this, the letter can state that the prosecution reserves the right to:

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

As an alternative to a proffer letter, consideration could be given to obtaining the information through the offender's legal representative. This is not recommended as there is no control over what the defendant is being told in relation to the benefits of cooperation.  In addition, this will not be appropriate where any other defendant is represented by the same representative.

Investigator Authorisation

Following the scoping interview, the investigator must seek written authorisation, from an officer of Assistant Chief Constable rank or its equivalent, to proceed with a written agreement (and, if required, a cleansing interview). 

Draft Agreement

If the prosecutor agrees that the process should continue a written agreement should be drafted.    

The draft agreement is written by the prosecutor and 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 provided 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 is clearly demonstrated.

At this stage the assisting offender and their representatives may want to be shown a draft agreement, so they can advise their client whether to proceed with the process.

SOCPA for intelligence only

Where the assisting offender is providing intelligence only, particularly relating to limited information, the assisting offender may refuse to go through the cleansing process. In those circumstances it is a matter for the prosecutor to decide, in consultation with the investigators whether they would risk not cleansing the assisting offender and just debriefing the offender.   If the decision is not to go through the cleansing stage, the next stage is to agree and finalise the terms of the draft agreement for signature, and then the final debrief will take place after which the agreement is signed.

There may be circumstances in which the offender will only take part fully in the de-briefing interview once an agreement is signed, or if it may be impractical to gain access to the assisting offender in a discreet and secure environment, after the de-brief, for the purpose of signing the agreement. In those circumstances, the agreement should set out clearly what is expected from the potential assisting offender and indicate that failure to repeat the account in the debrief that was provided in the scoping interview will result in revocation of the agreement.

See below for finalisation of the written agreement.

SOCPA to provide evidence

Where it is expected that any agreement would include the assisting offender giving evidence in court, the agreement should not be finalised until cleansing has been completed (see below). Further, such agreements should not usually be finalised or signed until the full de-brief process has also been completed. This is to ensure that the prosecutor can consider all relevant matters before making the decision whether to enter into an agreement.

In the case of a SOCPA agreement to provide evidence, there may be exceptional circumstances where it is appropriate to sign a written agreement after cleansing, but before full debriefing under caution, for example if it appears the offender will only take part fully in the de-briefing interview once an agreement is signed, or if it may be impractical to gain access to the assisting offender in a discreet and secure environment, after the de-brief, for the purpose of signing the agreement. However, in those circumstances the prosecutor must consider carefully whether to proceed with the SOCPA process, as failing to cleanse the potential offender at this stage may impact upon their credibility as a witness during any subsequent criminal proceedings, following disclosure of the SOCPA process.

If the decision is to proceed in the above circumstances, the agreement should set out clearly what is expected from the potential assisting offender and indicate that failure to repeat in the debrief the account provided in the scoping interview will result in revocation of the agreement.

Any decision to sign and issue a written agreement (under sections 72, 73 or 74) before a full debriefing must be authorised by a Deputy Chief Crown Prosecutor, a Head of a Casework Division or above.

SOCPA section 71 states that the DPP is a specified prosecutor as well as anyone designated by him. Typically this will be a CCP or a DCCP. This may vary between divisions and you should check with your head of division.

Cleansing and Full Debriefing/Cleansing

Offenders who are providing assistance by giving evidence and who wish to benefit from an agreement under SOCPA should admit their criminality in full under caution (see below).

During the course of the cleansing interview the assisting offender will give full details of all the criminal offences that they have committed.  During this stage the assisting offender may be arrested or reported for each offence for which they have not been previously arrested or prosecuted. A report will be sent to the specified prosecutor at the completion of this stage to determine if the AO should be prosecuted for any or all the offences admitted.

Cleansing and full de-briefing can be separate stages in the process, or they can be carried out together if appropriate. In complex cases the cleansing process and the debriefing are separated and following the cleansing when a report is sent to the prosecutor it is at that point that the prosecutor will often sign the agreement. If there is no cleansing, then the agreement will be signed just before the debrief interview takes place.

Final Written Agreement

The written agreement will be signed by a prosecutor and the assisting offender.  This must be authorised at the appropriate level.  Once prepared, the agreement will be retained under secure conditions (see below) by the prosecutor or the investigators in accordance with locally agreed handling procedures.

It is important to note that the decision to enter into an agreement is one for the specified prosecutor, having considered whether it is necessary in the interests of a particular or potential investigation or case or to help gather intelligence.  There is no right of an offender to require an agreement to be signed.

The debrief Process

The debriefing process should be conducted and documented in accordance with the relevant NPCC guidance. Whilst 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).

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. Prosecutors must be alert to the danger that an assisting offender may be motivated by self-interest and therefore may not be telling the truth. Where it can be demonstrated to 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

Hearings

The final written agreement must be signed by both parties prior to the hearing. There will be instances when time critical assistance is needed, that assistance can be given before the agreement is signed. However best practice is that the agreement is signed before assistance is given.

Section 73

In addition to the usual case papers and sentencing bundle, the judge should be provided with: 

  • a Plea and Sentence Document or other Prosecution Note (to assist the judge in understanding the SOCPA legal requirements as it relates to the particular case) and any further points that should be drawn to their attention regarding the law and/or facts;
  • the relevant sections of SOCPA (sections 71 to 75);
  • the signed written agreement under SOCPA; and
  • the investigator's report containing details of the value of assistance given/to be given and the risk assessment prepared in relation to the AO as a result of the assistance they have provided.

Subject to consent from the assisting offender, the defence will be provided with all the above documentation (excluding the signed written agreement). For reasons of security the investigator's report will only be served at court on the day of the hearing.

Section 74

In addition to the documents listed above, the judge should be provided with: 

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

The earliest date of release for the assisting offender, and the expiry date of their sentence should also be determined. It is important to be familiar with the sentencing provisions that applied at the date of sentence.

Subject to consent from the assisting offender, the defence will be provided with all the above documentation (excluding any previous written agreements, and the investigators’ reports which will only be served at court on the day of the hearing). For these reasons it is important to ensure there is ongoing liaison with the defence.

Prosecutors should be aware that they may need to any sensitive material (e.g. PII) before passing to the defence.

Important Considerations

It is important to note that the decision to enter into an agreement is one for the specified prosecutor, having considered whether it is necessary in the interests of a particular or potential investigation or case or to help gather intelligence.  There is no right of an offender to require an agreement to be signed.

Assessing Reliability and Credibility

When considering whether the assistance from the offender would be useful, the reliability and credibility of the potential assisting offender must be considered, this should include, amongst any other relevant factors, the following:

  • the consistency and accuracy of the information available (this should be assessed by analysing the debrief material against other available evidence, information and/or intelligence);
  • the readiness of the potential witness to change their account (consider also the frequency of change and any explanation provided);
  • any deliberate distortion of the roles of others;
  • whether the potential witness is minimising their own role;
  • the scale of Bad Character – has the potential witness led a ‘life of crime’ and is there material to demonstrate a propensity to lie;
  • 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);
  • any tendency to confuse (note this may just be a consequence of the potential witness’ long-term criminality);
  • the medical health of the potential witness, following any assessment made of their medical records, particularly any mental health issues, substance abuse or other medical issues which maybe relevant.

To assess these factors it is good practice to establish the full criminal history of the offender, including full details of all their contacts with the police and whether or not these resulted in a criminal conviction.

The following factors will also be relevant:

  • the seriousness of any offence(s) concerning which the evidence, information, co-operation, assistance or other benefit would be provided;
  • the seriousness of any offence(s) which the potential witness might have committed, in comparison with the offence(s) under investigation, including the extent to which the potential witness had coerced or incited another person to take part in the offence(s) under investigation.

Where the assistance will be used as evidence, the strength of the prosecution case with and without the potential assisting offender’s information must be considered. The potential witness must demonstrate that they are able and prepared to provide reliable evidence on significant aspects of any investigation or prosecution. In considering this, the following factors may be relevant:

  • the importance and value of the evidence, information, co-operation, assistance or other benefit to be provided;
  • whether it is possible to obtain the evidence, information, co-operation, assistance or other benefit from another witness, or in another manner;
  • the strength of a 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) and the extent to which that other charge would reflect the defendant's criminality;
  • the impact of the evidence that the witness can give on the prospects of conviction in a case (the prospects of the conviction may actually be reduced because of the bad character and lack of candour of the witness when giving evidence);
  • whether there are other indicators tending to confirm that the evidence or information that the witness might give is true;
  • the number of occasions and the circumstances in which any agreement has been made with the assisting offender in the past (the expectation of a discount in sentence should not be seen as a licence to continue to commit offences);
  • 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 by the conviction of the person with whom it is proposed to make an agreement.

Cleansing/Full Debriefing

Although not a statutory requirement, where assistance will be provided by giving evidence in court it is good practice for assisting offenders to admit their criminality in full under caution before entering into an agreement. This process, often called ‘cleansing’, should be part of the debriefing process carried out by investigators.

Cleansing is not required where the assisting offender is only providing intelligence (although it may nonetheless be beneficial in establishing credibility).

Where evidence is being provided cleansing is required to protect the integrity of the evidence (countering the suggestion that unscrupulous ‘deals’ have been struck between the offender and the prosecution just to obtain testimony against others) and, from a tactical point of view, it minimises the risk that the value of assisting offender's evidence will substantially undermined by cross-examination on criminal activities not admitted but which are well known to former accomplices.

When cleansing takes place, an assisting offender will:

  • fully admit their own involvement in the crime(s) 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.

As referred to above, during the course of the cleansing interview the assisting offender will give full details of all the criminal offences that they have committed.  During this stage the assisting offender may be arrested or reported for each offence for which they have not been previously arrested or prosecuted. A report will be sent to the specified prosecutor at the completion of this stage to determine if the AO should be prosecuted for any of all the offences admitted.

The sentencing court will look to the prosecution for an indication of the extent of the cleansing 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). 

Proceeding without Cleansing

A decision to use an assisting offender to provide evidence, but who has refused to fully admit their criminality is 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 exceptional (R v P; R v Blackburn [2007] EWCA Crim 2290).

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 where:

  • a person indicates their willingness to give evidence against co-accused only as their trial is about to begin; or
  • on the day of trial, one defendant pleads guilty and offers to give evidence.

A pragmatic approach should be taken when considering whether the full cleansing is proportionate for such ‘last minute’ offers of assistance. In such cases, as a minimum, sufficient police checks should be made to establish the offender has not been involved in any other offending for which they have not been investigated.

False Information

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. Where it can be demonstrated to 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.

Additionally, the use of false evidence in proceedings may give rise to a prosecution for perjury or a prosecution for attempting to pervert the course of public justice. An immunity notice or a restricted use undertaking notice will not 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, a prosecution will normally be required in the public interest. Any discount in sentence that has been obtained pursuant to formal agreement under section 73 should also be reviewed using section 74.

The fact that an immunity notice or a restricted use undertaking notice 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 powers under section 6 of the Prosecution of Offences Act 1985 to take over such a prosecution with a view to discontinuing it.

Legal Representation

The assisting offender is not required, under SOCPA, to have legal representation before entering into a written agreement.  However, any subsequent challenge 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 they should be advised by the investigator of their right to seek independent legal advice. It should be made clear to the assisting offender that the prosecutor will only inform their legal representative with their consent.

Appropriate Adults

Although possible, it is not best practice to enter into SOCPA agreements with vulnerable individuals. Where an assisting offender is vulnerable they must be advised by the investigator of their right to have an appropriate adult present for any discussions or interviews unless there are compelling reasons to do otherwise. It is also good practice for an appropriate adult to be present when the assisting offender is invited to sign the written agreement.

An appropriate adult should be present if the assisting offender is:

  • Mentally vulnerable, or an officer has reason to suspect the assisting offender is mentally vulnerable, namely, here the assisting offender may not understand the significance of the procedure or what is being said, they should be treated as mentally vulnerable and an appropriate adult should be provided (as well as the offer of legal assistance);
  • a ‘juvenile’ (anyone who appears to be under 18 in the absence of clear evidence that they are older).

An assisting offender must be advised by the investigator of their right to have an appropriate adult present for any discussions or interviews unless there are compelling reasons to do otherwise. It is also good practice for an appropriate adult to be present when the assisting offender is invited to sign the written agreement.

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. See the Achieving Best Evidence handbook for more information.

Legal Professional Privilege

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.

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.

Asset Recovery

A SOCPA agreement could prevent recovery of proceeds of crime following conviction or recovery under Part 5 POCA.  An agreement under section 73 SOCPA must not include a condition which avoids confiscation or civil recovery as this would be akin to the prosecution paying for evidence. 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.

An agreement under section 72 should also not undertake to restrict use of evidence in the recovery of proceeds of crime. Only in exceptional circumstances will it be absolutely necessary in the public interest to agree a restricted use undertaking under section 72 to Part 5 POCA proceedings.

No agreement should be made which could have the effect of protecting the assisting offender from the recovery of proceeds of crime without first consulting the CCP of CPS Proceeds of Crime.

To minimise the risk of an agreement which prevents confiscation by another prosecuting authority, investigators should also confirm whether there are any related investigations regarding the assisting offender.

National Probation Service

The Central Projects Team (CPT) in the National Probation Service plays a role in many aspects of the SOCPA process including the cleansing and debrief stage and at court they prepare a report. Investigators will usually involve the CPT from an early stage of the process, if they do not, the prosecutor may wish confirm whether the CPT has been notified.

Witness Protection

Consideration should be given to the duty of care that arises between the prosecution 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).

Wherever possible, an assisting offender should be given the requisite support and protection. Witness 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.

In serious cases the risk to witnesses is so great that the witness is required to relocate to another part of the UK and change their identity. Chapter 4 SOCPA has specific provisions for the protection of 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 police forces and law enforcement agencies from offering protection measures to other witnesses and others at risk.

Witness protection for people judged to be at risk of serious harm is provided by the UK Protected Persons Service (‘UKPPS’), a network of regional police units, led by the NCA.  Referrals should be made by law enforcement and if a witness has been afforded protection the prosecutor will be advised of this.

Alternatives

Prosecutorial Discretion

As noted above SOCPA does not preclude the use of prosecutorial discretion to secure assistance from offenders. Examples of prosecutorial discretion are provided below.

  • A review decision to prosecute only the main offenders and to call peripheral offenders as witnesses.
  • Informing the court 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 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 the 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. The requisite authority is required to provide this undertaking.

Use of Texts

SOCPA does not prohibit the use of the common law ‘text’ regime to reduce sentences, i.e. where the police (with the agreement of the prosecution) inform the sentencing judge of any assistance given by an accused person to the prosecution, and these may continue to be supplied under existing procedures. 

However, given the intention of SOCPA 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 assisting offender and the prosecution.

Nonetheless the 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 where the defendant has, prior to sentence, already given assistance to the police in relation to his own or another's offending [which has been validated by investigators] the need for an enforceable agreement between the defendant and the prosecutor under section 73 is removed. 

Assisting offenders who prefer to rely on texts must acknowledge that any discount of sentence may be reduced due to the value of assistance provided. In addition, texts are less readily susceptible to a safeguarding review under section 74 than if assistance is provided formally under section 73.

Disclosure

Full and accurate records should be kept of the consideration and implementation of any written agreement under SOCPA, including the circumstances surrounding the exercise of these powers, and the reasoning behind any decisions taken. This can be recorded on the Highly Sensitive Disclosure Record Sheet.

The normal legal and procedural rules governing the disclosure of unused material apply as much in the context of assisting offender evidence as they do to any other 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.

Disclosure of section 73 agreements is most likely to be an issue when the assisting offender is called to give evidence. Where an assisting offender gives evidence pursuant to an agreement, the fact that they have 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 (sections 71 and 72) or seeking a reduction in sentence (sections 73 and 74). Disclosure issues may also arise when the offender is not called as a witness. Prosecutors should be aware there is the potential that intelligence from individuals will be recorded in different places (e.g. intelligence reports, CHIS logs) and therefore should handle these reports in the usual way.

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 assisting 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 appropriate to make a formal admission covering the terms of the agreement, to go to the jury and this will be dependent on the sensitivity of the terms in any individual case. 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.

The written agreement itself may be recorded on a Highly Sensitive MG6D schedule depending on the parameters of the agreement. Where the contents of the agreement do pass the disclosure test an application for PII should be considered. It may be that the terms of the agreement do not assist or undermine and will therefore not need to be disclosed (although subject to below, some terms of an agreement may be disclosable in evidence cases). In evidence cases, the SOCPA agreement will be relevant to assessing offender’s credibility and therefore it is usual that it will be disclosed.

Consideration may also be given as to whether it would be helpful to serve the agreement. 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. 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, may be sensitive for the reasons set out below:

  • the intelligence or information regarding other offences or offenders will not be public knowledge and release of such information would prejudice further investigations;
  • 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;
  • confidentiality is essential to the maintenance of the necessary flow of information to law enforcement from informants generally, 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.

Prosecutors should be aware that information may meet the test for disclosure and therefore are bound by CPIA obligations in the usual way.

Moreover, if disclosure of 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. If necessary, the prosecutor could provide an NCND response in order to prevent the publication. See the Disclosure Manual for further guidance.

Handling Written Agreements

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 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 manner in which the material is conveyed to 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).

Media Handling

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

Recording Written Agreements

The CPS is responsible for monitoring the number and types of SOCPA agreements issued by the CPS annually. This anonymised data is collated for annual publication. There is no central record of the details (names, offences etc) of each agreement. 

Further reading

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