SOCPA Agreements: Note for those representing assisting offenders
- Essential Reading
- The Decision to Offer an Agreement
- Legal Representation
- De-Briefing Process
- Legal Professional Privilege
- Proffer Letters and Scoping Interviews
- Signing of the Agreement
- Preparation for Court Hearing
- General Principles
- Section 73 Hearing
- Section 74 Hearing
- Court Hearings
Sections 71 to 75 of The Serious Organised Crime and Police Act 2005 ('the 2005 Act') came into force on 7th April 2005 and establish a statutory framework to replace earlier arrangements for regulating agreements made with offenders who have offered to assist the investigation or prosecution of offences committed by others.
This note sets out the procedures to be followed in all cases in which a specified prosecutor is considering making a formal agreement:
- Not to prosecute an offender (an immunity notice under section 71);
- Not to use certain evidence (a 'restricted use' undertaking under section 72);
- Setting out in writing the terms under which an offender who, with a view to obtaining a reduced sentence under section 73, is willing to assist an investigation or prosecution; or
- Setting out in writing the terms under which a prosecutor agrees to refer a case back to court for a review of sentence (section 74).
- Sections 71 to 75 of of the Serious Organised Crime and Police Act 2005 ("SOCPA") which can be found at www.legislation.gov.uk/ukpga/2005/15/contents
- The SOCPA "Explanatory Notes" which can also be found at www.legislation.gov.uk/ukpga/2005/15/notes/contents;
- CPS guidance "SOCPA 2005 - Queen's evidence: Immunities, Undertakings and Agreements";
- R v P; R v Blackburn  EWCA Crim 2290;
- R v H; R v D; R v Chaudhury  EWCA Crim 2485; and
- R v D  EWCA Crim 1485.
The Decision to Offer an Agreement
The decision whether it is appropriate to offer a formal written agreement in any particular case is entirely that of the specified prosecutor.
The criteria to be considered in determining whether it is appropriate to grant immunity to a witness were set out by the then Attorney General in a written answer to the House of Commons on 9 November 1981. They are as follows:
- Whether, in the interests of justice, it is of more value to have an offender 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 offender;
- 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 offender to whom the immunity is offered.
Formal notices and agreements will usually only be signed after the offender has been interviewed under caution and provided at least a version of the information available.
However, in section 72, 73 and section 74 cases, there may be circumstances where the specified prosecutor is prepared to consider signing an agreement after the offender has been through a 'scoping interview' and before full debriefing under caution. In these cases, the agreement will set out clearly what is expected from the offender and indicate that failure to repeat their account in interview under caution will result in revocation.
Although it is not a pre-requisite to any of the agreements that an offender should have legal representation it is clearly preferable that he/she should in the interests of justice. Therefore before an offender is invited to discuss any form of agreement he/she will be advised by the investigator of his/her right to seek independent legal advice on its terms and effects.
Additionally, where required under the PACE Codes an appropriate adult will be provided for the offender. Where appropriate, consideration will also be given to video-taping all discussions and interviews in accordance with the Achieving Best Evidence handbook.
If an offender is believed to fall within the remit of the provisions of SOCPA, consultation should take place with the relevant police debrief unit. This can be done by referring the request to the case officer dealing with the current investigation/prosecution or to a Crown Prosecutor who will refer the request to the relevant debrief unit.
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.
Having obtained a provisional view from the prosecutor, investigators will proceed to conduct a "scoping interview" interview to ascertain, among other things, the reason(s) for the offender requesting or agreeing to be interviewed and the extent to which the offender can give evidence or intelligence.
The scoping exercise will need to identify what areas the offender can assist with, and what, if any, un-prosecuted criminal activity needs to be addressed. It will enable senior officers in consultation with the prosecutor to decide whether the offender should be admitted to the full debriefing procedure.
The offender should ideally be legally represented through recruitment, scoping and debriefing and there should be full engagement with the prosecutor, who can provide assistance.
The investigator will gather the required information confidentially in order to reduce any perceived threat or risk to the offender.
The debrief unit will then refer the matter to a specified prosecutor who will consider if a full debrief should be undertaken in pursuance of a SOCPA contract.
In order to benefit from immunity, a restricted use undertaking or a witness agreement an offender must:
- fully admit their own involvement in the crime or crimes under investigation;
- provide the investigators with all information available to them regarding the matters under investigation and those involved;
- agree to maintain continuous and complete co-operation throughout the investigation and until the conclusion of any criminal or other proceedings arising from the investigation, including giving evidence in court where appropriate.
Those offenders who are to give evidence for the prosecution and who wish to benefit from a written agreement will be required to admit their criminality fully. This process, often called "cleansing", should be part of the de-briefing process carried out by the investigating agency in the process of obtaining the evidence of the offender.
Cases where it is appropriate to proceed with an offender who has refused to fully admit their criminality will be exceptional: R v P; R v Blackburn  EWCA Crim 2290.
Legal Professional Privilege
In some cases, where the Crown are likely to be looking to call the offender as a witness in future proceedings, he or she may be asked whether they are prepared to waive legal professional privilege (LPP), in order to support the process of 'cleansing'. This is so that the Crown can have as complete a picture as possible of the offender's credibility and reliability. Any request for access to privileged material will be strictly limited to matters which are relevant to the issues in the case.
Decisions on whether or not to request a waiver of LPP will be taken on a case-by-case basis. The refusal by a potential witness to waive LPP will not necessarily mean however that they cannot be considered for a written agreement.
Proffer Letters and Scoping Interviews
As indicated above, there may be circumstances where a section 72, 73 or 74 agreement can be signed prior to the full debriefing interview, with provision being made in the agreement for its revocation if the account given in the 'scoping interview' is not repeated in the debriefing interview under caution.
In such cases, prosecutors may invite the offender to participate in a scoping interview using a 'proffer letter' to assess what information or evidence may be available, what its potential worth may be, and whether or not an agreement under SOCPA may be appropriate.
The proffer letter will explain the purpose of the interview is to help with the decision as to whether to enter into an assistance agreement, not to obtain admissions in relation to offences under investigation. The letter will also indicate that the 'scoping interview' will not be under caution.
The letter will make it clear that neither the letter itself nor the subsequent 'scoping interview' represent any promise or undertaking on the part of the specified prosecutor as to how the offender will eventually be dealt with. This serves to distinguish the proffer letter from a formal restricted use undertaking under section 72 of SOCPA and the offender should be in no doubt that the effect of the letter is limited to preliminary discussions only.
Guarantees as to confidentiality may also be given, subject to disclosure of relevant material to a co-accused if required by law. The specified prosecutor may undertake not to use the fact that the offender is willing to be interviewed, or the content of the interview, as evidence against the offender. Importantly, however, as an exception to this, the specified prosecutor may reserve the right:
- to rely upon matters stated by the offender in the interview as evidence against them in any subsequent prosecution for perjury or perverting the course of justice;
- to rely upon evidence obtained from enquiries conducted as a result of the provision of information by the offender in the interview.
Signing of the Agreement
The agreement is between the offender who has provided or offered to provide assistance to an investigator or prosecutor and a specified prosecutor.
The CPS specified prosecutor will discuss the terms of the agreement with the de-briefing officers and then draft the agreement which must be in writing.
The CPS specified prosecutor may also arrange to meet the solicitor representing the offender in order to discuss the draft agreement with him/her.
Once the draft agreement has been agreed by both parties (after discussion with the specified prosecutor if he/she has not met to discuss it), it will be made available through the debrief unit for agreement and signature by the offender. The solicitor representing the offender must also agree and sign an undertaking in relation to their handling of the document whilst it is in their temporary possession.
Once the agreement has been signed by the offender, it should be returned immediately to the specified prosecutor for signature via the debrief unit.
Preparation for Court Hearing
When preparing for any hearing CPS lawyer and prosecution advocate will liaise with counsel and/or the solicitor representing the offender.
The following are some of the general principles that can be established from the statute, the Explanatory Note, and the authorities:
- Sections 73 and 74 of SOCPA apply to hearings in the Crown Court only (including a committal for sentence);
- The assistance given or offered by a offender is not confined to offences in which they participated, or were accessories, or with which they are linked;
- Section 73 of SOCPA only applies if the offender pleads guilty;
- Section 74 of SOCPA only applies if the offender is still serving a sentence. It does not matter if the original sentence was imposed before or after the 7th April 2005. A review can still take place after the sentence has been appealed successfully or unsuccessfully. A case referred under section 74 of SOCPA must, if possible, be heard by the judge who passed the sentence to which the referral relates;
- Section 74(2)(c) of SOCPA can apply to an offender who was sentenced for an offence to which they did not plead guilty, except when it was an offence where the sentence is fixed by law i.e. murder (life), in which case it only applies if they pleaded guilty;
- Section 73 of SOCPA, and a referral relating to sections 74(2)(b) or 74(2)(c) of SOCPA can allow for a reduction of sentence even in cases where a minimum sentence is required i.e. section 5 firearms (minimum 5 years' imprisonment under section 51A of the Firearms Act 1968), or a reduction in the minimum period of imprisonment to be served ("tariff") where the sentence is fixed by law i.e. murder (life);
- In determining what sentence to pass under section 73 of SOCPA, or a referral relating to sections 74(2) (b) or 74(2) (c) of SOCPA, the judge "may" take into account the extent and nature of the assistance given, but does not have to. Whether or not the judge takes into account the assistance offered or provided by the offender, the judge can also take into account any other matter that he/she is entitled to in law i.e. guilty plea etc, for the purposes of determining the sentence or in the case of a sentence which is fixed by law any minimum period of imprisonment that must be served;
- The general principles about the amount of any reduction still apply i.e. it is case specific and will reflect the extent and the nature of the assistance given or offered (the effect of any delay can be taken into account), but the normal level of reduction would continue to be a reduction between one-half and two-thirds, and only in the most exceptional circumstances would the discount exceed three-quarters. The discount for the assistance provided by the offender should be assessed first, against all the other relevant considerations, and the notional sentence so achieved should then be further discounted for the guilty plea. The totality principle is fundamental;
- The existing "text" system can still be used, where appropriate, but any discount of sentence would, save in unusual circumstance, be less than under a SOCPA agreement as the value of assistance provided in this form is likely to be less, and is any event less readily susceptible to a safeguarding review under section 74(2) of SOCPA;
- Sentences passed for offences admitted during the cleansing process should normally be concurrent to a sentence reduced under section 73 of SOCPA. When there is a review of sentence relating to sections 74(2)(b) or 74(2)(c) of SOCPA, any sentences passed at the same time for offences admitted during the cleansing process will run from the date imposed, and the totality principle is critical;
- Any part of a sentence reviewed under section 74 of SOCPA that has already been served counts as time served if the sentence is reduced or increased;
- When substituting a sentence for a referral relating to section 74(2) (a) of SOCPA because the offender failed to give assistance, the judge should not substitute a greater sentence that exceeds the sentence that would have been passed but for the agreement to give assistance. Only in exceptional circumstances would it be right for the sentence that would have been passed to be reduced; and
- Both the prosecution and the defence can appeal by the normal avenues to the Court of Appeal in relation to sentences passed under both sections 73 and 74 of SOCPA.
Section 73 Hearing
The CPS will provide the judge with the usual case papers and sentencing bundle and additionally:
- a Plea and Sentence Document or other Prosecution Note to assist the judge in understanding the SOCPA law as it relates to the particular case, and any further points that should be drawn to his/her attention regarding the law and/or facts;
- relevant sections of SOCPA (sections 71 to 75);
- R v P; R v Blackburn  2 Cr. App. R. (S.) 5,  EWCA Crim 2290;
- R v H; R v D; R v Chaudhury  2 Cr. App. R. (S.) 18,  EWCA Crim 2485 and R v D  EWCA Crim 1485 (if appropriate);
- the signed SOCPA agreement; and
- the investigator's report containing details of the value of assistance given.
The defence will be provided with all the above documentation apart from the signed SOCPA agreement. For reasons of security the investigator's report will only be served at court on the day of the hearing.
Section 74 Hearing
Whether before the original sentencing judge or not, CPS will ensure that the judge's bundle includes, in addition to the documents listed above:
- a transcript of the original sentencing hearing (to include opening, mitigation and sentencing remarks);
- original Indictment;
- original Case Summary;
- basis of plea (if any); and
- any other documents that were provided to the judge prior to the original sentence (previous SOCPA agreements, police/investigator's reports, texts etc).
The defence will be provided with all the above documentation apart from any previous SOCPA agreements and police / investigator's reports, which for reasons of security will only be disclosed / served at court on the day of the hearing.
When preparing for the hearing it is advisable to establish the earliest date of release for the offender, and the expiry date of their sentence. It is also important to be familiar with the sentencing provisions that applied at the date of sentence.
Hearings Relating to Section 73 of SOCPA
There are no new powers in relation to publicity arising from sentences imposed in the context of a written agreement under section 73 of SOCPA.
Subsection (3) requires the court in passing a lower sentence to set out what the sentence would otherwise have been, unless (subsection (4)) it is in the public interest not to do so (in which case the court must provide a written notice of what the sentence would have been to the prosecutor and the offender).
Subsection (7) disapplies the specified provisions, which would otherwise require the court to explain the reasons for passing its sentence on a offender, where the court has decided (under subsection (4)) that it is not in the public interest to make such an explanation).
Hearings Relating to Section 74 of SOCPA
Section 75A of SOCPA allows a section 74 of SOCPA sentencing to take place via live link under section 57E of the Crime and Disorder Act 1998.
Unless absolutely necessary, the normal principle that sentences must not be imposed or reduced or altered after private hearings, privately ordered, should so as far as possible apply to reviews under section 74 of SOCPA. However, an application can be made under section 75 of SOCPA to exclude people from the court, for the court to sit in camera or to impose reporting restrictions, but only to the extent that it is necessary to protect the safety of any person and it is in the interests of justice to do so. Accordingly, where practicable alternatives are available, such as anonymising proceedings then these should be adopted. The following persons cannot be excluded from court:
- A member or officer of the court;
- A party to the proceedings, or their counsel or solicitor; and
- A person otherwise directly concerned with the proceedings.
If there is to be an application to exclude the public, the judge and court should be notified of this in advance of the hearing. A written application will be included in the bundle of papers provided to the judge and defence. This will ask the judge to exclude the public (other than those identified on a list which will also be provided to the judge) and ask for directions prohibiting the publication of any matter relating to the proceedings, including that fact that the SOCPA referral has been made.
The case will then be listed anonymously so that an oral application can then be made at the start of the hearing in the absence of the public. The judge should be asked to make the order until further order as, if the offender does not comply with the agreement, there is the ability to refer the matter back to court. The CA in R v Blackburn indicated that if there is a reference back to the court it is unlikely that such a hearing would be in private. Additionally, if the offender subsequently gives evidence in a public court then the SOCPA agreement would enter the public domain at that point and for transparency reasons it would be better if the order was lifted prior to the SOCPA agreement becoming made public during another court hearing.
When substituting a sentence under subsection (5), the specified provisions which would otherwise require the court to explain the reasons for passing its sentence on an offender do not apply if the court thinks that it is not in the public interest to disclose that the offender falls within subsection (2)(a). Subsections (3) to (9) of section 73 of SOCPA also apply to section 74.
Hearings in Absence
Although section 75A of SOCPA allows a section 74 of SOCPA sentencing to take place via live link under section 57E of the Crime and Disorder Act 1998, SOCPA is silent as to whether a hearing can take place in the offender's absence.
Variation of sentence should be in the presence of the defendant unless either expressly or by implication (e.g. by absconding) he has waived his right to be present. Where the court varied an unlawful sentence in the absence of the defendant but in the presence of his counsel, the CA refused to reduce the sentence on the ground that the variation was unlawful, observing that the action of the Crown Court did not give rise to any breach of natural justice as the offender was represented by counsel who was present when the variation was made (R v Shacklady (1987) 9 Cr. App. R. 258 CA ).
In accordance with section 22(3) of the Criminal Appeal Act 1968 an appellant in the Court of Appeal can waive his/her right to attend an appeal against sentence.
It is therefore believed by analogy that an offender can "waive" his/her right to attend a SOCPA hearing provided that he/she is represented by counsel. The sentencing judge will then have discretion as to whether to hold the hearing in the offender's absence or require his/her attendance.
Where the original case for which the offender was sentenced was a Very High Cost Case (VHCC), those representing the offender can contact the contract manager who handled the offender's original case contract.
Alternatively, since these types of proceeding are out of scope of Crown Court Means Testing, the court has the power under section 12 of the Access to Justice Act 1999 to issue a representation order.
For reasons of the offender's security it is suggested that the latter course is preferable in these situations.