An understanding of the provisions of the Serious Organised Crime & Police Act 2005 is relevant not only to those who want to take advantage of the provisions together with their legal advisors but also alleged accomplices and their legal advisors because of course it is they who are, in effect, going to be on the receiving end of this legislation.
As a general principle accomplices should be prosecuted. On that basis the main provisions to be explored here are under Section 73 SOCPA 2005 co-operating witness agreements and to a lesser extent Section 74 which relates to assistance provided to the Crown following sentence.
Relevant Sections to SOCPA 2005
Section 71 – full immunity from prosecution, this is wholly exceptional and requires consultation with the Attorney General.
Section 72 – restricted use undertakings, again these should be used in rare circumstances.
Section 73 – agreements for plea and reduction in sentence – these are the most commonly used and relate to co-operating defendants who do not benefit from immunity/restricted use. Such a defendant enters into a written agreement with the prosecutor and is then eligible to receive a reduction in sentence following entering a guilty plea.
Section 74 – subsequent review of sentences – these are significant in that they operate in a similar manner to agreements under Section 73 but allow for a sentence to be reviewed if there was no discount or agreement at the time of the original sentence or, in the alternative where the original sentence was imposed on the basis of an agreement and the defendant failed to provide the assistance as agreed. Under this section therefore the sentence can either go up or down.
There is no specified procedure for “recruiting” or “turning” an offender into a co-operating witness. The initial approach may come from the police direct to the defendant or legal team. Alternatively it may come from the legal team and be made to investigating officers or the Crown.
If the prosecutor takes a provisional view to proceed then a “scoping interview” will take place under caution. Interview will also be audio recorded and normally detailed notes will be taken by the officers involved. It is unlikely that the officers involved will have a direct involvement in the case. It is far more likely to be officers who are experienced in taking witness statements from co-operating witnesses.
The scoping interview will establish the assisting offender’s reason for co-operating and of course the extent to which they can assist.
Cleansing of the assisting offender is an essential component of the process. The offender must fully admit their involvement in the offences under investigation, provide investigators with all information available and agree to co-operate fully throughout the investigation until its conclusion.
Ordinarily there is an expectation that the offender will admit to other criminality and the co-operating witness cannot afford to have any skeletons in the cupboard.
It is crucial that full and accurate records are maintained. Normal rules regarding unused material apply. Other defence teams are likely to have access to information relating to the agreements. Clearly the agreement is disclosable because it may undermine the prosecution case because it represents an inducement or benefit to the witness.
At the very least the general terms of the agreement should be disclosed. This is a key area for defence teams acting for the remaining defendants.
At that point the Crown Prosecution Service should provide a Judge with the following:
- Plea and sentence documents/other prosecution notes to assist the Judge in understanding SOCPA law as it relates to the particular cases
- Relevant sections of SOCPA
- Case law in particular R v P , R v Blackburn (2007) EWCA Crim 2290, R v H, R v D, R v Choudhury (2009) ECCA Crim 2485 and R v D (2010) EWCA Crim 1485
- Signed SOCPA agreement
- Investigators report containing details of the value of the assistance given
It needs to be understood that in many cases the sentencing Judge will be the trial Judge and on that basis he will have heard the assisting offender give evidence against his co defendant(s).
Sentence Discounts should be calculated in the following way.
Firstly the Judge will look at the sentence he would have given following conviction after trial. Thereafter discount will be given to reflect a guilty plea. Ordinarily one would expect this to be the full one third discount. Thereafter the sentence will be reduced further to reflect the level of co-operation given. Assistance for co-operation can amount to anything up to an additional 50%.
There are no binding authorities and the discount is likely to take into account all factors. For example if how crucial was the evidence of the co-operating witness at trial, how much personal risk has the witness exposed himself or his family to and against who was he giving evidence.
The guidelines for calculating the level of reduction in sentence are laid down in R-P and Derek Stephen Blackburn (2007) EWCA Crim 2290.