I. Introduction
The Court of Appeal recently provided guidance on the proper and established procedure for prosecution authorities seeking to rely on evidence provided by an assisting offender. In R v. Hutchinson [2024] EWCA Crim 997, the Court considered an application to appeal against a conviction of murder and conspiracy to commit robbery on the basis that the CPS had departed from "proper and established procedure" in calling an accomplice as a prosecution witness whilst the same individual was co-accused of murder. The Court expressed its hope that the guidance in this decision would prevent a repetition of the CPS failings in this case, which were "a matter of serious concern". Despite the subject matter of this decision, it is a case to note for those practising in business and corporate crime. Given the SFO's commitment to using all tools at its disposal (including paying whistle-blowers and offering immunity), this is an opportune time for lawyers involved in fraud, bribery and corruption cases to review the statutory provisions and guidance from the Court of Appeal which relate to accomplice evidence.
II. Factual Background
Hutchinson (the appellant) and Pycroft were jointly charged with murder and conspiracy to commit robbery following the death of Mihai Dobre in April 2022. Dobre was a drug dealer who had driven his car to meet with what he believed was a prospective customer, just after midnight on 13 April 2022. When he arrived, Hutchinson and Pycroft approached the car. Pycroft then engaged Dobre in conversation whilst Hutchinson - who was carrying a shotgun - walked towards the back of the car and put on gloves, a mask and a hood. Dobre sensed that something was wrong and started to drive away. As he did so, Hutchinson fired the gun through the rear driver's side window, hitting Dobre in the back of the head. Dobre died in hospital some hours later.
III. Procedural History
Both Hutchinson and Pycroft were charged with, inter alia, murder and conspiracy to rob. Pycroft subsequently entered into discussions with the CPS, inquiring whether the Crown would consider not proceeding with the murder count against him if he were to plead guilty to the robbery charge and give evidence against Hutchinson.
A. Pycroft's 74 agreement
Pycroft entered into an agreement with the CPS under section 74 of the Sentencing Act 2020, under which his assistance to the prosecution would be taken into account when determining his sentence. The agreement confirmed that Pycroft would undertake during the required cleansing and debriefing process (outlined below) "to fully admit and to give a truthful account of his own involvement" in matters under investigation, including his involvement in the murder of Mihai Dobre [26]. Crucially, the agreement was finalised before the cleansing and debriefing process was complete, and it did not address the murder charge against Pycroft, which still lay on the joint indictment. In other words, Pycroft would not learn whether he would still be prosecuted for murder until after he had given evidence against Hutchinson.
At a mention, Pycroft pleaded guilty to conspiracy to commit robbery before the trial, and although he was still jointly named on the murder count on the indictment, the Crown indicated that it would not try Pycroft for murder at Hutchinson's trial. Noting that it was the prosecution's intention to call Pycroft as a witness, the judge (who was not the judge presiding over Hutchinson's trial) directed that the section 74 agreement be disclosed to the defence. This was not complied with before the trial commenced.
B. Trial
The trial against Hutchinson began on 11 January 2023 before HHJ Enright. Between 10 and 23 January 2023 the Crown disclosed Pycroft's scoping, debriefing and cleansing interviews; the record of his previous convictions; the schedule of offences to be taken into consideration; correspondence between the Crown and Pycroft's solicitors, and other relevant material held by Pycroft's solicitors. Hutchinson's defence team were also permitted to inspect the section 74 agreement. The Crown refused to revisit its position with respect to whether Pycroft would be prosecuted for murder, such that on the day that Pycroft was due to give evidence, one count of murder still lay against him on the joint indictment.
The defence threatened to stay proceedings as an abuse of process on the basis that the Crown's deliberate decision not to resolve the outstanding charge of murder against Pycroft before he gave evidence was a failure to follow proper procedure (in particular as set out in R v Pipe (1967) 51 Cr App R 17). The Crown maintained that it had followed the appropriate procedure, but the trial judge warned the Crown that if it did not resolve the position regarding the charge of murder against Pycroft, Pycroft's evidence may be excluded under section 78 of the Police and Criminal Evidence Act 1984. The Crown, having considered its position further, decided to offer no evidence against Pycroft in relation to the murder charge and undertook to not prosecute Pycroft for manslaughter. The Court then rendered a not guilty verdict in relation to the murder charge against Pycroft.
Pycroft was called to give evidence as a witness for the Crown the following day. In his summing-up to the jury, the judge emphasised Pycroft's potential unreliability as a witness and addressed the reasons why he would be incentivised to tailor his evidence. Hutchinson was nevertheless unanimously convicted of murder.
C. Appeal
Hutchinson appealed on the grounds that the Crown had essentially granted Pycroft immunity from prosecution "by a nod and a wink" rather than following the established procedures introduced by statute and set out under the Code for Crown Prosecutors ("the Code"), and consequently, Hutchinson's defence was prejudiced to the extent that his conviction was unsafe [43]. In particular, it was argued that Pycroft had a strong incentive to give an account implicating Hutchinson and exonerating himself, which made his evidence inherently unreliable such that it could not be fairly admitted as evidence (notwithstanding that the charges were dropped against Pycroft last minute). Counsel for Hutchinson contended that the correct procedures were designed to ensure transparency and accountability and that the Crown had conflated what should have been entirely separate considerations, namely, (a) whether Pycroft's offer to plead guilty to a lesser offence should be accepted, and (b) whether, in return for assisting the prosecution, he should be given a reduction in sentence as a result of his cooperation. It was also argued that excluding the evidence would not have caused any unfairness to the prosecution and that the prejudice to Hutchinson was not remedied despite the directions given to the jury.
D. Decision – "more pragmatic than principled"
The Court of Appeal denied the appeal, reasoning that although "there may be cases where no directions to the jury could possibly suffice to cure the prejudice...this was not one of them." The Court stated that "because of the directions given by the trial judge, the jury, in this case, knew that Pycroft had come forward to give his account at a time when there was no guarantee that he would not continue to be prosecuted for the murder, at which he was now prepared to admit he was present", and as such the jury was able to assess Pycroft's credibility and motivation [77]. The Court further observed that even if Pycroft's evidence had been wholly discounted by the jury, there was sufficient evidence on which a properly directed jury could be sure that Hutchinson was guilty of murder – Pycroft's evidence was not essential to the Crown's case. Accordingly, the conviction was "undoubtedly safe" [79]. Nevertheless, the Court was critical of the Crown's conduct with respect to Pycroft's evidence and stated that "the failings by the prosecution in this case are a matter for serious concern" [3]. It added that the decision about the murder charge had to be taken under extreme time pressure and on the face of it appeared "more pragmatic than principled", such that Pycroft could "consider himself extremely fortunate that he ended up in the position that he did" [72].
Legislative framework for assistance
A. Prosecutorial powers to assist with securing evidence
Prosecuting authorities have the ability to grant the following to assisting offenders, in order to obtain intelligence or evidence which might assist in an investigation or prosecution:
- Immunity from prosecution under section 71 of the Serious Organised Crime and Police Act 2005 (SOCPA);
- Restricted use undertakings under section 72 of SOCPA;
- Reduction in sentence under section 74 of the Sentencing Act 2020 (previously section 73 of SOCPA ); and
- Review of sentence under s.388 of the Sentencing Act.
The Crown Prosecution Service's guidance, "Assisting Offenders (Immunity, Undertakings and Agreements)" (dated 2 August 2022) ("the Guidance") particularises how prosecutors can use these powers.
B. Immunity
Section 71 of SOCPA permits the issue of an immunity notice by a prosecutor (i.e. the DPP or a prosecutor designated by the DPP). The Guidance makes it clear that full immunity will only be granted in the most exceptional cases and specific criteria need to be considered when determining whether it is appropriate to grant immunity to a witness. These include 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 and whether it is unlikely that any prosecution could be launched against the person to whom immunity is offered.
C. Reduction in sentence
Under section 74 of the Sentencing Act, the Court may consider the assistance given or offered by an individual when determining what sentence to pass. Section 74 is engaged where an offender: (i) pleads guilty to an offence; (ii) is convicted in the Crown Court or committed to the Crown Court for sentence; and (iii) has assisted or offered to assist the investigator or a prosecutor in relation to that (or any other) offence pursuant to a written agreement.
The Guidance requires the prosecutor to consider whether an agreement would be acceptable in principle, after which the prosecutor may conduct a scoping interview (usually conducted under caution). The Guidance also notes that where it is expected that any agreement would include the assisting offender giving evidence in court, an agreement to provide evidence should not be finalised until the offender has admitted their criminality in full under caution ("cleansing") and a full debriefing has been completed. Notably, in the case of Hutchinson, this part of the Guidance was not properly complied with.
D. Guidance in R v Hutchinson
The Court of Appeal provided several useful observations on the proper procedure for prosecutors to follow when considering accomplice evidence:
First, the Court noted that when a prosecutor is considering whether to accept a defendant's offer to plead guilty to a lesser offence, the primary consideration is whether the plea offered is "commensurate to the seriousness of the alleged offending" [65], as well as other factors set out in the Guidance (such as the public interest in the prosecution of and conviction of offenders for the commission of serious criminal offences).
Second, the prosecuting authority may not adopt a "wait and see" approach (as it did in Hutchinson) under which it enters into a section 74 agreement with an accomplice and relies on them as a witness against their co-defendant while the accomplice-witness remains charged with the same offence – such an approach is "wholly impermissible" [69].
Third, with respect to immunity, the Court of Appeal noted that, although it is not stated explicitly, the language of section 71 of SOCPA envisages that an immunity notice should be considered "only if the offender has not yet been charged with the offence or offences in respect of which immunity is sought" (emphasis added) [16]. If the offender has been charged, is willing to admit his guilt, and wishes to give assistance to the police or prosecution in return for a reduction in sentence, then the prosecuting authority should proceed by formalising an agreement with the witness under section 74 of the Sentencing Act.
IV. The impact for fraud lawyers
The guidance provided by the Court, in particular in relation to section 74 agreements, is of relevance to assisting offenders and those being prosecuted on the basis of evidence provided by assisting offenders. Whilst the appeal in Hutchinson was unsuccessful, the Court was clear that there may be circumstances where prosecutorial failings of this type cannot be cured by directions to the jury at trial.
Assisting offenders are known to have enabled prosecutions by the SFO in recent years. Many will be familiar with the Petrofac case, in which the group's head of sales, David Lufkin, entered into a cooperation agreement with the SFO. His evidence is said to have facilitated a guilty plea by the company in respect of counts under section 7 of the Bribery Act 2010, resulting in an order to pay £77 million in fines, confiscation and SFO costs.
Earlier this year, Nick Ephgrave QPM, the current Director of the Serious Fraud Office ("SFO") also confirmed in an interview with The Guardian that the SFO has previously granted immunity from prosecution to an individual who provided substantial assistance. Looking forward, Mr Ephgrave stated that he intends to bring his experience in "progressing investigations in all sorts of different ways" by "introducing new tactics, new methodologies" to the SFO. Mr. Ephgrave has identified several "new tactics" including offering financial compensation to "clean hands" whistle-blowers and possibly granting immunity to suspects or defendants (although Mr. Ephgrave was quick to stress that "rarely, rarely, rarely do we ever do it"). Whilst these powers are not new in and of themselves, it is a signal that the SFO intends to bring a fresh approach to the way that these tools are used by prosecutors. It is, therefore, helpful to have in mind at an early stage of any investigation the applicable legislative framework for assistance and the new Court of Appeal guidance in Hutchinson in anticipation of the SFO's "new tactics".
This article was first written for and published in the Young Fraud Lawyers' Association Winter Newsletter 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.