Written 23rd October 2024 by James Claughton
James Claughton considers the direction of travel at the Serious Fraud Office and greater use of ‘Assisting Offenders’ agreements under the Serious Organised Crime & Police Act 2005 and Sentencing Act 2020.
The director of the Serious Fraud Office (SFO) Nick Ephgrave appointed last year indicated that the SFO is not making sufficient use of the Serious Organised Crime & Police Act 2005 (SOCPA) and Sentencing Act 2020 legislation. He suggested it should be better utilized to encourage defendants to assist with investigations and commented on the prevalence of this in the US having travelled to meet with his US counterparts.
He commented:
‘Looking to one eye across the Atlantic, we have fantastic legislation here which allows us to encourage assisting offenders to progress our investigations. In the US, it is done without any question. My own research suggests that over here the use of the Serious Organised Crime and Police Act is not well-developed. We seem reluctant, culturally, to do it. It is not used very often and yet the benefits are enormous, both to the defendant, who could get a reasonably decent reduction in sentence, and to us, as it can provide us with the evidence we need to prosecute a case more quickly.
Put those two things together, the incentivisation of witnesses and better use of the assisting offenders legislation, and we have the building blocks for a much quicker and more efficient way of dealing with big cases’.
Defendants can benefit from the provisions in SOCPA 2005 and the Sentencing Act 2020 by cooperating with investigations but could be adversely affected if their co-accused cooperates.
S.73, s.74 and s.75 of SOCPA related to assistance by defendants and reduction in sentence but were replaced by new sections of the Sentencing Act 2020. The general rule is that where there is sufficient evidence co-accomplices should be charged but the ‘Assisting Offenders’ provisions encourage cooperation in return for reduced sentences.
Immunity from prosecution – Section 71 SOCPA 2005
Section 71 provides full immunity from prosecution and must be authorised by the Director of Public Prosecutions and consultation with the Attorney General.
It 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.
Restricted Use Undertaking Section 72 SOCPA
Section 72 SOCPA enables an undertaking that information provided by a Defendant will not be used in criminal proceedings against the offender or in Part 5 of the Proceeds of Crime Act 2002. These should be used in rare circumstances.
An undertaking under s.72 must be authorised by a Deputy Chief Crown Prosecutor or Deputy Head of Central Casework Division or above.
Reduction in sentence for assistance to prosecution s.74 Sentencing Act 2020.
Section 74 of the Sentencing Act 2020 can be used to reduce a sentence based on information provided by a Defendant.
(1) This section applies where the Crown Court is determining what sentence to pass in respect of an offence on an offender who—
(a) pleaded guilty to the offence,
(b) was convicted in the Crown Court or committed to the Crown Court for sentence, and
(c) pursuant to a written agreement made with a specified prosecutor, has assisted or offered to assist—
(i) the investigator,
(ii) or the specified prosecutor or any other prosecutor, in relation to that or any other offence
An agreement under s.74 of the Sentencing Act cannot contain anything which prohibits confiscation.
Subsequent Review of Sentences (Section 387 and 388 Sentencing Act 2020)
Section 388 of the Sentencing Act enables an agreement to be made which would refer a sentence back to the Crown Court to secure the assistance of an offender in the following circumstances;
- (a) the Crown Court has passed a sentence on an offender in respect of an offence,
- (b) the offender is still serving the sentence, and
- (c) pursuant to a written agreement subsequently made with a specified prosecutor, the offender has assisted or offered to assist the investigator or prosecutor of any offence,
S.387 Failure by offender to provide agreed assistance: review of sentence
A reduced sentence may also be referred back to the Crown Court in the following circumstances;
- (a) the Crown Court has passed a sentence on an offender in respect of an offence,
- (b) the sentence (“the original sentence”) is a discounted sentence in consequence of the offender’s having offered in pursuance of a written agreement to give assistance to the prosecutor or investigator of an offence, and
- (c) the offender knowingly fails to any extent to give assistance in accordance with the agreement.
Future for the ‘Assisting Offenders’ provisions
The provisions in SOCPA 2005 and Sentencing Act 2020 are designed to enable prosecutors to secure evidence from offenders to assist in an investigation in indictable or either way offences. The information obtained may be used to provide evidence in court or for intelligence purposes.
Nick Ephgrave has indicated that the ‘Assisting Offenders’ provisions detailed above could be utilised to offer deals to those who assist the SFO with their investigations. He has suggested that he feels the benefits supersede the risks and commented that over 700 UK nationals have gone to the US since 2012 having felt they did not have access to sufficient whistleblowing in the UK.
It has also been noted that 86% of the $2.2 billion recovered by the U.S. Department of Justice has come from whistleblower evidence. Ephgrave noted the importance of obtaining ‘smoking gun’ evidence early on in investigations. The use of the assisting offenders provisions could be crucial to gaining such evidence.
This could lead to a number of defendants cooperating in investigations in order to achieve plea deals/reduced sentences. Those facing an investigation by the SFO will need to consider whether to take advantage of the Assisting Offender provisions but also be mindful they could be at risk of their co-accomplices doing so.
Specialist SFO Solicitors (London & Manchester)
If you are facing a SFO investigation or prosecution and are in need of a specialist lawyer, please contact us at info@olliers.com, call 020 3883 6790 (London) or 0161 8341515 (Manchester) or complete the form below.
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James joined Olliers in 2020, having studied Law with Business at the University of Liverpool followed by a Masters in Legal Practice.
James has a particular interest in the investigation stage of cases and has a significant caseload of pre charge cases. He frequently makes representations against charge on behalf of clients under investigation.
