Libby Anderson considers the important case of R v Hutchinson - accomplice giving evidence for the Crown.

The appeal of R v Hutchinson highlighted a number of failings by the prosecution in a case where an accomplice, who still faced prosecution, gave evidence in his co-defendant’s trial for murder. The Court of Appeal issued a detailed judgment in hope that the guidance contained therein would help to ensure that these errors are not repeated, and robustly re-emphasised the importance of obedience to procedure in cases where an offender provides assistance to the prosecution.

The full judgment can be found here: https://assets.caselaw.nationalarchives.gov.uk/ewca/crim/2024/997/ewca_crim_2024_997.pdf

The Facts

Shortly after midnight on 13 April 2022, drug dealer Mihai Dobre drove his car to what he believed to be a rendezvous with a prospective customer. When they arrived, Hutchinson and Pycroft approached the car. Pycroft engaged the driver in conversation and Hutchinson moved to the rear of the vehicle, donning gloves, mask and hood, and carrying a loaded shotgun. Dobre evidently realised something was off because he began to drive away. Hutchinson then fired the shotgun through the rear driver’s side window, hitting Dobre in the back of the head. Dobre died in hospital some hours later. Both Pycroft and Hutchinson were identified as suspects and later arrested; Hutchinson was recognised by a witness and Pycroft was implicated as a result of his mobile phone being used to call the drugs line. Both men were jointly charged with murder (count 1) and conspiracy to rob (count 2).

Legal Framework and Guidance

There are a number of powers which may be used by prosecutors to secure intelligence or evidence from offenders to assist in the investigation or prosecution of indictable offences, as follows:

• Section 71 of the Serious Organised Crime and Police Act (SOCPA) 2005 provides for immunity from prosecution.
• Section 72 of SOCPA 2005 provides for restricted use undertakings.
• Section 74 of the Sentencing Act 2020 provides for reduction in sentence.
• Section 388 of the Sentencing Act 2020 provides for review of sentence.

The CPS has provided Guidance entitled ‘Assisting Offenders (Immunity, Undertakings and Agreements), dated 2 August 2022, elucidating these powers. Only in the most exceptional cases will it be appropriate to offer full immunity to an offender, and the Attorney General must be consulted before any decision on the granting of immunity is made. 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 is to be called as a witness. Therefore, a written agreement under section 74 should be the first option considered. Section 74 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.

The Guidance goes on to set out an eight-step process which 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, which should be audio and/or video recorded.
4. Obtaining authorisation to proceed.
5. Preparing a draft agreement.
6. Completing the Debriefing/Cleansing process. This includes the admission by the offender of their criminality in full under caution.
7. Issuing the written agreement.
8. Evidence or intelligence provided by assisting offender.

The case of R v Pipe (1967) 51 Cr App R 17 considered the steps to be taken in cases where an accomplice facing live proceedings gives evidence (as opposed to an accomplice, not facing unresolved charges, giving evidence). The court accepted that such an accomplice was a competent witness but stated that “it was the established practice (a) to omit him from the indictment, (b) to take his plea of guilty on arraignment, or before calling him either (c) to offer no evidence and permit his acquittal or (d) to enter a nolle prosequi.” (Lord Parker CJ, page 21).

R v Turner (1975) 61 Cr App R 67 is another relevant authority, pre-dating the formalisation of the processes relating to assisting offenders that occurred with the introduction of SOCPA, but addressing many of the same principles.

Events leading up to Pycroft giving evidence at Hutchinson’s trial

On 13 September 2022, Pycroft’s lawyers emailed the Crown Prosecution Service (CPS) inquiring whether the Crown would consider not proceeding with the murder count if Pycroft were to plead guilty to conspiracy to rob and gave evidence against Hutchinson in any murder trial. On 13 October, the CPS expressed interest in pursuing this course of action. An initial statement was taken from Pycroft on 1 November, followed by a scoping interview on 9 November. The CPS referred the defence solicitors to the Guidance. On 21 November 2022, the Prosecution entered into an agreement with Pycroft pursuant to s.74 of the Sentencing Act, relating to potential reduction in sentence only. The cleansing and debriefing process took place on 22 and 23 November. Pycroft was told that ‘if he gave evidence the issue of his involvement in the murder would be considered’ but no final decision as to whether he would face trial for murder was made or communicated.

On 7 December, Pycroft pleaded guilty to conspiracy to rob. Hutchinson’s legal team were not informed about this. The prosecution indicated that it would not try Pycroft for murder at the same time as Hutchinson (although he was still jointly named on the murder count and the potential for a future trial was left open) and that he would be called as a witness in Hutchinson’s trial.

Disclosure of the s.74 agreement was ordered, but this was not complied with. Trial began on 11 January 2023, and it was only at this stage that inspection of the s.74 agreement was permitted, along with disclosure of Pycroft’s scoping, debriefing and cleansing interviews, his PNC, schedule of offences to be taken into consideration, correspondence between the CPS and Pycroft’s solicitors, and other relevant material.

Pycroft’s position in respect of the murder remained unresolved even as at 23 January 2023, when he was due to give evidence against Hutchinson – a breach of the practice set out in Pipe. The defence objected to this failure and objected to Pycroft being called whilst he still faced a charge of murder.

The prosecution indicated that there remained sufficient evidence to prosecute Pycroft for murder but that the public interest in prosecuting him would be reviewed following Hutchinson’s trial, in light of the evidence provided. The Judge was not satisfied with this position and indicated he would consider excluding Pycroft’s evidence if it would be given under those circumstances. After a further review, the decision was made to offer no evidence against Pycroft on the charge of murder and to give an undertaking not to prosecute him for manslaughter. A not guilty verdict was entered in respect of murder. This meant that the practice endorsed in Pipe had finally been followed and Pycroft gave evidence the following day. In the Judge’s summing up, there was much emphasis of Pycroft’s potential unreliability and his incentive to tailor his evidence and to please those who would make the decision whether or not to prosecute him for murder. Nevertheless, Hutchinson was unanimously convicted of murder.

The Appeal

Hutchinson’s appeal argued that the incentive for Pycroft to give evidence had been so strong that his evidence was inherently unreliable and could not be fairly admitted, because although the procedural irregularities had been rectified, this was only achieved at the last minute. It was argued that excluding the evidence would not have caused any unfairness to the prosecution (although no application was made by the defence at the time) and that the prejudice caused to Hutchinson was not remedied by the trial process despite the directions given to the jury.

The prosecution accepted the catalogue of errors, for which there was no excuse, but submitted that the conviction was safe: the procedural irregularities were put right before Pycroft gave evidence, which case law made clear is the critical time, and the judge’s directions ensured that the jury knew how to approach the circumstances in which the evidence was given.

Ultimately, the Court of Appeal found that Hutchinson’s conviction was ‘undoubtedly safe’, citing the wealth of other evidence, the eventual compliance with correct procedure, and thorough legal directions from the Judge in summing up. His appeal was dismissed.

Analysis

Some key considerations for practitioners are set out below:

Familiarity with assisting offender procedure

It is clear that, in cases involving assisting offenders or where there is the potential for an offender to render assistance, a high degree of familiarity with the legal framework and procedural requirements is necessary to ensure that fairness is not compromised at any stage.

Poor practice and non-compliance cannot be challenged unless the defence is aware of what should be done. Likewise, the prosecution cannot uphold the ethical principles of probity, fairness, openness and accountability, set out in the Statement of Ethical Principles for the Public Prosecutor (2 November 2009), unless they are familiar with and abide by the best practice guidance and legal framework. Prosecution counsel will play a key role in this, both in the advice they provide to the Crown Prosecution Service and their advocacy in the courtroom; they play “an important public role and as such may be considered a cornerstone of an open and fair criminal justice system” (Farquharson Guidelines: Role of Prosecuting Advocates, updated 31 January 2020).

Parties should have these matters in mind from as soon as the provision of assistance is contemplated and be alert to material, such as the records of scoping/cleansing interviews, which may fall to be disclosed under the Crown’s ongoing duty of disclosure.

The Guidance can be found here:

https://www.cps.gov.uk/legal-guidance/assisting-offenders-immunity-undertakings-and-agreements

Statement of Ethical Principles for the Public Prosecutor here: https://www.cps.gov.uk/publication/statement-ethical-principles-public-prosecutor

Farquharson Guidelines here:

https://www.cps.gov.uk/publication/farquharson-guidelines-role-prosecuting-advocates

Extent of criminality

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, although this is not the only consideration. The debriefing/cleansing process is intended to establish the full extent of the accomplice’s criminality, which should be reflected in any s.74 agreement. The Court of Appeal found that “the suggestion that, in a case such as this, the question of the acceptability of a proposed guilty plea to a lesser offence should be dealt with in an evidential vacuum and divorced from the consideration of the accomplice’s offer to provide information or evidence to the prosecution, is both impractical and unrealistic” [60].

Consideration therefore needs to be given to alternative or lesser offences for which there is evidential support, as well as those offences already charged. For example, in Hutchinson, Pycroft was debriefed as to his involvement in a conspiracy to rob and his knowledge of Hutchinson’s actions in relation to the murder allegation, but no consideration was given to any plea to manslaughter.

Timing of decision

The prosecution in Hutchinson wrongly believed it could defer taking a decision on the acceptability of Pycroft’s guilty plea to the lesser charge of conspiracy to rob until after it knew whether his evidence had helped to secure Hutchinson’s conviction for murder. The Court of Appeal stated that it is wholly impermissible to adopt such a ‘wait and see’ position.

Clearly, the defendant and the accomplice both need to know where they stand before the accomplice gives their evidence. Uncertainty creates a potential incentive for an accomplice to fabricate their evidence when faced with the possibility that what they say might have an impact on their own trial. By the time Pycroft gave evidence he was no longer in a position of uncertainty as to whether he would face trial for murder, in theory removing the incentive.

However, the failure to take the decision about the murder charge at the time it should have been taken meant that it then had to be taken ‘under extreme pressure of time’ leading to a decision which, on the face of it, appeared ‘more pragmatic than principled’. This is not inherently problematic; in R v Blackburn [2007] EWCA Crim 2290; [2008] 2 Cr App R(S) 5 the Court of Appeal explained at [22] that “pragmatic” decisions which may be unpalatable because they benefit “assisting offenders” may be justified in the public interest: “this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.”

Such serious decisions taken mere hours before an accomplice is due to give evidence give rise to feelings of unease, at the very least. The last-minute decision in Hutchinson gave rise to a defence submission at appeal that “the incentive here was so strong that Pycroft’s evidence was inherently unreliable and could not fairly be admitted, even though the serious charges hanging over him were dropped at the last minute to comply with the requirements in Pipe.” [49].

Safeguards within the trial process

1. Legal arguments: abuse of process and application to exclude

The strength of any such application will be highly factually dependent, in terms of ‘the circumstances in which the evidence was obtained’, the nature of the evidence itself and the unfairness or prejudice that it causes, and the degree of compliance with Pipe/Turner. For example, a case where the evidence of the accomplice is sole or compelling evidence is a very different proposition to one where there are a number of strands of evidence which all support the Crown’s case and would provide a safe basis for conviction even without the accomplice’s evidence, as in the case of Hutchinson.

The practice endorsed in Pipe and Turner provides “an important additional safeguard for the defendant against the heightened danger of false or tailored evidence” which may arise in situations where a prosecution witness may have charges against him dropped, provided he gives evidence that helps the Crown to secure a conviction. The possibility of serious charges being abandoned creates a greater incentive to lie than the prospect of a reduction in sentence only. In such cases, “the trial judge may well be justified in taking the view that the prejudice to the defendant would be too strong to allow such a witness to be called” [55]. In these circumstances, an application to exclude the evidence pursuant to section 78 of the Police and Criminal Evidence Act 1984 may find favour.

Where Pipe/Turner has been complied with, but very late, or where there are other procedural defects such as an apparent failure to accept full criminality as required by the statutory regime, a judge may take the view that the appropriate safeguard lies in giving proper directions to the jury, as discussed below. See, for example, the case of R v Daniels and others [2010] EWCA Crim 2740, [2011] 1 Cr. App. R. 18, discussed at [73]-[76] of Hutchinson.

2. Cross examination

Assuming that the defence has received full disclosure and has had sufficient time to consider it, the accomplice’s evidence can be tested in cross-examination. This includes their motivations and incentives for providing assistance to the prosecution and potentially fabricating evidence, and to interrogate any inconsistencies between evidence given to the jury and accounts given at earlier stages in proceedings, including pre-charge interview under caution, the scoping interview, and the cleansing interview.

3. Legal directions

The Court of Appeal stated “a proper warning given to the jury of the dangers inherent in the accomplice giving evidence in such circumstances [i.e. where there is an incentive] and the need to take them into account in their assessment of that evidence will usually be sufficient to meet those dangers” [55]. In Hutchinson’s case, the potential unfairness was remedied through robust and thorough directions, which clearly set out how the jury should approach Pycroft’s evidence and consider his incentives to lie and/or implicate Hutchinson, and the possible impact that these matters may have upon his credibility. Again, parties should give careful consideration to legal directions and have these in mind from an early stage in proceedings.