Comparing the use of Cooperation Agreements in fraud investigations and prosecutions in England and Wales versus the US
2 August 2024
The US approach to cooperation agreements with informants differs from the typical approach taken in England and Wales. The foundation of the agreement may be the same: exchanging information that will aid an investigation or prosecution of a bigger operation or bigger fish for leniency or in some cases immunity for the informant. However, the approach, formalities and perception of cooperation agreements in England and Wales versus the US system means the frequency of use, and indeed the success of cooperation, differs greatly between the jurisdictions.
Types of Cooperation Agreements in England and Wales
In England and Wales, cooperation agreements cannot be entered into informally. If the Police considers that offering immunity or leniency in exchange for information would benefit an investigation, then the requisite approval must be sought before any arrangement can be made. Such agreements can be categorised as follows:
- Immunity Deal (S71 Serious Organised Crime and Police Act 2005)
Immunity from prosecution can only be offered by a “specified prosecutor”, restricting such authority to the Director of Public Prosecutions, the Director of the Serious Fraud Office, and other public financial institutions such as the Financial Conduct Authority (FCA). The offer must be laid out in a written “immunity notice”, and the immunity notice will specify the offence for which the notice provides immunity and will contain conditions which if breached render the immunity invalid. - Undertakings as to use of evidence (S72 Serious Organised Crime and Police Act 2005)
Again, this can only be offered by a “specified prosecutor”. The deal here provides protection for the informant that specified information they provide will not be used against the informant in the proceedings. The undertaking will describe the information that if provided will not be used against the informant, except in any circumstances that are specified in the undertaking. As with immunity from prosecution, if the informant fails to provide the information and does not comply with those conditions as set out in the undertaking, it will cease to have effect. - Reduction in sentence (S74 Sentencing Act 2020)
When the Crown Court is determining what sentence to hand down to an offender who has pleaded guilty and was an informant pursuant to a written agreement with a specified prosecutor, the court may take into account the extent and nature of the assistance provided. Typically, the sentence that would have been passed had the offender not provided assistance would be set out in open court, followed by the discount that is being applied for such assistance. However, where it is not considered to be in the public interest to reveal in open court that such assistance has been provided, then the sentence and discount applied will be provided to the prosecutor and offender in writing. - Review of sentence (S388 Sentencing Act 2020)
An offender who pleaded guilty and who is serving a Crown Court sentence, in certain cases can become an informant and enter a written agreement with a specified prosecutor. Information provided can be exchanged for a review of their initial sentence and the court can take into account the nature and extent of the information provided and impose a lower sentence than the sentence previously passed.
A US comparison
Fraud, in both jurisdictions, is a document heavy process. In the US there is more of a tendency to use a witness to talk the jury through the documents, providing an insider’s perspective on the case. Whereas English courts seem to focus principally on the documents, emphasising their neutrality, they are less reliant on witness testimony and instead have an advocate talk the jury through the documents.
However, the approach to how an informant should disclose information seems to be the most crucial difference between the US and English approach. The approach in England and Wales requires that agreements are entered into after a suspect has been interviewed under caution, with potential informants admitting their full criminality on the record. This has been referred to as ‘cleansing’ and it is only in exceptional cases that the prosecution will make an agreement with an informant who has refused to fully admit their guilt (see R v Clark and others [2001] EWCA Crim 975 and R v P and another [2007] EWCA Crim 2290). There is a general perception that informant witnesses are of limited benefit as this approach attracts a certain scepticism that suspects will say almost anything to obtain immunity or leniency and are therefore less credible witnesses.
This differs starkly from the US approach of phased disclosure from the informant without the expectation of full disclosure at the outset. It potentially poses less risk for the informant and preserves credibility as it is a considered approach with information exchanged where required. This approach will likely necessitate more time and consideration from the prosecution as to how to make effective use of the witness, but with fraud prosecutions in the US rarely undertaken without an informant cooperator, the time invested in this process can be both critical and evidentially rewarding.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2024.