IMMUNISED WITNESSES
The Legal Framework for Witness Immunity
The Department of Justice may grant immunity from prosecution where a potential witness's evidence is important to the prosecution of another offender and the interests of justice justify protection from prosecution.
Any proposed cooperation requires careful legal advice. The credibility of the witness, their own involvement, the availability of supporting evidence and the exact written terms of the immunity are central to the process.
AN EXCEPTIONAL COURSE
When immunity may be considered
In exceptional circumstances, the Department of Justice may grant immunity from prosecution to a potential witness, including an accomplice, where that person's evidence is sufficiently important and the interests of justice support that course.
The general position is that an accomplice should be prosecuted even if called as a witness. Immunity is therefore not routine. It is more likely to be considered where the evidence is necessary to secure the conviction of another offender and is not reasonably available from another source.
THE PROSECUTION'S ASSESSMENT
Factors considered by the Department of Justice
Under Article 63 of the Basic Law, the Department of Justice controls criminal prosecutions independently and free from interference. A grant of immunity must be approved at directorate level.
The prosecution considers the nature of the proposed evidence and how important it is to the case against the person to be prosecuted.
The proposed witness's antecedents, perceived credibility, completeness of disclosure and any motive for withholding or distorting the truth are material.
The proposed witness's participation in the offending should generally be lower than that of the offender whom the prosecution intends to prosecute.
The presence of independent or supporting evidence is relevant when the prosecution evaluates the reliability and usefulness of the proposed testimony.
THE COOPERATION PROCESS
From an offer to cooperate to written immunity
The precise procedure depends on the investigation and the circumstances of the proposed witness. Legal advice should be obtained before any approach, statement or offer of cooperation is made.
The defence may approach the investigator or prosecution, often through carefully framed correspondence or a without-prejudice discussion, to indicate that the client may be able to provide material assistance.
A detailed non-prejudicial statement, commonly referred to as an NPS, may be provided to outline the evidence the person can give. Its status, permitted use and confidentiality should be clearly agreed before it is supplied.
The prosecution assesses whether the proposed evidence is necessary, credible, sufficiently supported and consistent with the interests of justice.
If immunity is approved, it must be granted in writing. The letter should define the scope of protection and the witness's obligations with precision.
The written immunity must be made available to the defence before trial and to the court at trial. Relevant witness statements and credibility material may also engage the prosecution's disclosure duties.
STRICT COMPLIANCE
Obligations, risks and legal consequences
Immunity is conditional protection, not a general pardon. Its effect depends on the precise written terms and the witness's continuing compliance with them.
The witness must provide a full and truthful account of all relevant facts within their knowledge and comply with the cooperation required by the written agreement.
The witness may be required to make statements, attend court and give truthful evidence, including under cross-examination.
Dishonesty, material non-disclosure, refusal to cooperate or false testimony may place the immunity in jeopardy and expose the witness to prosecution, including for any separate offence such as perjury where the legal requirements are met.
HOW MCS CAN ASSIST
Advice before any offer of cooperation
The decision to seek immunity carries substantial legal and practical risk. MCS can assess the client's potential exposure, examine the value and reliability of the proposed evidence, advise on whether cooperation should be offered, and communicate with investigators and the Department of Justice.
Where an NPS or other account is contemplated, we can help define the basis on which it is provided, guide the client along the NPS taking process, review the proposed terms of any written immunity and advise throughout the statement-taking and trial process.
OFFICIAL GUIDANCE