TNAG-1555-FCO40-2119-Broadcasting-in-Hong-Kong-1986 — Page 115

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In the United States both Federal and State prosecutors make extensive use of prosecution witnesses who have been involved with the accused. While they recognise that it is desirable to employ a man who has admitted his guilt, it is often the case that such a witness must be persuaded to co-operate by some offer of leniency, e.g. immunity from prosecution. If the witness agrees to the terms of the offer, he is obliged to testify; his refusal will allow the prosecutor to prove all admissions made by him to the investigators. The process by which the agreement is entered into and the obligations of either party are the subject of statute. In the Federal system, the Attorney General may terminate the protection from prosecution he has offered if in his opinion the individual has substantially breached the terms of the agreement or provided false information. His decision is not the subject of judicial review [see USC 18 3521].

Option

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The option is that agreements made between the Attorney General and potential prosecution witnesses be made the subject of legislation. Thus a witness who fails, in the opinion of the Attorney General, to give full and true evidence, would be liable to prosecution on the basis of the admissions he had made to the investigating authorities after entering into the agreement. This will involve a statutory exception to the rule determining the admissibility of confessions enshrined in the decision of Ibrahim VR [1914] AC 599.

Advantages and disadvantages

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Advantages - The employment of witnesses who have been involved in serious crimes is morally repugnant but practically necessary to the prosecution, especially in the field of organised crime. It is in the public interest that those individuals who agree to assist the Crown under the offer of an immunity are clearly aware of the consequences of default in their agreed obligation to "give full and true evidence". The change in the law merely gives effect to the terms of the agreements which are presently employed.

Disadvantages

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It could well be argued by the defence counsel that the suggested change puts even greater pressure on a witness to stick to the terms of his witness statement even if he has made an honest mistake. Eventually the assessment of whether that witness is telling the truth is a matter for the jury.