11. Immunity from Prosecution

11.1   In principle it is desirable that the criminal justice process should operate without the need to immunise witnesses to testify to the involvement of others in criminal offending, but it is recognized that in some cases that is an appropriate course. As a general rule, an accomplice should be prosecuted, irrespective of whether or not he or she is to be called as a witness. The preferable course is for a cooperating accomplice to be dealt with after the trial, and ordinarily he or she will receive a discount on sentence to reflect the nature and extent of his or her cooperation.

11.2   In some areas of law enforcement a successful prosecution will be dependent on or greatly assisted by the evidence of an informer. An informer should be used as a prosecution witness only if the interests of justice demand it. That requires a balance to be struck between the interest of the community in securing the conviction of an offender and the awarding of a benefit to a person who may be closely associated with the offending and perhaps criminally involved in it. Ordinarily the evidence to be given by the informer should be considered necessary to secure the conviction of others and not be available elsewhere.

11.3   In certain exceptional circumstances a witness may be granted immunity from prosecution. The decision to grant an immunity and the balancing process involved will be strongly influenced by:

  1. the nature of the evidence the witness may be able to give and its significance to the prosecution of the case;
  2. the antecedents of the witness;
  3. his or her perceived credibility (including the fullness of his or her disclosure of facts and matters within his or her knowledge) and any discernible motive for not telling the whole truth (including the receipt, promise or expectation of a benefit);
  4. his or her level of involvement in the offence being prosecuted (which should generally be lower than that of the offender being prosecuted);
  5. the presence of any supporting evidence.

11.4   It is a requirement that a grant of an immunity is made at the directorate level. An immunity should be given to the witness in writing and copies made available to the defence before trial and the court at trial.