R v Lewis Hutchinson

An accomplice should not give prosecution evidence while facing serious charges arising from the same or closely related events. Those charges should normally be resolved before the witness gives evidence, although the prosecution may take and assess a witness statement beforehand. The prosecution must decide any lesser plea and any use of the witness on a principled basis under the Full Code Test. Where the charges are resolved, the incentives and circumstances are fully disclosed, and the jury is properly directed, earlier procedural failures will not necessarily make the evidence inadmissible. If sufficient evidence exists to prosecute both participants for murder, the public interest will generally require both prosecutions. Sentencing factors that independently justify the same starting point must not be ignored as double-counting.

The appellant was convicted of murder and conspiracy to rob at Peterborough Crown Court on 8 February 2023. He appealed after the prosecution called Christopher Pycroft, an erstwhile co-defendant, as a witness under a section 74 agreement. Pycroft had pleaded guilty to conspiracy to rob, but the murder charge against him remained unresolved until the trial. The prosecution disclosed the agreement and related material late. Before Pycroft gave evidence, it offered no evidence on murder and undertook not to prosecute him for manslaughter.

The appeal concerned whether the prosecution’s handling of Pycroft’s evidence rendered the conviction unsafe. The renewed sentence application concerned the minimum term and alleged double-counting of aggravating factors.

1. Conviction appeal dismissed. An accomplice ordinarily has an incentive to minimise their own role and blame a co-defendant. A more serious danger arises where the proposed witness may obtain the abandonment of serious charges arising from the same or closely related events. The practice endorsed in R v Pipe (1967) 51 Cr App R 17 and R v Turner (1975) 61 Cr App R 67 requires that position to be resolved before the witness is called. Otherwise, the trial judge may be justified in excluding the evidence under section 78 of the Police and Criminal Evidence Act 1984.
2. The practice does not apply where the witness is not an accomplice and the outstanding charge concerns unrelated offending, as illustrated by R v Chan Wai-Keung [1994] 2 Cr App R 194. It also does not require the prosecution to resolve the charges before taking a witness statement. The mischief concerns the reliability of evidence given at trial under oath or affirmation.
3. The acceptability of a lesser plea and the decision whether to call the proposed witness are separate issues, but they may properly be considered concurrently. The prosecution cannot assess the plea in an evidential vacuum. Under the assisting-offender regime in the Sentencing Act 2020, related criminal charges should ordinarily be resolved when the agreement is made, or at the latest when the section 9 witness statement is signed. A decision must not be deferred until after the defendant’s trial. Where both participants face murder charges and the evidential threshold is met, the public interest will generally require both to be prosecuted.
4. The prosecution’s conduct was seriously defective. The agreement preceded completion of cleansing and debriefing, the murder charge remained unresolved, and disclosure was late. Nevertheless, the prosecution offered no evidence on murder and undertook not to prosecute Pycroft for manslaughter before he testified. The jury received full directions about his incentives and reliability, and there was ample independent evidence that the shooting was intentional. The pragmatic approach in R v Daniels and others [2010] EWCA Crim 2740 supported the conclusion that the evidence remained admissible and the conviction safe.
5. Sentence. The minimum term was not manifestly excessive. There was no double-counting in treating the pre-planned attempted robbery and use of a firearm as separate factors, since each independently justified a 30-year starting point. Leave to appeal against sentence was granted only to correct the minimum term, which was recorded as 29 years and 316 days. The renewed application was otherwise refused.

• Court of Appeal (Criminal Division) — Leave to appeal against conviction was granted on a single ground. The appeal was dismissed. The renewed sentence application was refused except for correcting the expression of the minimum term.
• Peterborough Crown Court — The appellant was convicted of murder and conspiracy to rob on 8 February 2023 and sentenced to life imprisonment, with the minimum term incorrectly expressed.