Will ‘crown’ testimony not be enough to reduce the sentence? An amendment is in the works.

“Small crown witness” is a criminal law institution whose premise is the possibility of extraordinary leniency for a perpetrator of an offence if he or she discloses to law enforcement authorities information concerning persons participating together with him or her in the commission of the offence and the relevant circumstances of its commission or if, independently of the explanations given in his or her case, he or she has disclosed to a law enforcement authority relevant circumstances, previously unknown to that authority, concerning another offence punishable by more than 5 years’ imprisonment.

Unlike an ‘ordinary’ Crown witness, whose status is regulated by the entire Crown Witness Act (Journal of Laws 2016, item 1197), a ‘small Crown witness’ is devoted to only two paragraphs in the Criminal Code, specifically Article 60 § 3 and 4 of the CC. It will also not be given to the “little crown witness” to take advantage of the protections afforded to a crown witness in a situation where his or her life or health or that of those closest to him or her is at risk, such as a change of residence, a change of personal details, or plastic surgery.

However, do not let this deceive those of you who, after the above description, conclude that the so-called “sixty” has little relevance in the criminal process and is not popular with defendants and prosecutors.

The most recent data available, dating back to 2017, on Crown witnesses shows that only just over 100 people have been granted such status since 1998, when the Crown Witness Act came into force. Its attainment is conditional on meeting strict criteria and has been provided for members of organised crime groups in particular.

In turn, the “little crown witness” is a very commonly used institution in criminal proceedings. It is worth noting that, in principle, any perpetrator of an offence may become a small crown witness. The application of this institution is far less formalised and depends primarily on whether the perpetrator has information of interest to the prosecutor and whether he or she is willing to share it with law enforcement authorities.

The procedure for the application of Article 60 § 3 of the CC as it currently stands is that in a situation where the perpetrator discloses to the prosecuting authority information concerning persons participating in the commission of the offence and important circumstances of its commission, the court ex officio applies extraordinary mitigation of punishment and may even (at its discretion) conditionally suspend its execution.

Significantly, the application of the institution of a “small crown witness” under Article 60 § 3 of the CC does not depend on the consent or application of the prosecutor. Until now, the court could apply extraordinary leniency if it considered that the perpetrator’s explanations helped law enforcement, even if the prosecutor had a different opinion on the matter.

The proposal to amend the provision in question contained in the draft of the Ministry of Justice is aimed at significantly altering the distribution of powers with regard to the application of Article 60 § 3 of the CC. According to the draft, it is the prosecutor who is to become the initiator of the use of this institution, while the court, in the face of the prosecutor’s motion, will not be left with any decision-making power and will have to recognise such a motion.

This amendment was intended to unify the provisions concerning the “small crown witness” from Article 60 § 3 and from Article 60 § 4 of the CC, which, as mentioned above, provides for analogous mitigation of punishment in relation to an offender who disclosed to the law enforcement authorities relevant and previously unknown circumstances concerning a crime other than the one committed by him.

In the case of this institution, the initiating factor is also the prosecutor’s motion, but the final decision always belongs to the court, which, after assessing the credibility and usefulness of the explanations of such an offender, may, but is not required to, apply extraordinary mitigation of punishment.

As a result of the amendment, the discrepancy between the provisions in question will remain, as in the case of § 3, the court will be completely bound by the prosecutor’s motion or lack thereof.

The shape of the regulations discussed above may in practice lead to situations, in which a perpetrator disclosing information to law enforcement authorities about persons co-operating with him/her in committing a crime will not be able to benefit from extraordinary mitigation of punishment, as the prosecutor will fail to submit a relevant motion to the court and the court will be deprived of its own initiative in this respect. Another possible scenario will be a situation in which the prosecutor makes a kind of arrangement with the suspect, as a result of which he or she submits to the court a motion for extraordinary mitigation of punishment pursuant to Article 60 § 3 of the CC, and the court, even if it deems the perpetrator’s explanations unreliable, having its hands tied, will be obliged to apply the aforementioned provision and treat such a perpetrator as a “little crown witness”.

Experts seem to agree that the amendment of Article 60 § 3 of the CC in the proposed form may give rise to a wide field of procedural abuse, while at the same time depriving the courts of the possibility of control in this respect. Currently, the draft is in the consultation and opinion stage, in which various institutions, e.g. representatives of courts, legal corporations and state bodies, submit their comments on the shape of the proposed provisions. However, we will only know the final shape of the provisions under consideration once the entire legislative process has been completed.