Judicial Independence and Out of Court Discussions
Principle
Judicial independence is fundamental to the Rule of Law. The integrity of the Criminal Justice System depends upon a fair and public hearing by an independent and impartial tribunal. These principles must be followed by all CPS staff in the conduct of casework.
For the purposes of this guidance, any reference to ‘Court’ officials includes judges, magistrates and administrative support staff.
CPS staff must never seek to influence the judiciary, other than through advocacy in Court or communication within established limits on purely administrative matters.
Established liaison takes place between the CPS and the Courts to discuss administrative matters to ensure the criminal justice system as a whole works efficiently on matters of general importance. This will often be in the form of "Court-user" meetings or routine liaison meetings between Presiding Judges, Resident Judges and Chief Crown Prosecutors. This in no way compromises the independence of the Court process in specific cases.
Generally unacceptable is the practice of advocates having discussions with the judge in chambers about matters which could and should be dealt with in open court, for example, concerning the acceptability of pleas. This practice does not serve the best interests of open and transparent justice, being in the absence of the Defendant and public. Such discussions should not take place, save for truly exceptional cases where some particular sensitivity requires it. An example might be where there are public interest immunity issues involved which cannot be canvassed in open Court. Prosecutors should seek the co-operation of the Court to ensure that any such discussions should in future take place in open court. If there is an exceptional need for matters to be discussed in chambers then those conversations must be properly recorded.
Conduct of Casework
CPS staff should not comment to Court officials, other than during a hearing, on the integrity of another party to the proceedings. This includes Defendant(s), witnesses, counsel, solicitors, jurors, judges, magistrates and administrators.
Any attempt to persuade the Court on a point in issue must only be done through advocacy in court supported, where appropriate, by skeleton arguments copied to the Defence and uploaded onto the Crown Court Digital Case System.
A Prosecutor should not privately communicate with a legal adviser to the Magistrates between hearings to question the lawfulness of the Court's ruling when a case is ongoing. Nor should a prosecutor seek to influence, in private, venue of a particular case or which judge should hear the case.
Out-of-court communications with Courts should be limited to purely administrative matters that are part of the non-adversarial arena of criminal litigation. These should always be known to the Defence. Examples include the lodging of indictments or the serving of additional evidence.
A preliminary test for all casework staff to apply is whether the proposed contact with the Court is within established formal practice and could be discussed openly with the Defence, if required. Copying the Defence into communications with the Courts will aid in avoiding any suggestion of inappropriate conduct.
The CPS must do nothing to suggest 'back-door', secret communication intended improperly to influence the court. This means:
- Casework issues requiring the Court's ruling are normally to be dealt with in open Court in the presence of the defendant and public. There are exceptions to this principle, for example, where there is an application to withhold sensitive material on the grounds of public interest immunity.
- In Goodyear [2005] 3 All ER 117, the Court of Appeal set out guidance on judicial indications of sentence. In accordance with the Attorney General’s Reference (No 80 of 2005) [2005] EWCA Crim 3367, where a judge wishes to indicate to the advocates his or her view of the viability of the case or the acceptability of pleas, this should be done in open Court with a full recording of the proceedings. It should take place in the absence of the jury but with both sides represented and the Defendant present. Reporting restrictions can be applied in order to safeguard a situation where the indication is not accepted and the matter moves to trial. See also The Attorney General's Guidelines on the acceptance of pleas and the prosecutor's role in the sentencing exercise [2012] and in particular the reference in paragraph B1 that ‘Justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public. This includes the acceptance of pleas by the prosecution and sentencing.’
- Submissions must be made either orally in Court or, if by formal written communication, must be copied to the Defence and uploaded onto the Crown Court Digital Case System.
- Communications between the Prosecution and the Court that relate to specific, live cases and take place outside a Court hearing, must be limited to purely administrative matters known to the Defence. Rare exceptions include ‘ex parte’ disclosure applications without notice - Type III Public Interest Immunity (PII) applications. Any such exceptions must be clearly established in law and in practice. Further guidance can be found in the Disclosure Manual elsewhere in the Guidance.
- In relation to discussions between the advocates and the judge about pleas etc., there may be exceptional cases where, because of the presence of sensitive material or some particular sensitivity with witnesses/relatives, the interests of justice requires such discussions to be held in the absence of the public. Notwithstanding that, a verbatim record should be taken in every case.
Examples of Improper Communications
The following are examples when communications with courts outside a Court hearing will be improper. This list is not exhaustive:
- Privately suggesting to a Court administrator that a particular court venue or judge should hear the case;
- Privately suggesting to a Court official that the Defendant is attempting to manipulate the court process;
- Providing additional grounds for a remand in custody that are not made known to the Defence;
- Suggesting privately to a Court official that if the Court rules in a particular way an appeal will be lodged, knowing the legal advisor may tell the Court this and thereby influence the court's consideration;
- Discussion of a live case at a Court users' liaison meeting or routine liaison meetings.
For the procedure in exceptional circumstances when an ex parte approach to the Court is permissible, such as in a Type 3 PII/disclosure application, see the Disclosure Manual, elsewhere in Legal Guidance.