Crown Prosecution Service v P

A draft judgment supplied before hand-down is confidential. It may be disclosed to the parties, and their legal representatives may consult clients, only for the purposes permitted by Practice Direction E to CPR Part 40, principally taking instructions on the immediate conduct of the case and consequential matters. Disclosure within a firm or public body must be limited to those directly involved, subject to necessary supervision or consultation for those purposes. Wider dissemination for policy, governmental or organisational consideration requires the court’s permission. In cases of doubt, permission should be sought from the judge. The court also confirmed that its observations on doli incapax were obiter.

The Crown Prosecution Service appealed from a decision of the Bishop Auckland Youth Court, where District Judge MJ Wood had stayed a prosecution. During the period between circulation of a draft judgment and hand-down, the draft was disseminated within the CPS and disclosed to the Home Office and HM Courts Service because of observations concerning doli incapax and youth justice. The court considered the scope of the confidentiality obligations governing draft judgments and the appropriate response to uncertainty in the Practice Direction.

1. Confidentiality of draft judgments. Practice Direction E to CPR Part 40 permits a draft judgment to be shown in confidence to the parties, provided that neither the judgment nor its substance is disclosed to another person or used in the public domain, and that no action is taken in response to it before hand-down other than internally permitted action. Breach may be treated as contempt of court.
2. Permitted internal disclosure. The purpose of releasing a draft judgment is to enable the legal team to check for technical errors, take instructions on the immediate conduct of the case and consequential matters, and agree costs or the form of the order. Disclosure by a solicitor should therefore ordinarily be confined to the legal representatives directly involved in the case. Necessary consultation with an immediate supervisor, supervising partner or appropriate senior person may be permissible where it is required for those purposes.
3. Wider dissemination. A draft judgment should not be circulated more widely within a firm, organisation or government department merely because it raises issues of general or policy significance. In the absence of clarification to the wording of the Practice Direction and the embargo, solicitors should seek permission from the judge whenever they are in doubt about a proposed disclosure.
4. Present case. The CPS’s disclosure beyond the directly involved legal team was inappropriate, although the court accepted the Director of Public Prosecutions’ apology and the explanation that the wording had been misunderstood. The court was told that all hard and electronic copies had been destroyed. The proposed CPS protocol was left for consultation with the President of the Queen’s Bench Division and other interested parties.
5. Doli incapax. The court stated expressly that its observations on the existence of a defence of doli incapax were obiter. Any application to certify a point of law was left open for 14 days, but the parties were directed to the fact that the guidance was largely consistent with counsel’s proposals.

• High Court (Administrative Court): heard an appeal from the Bishop Auckland Youth Court. The judgment principally addressed confidentiality arising from the circulation of the draft appellate judgment and confirmed that observations on doli incapax were obiter.