Hussain, R. v (unauthorised disclosure of a draft judgment) (Rev 1)

A draft judgment supplied to counsel and solicitors before hand-down is subject to a strict confidentiality embargo. Its contents must not be disclosed outside those acting in the case, save that the substance of the decision may be communicated to the client no more than one hour before hand-down.

Legal representatives must understand and observe the embargo. Counsel communicating the result must make its restrictions clear. A solicitor who is uncertain must check before acting, and a firm must provide adequate instruction and supervision. Unauthorised disclosure to the media or police is a serious breach of a court order, even where it results from slackness rather than deliberate defiance. The court may withdraw the draft-judgment facility or impose more severe consequences for future breaches.

The Crown had appealed against a Circuit Judge’s terminating ruling staying criminal proceedings against Noshad Hussain. The Court of Appeal concluded that the ruling was not one which the judge could not reasonably have made. An acquittal followed by operation of section 61(3) of the Criminal Justice Act 2003, rather than from any determination of the truth of the allegations or of guilt.

Before hand-down, the court circulated its draft judgment under the usual confidential embargo. Counsel informed the instructing solicitor of the outcome but did not expressly explain the embargo. The solicitor contacted the defendant’s family, a local newspaper and the police, inaccurately stating that the defendant had been cleared. The court convened a hearing to determine responsibility for the unauthorised disclosure and the appropriate response.

1. No further action was taken against counsel, the solicitor or her supervising firm. Their conduct nevertheless constituted a significant breach of the court’s embargo order.

2. The court explained that the circulation of a draft judgment is a professional facility. It permits correction of errors and preparation of consequential applications. It is supplied on terms of strict confidentiality. The substance of the decision may be conveyed to the client only in the hour before hand-down. The draft is not necessarily the court’s final judgment.

3. The solicitor’s disclosure to the media and police breached those terms. Her statement that the defendant had been cleared was inaccurate. The appellate decision did not decide whether the sexual allegations were true, nor whether he was guilty. The acquittal resulted from the unsuccessful Crown appeal and section 61(3) of the Criminal Justice Act 2003.

4. All three persons bore responsibility. Counsel should have expressly communicated the embargo rather than assuming that the solicitor knew it. The solicitor should have known the position or sought advice before contacting others. The firm’s instruction or supervision was deficient because it had not ensured that she understood her responsibilities to the court.

5. The court treated the breach seriously because premature and inaccurate publicity could have caused particular harm to the complainant. However, it found slackness and inadequate supervision, not deliberate defiance, and accepted the sincere apologies. It warned that repeated breaches could lead to withdrawal of the draft-judgment facility or more severe treatment. Reporting of the proceedings was permitted, subject to the ordinary prohibition on identifying the alleged victims.

• Court of Appeal (Criminal Division): The Crown appealed against a Circuit Judge’s terminating ruling. The court held that the ruling was not unreasonable and the unsuccessful appeal resulted in an acquittal under section 61(3) of the Criminal Justice Act 2003. This hearing addressed the subsequent breach of the confidential draft-judgment embargo.
• Crown Court: The Circuit Judge stayed the criminal proceedings by a terminating ruling. No citation was stated in the judgment.