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Judicial Comments

Principle

Judges, district judges and magistrates may express a view about CPS policy, decision- making or conduct of a particular case. This may be in public or in private; favourable or unfavourable.

Public criticism may attract publicity. Judicial remarks can be reported out of context and/or appear unfair. It is important that the CPS takes appropriate action promptly to respond to such comments.

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Guidance

Comments made in court

A hasty off-the-cuff reply to such comments can be inadequate, inaccurate or inappropriate. A preferred course is to indicate that the Service will respond when there has been an opportunity to consider the implications of the remarks made from the Bench. Ensure adequate notes are made and the matter is followed up.

Comments made in private

Such comments may be made by judges, district judges and magistrates either orally or in writing, quite commonly at court user groups. The CPS encourages the judiciary to use informal contacts in this way. It means that complaints or comments should be investigated promptly. Where appropriate the judge, district judge or magistrate should be told that if a failing or defect is found it will be remedied quickly.

After the complaint has been investigated a report is to be made to the judge or magistrate concerned as quickly as possible.

Commendations or criticism of the police

Chief Constables need to be advised promptly about commendations or criticisms of the police service. If a member of the same police service is present in court when these comments are made, he or she is responsible for ensuring that the comments are passed on as appropriate.

CPS do not and cannot take responsibility for passing on criticism or a commendation to the police even if no officer is present.

In the case of a commendation the court should be invited to communicate direct with the Chief Constable or to adjourn to enable a member of the police service to be present.

In the case of adverse judicial comment or criticism, the procedure, as approved by the Lord Chief Justice, is for the judge or recorder to arrange for a transcript of his or her remarks to be sent to the Presiding Judge of the Circuit who will decide upon the next appropriate step. The Presiding Judge will keep the judge or recorder concerned apprised of progress.

Should the court press the CPS to act as its messenger, and a refusal to communicate with the police seems likely to result in an unseemly argument in public, the CPS lawyer in court should tactfully take the point up with the clerk present in court after the hearing.

Criticism of police policy or practice should be noted and passed via line management to the CCP to consider whether the matters need to be discussed between the CPS and police.

Comments on the conduct or policy of other organisations

It is the responsibility of the relevant organisation to monitor such remarks, or the court to draw them to the organisation's attention.

If no member of that organisation is present, it is the responsibility of the court clerk to pass them on. Any request for the CPS to pass on comments should be directed to the clerk.

If the court press the CPS to act as messenger and refusal would lead to unseemly argument in court, the CPS lawyer in court should tactfully mention the matter to the clerk in private when the court rises and request his or her co-operation.

If the matter cannot be resolved in this way then the criticism should be noted and passed to line management who should write to the organisation concerned, informing them of the fact that they had been criticised and inviting them to obtain a transcript of the comments. The CPS should NOT seek such a transcript.

Comments by the prosecutor causing criticism of other agencies

Emotive language should be avoided as should expressions of criticism, unless the facts that can be proved lead inescapably to the inference or criticism. Police reports and witness statements should be rigorously examined to ensure any opinion is supported by evidence.

If the evidence is not clear, the prosecutor must make further enquiries to ensure the facts are accurate, bearing in mind any subsequent inquiry. It would be damaging to the Service and unfair to other organisations or individuals if the prosecutor publicly made unfair or inaccurate comments.

Commendations of a witness

The court will sometimes publicly commend and/or financially reward a witness. Normally no more action will be required than a note on the file. If the commendation is for bravery or outstanding public-spirited conduct, consider informing the police and/or CCP. Either may wish to express their own appreciation to the witness.

If the witness is not present in court, a report should be made via line management in order for a letter to be sent and the police informed.

Allegations of perjury

Such allegations may be brought to the attention of the Service as a result of testimony in court (refer to Procedure, below in this section).

The final decision as to whether a prosecution will be brought is that of the CPS. Section 9 Perjury Act 1911 which empowered judges to order perjury prosecutions, was repealed by Section 28 Prosecution of Offences Act 1985.

Agents and counsel

It must be made clear in instructions that comments in the categories above should be noted and immediately reported back to the Service.

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Procedure

Comments about the CPS generally

The following procedure applies when criticisms or commendations are made about the CPS.

  • The CPS representative present in court must note the remarks on the file IN FULL at the time or as soon as possible thereafter, and submit a brief report through line management to the Unit Head;
  • The report must set out accurately the comments and explain the context in which the remarks were made and give an assessment of the validity of the remarks; 
  •  The Unit Head should add a comment to the report on action he/she has taken, or proposes to take, and pass the report to the CCP for comment and any further appropriate action;
  • in cases of serious complaint the CCP may deem it appropriate to provide a report for the judge or chair of magistrates giving an explanation for the circumstances leading to the complaint and setting out any action taken.
  • in appropriate cases the CCP may decide to provide such a report personally, in chambers.

Comments on CPS Policy

If a judge or magistrate makes what appears to be, or is expressed to be, a comment about CPS policy or practice and if the CCP is satisfied that such an issue genuinely arises he/she should provide a suitable report to CPS Policy Directorate at Headquarters, including an evaluation of the issue and recommendations.

Policy Directorate will consider the matter in conjunction with any other HQ directorate having an interest. A response will be sent to the CCP as soon as possible.

If any complaints are made about decisions of the CCP, the CCP will draw them to the attention of the Principal Legal Advisor.

Commendations concerning CPS staff

Any commendation by the court of a member of the Service should be reported with equal care using the same procedure. The report should be brought to the attention of the Unit Head and CCP. If the member of staff concerned is not present at court when the commendation is given, he/she should be informed as soon as possible.

Cases Involving Allegations of Perjury

Where a judge or magistrate believes that some evidence adduced at trial is perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no justification for an investigation. The only inference that can be drawn from the absence of a recommendation is that the judge or magistrate does not consider an investigation necessary.

Other than in an exceptional case (i.e. on the recommendation of the judge or magistrate) a perjury investigation should not take place until the conclusion of the proceedings in which the perjury is alleged to have occurred.
Whether or not any suspected offence requires investigation is a matter for the police to assess on the facts of each case.

In such cases:

  • the remarks of the judge or magistrate and the circumstances involved must be carefully noted;
  • a report should be given immediately to the Unit Head via line management;
  • all such reports must be treated with extreme care as a police investigation will almost inevitably follow; 
  •  the report of the investigation must be reported back briefly to the judge/magistrate to allow for comment;
  • any such comment will be noted but the final decision will be a matter for the CPS
  • Unit Heads will report any such matters to the CCP (Sector Directors London). refer to Offences Against Public Justice elsewhere in this guidance.

Recording and monitoring

CCPs and Unit Heads need to ensure that records of complaints from the judiciary and commendations are kept for monitoring purposes.

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