Judicial Comments

Updated: 4 December 2019|Legal Guidance

Introduction

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

Public criticism may attract publicity. Judicial remarks, such as those criticising the decision to bring a prosecution 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. This might include writing to the media to set out the CPS position. However,  Area Communications managers and the Press Office should be consulted before such steps are taken. It may even in certain circumstances be appropriate to refer the judge’s conduct to the Judicial Conduct Investigations Office. Advice should be sought from the CPS Director of Policy and Strategy before doing so.

In the case of R v SH, [2010] EWCA Crim 1931 (03 August 2010), the Court of Appeal stated that the judge at first instance went beyond moderately expressing his views and sought, wrongly, to impose them in a way that paid no attention to the fact that it is the CPS in which the statutory discretion to bring prosecutions is vested. There, the judge had remarked that the case was a “scandalous waste of money”. He was unimpressed that the Prosecution had reviewed the case several times and had decided to proceed with the case, which he described as “rubbish”. The judge found no case to answer on the main count and directed not guilty verdicts on the remaining counts. The Court of Appeal found that the judge's behaviour did not fall within the appropriate exercise of his authority to conduct cases in accordance with the law, following the overriding objectives in the CrimPR, and had gone far beyond his remit.

Guidance and Actions

Comments made in Court

Attempting to respond directly to such comments in Court could lead to inaccurate or inappropriate information being conveyed. The correct procedure is to explain that the CPS will respond when there has been an opportunity to consider the implications of the remarks made from the Bench. Ensure adequate notes are taken and the matter is followed up.

Comments Made in Private

Such comments may be made by judges or magistrates, either orally or in writing. This is particularly common at court user groups or routine liaison meetings between Presiding Judges, Resident Judges and Chief Crown Prosecutors. The CPS encourages the judiciary to use informal contacts in this way and   complaints or comments should be investigated promptly. Where appropriate the judge or magistrate should be told that any failing or defect found will be remedied as soon as is possible.

After the complaint has been investigated internally, a report with any accompanying actions should be immediately provided.

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.

The CPS does 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 directly 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, 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 any comments on. Any request for the CPS to pass on comments should be directed to the clerk.

Should the Court press the CPS to act as messenger, 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 adverse judicial comments have been made and invite 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

Where there is a valid cause to challenge the conduct or comments made by members of other agencies, prosecutors are reminded of the need to be professional and respectful at all times and to avoid emotive language. Police reports and witness statements should be rigorously examined to ensure any opinion is supported by evidence.

Where the evidence of the improper conduct or comments is unclear, prosecutors must make further enquiries to satisfy themselves that the facts are accurate given the reputational risk to the CPS in the event of any criticism being shown to be unfounded.

Commendations of a Witness

The Court will sometimes publicly commend and/or financially reward a witness. The Crown Court is empowered to order payment of rewards to such persons as seems to the Court reasonable and sufficient to compensate their efforts towards the apprehension of the Defendant (see section 28 of the Criminal Law Act 1826).

In accordance with the case of R. v. Newman [1990] Crim.L.R. 203, CA, judges who wish to commend witnesses for their actions in connection with the offence being tried should make their commendation in the absence of the jury.

Normally, no more action will be required than a note on the file. If the commendation is for bravery or outstanding public-spirited conduct, prosecutors should consider informing the police and/or the Chief Crown Prosecutor. 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 for the police to be informed.

Allegations of Perjury

Such allegations may be brought to the attention of the CPS 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 to Prosecuting Advocates that comments in the categories above should be noted and immediately reported back to the Service.

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;
  • The Unit Head may decide to inform the Area Communications Officer if there is likely to be media coverage of the judicial comments;
  • 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 a comment about CPS policy or practice and if the CCP is satisfied that such an issue genuinely arises, he or she should provide a suitable report to the Director of Prosecution Policy and Inclusion at Headquarters, including an evaluation of the issue and recommendations.

The matter should then be considered conjunction with any other HQ directorate sharing 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 Director of Legal Services.

Commendations Concerning CPS Staff

Any commendation by the Court of an employee or agent of the CPS should be reported 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, he or she 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. Refer to Offences Against Public Justice elsewhere in Legal 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.