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Judicial Independence and Out of Court Discussions

Contents:

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.

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 purely 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. This in no way compromises the independence of the court process in specific cases.

Less acceptable is the practice of advocates having discussions with the judge in chambers during which the acceptability of pleas is discussed in the absence of the defendant and the public. This practice does not serve the best interests of open, transparent justice. Such discussions should not take place save in truly exceptional cases where some particular sensitivity requires it. Prosecutors should seek the co-operation of the court to ensure that any discussion of the acceptability of pleas should in future take place in open court.

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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.

A Crown 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.

Appropriate out-of-court communications with courts will be limited to purely administrative matters that are part of the routine of criminal litigation, are not adversarial, and are 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 (judge, magistrate or court administration), is within established formal practice and could be discussed openly with the defence, if needs be. Copying communications with courts to the defence will go part way to avoiding any suggestion of inappropriate conduct.

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.
  • 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, 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.
  • Submissions must be made either orally in court or, if by formal written communication, must be copied to the defence.
  • Communications between the prosecution and the court that are case specific, relating to live cases, and take place outside a court hearing, must be limited to purely administrative matters known to the defence.
  • There are rare exceptions. The most commonly encountered will be "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.
  • 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 or the relatives of a deceased victim, 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.

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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.

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.

It is sometimes the case that a convicted defendant has provided information to the police and that the defendant wishes this fact to be brought to the attention of the court before sentence. This communication, usually referred to as a "text", is subject to separate instructions and is not affected by the prohibitions set out above.

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