Case No: CO/8754/2006
Neutral Citation Number: [2007] EWHC 1144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM BISHOP AUCKLAND YOUTH COURT
DISTRICT JUDGE MJ WOOD

Royal Courts of Justice
Strand, London, WC2A 2LL

27th April 2007

Before :

LADY JUSTICE SMITH
MR JUSTICE GROSS

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Between :

	Crown Prosecution Service	Claimant	
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	P	Defendant	
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Mr Brian Hurst (instructed by CPS)
Mr Christopher Dorman O'Gowan (instructed by Hewitts Solicitors) for the Defendant

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Judgment

1.	LADY JUSTICE SMITH:  I wish to make some observations about the practice to be followed by counsel and solicitors in the period between their receipt of a judgment in draft form and the date on which it is handed down.  
2.	Practice Direction E to CPR Part 40 provides as follows:  
2.3	The Court will provide a copy of the draft judgment to the parties' legal representatives by 4 p.m. on the second working day before handing down, or at such other time as the Court may direct. 
2.4	A copy of the draft judgment may be shown, in confidence, to the parties provided that:
(a)	neither the judgment nor its substance is disclosed to any other person or used in the public domain; and
(b)	no action is taken (other than internally) in response to the judgment, before the judgment is handed down.  
2.5	Any breach of the obligation of confidentiality prescribed by paragraph 2.4 may be treated as contempt of court. 
3.	Before 2005 the rule was that draft judgments were released only to legal advisers.  The purpose of disclosure was to enable them to check the draft for typographical errors that had escaped the judge's eye and to point out any minor errors of fact.  On rare occasions, counsel might ask and the court might agree to allow further submissions, which might lead to more significant amendment of the judgment. In 2005, the rule was relaxed, as appear in the current Practice Direction, in order to enable legal advisers to consult with their clients for the purpose of taking instructions on consequential matters such as whether to seek permission to appeal and also to enable the parties to reach agreement on costs and the form of the order.  
4.	Plainly there is a duty of confidentiality on both counsel and solicitors during the period between the issue of the draft and the date of hand-down. There are many reasons for requiring confidentiality.  For example, advance knowledge of a judgment with commercial implications might give an unfair advantage to those who become privy to it.  Another reason is the need to prevent dissemination of a judgment in a form which may be subject to alteration, including alterations which go beyond the correction of technical errors.  Dissemination of a draft judgment which is later altered might cause confusion and embarrassment.  
5.	In the instant case, which was an appeal by the prosecutor against the decision of a youth court to stay a prosecution, a draft judgment was sent to the parties on 13th March 2007 with a view to hand down on 16th March.  Mr Brian Hurst, counsel instructed by the Crown Prosecution Service, asked the court whether he might be permitted to make further submissions on the issue of the existence of a defence of doli incapax about which the court had made obiter observations.  Because that issue had not been properly argued at the hearing, we agreed.  Hand down was adjourned and a further hearing was fixed for 4th April. 
6.	By letter dated 30th March, received by me on 3rd April, the Director of Public Protections informed me that there had been a serious breach of confidentiality in respect of the draft judgment. It had been passed to various unnamed solicitors and employees within the Crown Prosecution Service, including the Policy Directorate.  Also, it had been disclosed to the Home Office and HM Court Service.  This had been done because the CPS had taken the view that the court's observations on doli incapax might have wide implications for youth justice.  The Director offered his apologies for the breach.  
7.	For several reasons, Mr Justice Gross and I were concerned to learn of this breach.   Our main concern was that it was not clear from the Director's letter whether he was apologising for all the dissemination or only for the disclosure to the Home Office and Court Service.  I asked him to clarify this point and he explained that, until now, the CPS has taken the view that, where draft judgments raise general issues which may require consideration prior to formal delivery, the Practice Direction permits disclosure, not just to the lawyer with direct responsibility for the case but also to the Director and to other lawyers in the organisation.  In fact, the Director had been apologising only for dissemination to the Home Office and the Court Service.  
8.	My view was that this was not what had been intended by the Practice Direction. I consulted with several members of the senior judiciary and they agreed with my view that it was intended that disclosure of a draft to solicitors should be limited to the solicitors directly involved in the case.  That is because the only purpose of disclosure is to permit the legal team to take instructions on the immediate conduct of the case.  I recognise that, where the solicitor concerned in the case is subject to direct supervision, it may be necessary and appropriate for him or her to consult with the supervising partner or, in the case of an organisation like the Crown Prosecution Service, with a senior person, including, if appropriate, the Director himself.  
9.	In the present case, counsel quite properly sent a copy of the draft to his CPS solicitor.  The solicitor directly concerned was quite junior and it was entirely appropriate for him to discuss the draft judgment with his immediate superior for the purpose of instructing counsel in respect of the further submissions.  However, in my view, the draft should not have gone further. As I understand it, that is now accepted.  
10.	On reviewing the Practice Direction, I could see that the wording is less clear than it might be and I am able to accept without hesitation the Director's assertion that he believed that dissemination within the CPS was permitted.  I accept his apology for the further obviously inappropriate dissemination. Because of the misunderstanding that had occurred in this case, I decided that the matter should be discussed in court at the time of hand down.  
11.	Today, the Director has instructed Mr Hugh Tomlinson QC to appear before the court.  He has repeated the Director's apology, which, as I have had said, is accepted, and has also given an assurance that all copies of the draft judgment, both hard and electronic, have now been destroyed.  
12.	Mr Tomlinson has also shown us a draft protocol which he suggests should be circulated within the Crown Prosecution Service so that all CPS staff will understand the extent of their duty of confidentiality.  It appears to me that the proposed protocol would permit wider disclosure of the draft judgment than I presently regard as appropriate. However, we do not think it would be appropriate for us to approve or disapprove such a document today without greater opportunity for consideration.  Mr Tomlinson has agreed that the appropriate course is that the DPP should confer about this protocol with the President of the Queen's Bench Division.  
13.	Mr Jonathan Swift has also appeared, instructed by the Attorney-General. I am grateful for his attendance.  He has emphasised the importance which the Attorney attaches to the need for confidentiality of draft judgments.  However, he has stressed to the court the need for some flexibility within Government departments as to the level to which a draft judgment is to be disclosed.  
14.	It seems to me that the appropriate course is that, quite apart from the discussions in relation to the Director of Public Prosecutions’ proposed protocol, there should also be wider consultation between senior members of the judiciary and other interested parties, such as the Attorney-General on behalf of Government departments, with a view to clarification of the wording of the Practice Direction and of the embargo as it appears on the face of draft judgments. 
15.	In the meantime, before such clarification can take place, it is my view that solicitors should not disclose a draft judgment to other members of their firms or organisations save to the extent necessary for the taking of instructions in respect of the instant case.  If any solicitor is in doubt as to the propriety of a particular disclosure, he or she should request permission from the judge concerned.  That can be done quickly and easily by e-mail to the judge's clerk.  
16.	MR JUSTICE GROSS:  I agree and add only this.  I am most grateful for my part for the considerable assistance given to the court today by Mr Tomlinson QC for the Director of Public Prosecutions and Mr Swift or the Attorney-General. I have found most valuable their helpful guidance as to the particular background affecting both the CPS and, so far as concerns Mr Swift, Government departments more generally.  I have little doubt that illuminating their particular interests will be very helpful when it comes to the consultation which my Lady has foreshadowed and I am sure that the particular requirements of the departments in question will be accommodated in the course of that consultation.  
17.	For the rest I agree with what my Lady has said and simply add that, in the interim, in cases of doubt as to whether discussion of draft judgments ranges wider than my Lady's observations, the prudent course will be to seek permission from the court in question.
18.	LADY JUSTICE SMITH:  Thank you very much.
19.	MR TOMLINSON:  Can I mention one other matter?  We have now seen the judgment.  Could I just ask that -- it may be that we would want to ask the court to certify a point of law of general public importance.  Could that be done in writing? 
20.	LADY JUSTICE SMITH:  It could but it is very clear that all the observations about doli incapax are obiter.
21.	MR TOMLINSON:  We have only had a short opportunity.
22.	LADY JUSTICE SMITH:  You may have 14 days in which to apply.
23.	MR TOMLINSON:  And apply in writing?  I am not saying that we will do that.  We just keep the door open.  
24.	MR JUSTICE GROSS:  What is it that you have in mind?  Even generally?
25.	MR TOMLINSON:  Put most generally, a procedure was proposed as to how to deal with cases of young people whose capacity was in doubt and it may be that on -- 
26.	LADY JUSTICE SMITH:  But very largely -- I am sorry to interrupt you, but very largely that follows Mr Hurst's proposals.
27.	MR TOMLINSON:  My Lady, it does.  We have not had the opportunity to study the revised version of the judgment but what I have in mind is, if, on analysis, we are concerned -- because it does raise very important general issues as the court knows -- if we are concerned we may apply to ask for the court to certify it as a question.  It may well not arise -- 
28.	LADY JUSTICE SMITH:  Very well.  You may have two weeks in which to consider it and make any submissions in writing that you wish but I do draw your attention to the fact that the guidance given is very largely consistent with that that was proposed by counsel instructed by the Director.  
29.	Thank you.