Judicial independence, open justice and advance sentence indication
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.
Justice must not only be done but must be seen to be done.
These principles must be followed by all CPS staff in the conduct of casework.
Established liaison takes place between the CPS and the judiciary 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. However, this in no way compromises the independence of the court process in specific cases.
Openness in considering the acceptance of pleas
The Attorney General's Guidelines on the Acceptance of Pleas issued on December 7, 2000 highlighted the importance of transparency in the conduct of justice. The basis of plea agreed by the parties in a criminal trial is central to the sentencing process. An illogical or unsupported basis of plea can lead to the passing of an unduly lenient sentence and has a consequential effect where consideration arises as to whether to refer the sentence to the Court of Appeal under section 36 of the Criminal Justice Act 1988.
The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] expand upon and now replace the Guidelines issued on the 7 December 2000 - see Annex A.
They give guidance on how prosecutors should meet the objectives of protection of victims' interests and of securing fairness and transparency in the process.
They take into account the guidance issued by the Court of Appeal (Criminal) Division in R -v- Beswick [1996] 1 Cr.App.R. 343, R -v- Tolera [1999] 1 Cr.App.R. 25 and R -v- Underwood [2005] 1 Cr.App.R 178.
They complement the Bar Council Guidance on Written Standards for the Conduct of Professional Work issued with the 7th edition of the Code of Conduct for the Bar of England and Wales and the Law Society's Professional Conduct Rules.
When considering the acceptance of a guilty plea prosecution advocates are also reminded of the need to apply "The Farquharson Guidelines on the Role and Responsibilities of the Prosecution Advocate".
See also Sentencing and Ancillary Orders applications, elsewhere in this guidance.
Advance sentence indication
In R -v- Goodyear, [2005] EWCA Crim 888, the Lord Chief Justice sitting in the Court of Appeal (Criminal) Division issued guidelines that amount to the introduction of a formalised procedure of advance sentence indication. The principles of the judgment modify the rule of practice adopted by courts following the decision in (R -v- Turner 1970 2 QB 321).
Further guidance on the procedure is contained at Annex B.
Advance sentence indication and dangerous offenders
In R -v- Kulah [2007] EWCA Crim 1701, the Court of Appeal (Criminal Division) made the following observations about the relationship between the "dangerous offender" provisions of the Criminal Justice Act 2003 and the procedure in cases where a Goodyear indication might be sought:
- As a matter of general principle, the guidance set out in Goodyear holds good, notwithstanding the introduction of the dangerous offender provisions of the Criminal Justice Act 2003.
- At the point (before plea) when a sentence indication would be sought, it would often be the case that the judge would not be in possession of the information necessary to enable him/her to make the assessment of risk required by sections 225,226,227 or 228 of the Criminal Justice Act 2003.
- As Goodyear makes clear, the judge is under no obligation to give an indication, and has an unfettered right in this regard.
- If the judge decides to give an indication where an assessment of future risk remains to be made, he should make the following matters clear:
- The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act 2003, bringing into operation the "dangerous offender" provisions contained in Part 12 Chapter 5 of that Act.
- The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that the assessment remains to be conducted.
- If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.
- If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.
- If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release).
- If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.
The Court pointed out the obligation on the prosecution, imposed in Goodyear, to draw to the attention of the judge any minimum or mandatory sentencing requirement. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by the relevant section of the Criminal Justice Act.
The Court further observed that it would be desirable, wherever possible, that the judge who had given a Goodyear indication should himself sentence the defendant. If it was unavoidable that a different judge had to pass sentence, the sentencing judge should be provided with a transcript of the Goodyear indication.
When prosecuting any sentencing hearing where the "dangerous offender" provisions apply, and where there has been a previous Goodyear indication made by a different judge, the prosecuting advocate should ensure that the exact terms of the indication are available to the court. In particular, it will be important to make it clear whether any indication made had addressed the issue of risk assessment, or had deferred it until the sentencing hearing.
Conduct of casework
CPS must do nothing to suggest ‘back-door', secret communication to improperly 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.
- 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 exceptions must be clearly established in law and in practice.
See The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] with the updated paragraph C6, inserted in June 2007 by Addendum - see Annex A.
Guidance
CPS staff must never seek to influence the judiciary, other than through representation in court or within established limits of liaison on purely administrative matters. Avoid any conduct that may give the appearance of the prosecution seeking to influence the court in an improper manner.
Examples
This list is not exhaustive.
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 and/or skeleton arguments copied to the defence.
A Crown Prosecutor should not privately communicate with a legal adviser to the Magistrates between hearings when a case is ongoing to question the lawfulness of the court's ruling. The Divisional court criticised this occurrence in a 1996 case.
There should be no communication to the court regarding the venue of a particular case or which judge should hear the case. A 1997 Court of Appeal judgement was critical of the CPS.
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. Disclosure of communications with courts to the defence will go part way to avoiding the suggestion of inappropriate conduct.
The following are examples when communications with courts outside of a court hearing will be improper:
- 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 addition 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 clerk may tell the court this and thereby influence the court's consideration;
- Privately suggesting to a magistrate that a severe sentence should be imposed;
- Discussion of a live case at a court users' liaison meeting.
These are only examples: with all communications with courts, CPS staff must consider whether the proposed communication is proper or not. Some communications will be improper even if disclosed to the defence, if they are an inappropriate attempt to influence the court.
Procedure
Only clearly established formal practices must be used in all case-specific liaisons with courts while cases are still live.
Appropriate out-of-court communications with courts must be limited to purely administrative matters that are part of the routine of criminal litigation, are not adversarial, and are known to the defence, such as:
- lodging an indictment
- service of notice of additional evidence
- providing name of counsel
- providing skeleton arguments
- providing case summaries
- providing witness availability
- liaison to re-arrange listing with consent of defence.
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 Disclosure of Unused Material, elsewhere in this 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 procedure in relation to a mitigated sentence for an informant (police source) ("text") is not affected by this guidance.
Useful references
Code for Crown Prosecutors
R -v- Beswick [1996] 1 Cr.App.R. 343
R -v- Tolera [1999] 1 Cr.App.R. 25
R -v- Underwood [2005] 1 Cr.App.R 178
The Farquharson Guidelines on the Role and Responsibilities of the Prosecution Advocate
Sentencing and Ancillary Orders applications, elsewhere in this guidance
R -v- Goodyear, [2005] EWCA Crim 888
R -v- Turner 1970 2 QB 321
R -v- Kulah [2007] EWCA Crim 1701
Disclosure of Unused Material, elsewhere in this guidance