Attorney general Lord Hermer should have publicly corrected factual inaccuracies made in a CPS press release in the so-called Fordingbridge case ‘to protect the administration of justice [and] the safety of all involved’, the lady chief justice has said.
The attorney general’s power of referral to the courts should be exercised independently and ‘not in pursuit of government agenda, however worthwhile’, Baroness Carr of Walton-on-the-Hill commented in a Court of Appeal judgment in the case of R v X, Y & Z.
The lady chief justice, Lord Jusice Edis and Ms Justice Norton handed down a judgment after the attorney general sought leave to refer as unduly lenient the sentences imposed on three boys convicted of rape.
In the main judgment, the Court of Appeal rebuked the Crown Prosecution Service for fuelling misinformed media reports. In the follow up judgment, Baroness Carr noted that the CPS had issued a press release immediately after X, Y and Z’s Crown court sentencing which contained ‘two material factual inaccuracies’.
She added: ‘Immediately following the sentencing, sensationalist reporting in the media commenced, with heavy reliance on the factual inaccuracies, in particular on the involvement of a knife. Unsurprisingly, the source of that reporting appears to have been the press release. There was public outcry in response. The judge was the subject of widespread personal condemnation and vilification, as were the young boys.’
Referring to the CPS’ press release, the judgment noted that the director of public prosecutions said the ‘failures were due to human error’ and ‘normal practices’ such as legal checks and clearance procedures were not followed. The DPP accepted that correction of the press release ‘took too long’. The court said the delay was ‘unacceptable’ but accepted the DPP’s apologies ‘for these serious failures’.
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Turning to the attorney general, the judgment noted it is ‘usually wise not to make any comment about pending legal proceedings. But the attorney general chose to do so. Where, as here, the court has some concerns about public statements made by the attorney general about the proceedings which he had issued, it is proper for the court to record and explain those concerns.’
The Court of Appeal’s concerns included a lack of correction of reported inaccuracies ‘whilst at the same time speaking about the gravity of the offending’ and the ‘lack of condemnation of the personal vilification of the judge at any stage’.
Baroness Carr said the court did not suggest the attorney general ‘is under a general duty to patrol accuracy of press reporting’. However, she noted that he ‘chose to volunteer public comments on the gravity of the offending’, adding: ‘It seems to us that in these circumstances it did fall to the attorney general publicly to correct the factual inaccuracies – to protect the administration of justice, the safety of all involved (victims and offenders), and to underscore the cardinal importance of the public being given accurate information about what is happening in their justice system (good or bad).
‘If a member of government, and in particular the attorney general, chooses to make public statements about the gravity of offending, and to refer to “understandabl[e].. huge public concern”, then they should ensure that what is communicated is fair and accurate, correcting any widespread misreporting of which they are aware. Otherwise, they lend currency and endorsement to the misreporting.’
Even if Hermer had not been aware of the security threats to the sentencing judge, the judgment said, ‘he must have known from the widespread commentary, including publicised comments from other prominent public figures, that the judge was under personal attack.
‘No one within government has said publicly, even now, that the attacks on the judge were improper and a threat to the independence of the judiciary. Standing back, these events demonstrate the importance of separating the exercise of powers under section 36 of the Criminal Justice Act 1988 from politics.
‘The attorney general exercised that power properly. But…it is difficult to escape the conclusion that he associated the making of the references with government policy from the outset. The power to refer under section 36 is not vested in the government, but in the attorney general who is to exercise it independently and not in pursuit of government agenda, however worthwhile.’
An Attorney General Office spokesperson said: ‘We still study this judgement carefully. The CPS has rightly accepted responsibility for the inaccuracies in their press release, and once the attorney was made aware in the weeks after, he sought assurances about what went wrong and what steps are now being taken to avoid this happening again.
‘At every turn this attorney has been a staunch defender of the independence of the judiciary and has publicly commented numerous times of his concerns about attacks on judges. The attorney also remains firmly committed to ensuring the criminal justice system has the faith of victims, particularly survivors of violence against women and girls.’
