Court of Appeal issues warning over embargoed judgments

Confidentiality: the basis on which embargoed judgments are issued needs to be respected

The system of embargoed judgments in which legal personnel are given advance notice of decisions may be withdrawn if lawyers do not treat them as strictly confidential, the Court of Appeal has warned.

Following the high-profile acquittal of one of the accused in a recent series of child sex abuse cases at Wolverhampton Crown Court, the appeal court’s criminal division announced it would be “alert” to breaches of the unwritten understanding that legal professionals will not divulge the contents of draft judgments issued in advance of final judgments.

The judges’ anger was sparked when a solicitor called a local newspaper while the embargo was in place to say her client had been cleared, forcing the court to lift it prematurely after broadcast media were tipped off.

The comments in the judgment after a hearing on the unauthorised disclosure are likely to apply to the confidentiality of draft civil judgments as much as those relating to criminal matters.

In R v Noshad Hussein [2013] EWCA Crim 990, the court explained that it decided a circuit judge’s order to stay criminal proceedings should not be overruled and issued a confidential draft judgment which, “in accordance with settled practice” would be embargoed. Under the convention, clients themselves can be told no more than one hour before the judgment is finalised.

But during the embargo the defendant’s solicitor called a local newspaper to say her client had been cleared. The court said her claim was “wholly inaccurate” and that an acquittal had been ordered “for purely technical reasons” with no judgment as to the defendant’s guilt or innocence. Further, it pointed out that the case had involved sexual allegations and that breaching the embargo risked the young complainant learning of the result of the case “via second-hand hearsay and in a potentially inaccurate way” – although this in fact did not happen.

Lord Justice Treacy said that the court took the breach “extremely seriously”. It held three legal professionals to be at fault: apart from the solicitor herself, her supervisor had failed to impress on her the importance of respecting an embargo, and while observing the embargo himself, the defendant’s barrister had not e-mailed his instructing solicitor the draft judgment – which made its confidential nature clear – and had wrongly assumed she understood the embargo.

But all three had apologised and the court would take no further action, he said.

Treacy LJ said: “The system of embargoed judgments is a useful facility afforded to the legal profession which ordinarily works well and without difficulty. It can only work effectively if the terms on which such judgments are communicated are respected.

“This court will be alert to act in the case of any breaches. If breaches of this sort were to recur, and certainly if they were to recur with any frequency, then consideration might have to be given to withdrawing the facility in the future…

“In this case there has been slackness and a failure of supervision, rather than deliberate flouting of the order. We have decided to take no further action in the matter, but we anticipate that this ruling may appear in reports available to the legal profession. A failure of this sort may be dealt with more severely in the future.”