Hussain, R. v (unauthorised disclosure of a draft judgment) (Rev 1)

Last week this court heard the Crown's appeal against a terminating ruling whereby the Circuit Judge stayed criminal proceedings against Noshad Hussain. The issue in the case for this court was whether the judge's ruling could be categorised as one which was not reasonable for him to have made. At the end of the hearing the court reserved its judgment, indicating that judgment would be handed down in the usual way. All professionals who appear before this court understand what that means. It means that in accordance with settled practice the court will, on a strictly confidential basis, provide the professionals concerned in the case with a draft of the judgment which it intends to hand down within a short time of communication of the draft. It is clearly understood that that document is strictly embargoed and that its contents are confidential to counsel and solicitors involved in the case. The substance of the court's decision is permitted to be communicated to the client no more than one hour before the giving of the judgment. The judgment provided to the professionals is a draft judgment. It is not necessarily the final form of this court's judgment.

On the morning of Wednesday 8th May, this court sent out the court's draft judgment in this case to counsel indicating that the judgment would be handed down at 10 am this morning. The purpose of the provision of draft judgments in this way is a facility afforded to the legal profession so that counsel can inform the court if there is any important factual error or omission within the draft judgment, as well as lesser matters such as typographical defects. A second important purpose of the facility is to give counsel time to consider any applications which may arise as a result of the indicated judgment so that any application can be made to the court at the time of hand down. As already stated, the document communicated to counsel is on the front page marked in the clearest terms to indicate its confidentiality and that it represents at that stage merely a draft rather than the final form of the court's judgment.

By lunchtime on Wednesday of this week it was clear that at least one newspaper and the broadcast media in the area from which this case emanates were aware of the result of the case. There therefore had been a clear breach of the court's order and the terms upon which the draft judgment had been provided. Moreover, this was in the context of a sensitive case involving sexual allegations made by a young complainant. She was entitled to learn of the result of the case in an appropriate way and not be put at risk of learning the result via second-hand hearsay and in a potentially inaccurate way.

The harm done in this case is compounded because the solicitor involved in the case, Miss Dean, contacted the local newspaper and said that her client had been cleared. She left a message to that effect. That was wholly inaccurate. She has accepted in what she said to the court today that her intention was to convey the fact that he was not guilty of the allegations. The reason why that information was inaccurate was because this court's decision involves no judgment as to whether the complaint made was true or untrue and involves no judgment as to whether Noshad Hussain was guilty or not guilty. This court's decision was that the Circuit Judge's ruling to prevent a further trial of the allegations taking place was not a decision which was in the circumstances unreasonable. That is all that the ruling amounts to. No court, either this court or the Crown Court, has pronounced on the rights and wrongs of the allegations which Noshad Hussain faced. For purely technical reasons an acquittal has been ordered by this court because of the provisions of section 61(3) of the Criminal Justice Act 2003. That is the price which the Crown pays for pursuing an ultimately unsuccessful appeal against a terminating ruling.

We have asked those concerned with this matter to attend court this morning as the breach of the court's order is one which is taken extremely seriously. We have heard from the well of the court, but not on oath, from Mr Kershaw, counsel in the case, Miss Dean, the solicitor who instructed him and who has handled this matter throughout and who was present at the hearing before the court last week, and also from Mr Fiaz, who is a partner in the firm of West Midlands Solicitors who employed Miss Dean.

The result of the information provided to the court shows that Mr Kershaw received the draft judgment. He understood the confidentiality provisions. He spoke to Miss Dean on two occasions, as he was entitled to, in relation to the outcome of the case and sent her a text. He says he made it clear to her that what the court had provided was a draft. However he did not say any more than that to her and in particular did not expressly say to her that the result of the case as communicated was embargoed and confidential until judgment was handed down today. He assumed that Miss Dean, as a solicitor, would have been aware of the position both from the fact that she was a solicitor and secondly from the fact that she had attended in court last Friday when the court referred to the way in which judgment would be handed down.

In breach of the terms of the embargo, Miss Dean acknowledges that she contacted Noshad Hussain's family. She says the family were keen to clear their relation's name after substantial publicity given in the media to the allegations surrounding this and other allied cases. Accordingly, she contacted a local newspaper. She left a message for a reporter interested in the case to convey to him that her client had been cleared. As previously stated, this was a wholly inaccurate representation of what the court's judgment meant and she should have realised this. Miss Dean also contacted the police, again in breach of the order, to ask for the return of property which had been seized. Even the Crown under the terms of the embargo is not permitted to convey the court's draft ruling and judgment to the police responsible for bringing the case. Miss Dean says that she did not appreciate the duty of absolute confidentiality.

What happened was to open Pandora's box and it is undoubtedly the case that news of the result of this case has spread prematurely in the community concerned, with no doubt the result of Miss Dean's erroneous comment on the effect of this court's decision being promulgated. As matters have turned out, the complainant did not learn of the results through gossip or contact from any person who should not be in possession of the information. This court lifted the embargo so that a responsible police officer could inform the complainant and that was the first she had learned of these matters.

We have come to the conclusion that all three persons who have attended court this morning are in one way or another at fault for what happened. Mr Kershaw, who did not provide an emailed copy of the court's draft judgment which would have made the position clear beyond any doubt to Miss Dean, should have made the position clear to her about the embargo and acknowledges that he did not do so but relied on assumptions. Miss Dean as a solicitor is at fault for not knowing the position, and if she did not know, she should have taken steps to take advice or to check before taking the action which she did. It is clear from the evidence we have heard from Mr Fiaz, the partner in the firm concerned, that contact of this sort with the media is not the policy of the firm of solicitors but it appears to us that there has been a defect in the instructions and/or supervision given to Miss Dean to make her aware of her responsibilities to this court in situations such as this. All three parties who have appeared before the court therefore must in those different ways shoulder the blame for what we regard as a significant breach of a court order.

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. Those who enjoy the benefit of such a facility are expected to understand its terms and conditions and to abide by them and to ensure that employees such as Miss Dean are properly trained or instructed. Breach of a court order can result in serious consequences. 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. We acknowledge that each of the parties who has appeared before the court this morning has tendered their apologies to the court in sincere terms which we are satisfied are entirely genuine. We acknowledge those apologies made.

Mr Weekes, there remains the question about the reporting of the court's judgment. May you need a moment or two to take instructions?

(Short adjournment)

MR WEEKES:

My Lord, thank you for the time. I have no instructions to seek to persuade your Lordships to certify a point, so I do not do so. In those circumstances the matter is concluded.

LORD JUSTICE TREACY:

Thank you very much. Just for the purpose of clarity, it means that paragraph 30 of the approved judgment as circulated this morning is operative as from now. You will see that we entitled the case with Noshad Hussain's full name, that is a restriction now lifted so that his full name can be reported, and there is no objection to reporting of the proceedings before this court, last week or today, or of the judgment which has been handed down. The only remaining restriction in this case relates to those who were alleged to be victims of Mr Hussain's conduct, people described by the initials HS and AL. The general law covers their position. There must be no reporting of a sort which would be capable of revealing their identities. That is normal in any case of a sexual allegation and the press will not be surprised about that.