Public Communications Duties in Unduly Lenient Sentence References: Correcting Misinformation and Protecting Judicial Independence

1) Introduction

This follow-on judgment of the England and Wales Court of Appeal (Criminal Division) in X & Ors, R. v (Follow On Judgment) [2026] EWCA Crim 913 arises out of the Attorney General’s section 36 Criminal Justice Act 1988 References considered in [2026] EWCA Crim 845. It is expressly not concerned with the merits or outcome of those References, but with the administration of justice in the period immediately after sentence, when public discussion became “febrile” and was fuelled by inaccurate official messaging.

The respondents were three under-18 offenders anonymised as X, Y and Z (by section 45 Youth Justice and Criminal Evidence Act 1999 orders). The complainants were anonymised as C1 and C2 (Sexual Offences (Amendment) Act 1992). The central operational issues were:

  • how material factual inaccuracies about the offending entered the public domain via an official CPS press release;
  • how slowly and inadequately they were corrected;
  • what responsibilities fall on the Attorney General once section 36 proceedings are issued, if the Attorney General chooses to make public statements about those proceedings and the gravity of the offending;
  • how failures to correct misinformation intersect with judicial independence and the safety of participants, including complainants and young offenders.

2) Summary of the Judgment

The court (The Lady Chief Justice, Lord Justice Edis and Ms Justice Norton) recorded and “marked” serious concerns about: (i) the CPS publishing, failing promptly to review, and then inadequately correcting a press release containing two material inaccuracies about knife-point coercion and the placement of a tracking device; and (ii) the Attorney General’s failure, after issuing section 36 applications and while publicly emphasising the gravity of the offending and claiming detailed knowledge of the facts, to correct widespread misreporting and to condemn personal attacks on the sentencing judge.

In relation to the CPS, the court accepted the Director of Public Prosecutions’ apologies and assurances of strengthened clearance arrangements, but described the original errors as “egregious”, the delay as “unacceptable”, and the eventual correction method as insufficiently public.

In relation to the Attorney General, the court held that while there is no general duty to “patrol” press accuracy, the position changes where the Attorney General has become a party to pending section 36 proceedings and chooses to speak publicly about them: fairness and accuracy require active correction of widespread factual misreporting known to him, to protect the administration of justice, participant safety, and public understanding. The court also stressed the constitutional importance of keeping section 36 functions separate from politics.

3) Analysis

3.1 Precedents Cited

The only decision expressly cited is the court’s own earlier judgment in the References: X, Y and Z ([2026] EWCA Crim 845). This follow-on judgment uses that main judgment for two key propositions:

  • Characterisation of the CPS errors: the court adopts its description of the original CPS press release inaccuracies as “egregious” (quoted at [20] with reference to [183] of the main judgment).
  • Who was harmed by misreporting: the follow-on judgment reiterates (by reference to [191] of the main judgment) that inaccurate public narratives harmed not only the boys but also C2, because they publicised—incorrectly—the idea that her account of knife-point coercion and forced disposal of tracking technology had been accepted when it had not.

Although not framed as “precedent” in the conventional sense, the follow-on judgment itself lays down practical constitutional guidance about official communications during pending criminal appellate proceedings, particularly where those communications risk undermining confidence and safety.

3.2 Legal Reasoning

(a) The sentencing “factual basis” and why it mattered

The trial judge’s later oral sentencing remarks (not initially available to the press) included “Factual Findings” that directly contradicted the most inflammatory public accounts: that C2 chose to leave her phone and tag in a store, and that there was no kidnap and no knife-point coercion in the way being widely reported. The court treated those findings as central to accurate public understanding of what the sentencing judge had done, and why.

(b) CPS press release: errors, delay, and inadequate correction

The CPS press release, issued immediately after sentencing, asserted two “Factual Inaccuracies”: (i) conviction for a “knife-point rape”; and (ii) threats with a knife compelling C2 to leave her phone/tag to prevent tracking before being taken away. The court accepted the DPP’s explanation (human error; failure to follow normal checking/clearance; failure to consult prosecution counsel), but held:

  • the inaccuracies were grave, because they predictably drove sensational reporting and public outrage;
  • once inaccurate reporting became widespread, the CPS should have treated its own release as an “obvious potential source” and reviewed it promptly;
  • the eventual correction—quietly amending and reissuing a document dated as if original—was inadequate for a high-profile case; a fresh, standalone correction with clear signposting (e.g., link to sentencing remarks) was required.

This is an administration-of-justice point: official prosecutorial communications are not neutral background noise; in high-profile criminal cases they shape the information environment in which courts, witnesses, offenders, and judges must operate.

(c) Attorney General: when public comment creates a duty to correct

The court carefully defined the point at which it considered it appropriate to comment on ministerial conduct: from the moment the section 36 applications were filed (11:40am on 26 May 2026), making the Attorney General a party to ongoing proceedings.

The legal logic proceeds in steps:

  1. Section 36 is a statutory, independent function: the Attorney General may refer a sentence if it appears “unduly lenient” (Criminal Justice Act 1988, section 36(1)), and must articulate reasons in the application (CrimPR 41.3).
  2. Party status and accountability to the court: once proceedings are issued, the Attorney General is answerable to the court for conduct of those proceedings like any other litigant.
  3. No obligation to comment—until comment is chosen: parties are not required to make public statements about pending litigation; indeed restraint is usually wise. But where the Attorney General chooses to issue statements and interviews about the gravity of the offending and “public concern”, he must ensure what is communicated is “fair and accurate.”
  4. Fairness requires correction of known widespread misreporting: otherwise, his statements risk lending “currency and endorsement” to misinformation—especially potent given his office and his assertion of detailed factual knowledge.

On the facts, the court emphasised that the Attorney General’s filed documents did not advance the knife-point narrative and did not challenge the trial judge’s findings about the phone/tag. Yet public communications around the same time highlighted “horrific” facts and a policy agenda about violence against women and girls, without correcting misreported knife-point elements then circulating widely.

(d) Judicial independence and condemnation of attacks

The court treated personal vilification of the sentencing judge as not merely regrettable speech, but as a potential threat to judicial independence and safety. Even accepting the Attorney General’s position that he did not know of specific threats at relevant times, the court considered he must have known of the generalised attacks and later became aware via counsel’s email. The court noted that no one within government had publicly said—even by the time of judgment—that attacks on the judge were improper and a threat to independence.

(e) Depoliticising section 36

A key constitutional theme is the separation of the section 36 function from politics. The court acknowledged that, in the main judgment, it had held the Attorney General exercised the section 36 power properly; nonetheless, the follow-on judgment found it “difficult to escape the conclusion” that public announcements associated the References with government policy. The court underscored that the power is vested in the Attorney General as an independent office-holder, “not in pursuit of government agenda, however worthwhile.”

3.3 Impact

  • For the CPS: heightened expectations that prosecutorial press releases in serious cases will be legally checked, fact-updated post-sentence to reflect the judge’s findings, and corrected swiftly and conspicuously where errors occur. The court’s criticism of “silent” correction methods (reissuing with the same date) is likely to influence future CPS communications protocols.
  • For the Attorney General’s Office: the judgment signals a practical rule: if the Attorney General becomes a party to section 36 proceedings and chooses to comment publicly on the case’s gravity, he should correct widespread factual misinformation he knows about, to avoid amplifying it and to safeguard justice.
  • For media and public discourse: while the court disclaimed a general “media policing” role for the Attorney General, the judgment highlights the systemic risk when public debate runs ahead of verified sentencing remarks—especially where reporting restrictions, anonymity, and youth offender protections apply.
  • For judicial security and constitutional culture: the judgment strengthens judicial statements insisting that public office-holders should actively discourage attacks on judges, particularly where those attacks are fuelled by official misinformation.
  • For defence and prosecution practitioners: the court expressly commended counsel who attempted to correct the record and defend the rule of law, validating professional interventions aimed at stabilising public misinformation during sensitive proceedings.

4) Complex Concepts Simplified

Section 36 Criminal Justice Act 1988 (“unduly lenient sentence” References)
A statutory mechanism allowing the Attorney General, in specified cases, to ask the Court of Appeal to review a Crown Court sentence if it appears “unduly lenient.” It is not an appeal by the complainant; it is a public-interest procedure.
CrimPR 41.3
A procedural rule requiring the Attorney General’s application to explain concisely why the sentence appears unduly lenient and to outline arguments in support. The judgment uses this to emphasise that the Attorney General’s filed position was more restrained than the public narrative circulating.
“Factual basis of sentencing”
The judge must sentence on findings of fact. If the public is told a different factual story (e.g., knife-point coercion when the judge rejected it), public confidence and participant safety can be harmed and judges may be unfairly attacked.
Reporting restrictions and anonymity
Sexual offence complainants have lifelong anonymity under the Sexual Offences (Amendment) Act 1992, and youth offenders/child witnesses may be protected under section 45 of the Youth Justice and Criminal Evidence Act 1999. These restrictions can make accurate official summaries even more important, because the public cannot readily cross-check details without risking unlawful identification.
Judicial independence
The principle that judges must decide cases free from external pressure, intimidation, or political influence. Public vilification—especially when based on misinformation—can threaten that independence.

5) Conclusion

[2026] EWCA Crim 913 is a pointed administration-of-justice judgment: it links inaccurate official communications to real-world consequences—sensational reporting, public anger, harm to complainants and youth offenders, and attacks on a sentencing judge.

Its core takeaway is practical and constitutional: when a public authority (the CPS) or a constitutional office-holder (the Attorney General) participates in shaping public understanding of pending proceedings, accuracy, prompt correction, and clear separation from political messaging are not optional virtues but safeguards of the rule of law.