Section 37 CPIA 1996: No Early Publication of an Appeal Judgment While Related Trials Remain Pending, but Controlled Professional Sharing Permitted

1) Introduction

This decision of the England and Wales Court of Appeal (Criminal Division) (Lord Justice Edis (VP), Sir Stephen Irwin, and HHJ Tracey Lloyd-Clarke) concerns whether the automatic reporting restriction under section 37 of the Criminal Procedure and Investigations Act 1996 (“CPIA 1996”) should be disapplied to allow early public access to an earlier Court of Appeal judgment in the same proceedings: [2026] EWCA Crim 220.

The underlying litigation arose from an appeal against a ruling at a preparatory hearing (including an abuse of process contention) in a complex multi-defendant prosecution. One of three planned trials had concluded (with convictions and one acquittal, sentence adjourned), but two further trials were not expected to conclude until at least June 2027.

The prosecution applied for an order that s.37 CPIA 1996 “should not apply” to the Court of Appeal proceedings so that the earlier appeal judgment and associated appeal documents could be published promptly, on the basis that the earlier judgment provided useful guidance for investigators, prosecutors, and advisers. The respondents (untried defendants), through a single set of written submissions, opposed early lifting on fair trial grounds.

2) Summary of the Judgment

In R v AGC & Ors (Reporting Restriction Decision) [2026] EWCA Crim 1021, the Court of Appeal:

  • refused the prosecution application to disapply s.37 CPIA 1996 for early public publication of the earlier appeal judgment; and
  • emphasised that, notwithstanding s.37, there is no bar on the judgment being shared among judges and legal professionals (and within properly controlled professional/training systems), provided it is not made publicly accessible in a way that could reach prospective jurors.

The Court agreed with the respondents that the earlier judgment contained evaluative discussion of alleged behaviour (based on prosecution evidence) which had not been proved against those still awaiting trial, and that public dissemination risked prejudice.

3) Analysis

3.1 Precedents Cited

The Court relied on R v A [2021] EWCA Crim 128 as authority and practical guidance for the proposition that s.37 CPIA 1996 operates as a reporting restriction on public reporting/publication until the conclusion of trial, but does not prevent court decisions being circulated within the judiciary and legal community to inform other cases, subject to equivalent restrictions.

The Court deployed R v A to answer the prosecution’s “guidance gap” point: while public access was barred to protect fair trials, the same guidance could still be used by those with a genuine operational/legal need—without putting it online or otherwise into the public domain.

3.2 Legal Reasoning

The reasoning proceeds from the statutory and constitutional tension between:

  • open justice (the public interest in prompt publication of appellate guidance), and
  • fair trial rights for untried defendants (avoiding material capable of prejudicing jurors in outstanding trials).

Key elements of the Court’s analysis were:

  • Risk of prejudice from evaluative content: The earlier appeal judgment necessarily assessed alleged conduct (on the prosecution case) to resolve an abuse of process argument. The Court accepted the respondents’ submission that, if read by a juror, those evaluative assessments could be prejudicial in trials that had yet to take place.
  • No compelling “point of law” imperative for immediate publication: The Court noted that it had previously refused certification for a leap to the Supreme Court because the earlier decision did not involve a “point of law of general public importance”; rather it applied established principles to particular facts. That assessment reinforced the conclusion that the public interest in immediate publication was not so weighty as to justify risking prejudice.
  • Time-limited nature of the restriction: The Court treated the remaining wait (roughly a year for the earlier appeal judgment, on the Court’s view) as a relatively short period for deferring public access in order to secure fair trials.
  • Functional compromise: professional access without public access: The Court’s most practically significant point is its clarification that s.37 prevents publication to the public—i.e., making the material available such that it can be found and read by prospective jurors—but does not prevent controlled sharing among those obliged to honour the restriction (CPS, police, defence lawyers, judges), including for supervision and training linked to investigatory regimes (the Court mentioned supervision “in accordance with” the Regulation of Investigatory Powers Act 2000 context).

3.3 Impact

The decision is likely to be cited for three practical propositions:

  1. High caution on early publication where further trials are pending: Even where an appellate decision contains guidance of operational value, the Court will be reluctant to lift s.37 if the text contains evaluative commentary on unproved allegations that could materially prejudice juries in forthcoming trials.
  2. “Publication” vs “restricted circulation”: The ruling sharpens the distinction between impermissible public dissemination (especially online availability) and permissible professional circulation within systems designed to ensure compliance with reporting restrictions.
  3. Managing the “guidance gap” without lifting s.37: Investigative/prosecutorial bodies (and defence practitioners) may respond by developing controlled internal distribution and training channels for restricted judgments, reducing the need to seek formal lifting applications.

For media organisations, the decision signals that where prejudice is a real risk, the Court may prefer delayed publication of the substantive appellate material, while leaving open the possibility of representations about the reporting restriction in light of the publishable terms of the present ruling.

4) Complex Concepts Simplified

  • Section 37 CPIA 1996: A statutory rule that, in certain criminal proceedings (including specified appellate contexts), restricts reporting/publication until the conclusion of the trial, subject to limited “basic facts” and any court order disapplying it.
  • Reporting restriction (not a secrecy order): It stops public reporting/public access, but does not automatically prevent the judgment being shared among professionals who are bound to respect the restriction.
  • “Publication” in this context: Making the judgment available to the public—especially online—so it may be found and read by anyone, including prospective jurors.
  • Abuse of process: A doctrine allowing criminal proceedings to be stayed where continuing would be unfair or would undermine the integrity of the justice system. Assessing such arguments can require a court to discuss alleged conduct and investigatory behaviour in evaluative terms, creating a heightened risk of prejudice if published early.

5) Conclusion

[2026] EWCA Crim 1021 reinforces a protective approach to s.37 CPIA 1996 where there are outstanding jury trials: the Court will not facilitate early public availability of an appellate judgment containing evaluative discussion of unproved allegations, even if the judgment may be operationally useful. At the same time, the Court provides a pragmatic route for the legal system to benefit from such judgments before restriction expiry: controlled sharing among judges and legal professionals is permissible, provided the material is kept out of the public domain and not placed online in a manner accessible to prospective jurors.