X & Ors, R. v (Follow On Judgment)

Factual and Procedural Background

This follow-on judgment arises from three References made by the Attorney General in respect of the Crown Court sentences imposed on respondents referred to as X, Y and Z ([2026] EWCA Crim 845). Sentences were passed by Judge Rowland on 21 May 2026. In oral sentencing remarks the judge made specific factual findings, notably that C2 had voluntarily left a phone with a tagging device in a shop and that there had been no knife-point abduction or planning in the incidents (the "Factual Findings").

Immediately after sentencing the prosecuting authority (CPS) issued a press release containing material inaccuracies asserting a "knife-point rape" and that C2 had been threatened with a knife and forced to leave devices in a shop (the "Factual Inaccuracies"). The inaccurate release was widely relied on by the media, producing public outcry and personal vilification of the sentencing judge and of the young respondents.

On 26 May 2026 the Attorney General lodged three applications for permission to refer the sentences under section 36 Criminal Justice Act 1988 and issued a contemporaneous public video and press statement linking the referrals to government policy tackling violence against women and girls. Defence and prosecution counsel sought corrections from the CPS and drew attention to public attacks on the judge. The CPS amended the press release on 10 June 2026 to remove the inaccuracies but retained the original date; the Director of Public Prosecutions later accepted the errors were due to human error, apologised and described steps to strengthen clearance procedures.

Legal Issues Presented

1. Whether the CPS's publication and delayed correction of a press release containing material factual inaccuracies was acceptable conduct in the circumstances and what consequences follow.
2. Whether it was appropriate for the Attorney General, having become a party to applications to refer sentences under section 36, to make public statements of the kind made and, in particular, whether he should have corrected widely reported inaccuracies and publicly condemned personal attacks on the sentencing judge.
3. Whether the making and public presentation of the References was, or risked being, associated with government policy in a way that undermines the independent exercise of the Attorney General's statutory power under section 36.

Arguments of the Parties

Attorney General's Position

• The Attorney General states he considered the judge's sentencing notes before making the References and proceeded on the basis that the widely publicised factual aspects could not be supported in the applications.
• He asserts he was personally unaware of the CPS press release until 1 July and that his department was not aware of it until after correction; he says it is not his constitutional role to oversee CPS press releases.
• He contends he would have acted differently had he been aware of specific security threats to the judge and explains he gave "carefully calibrated" answers in the podcast interview because proceedings were ongoing.
• He does not consider he bore a duty to patrol media accuracy generally or that Mr Henry's earlier email required a Media Advisory Notice or contempt proceedings.

CPS / Director of Public Prosecutions (DPP) Position

• The DPP explains the draft press release was prepared before sentencing and updated after sentencing without amending the factual summary; normal legal checks were not followed and these failures were human error.
• The DPP accepts the correction took too long, apologises for the serious failures and states targeted strengthening of clearance arrangements is being implemented.

Defence and Independent Bar Representations

• Defence counsel (for respondents) urged the CPS and the Attorney General to correct misleading reporting and drew attention to a petition and press interviews which had intensified attacks on the judge and risked prejudice to the proceedings.
• Junior prosecution counsel also sought an urgent review given the misreporting and its effects on the judge's safety and public confidence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court separated this administrative follow-on judgment from the merits of the References. It analysed two parallel strands: (i) the conduct of the CPS in publishing and correcting the press release, and (ii) the public conduct of the Attorney General once he had become a party to the applications to refer under s.36 CJA 1988.

On the CPS, the court accepted the DPP's explanation that the release derived from a pre-sentencing draft and that post-sentencing updating proceeded without required checks; the court found those failures "egregious" and criticised the delay and manner of correction, observing that a standalone, clearly dated corrective statement linking to the judge's sentencing remarks would have been appropriate in a high-profile case.

On the Attorney General, the court reasoned that once applications for permission to refer were issued he became a party answerable to the court and therefore public statements about ongoing proceedings required particular care. The court observed that the Attorney General had volunteered public comments about the gravity of offending and had professed to have read the details; in those circumstances the Attorney General should have ensured public communications did not endorse or lend currency to widespread factual misreporting and should have corrected known inaccuracies and condemned personal attacks on the judge. The court expressed concern that the Attorney General associated the exercise of his s.36 power with government policy, emphasising that the power is vested in the Attorney General to be exercised independently of government agenda.

The court accepted the Attorney General's assurances regarding his commitment to judicial protection but concluded that, given the public commentary and counsel's warnings, he ought to have acted to correct misinformation and to denounce attacks on the judiciary more clearly.

Holding and Implications

The court recorded concerns about the CPS's press release and about the Attorney General's public conduct and accepted the DPP's apology.

Implications:

• The court formally marked its concerns about the CPS's factual errors, the failure to follow clearance procedures and the inadequate manner and timing of correction; the DPP has apologised and committed to strengthen clearance arrangements.
• The court admonished that the Attorney General, once a party to a referral under section 36 CJA 1988, must avoid public statements that risk endorsing factual misreporting or that associate the statutory referral power with government policy; the court urged public correction of inaccuracies and condemnation of improper attacks on the judiciary in such circumstances.
• No new legal precedent was established by this administrative judgment; its direct effect is a formal judicial record of concern, acceptance of the DPP's apology and an exhortation to CPS and the Attorney General to adopt practices designed to protect the administration of justice and judicial independence.