Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/08/2026
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONLORD JUSTICE EDISSIR STEPHEN IRWINHER HONOUR JUDGE TRACEY LLOYD-CLARKEThe Recorder of Cardiff, sitting as a Judge of the Court of Appeal Criminal Division
Between
THE KINGApplicantAGC AND OTHER RESPONDENTSRespondentsStephen Rose KC and Marc Brown (instructed by the Crown Prosecution Service) for Applicant by written submissionsGrace Forbes for 3 rd Respondent by written submissionsApproved JudgmentThis judgment was handed down remotely on 25 August 2026 by circulation to the parties or their representatives by e-mail and published to the National Archives..............................
The Vice-President:
[1]This application relates to the proceedings in the Court of Appeal Criminal Division which resulted in a judgment handed down on 4 March 2026, [2026] EWCA Crim 220.[2]That was a judgment on an appeal from a ruling made by the judge in a preparatory hearing. It was therefore endorsed:- “The provisions ofsection 37 of the Criminal Procedure and Investigations Act 1996 apply to these proceedings [See para. 3.5 of the Reporting Restrictions in the Criminal Courts guide]. By virtue of those provisions, the reporting of these proceedings is prevented until the conclusion of the trial, save for specified basic facts such as the name of the accused and the offence, unless the Court orders that the provisions do not apply.”[3]Subsequently the court received and refused an application to certify that this decision involved a point of law of general public importance, and that it should be considered by the Supreme Court.[4]On 30 April 2026 the first of three planned trials concluded. Four defendants were convicted, and one was acquitted. Sentence was adjourned. The remaining two trials will not conclude until June 2027 at the earliest.[5]An application has been made by the prosecution for an order that section 37 of the Criminal Procedure and Investigations Act 1996 should not apply to these proceedings so that the appeal judgment and other documents in connection with the appeal proceedings can be published. This is because, in summary, the decision provides valuable guidance for the conduct of other investigations and prosecutions and for those who must advise people who are prosecuted or investigated in similar ways. Unless the order is lifted, the judgment will not be available for another twelve months.[6]The trial judge, HHJ Collery KC, has lifted the reporting restriction in the Crown Court to the extent necessary to enable this court, if it sees fit, to grant the prosecution application without falling foul of the Crown Court restriction.[7]Ms Grace Forbes, to whom we are very grateful, has filed a set of submissions in response. The court invited her to ensure that all other defence teams involved in the two pending trials were aware of the application and her response. The court had directed that a single set of submissions should be prepared on behalf of these defendants on this narrow question. The only submissions the court has received are those of Ms Forbes, who said, in an email to the court:- “I write in relation to the case of [AGC] and others. I act for [the third respondent]. I have copied in both counsel for the applicant / appellant (Mr Rose KC and Mr Brown). I attach a skeleton argument opposing the early lifting of reporting restrictions in this matter on behalf of the defence. I can confirm that my written submissions have been provided to all other defence counsel, and that we are all aware of the request for a single set of submissions. I can also confirm that a number of other defence counsel have already confirmed that my submissions are actively supported on behalf of their clients. It may be that more responses will follow as I was only able to share those submissions yesterday having returned to the UK late last week. I will be in a position to provide the full list of those supporting the submissions by the point of the hearing, if that approach finds favour with the court. Finally, I understand that a question was raised in relation to whether the hearing could be dealt with 'on the papers' or if oral argument was required. For my part, I would be content for it to be dealt with 'on the papers', but I am course very happy to attend in person or via CVP for oral argument if that is required or preferred.”[8]Ms Forbes has confirmed that her submissions are actively supported by counsel for other respondents, namely Eleanor Laws KC and Eloise Emanuel, Benedict Peers, Ruth Zentler-Munro, Fred Batstone, Sally Hobson, and Tom Flavin. We are not aware of any dissent.[9]The prosecution confirmed subsequently that they also are content for this issue to be decided on the papers, without a hearing, and this is how the court has proceeded.[10]The submissions we have received are succinct but comprehensive and, in each case, compelling.[11]Ms Forbes submits that the judgment of this court contains evaluative judgments of the behaviour alleged, but not then proved against anyone, and still not proved against the defendants whose submissions we are considering. These are based on the prosecution evidence. They are necessary in order to evaluate the contention that the nature of this investigation rendered the prosecution an abuse of process. However, she submits that if they came to the attention of a juror they would be prejudicial.[12]She further submits that, as the court concluded when rejecting the application to certify a point of law of general public importance, there is no such point of law in this judgment. The judgment, she says, is an application to particular facts of established legal principles.[13]Finally, she says that the judgment was not written with a view to immediate publication by omitting prejudicial material or, as has happened in some cases, any reference to the underlying allegations at all. She says it could not have been, precisely because of the nature of the ruling made and considered on appeal.[14]We agree with Ms Forbes. A year is quite a short time for the public to wait for a judgment of this kind.[15]In the meantime, as the court said in R v A [2021] EWCA Crim 128, [2]:- “Pursuant to s.37 of the 1996 Act the reporting of these proceedings is prevented until the conclusion of the trial, save for specified basic facts such as the name of the accused and the offence, unless the court orders that the provisions do not apply. There is an identical restriction on reporting of the proceedings in the Crown Court. This is a reporting restriction. There is no bar on the decisions of this court and the Crown Court being shared among judges and legal professionals so that they may inform decisions in other cases involving the same issues. Those further decisions will also be subject to reporting restrictions.”[16]This is, of course, no guarantee that the judgment will reach everyone who might be assisted by it at the time when they need it. Publication is the way to achieve that. But it does address the problem on which the prosecution relies during the period before judgment can be published. It is the best that can be done to protect the fair trial rights of the defendants who are yet to be tried while at the same time ensuring access for those who have a real need to have access to it.[17]The restriction under s37 prevents publication of the judgment, which means making it available to the public in a way which means that it may be found and read by any prospective juror who may serve in either of the outstanding trials. Such a restriction is not breached by the CPS or Police, making the judgment, with its clearly marked reporting restriction, available to colleagues or adversaries in circumstances where all concerned are obliged to honour the reporting restriction. This also applies to anyone engaged in ensuring that any operations of the kind which took place in this case are properly superintended in accordance with the provisions of the Regulation of Investigatory Powers Act 2000. Training and distribution systems can be devised to ensure that this is achieved. The judgment must not go online in a way which gives public access to it, but otherwise it may be used in this way without any lifting of the order.[18]For these reasons, we refuse the prosecution application.[19]This ruling has been written so that it can be published now. Any member of the press who seeks to make representations in the light of its content may do so.