Tag Archives: right to silence

Ostriching and adverse inferences

Posted on August 17, 2017 by suesspiciousminds

The law in relation to decisions not to engage with assessments and the consequences that may flow from this

I ended up scratching my head about this issue about a month ago – where a parent doesn’t engage with assessments and doesn’t provide samples for drug testing, what can the Court do about it? It seemed a very obvious answer that the Court would be invited to draw adverse inferences from the failure to cooperate, but I couldn’t easily lay my hands on the authority for that proposition. It turned out to be more elusive than I had imagined, so having done the research and written it up, it was rather vexing to receive an email minutes later to say that the parent was now willing to engage rendering all my hard work pointless.

So, waste not want not. At the very least it might save someone else having to do all the legwork.

1. The starting point is that under the Children Act 1989 and civil proceedings generally, the burden of proof in any allegation falls upon the party making it, and the standard of proof is the balance of probability. Thus, in care proceedings, it will be the task of the Applicant to establish that it is more likely than not that the parent’s behaviour, history or failings amount to behaviour that it is not reasonable to expect a parent to provide and that it amounted to either causing the child significant harm or establishes a likelihood of significant harm in the future.

2. In a case where the allegation is, say, mental health instability or substance misuse, it is not a burden on the parent to demonstrate that their mental health is now fine, or that they are no longer using heroin. (This misapprehension works its way quite regularly into language used outside Court – “This mother needs to show me that she’s changed” and so on, but it is not a legal burden on the mother at all.)

3. If the Local Authority satisfy the Court that an assessment under Part 25 is necessary to establish the history and prognosis of mother’s mental health, or the current status of abstinence from or usage of substances in order to make confident predictions about the future, what happens where a parent declines to participate?

4. The Court of Appeal in S (Children) [2006] EWCA Civ 981 http://www.familylawweek.co.uk/site.aspx?i=ed1435 addressed particularly where the limits are in the family Court of compelling parents to produce evidence.

5. 23. I move, therefore, from the clear need for the court to receive the disputed evidence to the manner by which it should do so. I have no doubt that the submission is correctly made on behalf of the father, and today correctly conceded on behalf of the local authority, that the court cannot compel a party, against his will, to procure the evidence of a person not already a witness in proceedings. A party can be permitted to file evidence which he wishes to file; and, in civil proceedings, he can be compelled to file evidence from himself. He cannot, however, be compelled to file evidence to be collected by him from a third party; for he has no power to compel the third party to co-operate in enabling him to comply with the order against him. So, yes, the father is right: he should not have been subject to purported compulsion to file a report by his psychiatrist. The judge seems to have recognised as much when, in judgment, he observed “although it does not seem to me that the father can be forced to, the evidence from [the father’s psychiatrist] can be obtained now.” Notwithstanding his doubts the judge for some reason proceeded in his actual order to direct the father to file a report from the psychiatrist.

6. A parent can be compelled to provide a statement from themselves within care proceedings (there is no “right to silence” as a result of s98(2) and failure to produce a statement as directed could be treated as contempt and breach of an order and punishable by committal Re LR (Children ) 2013 http://www.familylawweek.co.uk/site.aspx?i=ed117035 )

7. There is, however, a right to silence, when the application is for committal, and the parent must be informed by the Judge that he or she does not HAVE to go into the witness box and is entitled to decline the option of giving evidence. The Court of Appeal confirmed in Khawaja v Popat & Anor [2016] EWCA Civ 362 that the Court can draw adverse inferences from the parents decision to exercise that right to silence (this is NOT the case in criminal law, but is the case in civil law)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/362.html

27.As the proceedings led potentially to a criminal penalty, the appellant could not be compelled to give evidence. He could have remained completely silent and could have addressed submissions as to the strength or weakness of the evidence adduced by the respondent. However, he took a half-way course. He provided two affidavits in explanation, but he declined (as was his right) to have that evidence put to the test in cross-examination.

28. It might have been unwise for the judge to say to the appellant so bluntly that “…the reality is that if you don’t go in the witness-box it is likely that I will infer that you won’t go in the witness-box because you know you are lying…”. However, it seems to me that his overall remarks to the appellant, at the end of Mr Roseman’s opening of the case for the respondents, were correctly in accord with the law and practice as reflected in paragraph 81.28.4 of Civil Procedure 2015 Vol. 1 (p.2460) as follows:

“A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent (Comet Products UK Ltd. v Hawkex Plastics Ltd. [1971] 2 QB 67, CA). It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence (Interplayer Ltd. v Thorogood [2014] EWCA Civ 1511, CA…)…”
29.It is entirely clear from the transcript of the judge’s exchanges with Mr Roseman that he recognised fully the burden of proof that was upon the respondents and the standard of proof required to discharge that burden. The judge pressed Mr Roseman closely upon the evidence adduced in support of the application. I do not accept Mr Hendron’s submission that the judge concluded that the appellant’s silence on its own proved his guilt (contrary to the principles emerging from R v Cowan [1996] 1 Cr App R 1 at 7). The judge was conspicuously aware of the burden resting upon the respondents throughout. In my judgment, it seems clear that the judge recognised that the respondents’ evidence produced a case for the appellant to answer; he found the explanations given in the appellant’s affidavit evidence unsatisfactory and in the absence of oral evidence he drew the inference open to him that the appellant’s explanations were untrue.

30.It seems to me further that the law and practice as briefly stated in Civil Procedure (Loc. Cit. supra), and applied by the judge, is entirely consistent with the jurisprudence of the European Court of Human Rights, as reflected (for example) by the following passage from the judgment in Murray v UK [1996] ECHR 18731/91 at paragraph 47:

“On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.”

“Wherever the line between these two extremes is to be drawn, it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.”

“It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government have pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.”

“Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.”

8. If a parent has within their possession and control documents or evidence, this can also be ordered to be produced. But the thrust of the passage in Re S 2006 above is that a parent cannot be compelled to participate in a psychiatric assessment if they do not consent. The Court has no power to compel them to do so.

9. However, the Court of Appeal provided a recommendation for such a scenario :-


24. It must be remembered, however, that the request for an order that the father should file a report from the psychiatrist was only the fall-back application made on behalf of the local authority. Their primary application was for an order for the disclosure of the records held by the psychiatrist and the linked records held by the father’s GP. Granted the relevance of the father’s psychiatric condition, that application was in my view unanswerable. In the ordinary case, in which the medical records are held by the doctors, the appropriate direction would have been to grant leave to the local authority to issue what in the Division we still have to call subpoenas duces tecum and ad testificandum, returnable either at the outset of the substantive fact-finding hearing or, surely more conveniently, at a prior review hearing, at which the doctor or doctors can produce the records to the court and answer such questions as will enable the parties both to make sense of them and, more broadly, to collect from them the focussed information about the parent’s likely condition at the time of the event. In this case, however, we are given to understand that the medical records are already in the possession of the father; and so in my view there is no impediment to a straightforward order for his immediate disclosure of them to all other parties. To that order I would attach permission to the local authority and the guardian, if so minded, to show the records to a psychiatrist of their own choosing; and, having studied the records and perhaps having instructed a psychiatrist to educate them about their significance, the local authority and/or the guardian will be free at the next review hearing to ask for leave to issue a subpoena ad testificandum against the father’s psychiatrist. I have to say that, once the court in care proceedings has decided in principle that such information should be obtained and once the parent has had the benefit of legal advice, this cumbersome method of obtaining it is usually circumvented by his agreeing, as a recital to the order, to procure a report from the psychiatrist upon the matters ruled to be relevant. Perhaps, now that this appeal is reaching its end and now that he can be given further and clearer advice, the father will be amenable to that elementary level of co-operation. But we should not count on it. It follows that I propose that the local authority’s cross-appeal and, insofar as it relates to the direction that the father should file a psychiatric report, the father’s appeal should be allowed; and that the orders which I have indicated should be substituted for the direction made by the judge. In all other respects the father’s appeal should in my view be dismissed.

9. The Court does, therefore, have jurisdiction to compel production of the medical records and can, if a party has made an application under Part 25 for an expert, direct that the expert report on a paperwork basis, considering said records. (And the Court of Appeal express hope that given that scenario, a parent would reflect that a report might be more favourable and balanced and nuanced if the expert has the benefit of speaking to them about these issues and thus change their mind about participation)

10.However, such an option is not available with drug or alcohol testing. If the parent is not consenting to the production of samples, alternate methods of collecting the samples cannot be used.

11. The issue therefore is whether the Court is entitled to draw adverse inferences or conclusions (specifically – does the decision by a parent not to consent to providing a sample amount to evidence that the tests if undertaken would demonstrate something unfavourable to the parents case?)

12. The High Court in RE O (CARE PROCEEDINGS: EVIDENCE)
[2003] EWHC 2011 (Fam) considered the issue of adverse inferences where a parent declined to give evidence at all or refused to answer particular questions

13. As a general rule, and clearly every case will depend in its own
particular facts, where a parent declines to answer questions or, as here, give
evidence, the court ought usually to draw the inference that the allegations are
true.

13. A decision not to consent to provide samples for the purpose of alcohol or drug testing is not strictly a parent declining to give evidence, but rather a parent declining to provide additional evidence which might establish things one way or another.

14. It might be analogous to the refusal to submit to DNA testing in paternity cases. The Court in those cases are entitled to draw ‘such inferences, if any, from that fact as appear proper in the circumstances’ (s23(1) Family Law Reform Act 1969) – the Court of Appeal ruled in Re G (Parentage : Blood Sample) 1997 1 FLR 360 that where a putative father refused to submit to blood tests then a forensic inference should be drawn and since the forensic process was advanced by the truth being told in court, those who obstruct that process will have an adverse inference drawn against them.

15. Whilst this is a helpful illustration, as the statute in question specifically provides in s23(1) the Court’s power to draw inferences, and the Children Act 1989 does not, it does not provide a definitive answer.

16. The Supreme Court, dealing with an ancillary relief case, considered the issue more broadly, in Prest v Petrodel 2013 https://www.supremecourt.uk/cases/docs/uksc-2013-0004-judgment.pdf

44. In British Railways Board v Herrington [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”

The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open-ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300:

“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340

17. It is suggested, therefore, that following the guidance in Prest v Petrodel (The ‘modification which I shall come to’ being very specific to ancillary relief cases and we can thus ignore it) , where the Local Authority have provided evidence which provides a reasonable basis for coming to a conclusion about substance misuse or alcohol misuse, a parent who chooses to be silent and not provide evidence by way of scientific testing (unless credibly explained) may have the Court determine that their silence turns a prima facie case into a strong or overwhelming one.

18. A Local Authority could not simply ask for a drug test as a fishing expedition and ask the Court to draw adverse inferences if a parent refuses to give one – they need to establish an evidential basis for suspicion that a test is necessary. (Previous history, allegation by a credible witness, evidence of the parent acting in a way which is consistent with drug misuse or so on)

(Why Ostriching? It’s lawyer slang for when a client is burying their head in the sand and pretending that it will all just go away if they ignore it. Actually, ostriches don’t do this – though they do dig holes in the sand to bury their eggs, and occasionally put their heads in those holes to turn the eggs hence the myth.)

Octavia, looking for Hartley and Topov

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Contempt of Court and right to silence

Posted on March 22, 2016 by suesspiciousminds

This is an intricate, but important, decision by the Court of Appeal. A man here was sentenced to six months imprisonment for failure to comply with an order, and the Court of Appeal overturned that decision.  It does seem that the man spent about five weeks in prison, and the Court of Appeal found that the decision was procedurally flawed in some significant ways.

 

Re L (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/173.html

It relates to an application to commit to prison the Uncle of a child for contempt. The child had been the subject of care proceedings in 2004  (yes, 2004), and the parents had fled the country with her. The High Court had made some orders under the inherent jurisdiction, including importantly the “collection order” in this case, which included this provision

 

“If the Defendants[1] or any other person served with this order is not in a position to deliver the child into the charge of the Tipstaff, he or she[2] must each:-

(a) inform the Tipstaff of the whereabouts of the child, if such are known to him or her; and

(b) also in any event inform the Tipstaff of all matters within his or her knowledge or understanding which might reasonably assist him in locating the child.”

The Uncle, Mr Oddin, was brought to Court AS A WITNESS in July 2015

  1. On 30 June 2015, Keehan J discharged both the care order and the freeing order. L remained a ward of court. On 30 July 2015 Keehan J made an order which, so far as material for present purposes, was in the following terms:
    1. “UPON the court being satisfied that the attendance of Mr Gous Oddin to attend court for the purpose of examining the whereabouts of the parents [that is, L’s parents] and the welfare and whereabouts of the child [that is, L] is necessary

… IT IS ORDERED THAT

1 Leave is granted to the local authority for a witness summons to be issued, whereby Mr Gous Oddin shall attend court at 9.30am on 8 October 2015 before Mr Justice Keehan sitting at … for the purposes of being examined as to the whereabouts of the parents and the welfare and whereabouts of the child, L …

2 Mr Gous Oddin … shall attend the hearing on 8 October 2015 for the purpose of examination as to the whereabouts of the parents and whereabouts of the child L …”

Mr Oddin gave evidence before the Court on 8th October 2015  – remember that he was there as a witness, and that he was NOT at that point subject to an application for committal. However, the Court was not satisfied that he was giving honest answers.

  1. On 8 October 2015 Mr Oddin attended before Keehan J as directed. We have the Transcript of the proceedings. The local authority was represented by Mr Stefano Nuvoloni and L by Miss Roberta McDonald. Unsurprisingly, since he was there as a mere witness, Mr Oddin was not represented. The judge asked Mr Oddin to “come forward to the witness box.” Mr Oddin affirmed, gave his name and address and explained, in answer to questions from the judge, that he was L’s paternal uncle. Keehan J then said this:
    1. “Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?

A. Yeah.

You are today in a very, very serious position. I should tell you now that, subject to anything that is said by Mr Nuvoloni or by Miss McDonald, what I propose to do is to take evidence from you today. If I am not satisfied with your answers, I will adjourn the matter for a period of time to hold a committal hearing at the Royal Courts of Justice in London. If that comes to pass, I would very strongly advise you to seek legal representation for that hearing. Do you understand?

A. Yeah.”

  1. Mr Oddin was then questioned, at the judge’s invitation, first by Mr Nuvoloni and then by Miss McDonald. From time to time the judge asked Mr Oddin questions. Mr Nuvoloni asked a few more questions, concluding “My Lord, I do not think I can take it further.” The Transcript continues:
    1. “THE JUDGE: (Long pause) Mr U, I am very sorry to tell you that I do not believe you have been telling me the truth. I do not believe that you have given me all the information that you can. This is what I propose to do. I am going to list this matter at the Royal Courts of Justice in London on Wednesday, 28th October. It will be listed for half a day. It will be listed as a committal hearing, when I will consider whether you are in contempt of court, and if you are in contempt of court, I will then proceed to decide what punishment you should face for that. Do you understand?

 

THE WITNESS: Yeah.”

The case was duly listed for a committal application, and Mr Oddin was represented. Keehan J gave him a six month prison sentence. It is worthy of note that Mr Oddin’s passport was taken from him in 2004 and he had not been able to travel abroad since that time.

Counsel for Mr Oddin at the committal hearing attempted to establish whether Mr Oddin was charged with contempt for BREACHING the collection order of 2004, or whether he was charged with contempt in the face of the Court for not answering Keehan J’s questions.

We have the Transcript of the hearing on 18 January 2016. Before the evidence was called, Miss Norman sought clarification from Keehan J as to “what the contempt is that my client faces.” She made the point that the collection order required the provision of information that might reasonably assist the Tipstaff in locating the child, whereas the judge’s observations at the end of the hearing on 8 October 2015 had been in very much wider terms, referring to the whereabouts of the parents and the welfare and whereabouts of the child. She continued, “what I am not clear about is, is the contempt as your Lordship might see it not answering your Lordship’s questions, or is the contempt going back to the 2004 order?” The judge replied, “It is going back to the 2004 order.” Miss Norman took the point no further (nor, for that matter, did anyone else) and the judge proceeded to hear the only witness called in support of the allegation of contempt, L’s guardian.

  1. In the course of her closing submissions Miss Norman returned to her opening point:
    1. “MISS NORMAN: My Lord, I expressly asked the question were we dealing with the 2004 order or were we dealing with contempt in the face of the court, and I understood your Lordship to say we were dealing with the 2004 order.

MR JUSTICE KEEHAN: The two are related, though, because if I find that I do not accept the evidence that Mr Oddin gave me on 8th October, or if I do not accept the evidence he has given me today and I find that he is lying to the court, I am then entitled, or may well then be entitled on that basis to be satisfied that he is not telling the truth, that he knows more than he is telling and is therefore in breach of the 2004 order.

MISS NORMAN: My difficulty is this, as I have suggested to your Lordship earlier on, that your Lordship found him to be at fault in a much wider area than the 2004 order. The 2004 order was matters which might reasonably assist in locating the child and that was it, nothing about welfare or parents or anything else. And so if we focus on that issue …”

  1. After Miss Norman had concluded her submissions there was a short adjournment, after which Keehan J returned to court and gave judgment.
  3. In paragraph 3 of his judgment the judge framed the issue in these terms:
    1. “This matter is listed today before me for committal proceedings against one of the father’s brothers, Mr Gous Oddin. The issue is, do I find that he is in breach of the order made consequent upon that abduction on 30 December 2004.”

He then quoted paragraph 3 of the collection order. In paragraph 5 of his judgment, he said this:

“The question was raised by Ms Norman, on behalf of Mr Oddin, at the start of this hearing as to precisely on what grounds Mr Oddin was being considered for committal and contempt proceedings. I made plain that that related solely to the order of 30 December 2004. But very plainly when considering whether there has been a breach of that order, I am entitled and I must consider the totality of the evidence before me and, in particular, whether I find that Mr Oddin is telling the truth or not. If I find that he is not telling the truth, I then have to consider the reason or possible reasons for him lying to the Court.”

The Court of Appeal make it very plain that a person faced with an application to commit him for contempt has a right to silence – such right extending further than just an ability to refuse to answer individual questions but an ability to refuse to go into the witness box at all.

  1. The absolute right of a person accused of contempt to remain silent, which carries with it the absolute right not to go into the witness box, was established in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, where this court held that such a person is not a compellable witness. This right is to be distinguished both from the privilege against self-incrimination and from legal professional privilege, each of which may entitle a witness in certain circumstances to decline to answer a particular question but neither of which entitles the witness to refuse to go into thewitness box or refuse to take the oath (or affirm): see Re X (Disclosure for Purposes of Criminal Proceedings) [2008] EWHC 242 (Fam), [2008] 2 FLR 944, para 9.
  2. As both Re G and Hammerton v Hammerton illustrate, the principle in Comet has repeatedly been emphasised in this court; see also Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 61, to which we were referred. Most recently, so far as I am aware, the relevant principles were summarised by Jackson LJ, with whom both Lewison LJ and Treacy LJ agreed, in Inplayer Ltd and ors v Thorogood [2014] EWCA Civ 1511, paras 40-45:
    1. “40 A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67. It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence.

41 If the committal application is heard at the same time as other issues about which the alleged contemnor needs to give evidence, he is placed in the position where he is effectively deprived of the right of silence. That is a serious procedural error: see Hammerton v Hammerton [2007] EWCA Civ 248. This is precisely what happened in the present case. Furthermore no-one told Mr Thorogood that an alleged contemnor has the right not to give evidence.

42 If the contempt application had been the subject of a separate hearing and Mr Thorogood had been informed of his right not to give evidence, he might have exercised that right. He could then have dealt with the contempt allegations by way of submissions. In that regard it should be noted that the judge based her two findings of contempt upon answers which Mr Thorogood had given under skilful cross-examination.

43 Mr Milford points out that Mr Thorogood was reminded of his right not to incriminate himself. That is true, but it is not sufficient. Mr Thorogood should have been told that he was not obliged to give evidence. Furthermore the litigation should not have been managed in a way that forced Mr Thorogood into the witness box.

44 Mr Milford submits that even if there had been a separate hearing of the contempt application, the result would have been the same. If Mr Thorogood gave evidence, he would have been caught out in cross-examination. If he had declined to give evidence, the court would have drawn adverse inferences.

45 What Mr Milford says may well be true. Indeed, as things have turned out, Mr Thorogood may be a very lucky man. Nevertheless there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case.”

What we have here is a man who was compelled to Court to give evidence, and made to then answer questions – such answers as he gave then became evidence against him in the committal proceedings – although if he had been served with an application for committal, he never would have had to go into the witness box at all. That doesn’t seem very satisfactory – if the committal was for breach of the 2004 order, then it must have been a live possibility when he started to give his evidence in the October 2015 hearing. He was not legally represented, as a witness, and he was not advised by the Court that he had a right to silence.

In fact, looking again at Keehan J’s words in October 2015, committal was obviously a possible outcome of his evidence, yet he was being urged to give evidence and provide answers

  1. “Now, Mr U, I want you to understand something very clearly. You are here today to give me all the information you know about the current whereabouts of L. If I come to the view that you have not told me the truth or you have not told me everything you know about the current circumstances and whereabouts of L, you will be liable to be found in contempt of court. If I find you to be in contempt of court, you then fall to be punished for the contempt. That punishment can consist of a fine or it can result in your committal to prison. Do you understand?

The problem here arises because Keehan J was making use of the evidence given by Mr Oddin in that October hearing at the committal hearing in January 2016. He was deprived of the safeguards (legal representation, being made aware of his right to silence) and was a committal hearing where a defendant had been deprived of such safeguards legitimate?

  1. In my judgment, no criticism can be made of what happened on 8 October 2015; the problem arises because of the use that was made on 18 January 2016 of the evidence given by Mr Oddin on the earlier occasion.
  2. It is quite clear that on 8 October 2015 Keehan J was exercising, and exercising only, the jurisdiction which I have described in paragraph 9 above. By then, Mr Oddin was no longer a party to the proceedings. He attended court as a witness in answer to the witness summons which Keehan J had directed on 30 July 2015. Mr Oddin was a compellable witness. He was compelled to give evidence. Despite being a compellable witness he would have been entitled to plead the privilege against self-incrimination as a reason for declining to answer a particular question. He was not advised of that right, though in the event nothing, in my judgment, turns on this fact.
  3. Keehan J was appropriately robust in spelling out the implications for Mr Oddin if he did not tell the truth: namely that if he did not tell the truth he stood in peril of committal proceedings for contempt. Keehan J said nothing at that point about the collection order; the species of contempt he had in mind was plainly contempt in the face of the court, not contempt arising from breach of the collection order. The warning, though robust, was entirely proper, indeed only fair, so that Mr Oddin be left in no doubt as to the seriousness of the proceedings before the judge. It is precisely the kind of warning that I have myself given on many similar occasions. As McFarlane LJ said in Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 77:
    1. “The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court’s considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case, the judge did just that, and no criticism has been sustained in relation to her actions.”

However, as he went on (para 78):

“The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process.”

  1. A comparison of the language used in the order which he had made on 30 July 2015 with the language used in the orders Keehan J subsequently made on 8 October 2015, 28 October 2015 and 9 November 2015, shows clearly, in my judgment, that the contempt in relation to which Mr Oddin was required to attend before Keehan J on 18 January 2016 was in respect of his untruthful evidence to Keehan J and not in relation to the collection order. It is the point which Miss Norman correctly identified on 18 January 2016. Each of the three later orders identified the contempt as being “not providing the court with” all the information Mr Oddin had “as to the whereabouts of the parents and the welfare and whereabouts of the child” (emphasis added). The inconclusive discussion between Miss Norman and the judge on 30 November 2015 did not, seemingly, change matters, though, as her question to Keehan J on 18 January 2016 indicated, it left Miss Norman somewhat unsure as to what exactly the contempt was which the judge was intending to consider at that hearing.
  2. At the beginning of the hearing on 18 January 2016, as we have seen (paragraph 34 above), Keehan J made clear that the contempt he thought he was considering was not contempt in the face of the court on 8 October 2015 but rather contempt for breach of the collection order. It was at this point, in my judgment, that the proceedings took a fatal turn.
  3. It rather seems that Miss Norman’s main concern may have been as to the ambit of the factual inquiry before the judge at the hearing on 18 January 2016. Be that as it may, the salient, and very regrettable, fact is that no-one – no-one – thought through the implications of the answer Keehan J had given Miss Norman; no-one thought through the implications of the fact that the judge was about to embark upon the hearing of committal proceedings, based on an alleged breach of the collection order, in the course of which much weight was obviously going to be attached to the evidence Mr Oddin had given under compulsion on 8 October 2015. And, even after all the evidence had been given and Miss Norman was making her closing submissions (paragraph 38 above), no-one thought through the implications of what had happened or of the fact that, as the judge put it, the collection order and the evidence he had heard on 8 October 2015 were “related” in the way he described.
  4. The confusion is revealingly illustrated by what the judge said in paragraph 6 of his judgment, where he referred to “the start of these committal proceedings … on 8 October 2015.” The committal proceedings had not started on 8 October 2015; and if they had, there would have been the plainest possible breach of the Comet principle on that occasion.
  5. The consequence of what I have just described was a serious, and in my judgment irremediable, procedural error. Because of the use that was made against him during the hearing on 18 January 2016 of the evidence which had been extracted from him under compulsion on 8 October 2015, Mr Oddin was denied the safeguards which anyone facing proceedings for committal is entitled to: in particular, and fatally, the right to remain silent, the right to refuse to go into the witness box. The court had forced him into the witness box on 8 October 2015 and then used his evidence against him, not in committal proceedings for perjury committed on that occasion (which would have been entirely permissible) but in support of committal proceedings in relation to a previous order. In my judgment, this amounted to a clear, serious and irremediable breach of the Comet principle, necessitating, for the reasons given in Hammerton v Hammerton and Inplayer, that the appeal be allowed. As Jackson LJ said in the passage from Inplayer which I have already quoted, “there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in [such] circumstances.” I add, lest it be thought I have overlooked the point, that there is, in my judgment, nothing in the decision of this court in Dadourian Group International Inc and others v Simms and others (No 2) [2006] EWCA Civ 1745, [2007] 1 WLR 2967, which can be relied upon to save what happened here.
  6. On this ground alone, the appeal must, in my judgment, be allowed.

The issue that Holman J raised in Re DAD  2015  – that the standard orders have been wrongly drafted in a way that puts the warning about consequences of breach on page 5, when for committal the consequence MUST BE CLEAR on the FACE OF THE ORDER is raised again

  1. There is a further problem with the collection order. FPR 37.9(1) requires that, if an order is to be enforced by committal, it must contain a penal notice in appropriate form “prominently displayed, on the front of the copy of the … order”. In this case, the penal notice was on the fifth page. I can do no better than to repeat and endorse what Holman J said of a similarly defective collection order in Re DAD [2015] EWHC 2655 (Fam), para 12:
    1. “the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”. It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, “on the front of the copy of the … order”. It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order … may not be enforced …” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal.”

 

 

The Court was also perturbed about a collection order that was made in 2004 being used to commit  a person to prison for breaching it some eleven years later, and at the length of time that Mr Oddin’s passport had been withheld from him.

 

The collection order

  1. Once we had announced our decision to allow the appeal, the question arose as to what should happen about the collection order which had been made on 30 December 2004. We indicated our view that it should be discharged. No opposition to this course having been voiced either by Mr Bennett or by Mr Maynard, we discharged the collection order and directed the immediate return of the passports.
  3. Three factors, in my judgment, pointed very obviously and, in the event, decisively to that outcome:
  5. i) First, it is wholly wrong in principle that a collection order should be left in place, hanging over peoples’ heads like the sword of Damocles, for anything remotely approaching the eleven years throughout which this collection order has been in force.

ii) Secondly, it is undesirable, to put it no higher, to allow an order to remain in force which is not compliant with FPR 37.9(1).

iii) Finally, and decisively, the perpetuation, beyond a comparatively short period, of the passport order (paragraph 4(b) of the collection order), essentially for purposes of coercion, was wrong in principle and fundamentally objectionable: see In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, paras 24-33. This should never have been allowed to happen. Mr Oddin’s protests as set out in his three witness statements (paragraphs 22, 24 and 27 above) were well-founded. It is very much to be regretted that Mr Oddin and other members of his family should have been deprived of their passports for so long and without any proper justification. They have been badly ill-used by the court.

This appeal, even more than the decision of Holman J in Re DAD, has focused attention on a number of disquieting problems arising in relation to collection orders made prior to the new form of order which was introduced in July 2013. It is idle to imagine that the collection order we have been considering in this case is unique. On the contrary, there is every reason to fear that there are significant numbers of elderly collection orders still in force and which, it might be thought, ought, for the reasons set out in paragraph 65 above, to be discharged. I propose, therefore, to identify, with the assistance of the Tipstaff, just how many such orders there are, with a view to taking appropriate steps to investigate whether those orders should or should not be allowed to remain in force.

 

The Court of Appeal also touched upon the delicate issue of whether a Judge who is considering committal of a person ought to be a different Judge to the one who conducted the hearing in which the contempt is said to have arisen. They are cautious about that – but I read this as being a cautious suggestion that it is probably safer to have it heard by a different Judge

  1. As McFarlane LJ said in Re K (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, [2015] 1 FLR 927, para 77:
    1. “The situation that faced Russell J in the various hearings leading up to the final committal hearing not infrequently arises in the context of international children cases before a High Court judge. A judge may be required to deploy the court’s considerable powers to compel parties or others to attend court or to bring about the return of the child to this jurisdiction. At a hearing in which pressure is brought to bear on an individual, and injunctive orders are made, the judge may be justified in presenting a very robust demeanour and, in so doing, making reference to the potential consequences if court orders are disobeyed. In the present case, the judge did just that, and no criticism has been sustained in relation to her actions.”

However, as he went on (para 78):

“The difficulty that can arise … occurs if and when the court is later required to hear committal proceedings arising out of an alleged breach of an earlier order … The more robust the judge has been in delivering a coercive message at the earlier hearings, and the more the judge has emphasised the consequences of breach, the more inappropriate (or impossible) it will be for the same judge to conduct the committal process.”

I referred in paragraph 50 above, to what McFarlane LJ had said in Re K about the circumstances in which a judge who had conducted the kind of hearing which took place in the present case before Keehan J on 8 October 2015 ought not to conduct subsequent committal proceedings. That issue, which was at the heart of the appeal in Re K, is not one which, in the event, arose for determination here, so I say no more about it. The point to which I draw attention, is simply this. Quite apart from the Comet principle, which, as we have seen, would prevent the use in subsequent committal proceedings of the evidence given by someone in Mr Oddin’s position at a hearing such as that which took place on 8 October 2015, it is possible that the rule in[2008] 2 FLR Hollington v F Hewthorn and Company Limited and another [1943] KB 587[15] might in certain circumstances prevent the use in subsequent proceedings of any findings made by the judge at the first hearing. That is a complicated matter which may require careful examination on some future occasion; so, beyond identifying the point, I say no more about it.

Theis J’s judgment draws together some very important practice issues, and is worth reading in full, so I set it out here.

  1. The powers of the court to make, and enforce, orders to secure the return of children who have been wrongfully removed from those who care for them is an essential part of the family court’s powers to protect vulnerable children from harm.
  3. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:
  5. (1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.

(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.

(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.

(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.

(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.

(6) Whether the person accused of contempt has been advised of the right to remain silent.

(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.

(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.

(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court’s decision regarding any committal order.

  1. Counsel and solicitors are reminded of their duty to assist the court. This is particularly important when considering procedural matters where a person’s liberty is at stake.

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X and Y (Children : Disclosure of judgment) 2014

Posted on March 17, 2014 by suesspiciousminds

 

This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/278.html

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.

 

“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

…

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.

 

(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.

 

      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.

 

“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.

 

The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.

 

      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.

 

It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.

 

(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

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Enjoy the (right to) silence

Posted on January 24, 2014 by suesspiciousminds

 

Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

 https://suesspiciousminds.com/2013/02/04/is-there-a-meaningful-right-to-silence-in-care-cases/

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.

 https://suesspiciousminds.com/2013/09/19/inconsistent-statements-and-eating-more-porridge-than-orinoco-womble/

 

[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.

 

A Local Authority v DG and Others 2014

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/63.html

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.

 

The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)

 

40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.

 

 

Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.

 

At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”

 

This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.

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Inconsistent statements and eating more porridge than Orinoco Womble

Posted on September 19, 2013 by suesspiciousminds

The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence

http://www.familylawweek.co.uk/site.aspx?i=ed117035

The case involved the appeal of a father from a committal for contempt for his refusal to give evidence in care proceedings during a finding of fact hearing and he received an 18 month custodial sentence as a result of the committal.

I have written before about where section 98 stands, now that section 119 of the Criminal Justice Act 2003 allows for evidence of inconsistent statements to be used in criminal proceedings.

Section 98 is designed to do two things – firstly in subsection (1) to compel a parent to give evidence in care proceedings and (2) to ensure that their right to silence in criminal proceedings is preserved by ensuring that the evidence they give in care proceedings can’t be used against them in criminal proceedings.

“98 Self incrimination
(1)  In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)  giving evidence on any matter; or

(b)  answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2)  A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

In the writer’s humble opinion, the intention of section 98 is a very important one. In order to properly and fairly decide matters relating to children it is vital that the Court hear frank and candid evidence from parents, and in order that they feel able to give that evidence with candour and honesty it is vital that they be able to do so without fear.

The father in this case, and other parents in other cases where criminal proceedings are pending or contemplated, are receiving conflicting legal advice. Their family lawyers are telling them of the need for frankness and candour, and the criminal solicitors are warning them that if they speak frankly and candidly, those words might come back to bite them in criminal proceedings.

It is therefore very disappointing that when given the opportunity to resolve this tension, or to indicate that in relation to evidence given in court in family proceedings, s119 CJA might be incompatible with Article 6, the Court of Appeal firmly pushed the problem over to the criminal courts.

16. In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings.  For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.

17. Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC.  If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.

18. As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic. 

In doing this, and in upholding both the committal for contempt for not giving evidence and the sentence, the Court of Appeal have put parents and those representing them in a considerable spot.

In the family proceedings, the parent must give evidence – if they do not, not only will adverse inferences be drawn, but they may be committed for contempt and face a custodial sentence. That sentence might be 18 months. Their family lawyer MUST therefore advise them to give evidence.

But it is uncertain whether that evidence can be deployed by the police and CPS in a criminal prosecution IF it shows that the parent has given an inconsistent statement.   (If father gives a no comment answer in police interview, but answers the same or similar question in the family case, that appears to me to be capable of being an inconsistent statement)

That being the case, their criminal lawyer would have to advise them that for the purposes of the criminal trial, it would be better for them not to give evidence in the family court.

Until such time as a criminal court decides – yes, s119 CJA 2003 overrides s98 Children Act 1989 and that the evidence of an inconsistent statement can be used in the prosecution of a parent for an offence other than for perjury, OR determines the opposite, a parent may very well be unwillingly waiving their right not to self-incriminate and their right to silence. They are at least taking the risk that they might be.

Imprisoning someone for following legal advice doesn’t sit too well with me. I hope that the criminal courts do address this issue soon.  I suspect that if and when they do, it will be in favour of s119, not s98  – the criminal courts are certainly far more familiar with the former than the latter.

The other approach is for the family courts to row back from the previous policy of generously giving the police information and material that might inform their investigation, pace Re EC [1996] 2 FLR 625 which established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process.

That case of course, was decided on the basis that the parents were protected wholly from self-incrimination by s98, which may no longer be the case.

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You have the right to remain silent (or do you?)

Posted on September 13, 2013 by suesspiciousminds

 

The decision to give permission to appeal in Re K (children) 2013 might well become an important one, when the full appeal is heard.

I have written about whether the statutory position that a parent can give evidence in care proceedings and that evidence may only be used in a criminal trial for perjury – thus giving a preservation against self-incrimination, has been badly eroded

Is there a meaningful right to silence in care cases?

and Re K is a very good example of how this can make a massive difference in the case.

http://familylawhub.co.uk/default.aspx?i=ce3473

The father in Re K had been at the wrong end of a fact-finding hearing about what appear to be very grave allegations (there’s reference to a stabbing and a fire) in private law proceedings – it appears that the original allegations and original findings were that mother had stabbed father and set his home on fire, but these findings were fundamentally reversed at a later hearing, finding that father had done these things himself in order to ‘frame mother’

The Court then adjourned for further assessment, having given the judgment in the fact-finding hearing that father had done things that he ought not to have done. Part of that further assessment inevitably covers whether father has reflected on the findings and come to terms with them. At the final hearing, the Judge formed the view that father had not, and that his unwillingness to move forward was indicative of problems in the future. The father’s position was that he was inhibited by the pending criminal proceedings, and knowing that whatever he said could be reported to the police and ‘shape their enquiries’

 

The father’s statement made reference to his right to avoid self-incrimination and that as a result he was not able to say anything about the fire and the stabbing, on the grounds that to do so would have potentially incriminated him in criminal proceedings. That obviously made it difficult for him to make admissions or be frank about the circumstances in which those serious incidents occurred, his part in them and why he says that they would not occur again.

Initally, McFarlane LJ hearing the permission hearing was sceptical about the self-incrimination point, believing as so many of us have done, that the provisions in the Children Act 1989 are sufficient to allow a parent to speak freely and frankly without fear that their words will be used against them in criminal proceedings.  He made a point of asking father’s counsel whether, if self-incrimination had been removed as a factor, the father’s position was that he would have given clearer answers to the judge and those conducting the assessment, and the answer was “yes”

Although it seems from the permission that McFarlane LJ simply felt that the legal advice that father was following was wrong, and that s98 was a complete protection, he accepted that the father’s statement made it very plain that his position was based on that legal advice about self-incrimination and that there was an argument to be had about whether the trial judge had dealt with this properly or whether the decisions made about father’s contact were based on an incorrect conclusion that father was utterly in denial about the events. Permission was thus granted for the appeal.

 

It may be that the Court of Appeal either identify that the provision for evidence of inconsistent statements to be used in a criminal trial clashes with s98 and there is a live problem here to be addressed in cases of this kind, or that they conclude that s98 trumps any provision about inconsistent statements and thus what is said by parents in the family court CAN’T be used against them. Either course, frankly, is helpful and preferrable to the current situation where a parent can be criticised for not being frank and forthcoming and has to do so at the potential expense of having what they say used against them in criminal proceedings if it contradicts any previous statement made to the police.

21. I considered it appropriate to ask Miss Nartey during the course of submissions to take instructions on whether, if self-incrimination had not been a factor in the case, the father would have given clearer answers to the judge as to his involvement with one or other or both of these two key incidents, and the answer came back directly on instructions from the father, “yes”, he would. Plainly if he was going to deny matters, then legally and evidentially the matter would be much more straightforward, but he does not take that course. It is a more sophisticated matter. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

 

16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf
16. It is plain on that analysis of the judge’s judgment that much was put upon the father’s inability to say in terms to Dr Drennan and to the judge that he accepted that he did generate the stabbing incident and was responsible, directly or indirectly, for the arson. Ms Nartey, at paragraph 3(iii) of the grounds, says the judge erred in law in interpreting the father’s evidence in that way. She submits that the judge gave no warning to the father against self-incrimination and failed to weigh up the father’s answers with eyes open to the fact that if the father was being cagey, which he undoubtedly was, that this was on legal advice as to the need to avoid incriminating himself. – See more at: http://familylawhub.co.uk/default.aspx?i=ce3473#sthash.Vihw7zMQ.dpuf

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Is there a meaningful right to silence in care cases?

Posted on February 4, 2013 by suesspiciousminds

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

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