An imaginary judgment, dealing with section 98 of the Children Act 1989 and rights to remain silent….
The Court is dealing today, I was sorely tempted to begin this judgment with ‘we are gathered here today’ given the themes of the case, with a vexed preliminary issue prior to the determination of a finding of fact hearing.
The bare facts of the case are simple. The Court is about to embark upon a finding of fact hearing. Serious allegations of physical abuse are made against the mother and the father, and the Court must establish firstly whether these allegations are proven on the balance of probabilities, and then move on to determine whether it is possible to identify the perpetrator, or exclude either parent.
The father has made it plain that he does not seek to care for the children, he and the mother having separated, and his role in the proceedings is limited to the factual determination of the finding of fact hearing. For his part, he denies that the injuries were non-accidental, and if the Court is against him on that, he denies that they were perpetrated by him. He does not go so far as the mother, who actively asserts that the father caused the injuries.
The factual allegations are detailed and involve multiple injuries over multiple dates and the factual enquiry into this will without doubt involve a great deal of detailed cross-examination and forensic discussion. There will need to be exploration of the accounts provided, and how these tally with both the medical explanations and any previous accounts.
This is complicated by the father’s current position. He, having left the family at the outset of these proceedings, has undergone something of a religious conversion, and is now living in a monastery and has become a Trappist monk. It is asserted on his behalf, that a fundamental part of his religious beliefs and practice is to maintain a complete vow of silence. Evidence has been filed , necessarily in writing, from those at his monastery to confirm that (a) the father is living there (b) that he has undertaken the necessary conversion to become a Trappist monk, albeit in a more accelerated process than is usual, (c) that the vow of silence is indeed a legitimate and indeed mandatory form of his religious expression and (d) that having taken that vow, he is bound by it and cannot relinquish it. The necessity to speak and give oral evidence does not countermand his vow of silence, so far as his religious practices are concerned.
I am advised that a rudimentary form of finger signing is permitted, but an inspection of this shows that it would be substantially short of the ability to communicate the level of detail that would be required. Equally, it is apparent that it would be permissible for father to reduce his answers to writing, and for these to be read aloud by another. I muse that this must be an acceptable method of dealing with the need for oral evidence in a case where the witness is physically incapable of speech, for example where they are mute.
It is submitted on behalf of mother, and supported by the Local Authority, that giving his evidence by way of written answers affords the father a tactical advantage. Clearly his answers would not be as instant as those given by someone answering aloud; the process of writing them renders both an opportunity for thinking time and indeed the opportunity to avoid ‘stumbling into an answer’ because he would have the ability to correct a remark that he wished he had not made and substitute it for a more polished answer before the written answer is finalised and shown to the Court / read aloud by an usher.
Equally, the mother submits, that in comparing and assessing the evidence of two parents who are under the spotlight of suspicion, the Court hearing tone, manner, demeanour, facial expression and cadence of one witness and merely the written answers of another is ‘comparing apples and oranges’ and that mother’s right to a fair hearing may well be prejudiced if the two parties under scrutiny are not competing on a level playing field.
It is certainly right that all of the factors mentioned by mother’s counsel are matters which a judge properly brings to bear on an assessment of a witness’ evidence. It is not merely, as she asserts, “what is said, but the way it is said’ that is important.
I accept, that it would be better, if at all possible, to hear from the mouths of both witnesses, their evidence; and that alternative methods such as communicating in writing should be done only if unavoidable.
We turn, therefore, to the issue of whether the father can legitimately be compelled to give oral evidence, irrespective of his religious convictions.
I am referred to section 98 of the Children Act 1989
(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 [F1or 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 [F1or civil partner] in proceedings for an offence other than perjury.
It is submitted on behalf of father, quite properly, that this relates to the principle that a person is not excused from giving evidence or answering questions in evidence on the grounds that it might incriminate him, or his spouse. In effect, that in care proceedings, there is no “Fifth amendment” right to ‘refuse to answer that question on the grounds that it may incriminate me’ or, adopting the UK terminology in the criminal process, the right to remain silent.
He asserts that he (a) is not refusing to answer questions, but is unable to do so and (b) that if he is ‘refusing’ it is not on the grounds that it may incriminate him, but on religious beliefs.
The other parties assert that it is clear from the reading of section 98 that there is no reason that a witness in care proceedings can refuse to give evidence.
He is a competent witness, applying the principles of the Youth Justice and Criminal Evidence Act 1999, section 53 – “all persons are competent to give evidence unless they don’t understand the questions put to them, or they cannot give answers to those questions which can be understood” – although those principles strictly apply to criminal trials, I am satisfied that they are an appropriate measuring stick and that father is competent (and thus compellable) on that basis.
If a witness summons is issued, compelling father to attend and give oral evidence, what powers, if any, does the Court have if he is asked to swear the oath, or to answer a question and not a syllable passes his lips?
I am helpfully pointed towards the decision of the criminal courts in
R v Montgomery 1995, which sets out that refusal to give evidence can constitute a contempt of court.
R v Montgomery (1995) 16 Cr.App.R.(S) 274
• An immediate custodial sentence is the only appropriate sentence for contempt
unless there are wholly exceptional circumstances.
• There is no rule or established practice that states higher sentences should be
imposed in cases of interference with for example jurors, than in the case of a
witness refusing to give evidence.
• Although the maximum sentence for failing to comply with a witness order is 3
months, this does not mean a longer sentence cannot be imposed for blatant contempt by refusing to testify.
• The following factors were determined to be relevant to the sentencing of contemnors:
(a) the gravity of the offence being tried;
(b) the effect upon the trial;
(c) the contemnor’s reasons for failing to give evidence;
(d) whether the contempt is aggravated by impertinent defiance to the judge;
(e) the scale of sentences in similar cases, albeit each case must turn on its own facts;
(f) the antecedents, personal circumstances and characteristics of the
contemnor; for example, whether for the contemnor this would be his first time to prison or is institutionalised.
It is notable, that the father, faced with the possibility that his decision not to give oral evidence might result in a custodial sentence, possibly in excess of three months, has not waivered from his position that he is unable to give oral evidence.
The fact remains that ultimately, whether I find the father in contempt of court I cannot compel him to utter a word in the witness box. I can compel him to get into the witness box, and punish him for not answering, but no more than that.
All that I could do would be to witness summons him to give evidence, and commit him to prison if he refused to do so, and then, as our American cousins say “lather, rinse, repeat” whilst we test which of us has the greater patience – the father in spending three months in prison following each time he comes to court or myself in whether I am prepared to keep adjourning the case indefinitely should he remain steadfast.
And of course, I must bear in mind that throughout this theoretical exercise of brinkmanship where I would test whether the father’s determination to not speak would exceed my own determination to have his evidence heard, the child would be in limbo and waiting for a determination. The principle of no delay I think, drives me, not to embark on a futile course of action that would cause delay for the crucial decision to be determined.
So, as far as the father is concerned, I can potentially punish him for not speaking, but I cannot compel him to speak.
Given that the father’s defence to any application for contempt would be that he is not refusing to give evidence, but is unable to do so as a result of his religious convictions, I must turn now to the Human Rights Act 1998 and in particular, the right to religious expression; to consider whether in law, I could actually punish him at all for exercising his religious beliefs, inconvenient as they may be for the Court.
|FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION|
| 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
|2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.|
Regardless of the assertion by the Local Authority and the mother that I should treat the father’s religious conversion as a convenient device for the purpose of side-stepping the need to give oral evidence and that the Court can make inferences in that regard, perhaps even so far as making inferences that this is as a result of a guilty conscience, I am troubled that this would be a step too far. The father has the right to adopt a religion and to change it.
The Court can look to an extent, at whether this is genuine or a device, but cannot peel off too many layers of that particular onion.
If he merely asserted that he was now in deep sympathy with the principles of Trappist monks and had taken a vow of silence, and had taken no steps whatsoever to adopt any other elements of their religion, the Court would be justifiably sceptical; but this father has actually moved into a monastery and undergone the conversion process. There is no evidence to suggest that since doing so, the father has not adhered to their practices, and as indicated early, much evidence to the contrary.
One of the essential facets of faith is that it can be a lifelong deeply held belief, or a sudden conversion, as a person encounters a situation or comes to a revelation that there is another facet to the world than the merely physical and that they wish to take steps to embrace the sense of religious wonder or responsibility that they feel.
It may be that the connection with the Trappist monks and their vow of silence is a helpful device (or as mother puts it ‘a get-out-of-jail-free card’, it may be a merely coincidental happenstance, as father asserts. Without prima facie evidence that his religious beliefs are not genuine, I am not entitled to delve too deeply into this.
Regardless, he is legitimately entitled to change his religion to that of a trappist monk if he wishes, and legitimately entitled to follow their religious practices unless there are limitations to this prescribed by law.
I could legitimately issue a witness summons against him, but it must be questionable whether I could legitimately commit him for contempt for not answering a question once he gets into the witness box. That being the case, and given that the father has made it plain through those who represent him (who have had more than the usual volume of written notes passed to them during these proceedings) that he is willing to attend the hearing and step into the box, one wonders whether there is any value in issuing a witness summons.
The best I can do, in this difficult and vexed situation, and I am sure that this is a solution that will earn me a great deal of displeasure from my usher, a person whom I depend on for smooth running of my daily working existence and a person who I offend at my peril, is for both parents to give their evidence on the same footing.
Therefore, both mother and father may, if they desire, give their evidence by writing their answers on a pad of paper. When the answer is finished, they will hand the answer to the usher, who will read it aloud. It is not ideal, but it avoids the risk of comparing apples and oranges that the Court must be alive to.
Counsel are asked to keep their questions as concise as possible, in order that answers can be likewise, and to avoid the nested and tiered questions of which so many advocates are fond these days.
I will now rise for lunch, and I suspect that I may need to be treating the usher to something substantial and possibly lavish, so I will begin the case at 3 o’clock.