The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence
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  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.
I was horrified to learn that s.98 is regularly set at naught by the notion of “previous inconsistent statement”.
We all now know which case this was – though I will not name it here – and it is difficult to feel any sympathy for the defendant concerned. But it is the unpopular parties to litigation who need protection from the feelings of revulsion which the facts may inspire in any particular case.