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I have a warrant for your arrest… oh, no I don’t.

 

This must be every lawyer’s worst nightmare, to confidently tell a Judge that he has jurisdiction to do what you are asking for and be wrong, and worse yet to have that judgment published as precedent that others rely on and then have the Judge have to publish a retraction judgment.

 

Al-Baker v Al-Baker 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3725.html

 

From the much-loved by this site Mostyn J.

Here, where a husband in ancillary relief proceedings had been declared to be guilty of contempt of court and ordered that he be imprisoned for nine months as a result, but was in another European Country, counsel for the wife  (NOT Mr Todd QC who was representing her in this hearing, NOT him, someone else) had asked Mostyn J to issue a European arrest warrant, so that the husband could be arrested abroad and brought back to this country for punishment.

 

  1. On 27th October 2015 I gave a judgment in this case ([2015] EWHC 3229 (Fam)), where I found the husband to be guilty of contempt of court and sentenced him to nine months’ imprisonment. During the case counsel then appearing for the wife applied to me to back my committal order with the issue of a European arrest warrant.
  2. In para.10 of my judgment I said this:

    “The wife is proceeding on advice that this is a sensible way of advancing her claim and it is not for me to question that. It has been asserted that this being a sentence of nine months it would be open for this court to request that a European arrest warrant be issued. That would have the effect of detaining the respondent anywhere within the European Union and having him brought to this court if the European arrest warrant procedure is available. I confess that when I first read this I was surprised that it was being asserted that the arrest warrant procedure was available as it was my belief (it is fair to say not based on much education) that the European arrest warrant was confined only to what can strictly be described as criminal offences and a civil contempt was not in that category. However, Mr. Calhaem has placed before me the Council Framework Decision of 13th June 2002 on the European arrest warrant and Surrender Procedures between Member States of which Article 2.1 states:

    ‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

    The use of language for “acts punishable by law” would certainly embrace a custodial penalty imposed for contempt of court and, recognising I have only heard only one side, I am satisfied in these circumstances that the sentence I have awarded is properly to be backed by a request for a European arrest warrant and I will complete the necessary annex form when the order is made.”

  3. That passage shows my initial surprise that it was suggested that the issue of the warrant was a legitimate course. As it happens, it was, in fact, a completely illegitimate course. The decision of the Supreme Court of R v O’Brien [2014] UKSC 23 confirms, first, that a European arrest warrant can only be sought by an appropriate person and that counsel for the wife would not constitute such an appropriate person and, secondly, that the scheme does not act to encompass civil contempts, even if they result in a sentence of imprisonment.
  4. It is a matter of some surprise to me that this recent decision from the highest court had not been alighted upon by those representing the wife when they made the application that they did. This has resulted in me giving a judgment which is legally incorrect and which, for all I know, may have led other people in other cases to have applied for a European arrest warrant following a finding of contempt. So I take the opportunity today to correct my previous judgment so as to delete para.10 and to confirm that the European arrest warrant procedure is not available in contempt proceedings.

 

We don’t really get to learn whether the European Arrest Warrant was ever acted upon, but if it had been, the Court could have been on the hook for a wrongful imprisonment claim.

 

The other thing of interest in this judgment was the long-time favourite issue of this blog – perjury.

 

In particular, whether a person who is found to have lied in their statement has committed perjury. Mostyn J thinks not.  [Unless it is an affidavit or sworn statement]

 

 

  1. In the skeleton argument produced for this hearing, at para.24, it is said this:

    “It is clear from H’s statement of 16th April 2015 (D45) that H has perjured himself in relation to his alleged business dealings in Dubai. He says within that statement (see paragraph 84 at D68) that he does not own property in the Emirates and, in correspondence, has never owned any. This is clearly incompatible with the evidence produced from the wife’s Dubai lawyers in their affidavit at D88. H has lied”.

  2. The material to which I am directed by that passage is contained in a statement made by the husband which was verified by a statement of truth under Part 17 of the Family Procedure Rules. The statement itself was not sworn. To make a false statement, as opposed to a false affidavit, is not perjury. This was by design of those who framed the Civil Procedure Rules which have been mirrored by the Family Procedure Rules. To file a false statement is a contempt of court but it is not perjury. To file a false statement can lead to an order for civil committal for up to two years, but it cannot lead to criminal proceedings for perjury. Arguably it could lead to criminal proceedings under the Fraud Act but it cannot lead to criminal proceedings for perjury.

 

 

I think that Mostyn J is quite right here, though I was slightly surprised when I first read it. The wording of the offence from the Perjury Act 1911 is here

 

If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . F1 for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

 

A statement which is signed, even with the Statement of Truth, is not a sworn statement, for the purposes of the Perjury Act 1911.

If the author of the statement repeats the lie during oral evidence, where they ARE giving SWORN evidence, the offence would be committed.

I am now pondering whether this is captured during the standard opening question in Evidence in Chief  “Can you confirm that the contents of your statement are true and accurate to the best of your knowledge and belief?”

If you say yes to this, and there is a lie in your statement, has that answer amounted to perjury, or does the offence only arise when the question about the particular matter is put to you and you lie in answer.

 

In any event everyone, lying to the Court is wrong, mmmm’kay?

 

mmmkay

 

 

 

The wife then made an allegation that the father had committed perjury in his Form E, which is of course a sworn statement and was asking that the police be notified of the offence of perjury. As Mostyn J pointed out, whether or not the father was lying in the Form E was a matter that was disputed and still to be litigated within the ancillary relief proceedings.  It would not be a Mostyn J judgment if we did not learn a new word in it, and here it is “pendency” – in the state of being pending and specificaially with litigation whilst it is still ongoing and not concluded .  (I’m not entirely sure myself what ‘in the pendency of the litigation’ adds to the alternative wording of ‘whilst the litigation is ongoing’ but such is life)

 

 

  1. However, it is the wife’s application, pursuant to what appears on the face of her notice of application, that at this stage, during the pendency of the case, there should now be a reference to the police of her allegation of perjury. This is, to my belief, wholly unprecedented. Mr. Todd is constrained to agree that he cannot identify any case in the ancillary relief field where there has been a reference to the police of perjury or fraud during the pendency of proceedings. Moreover, under the comparable jurisdiction which is incorporated in CPR 31.22(1), which requires the court’s permission to reveal disclosed documents to any third party, Mr. Todd has been unable to identify one case where there has been a reference to the police of fraud or perjury during the pendency of the proceedings, where the very allegation that is sought to be referred to the police is in issue in those proceedings.
  2. In my judgment, this application has been made prematurely. It seems to me that the motive is to replace the pressure of the European arrest warrant with a different kind of pressure to try and bring the husband, who is steadfastly not engaging in the proceedings (he is not negotiating, to my knowledge, or making proper disclosure), to heel in order that the case can be adjudicated fairly. But that is not a proper motive for seeking what, in my mind, is a premature reference to the police. In my judgment, it would be wholly wrong for this court to refer these matters to the police in advance of its judgment on those very matters and for these reasons the application is dismissed.
  3. However, I want to make it clear, when dismissing the application, that I am not in so doing preventing the wife from making a comparable application once judgment on her main claim has been rendered. No question will arise of issue estoppel or other abusive of conduct on her part. If, following the giving of judgment in this case and the making of findings, the wife nonetheless thinks it is appropriate to invoke the criminal justice procedures then it will be open to her to make a fresh application in the terms of her application of 4th November 2015.

 

I always love that Mostyn J is not averse to using footnotes in his judgments, and there is one here which I’ve not encountered before [the second].

 

  1. LATER
  2. Mr. Todd applies for permission to appeal. Under FPR 30.3(7) permission to appeal may only be given where (a) a court considers the appeal would have a real prospect of success or (b) there was some other compelling reason why the appeal should be allowed. In my judgment, an appeal would not have a real prospect of success. It would have no prospect of success at all. Furthermore, I cannot identify any other compelling reason why the appeal should be heard. The fact that there has never before been a case in the annals where a reference has been made during the pendency of proceedings to my mind hardly supplies a compelling reason why an appeal should be heard. To my mind, the empirical evidence suggests quite the opposite, that this is an appeal which should not be heard. LATER STILL
  3. Although para 1 of this judgment makes it perfectly clear on a natural reading that counsel who “then” appeared on 27 October 2015 was not the same as counsel who appeared on this occasion, and although a reading of the first judgment referred to there would have confirmed this to be the case, Mr Todd QC is highly insistent that this is spelt out in this judgment. I am doubtful that the clarification procedure extends to requests for editorialisation for counsel’s personal reasons, but this additional paragraph has that effect.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

7 responses

  1. I can buy the need for committal to enforce an order such as “stay away from me” but this is really about money. Imprisonment for debt is the mark of a servile society; a fortiori imprisonment in litigation to determine whether there is a debt and if so how much. It should be abolished root and branch – not just in family but in every sort of litigation, because the creditor who can get you locked up will be paid in preference to the one who can’t and that is not fair to the one who can’t.

    • I think that a nine month prison sentence for failing to file a Form E was a symptom of exasperation. There has to be some sanction, but I think it is best to hit people like that in the wallet instead. I’ve seen many (far too many) long certificates of conviction with burglary, assaults, thefts stretching on for pages without any form of custodial sentence, and it is hard to square that with a nine month prison sentence for this sort of thing.

  2. Isn’t the better question “Is this statement true to the best of your knowledge and belief and do you ask the court to adopt it as part of your evidence today?”. Inviting the answer, I always think: “No not really, you told me I must make this statement and you must now jolly well take me through every paragraph.” People do noticeably hesitate before answering unless they are prepared for that.

    Plus isn’t the new [-ish] ending for a statement now words to the effect that “I know this statement may be put in evidence before the court”. I think that as a pedantry point it would be more accurate if it said “this statement might be put before the court” and I have always thought that, certainly in family proceedings, it should say “This statement will be put in evidence &etc.”

    Reminds me of the joke in Fowler where he explains the difference by shall and will by the description of a grammarian who went for a walk and noticed a man drowning in the water. When asked why he had not tried to rescue the man, he explained that the man had cried out “I shall drown and no-one will save me” thus making it perfectly clear that he intended to drown and commanded that there should be no rescue. A mildy funny story but once remembered the lesson is learned. And as we all know. CInderella’s fairy godmother said “You shall go to the ball” rather than ordering her “You will go to the ball”.

    I will eat my shoots and leaf.

    Also, you will know whereas I would have to look, since family proceedings have required statements in evidence, which they used not to do*, Isn’t there is a rule somewhere that says that statements are evidence. Because before that, people had to read out or be taken through their statements or, I think, they would have to attend to give even non-controversial evidence.

    Happy Christmas.

    *If you think things are bad now, remember a time when statements in evidence were not the norm, especially in emergency proceedings.

    • I make no bones about it: abolishing imprisonment for debt – or for failing to disclose assets – would leave some debt unpaid. Too bad. It is wrong to lock people up over money.

      Norma: there is also the tale of the Professor of English caught in flagranti with the au pair by his wife who says “Henry! I am surprised” and answers “No, my dear, we are surprised; you are astonished!”

  3. ashamedtobebritish

    F

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