Alleged contempt, whilst in prison for contempt

 

This is a curious case, including the giving of evidence by the solicitor representing the person complaining of the contempt.

 

 

 

Egeneonu v Egeneonu & Anor [2018] EWHC 1392 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1392.html

 

Mr Egeneonu is a father of 3 children, who at present appear to be in Nigeria. Various Court orders have been made and the father was in prison for contempt of Court.

 

(I wrote about THAT contempt here

https://suesspiciousminds.com/2017/01/18/rock-bands-impenetrable-vocabulary-and-peers-of-the-realm-making-off-with-wards-of-court/

 

and as you can see from the title, it is a blogpost which covers some ground. Also, I see that I use a Bravo Two Zero reference within the post, which has made me smile.  It gets better with every read, Lynn. )

 

It is alleged that whilst in prison, the father made a series of telephone calls to Victor Egenonu (V) who is either his brother or his son, with a view to perverting the course of justice.

 

It is alleged that he failed to cause the children’s return from Nigeria in accordance with Court orders, that he caused false letters to be written purporting to be from the children giving their wishes and feelings and produced false statements from third parties.

 

The Court has not yet established either way whether those allegations are proven – the prima facie evidence for them is said to be telephone calls between the father and V, which were recorded by the prison and are said to set out the detailed plan for these actions between father and V. This hearing was to decide whether leave would be given to invite the Attorney General to consider whether to bring a prosecution (under Family Procedure Rules 37.13(2) – the copy of the FPR I have on legislation.gov.uk stops at 36, so I can’t tell you what that provision actually says, how curious. Because the allegations relate to perversion of the course of justice – the Court has to consider whether to approve release of the case to the Attorney General, who then decides whether to prosecute)

 

The father declined legal representation, despite being told that he was entitled to free legal representation and the possible consequences for him of not doing so.

 

 

 

Amongst the documents filed by the father was –

 

 

1. v) A statement from Chief Ted Ofoduru, a traditional chief in Nigeria which pointed out that this court has no power or right to tell ‘us’ what to do.

 

Which might explain why the father is not following the well-known maxim of Abraham Lincoln about a man who represents himself.

 

That’s all quite interesting, but where it gets more interesting, is the discussion of how Mother’s team HAD the prison phone call transcripts

 

1. i) On 11 August 2017 Roberts J made an order in the following terms

 

HM Prison Thameside/HM Prison Service shall…. Provide the following information and documents

 

 

 

(a) Provide the itemised call records in relation to all telephone calls made and recived by [F} from hs incarceration

 

 

 

(b) Confirm whether or not the telephone calls are recorded

 

 

 

(c) Confirm whether or not they would object to an order being made by this Honourable Court that audio copies should be released and/or a transcript of the calls should be disclosed…..

 

There’s nothing in there to say that the Prison should provide the transcripts. It is an exercise to establish whether any recordings exist, and what the Prison’s view would be if an order were to be made for their release.  It rather appears as though the Prison thought they were supposed to hand over the transcripts, and so did the mother’s solicitors, so when the Prison wrote saying ‘let us know which tapes you want’, the solicitors wrote back and said ‘these ones I’ve marked, thanks’ and the Prison then sent the tapes/transcripts and the solicitors got them translated from Igbo to English. None of which was in the Court order.

 

 

 

 

1. ii) It is immediately apparent that the order did not require the Prison Service to disclose the recordings or the transcripts.

 

iii) The sealed order was sent out by the court on 23 August.

 

1. iv) Ms Bennett said she had not been at the court hearing as she was on leave. When the order came in she said she did not have a memory of reading it but assumed she would have done.

 

1. v) On 23 August 2017 Ms Bennett’s para-legal drafted and sent a letter to HMP Thameside enclosing the Court order and accurately setting out the terms of the order in the body of the letter.

 

1. vi) On 11 September 2017 HMP Thameside responded providing a list of all calls made and received by F and confirmed that they were recorded. The letter said ‘…please.. provide me with a list of numbers which you would like the telephone recordings for, I will then ask the Security staff to review these calls and burn them to disc’. It is clear from this response that the author thought the court order required or authorised the release of the recordings of the calls themselves rather than just the details of the calls.

 

vii) On 15 September 2017 Bindmans responded saying ‘We have highlighted the calls we want recordings from. Please see attached.’ The author of the e-mail was a para-legal. Ms Bennetts evidence was that when she discussed the response with the para-legal she was working on the assumption that the order authorised the release of the transcripts. She said she did not go back to the order to check its precise wording but assumed because the prison had said they could have the recordings that that was what the order authorised. She accepted in evidence that she was mistaken in her belief about what the order provided for. She said she did not realise the transcripts had been provided not in compliance with the order until F’s solicitors pointed it out on 13 December 2017.

 

viii) She was pressed hard by F and by me on how it can be that an officer of the court could have authorised the sending of an e-mail which furthered the release of material which was not in compliance with the terms of a High Court order which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided. Ms Bennett accepted that it was a failure on her part. She appeared, rightly, somewhat embarrassed that this had happened on her watch. F put it to her that it was a deliberate attempt to mislead the prison and to get evidence by improper means. She denied this and pointed out that there was nothing to be gained in doing so as the court would almost certainly have approved the obtaining of the recordings that had been sought.

 

1. ix) Having regard to all the circumstances I accept that this was a mistake rather than a deliberate act. The letters sent between Bindmans and the prison, her explanations and the absence of any motive to have deliberately mislead the court persuade me that a combination of matters led to a situation where both the prison service and Bindmans mistakenly assumed the order provided for the release of the recordings themselves.

 

1. x) Given the context of these applications, namely contempt of court and in particular interference with the administration of justice this is regrettable but it is not malign.

 

1. xi) Ms Bennett also explained how the recordings came to be interpreted and transcribed. It is clear that the following is the case

 

1. a) The transcripts were prepared by an NRPSI (National Register of Public Service Interpreters, an independent voluntary regulator) interpreter in Igbo/English, Charles Chinedu Mottoh.

 

1. b) In a series of witness statements dating from 24 October 2017 to 11 January 2018 he produces the transcripts of 222 clips of recordings which he identifies by Exhibit No and by their File Name.

 

10. c) The clips themselves are identifiable by a code (File Name) which appears on the list provided by HMP Thamside. Thus 146203 01 07 2017 10_38_18 refers to a call recorded on 1st July 2017 at 10.38 and 18 seconds in the morning. The first 6 digits seems to be a code applied by the prison service to the individual.

 

1. d) Each transcript produced by Mr Mottoh bears the File name and so each is readily identifiable by date and time.

 

1. e) Each transcript contains only the English translation of what was said not the Igbo original.

 

xii) I am satisfied that the transcripts are readily identifiable as relating to F, that their dates and times are ascertainable and that the contents are a bona fide interpretation of what Mr Mottoh heard. It may be that F or V would be able to identify errors or mistakes in the transcripts but I am satisfied they represent a sufficiently reliable record of what passed between F and V for the purposes of this application. If F or V produce alternative transcripts then the interpreters may need to give evidence but that is a matter for another day. F says Mr Mottoh’s interpretation of certain Igbo phrases is either wrong or too definitive and that some words can bear more than one meaning. F will no doubt identify any errors in the critical transcripts M relies on.

 

That evidence having been obtained improperly (though by mistake rather than by malice) are they admissible?

 

The law

 

 

 

 

12.In the criminal field the courts have considered the application of section 78 PACE in relation to improperly obtained evidence in a number of cases

 

 

 

 

1. i) Regina-v-Khan (Sultan) [1997] AC 558

 

1. ii) Regina-v-P [2002] 1 AC 146

 

iii) Regina -v-SL and Others [2001] EWCA Crim 1829

 

13.The following principles emerge from these authorities.

 

 

 

 

1. i) The power to exclude evidence under s.78 PACE is at least as wide as the common law power to exclude evidence in the interests of a fair trial.

 

1. ii) The principle test for admissibility of evidence is relevance.

 

iii) Relevant evidence is not excluded simply because it has been unlawfully or improperly obtained, this includes evidence obtained in breach of a persons Article 8 ECHR rights. Illegally or improperly obtained evidence does not amount to a breach of a person’s Article 6 ECHR rights.

 

1. iv) Unlawfully or improperly obtained relevant evidence may be excluded if it would have such an adverse effect on the fairness of the proceedings.

 

1. v) Fairness includes fairness to the prosecution and to the defendant. Trial by ambush may be unfair.

 

1. vi) Evidence obtained by flagrant non-use or misuse of authorised procedures may well provide grounds for exclusion because it will affect the fairness of the trial. In extreme cases where the abuse of process is of such gravity the prosecution may be halted.

 

vii) The court must consider all the circumstances in determining whether a trial will be fair or unfair.

 

 

14.In the civil arena the Court of Appeal considered the admissibility of illegally or improperly obtained evidence in Jones-v-University of Warwick [2003] 1 WLR 954. The Court of Appeal referred to some of the above cases and principles concluding that the approach must be dictated by the over-riding objective of dealing with a case justly. The court must balance all the circumstances including the relevance of the evidence and the effect of its exclusion. There may be cases where the behaviour of the person obtaining the evidence was so outrageous that the case based on it should be struck out. It may be that improper behaviour should have costs consequences whilst the evidence is admitted.

 

 

15.It will be apparent from the foregoing that whether I apply the s.78 PACE criteria or the CPR 1 and 32 approach the approach is broadly the same. There is no automatic exclusion unless the circumstances reach such a high level or impropriety as to offend the courts conscience or sense of justice. The court must consider all the circumstances and decide whether relevant evidence should be excluded so as to ensure a fair hearing.

 

20.My conclusions on the admissibility point are that the transcripts are not to be excluded for the following reasons;

 

 

 

The facts

 

1. i) The transcripts appear to be a proper interpretation into English of Igbo conversations between F and V. The interpreter is qualified and has provided statements of truth with appropriate records evidencing the recordings he has interpreted.

 

1. ii) The evidence is relevant to the Grounds of Committal against F and V. As I will explain below, in respect of F (I have not looked in detail at V’s position) it is strong evidence and without it the Grounds could not be pursued. That would be unfair to M.

 

iii) It was not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse so as to fall into a category where the court might contemplate its exclusion on the basis that its obtaining and deployment was itself an abuse of process and offensive to justice.

 

1. iv) F will have the opportunity to challenge the contents of the conversations in his own evidence; there is no ambush.

 

1. v) It would be to ignore reality to exclude the evidence.

 

 

The Court approved the release of the information to the Attorney General to consider whether to bring a prosecution

 

 

24.I consider it appropriate to grant permission

 

 

 

 

1. i) The evidence is strong both that the acts were committed and they were done knowingly. As examples

 

1. a) The transcript at Exhibit 28 (p.491) appears to show F dictating to V the words of a letter purporting to be from the children which appears in almost identical words at Exhibit 29(p.524) and which was submitted to the court.

 

2018. b) The transcript at Exhibit 32 (p.539) appears to show a conversation between F and V on 25 August 2018 about creating a witness statement from Ola Ajibola which subsequently was produced to the court dated 24 August 2018.

 

1. c) The transcript of 27 July 2017 at Exhibit 22 (p.354) and 28 July 2017 at 360 appear to show conversations between F and V in which the whereabouts of the children are discussed as are arrangements for moving them around. The subsequent statements in which F denies any control or knowledge over their whereabouts are plainly inconsistent. I disbelieved his evidence but the transcripts arguably provide a very clear and different reality.

 

1. ii) I am unable to ascertain the children’s best interests. I have appointed Cafcass as their guardian in an attempt to make some progress in looking at ways in which their current best interests might be ascertained.

 

iii) I do not accept that the committal proceedings are counter-productive. F did not secure the return of the children during the 3 years he was at liberty in Nigeria. I do not know whether what F says about the position of the family and community in Nigeria are correct. I am not able to rely without independent verification on material produced by F. He has still not produced the later order he asserts has been made by a Nigerian court.

 

1. iv) M is pursuing committals for breaches of orders and it is more proportionate for these proceedings to be dealt with at the same time rather than a public authority pursuing them

 

1. v) The nature of the contempts if proved are very serious indeed and would represent a concerted effort to create false evidence to deliberately mislead the court.

 

1. vi) It is in the public interest to determine these serious allegations. I do not consider it appropriate to make a request to the Attorney-General given the other aspects of committal which would be proceedings in this court in any event.