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Ostriching and adverse inferences

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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Committal to prison – making false accusations

Gibbs v Gibbs 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/1700.html

This was an application by the father of a child (who by 2017 had turned 18) to commit the mother to prison for breaching court orders, notably about publishing allegations that mother had made within the private law proceedings but had never been found to be proven.

The private law proceedings have a dreadful history, set out by Hayden J, going back to 2001 and only ending in 2004.

A Consent Order was placed before the Court which was scrutinised by the Judge in a short judgment which has been transcribed and filed in this application. The preface to the order records that it was acknowledged specifically by the mother ‘that she was afforded the opportunity to pursue the allegations but did not seek to do so’. Secondly, it was recorded that the mother:

“accepts that by not raising any allegations of emotional, physical or sexual abuse against Mr Gibbs the contact between [B] and her father should proceed on the basis that all the allegations are unfounded”

6.Thirdly, the Order recorded that the mother ‘should not seek to raise any allegations of emotional, physical or sexual abuse against the Reverend Gibbs in any other forum with any other person or body and specifically including Mr Gibb’s employers’, the Methodist Church. Finally, it was expressly acknowledged that ‘contact between the younger child B and her father should proceed on the basis of the concessions made by the mother that day’.

7.Though the case had in effect settled, by the agreement of the parties, Mr Justice Munby nonetheless delivered a short judgment. Aspects of that judgment require to be highlighted:

“The advice which mother has received and the decision which the mother has taken seem to me to be entirely appropriate in the circumstances. These matters must now once and for all finally be laid to rest. That, as I understand it, is the basis on which I am being invited to approve this order. I am sure that I do not have to say this, but it is important for the parties to appreciate that this is intended to be a final order which maps out into the foreseeable future the pattern of father’s contact with B and, equally importantly, B’s contact with her father.”
8.Later the Judge recorded that both the mother and father:

“have taken a brave decision, and a decision which in many respects and for different reasons must have been difficult for each of them, [they] are to be congratulated and thanked for agreeing to this order. I hope that each of them will join with me in thanking the lawyers collectively, and indeed the other professionals involved, whose input and assistance I have little doubt has done much to bring this about. ”
9.There was therefore no doubt that the mother had received clear advice, that it was identifiably, on the available evidence, correct, and that the understanding of the parties as to the significance of the order was investigated and established to the satisfaction of the Judge.

At the end of the proceedings in 2004, Ryder J (as he then was) made a Prohibited Steps Order that prevented the mother publishing her allegations about the father (she having had ample opportunity to present those allegations before the Court and seek findings and having always declined to do so – almost certainly because they had no substance or merit and were utterly incapable of being proved) and attached a penal notice to them.

It appears that in 2017, the mother realised that the Prohibited Steps Order and penal notice were no longer in force, as the child was now 18, and thus sent out thousands of emails making allegations about the father.

17.From early in 2017 and perhaps for a little time before that, the mother had begun to step up her campaign of vilification against the father. She issued a raft of emails to thousands of individuals all of which either accused the father directly of physical, sexual and emotional abuse or inferred in the most unsubtle of ways that he was an abuser. The father had undoubtedly become used to his character being traduced by the mother in this way but this bombardment against his reputation was, as the mother herself frankly acknowledges, beyond anything that she had undertaken before. She had, she told me, visited her lawyer ‘some time in approximately 2014’. She discovered that the prohibited steps order made in the Children Act proceedings was not life long, as she had understood it to be but in fact expired when B turned 18 years of age. This in part explains, in my view, the liberation she felt in being able to pursue her campaign more vigorously.

18.In contemporary society it is difficult to think of any allegation against a man or a woman which attracts greater public opprobrium than one of sexual abuse against a child. Where these allegations are proved that public censure is entirely understandable. Here allegations are not proved. The responsibility of mature adults is to take such complaints seriously, but to avoid rushing prematurely to judgement. The Reverend Gibbs believes that, faced with the onslaught of his ex wife’s allegations, his Church, his friends and his colleagues have done precisely that, moved ultimately to judgement against him. They have, he believes, succumbed to the openly malevolent objectives of his ex wife to discredit him publicly and to attack his position in the Church.

19.Mrs Gibbs does not deny any of this. She accepts that she sent the emails, she asserts, unequivocally that she does not think her husband should be part of the Church. She believes that there has been ‘perjury’ and ‘sexual abuse’ and she believe it is her bounden duty to expose that, notwithstanding the history of the litigation that I have taken time to set out.

20.Like DJ Hayes, now 16 years ago, I have no doubt that the mother has come to believe that what she asserts is true. Again, it requires to be said: neither of the party’s children, both well into adulthood, has ever made a complaint to the police or been subject to investigative ABE interview; neither has appeared before, or presented written evidence to a Court alleging abuse. There is no extraneous medical evidence pointing to abuse. Mrs Gibbs, when represented, as I have said, by experienced counsel before a judge of this division, readily accepted that the evidence before the court could not, even on the civil standard of proof, establish a finding. At risk of repeating myself: there has been no finding of sexual abuse; no finding of perjury against the father; no evidence produced either in 2003 or in the years that followed that would be likely to establish such findings.

The father made an application to the Family Court, both for permission for he himself to be able to produce material from the family Court proceedings to show that there had been no suspicion or findings that he had abused his children, and also to obtain an order to make the mother stop doing this.

Up to that point, the mother had cleverly exploited a loophole and could not be punished for her behaviour. But once the order was made, she had to then comply with it because the loophole had been closed. This is where mother made a dreadful error, because within 24 hours of Roberts J making an order to stop mother’s behaviour

On 19th June Mrs Gibbs appeared (in person) before Roberts J in response to the father’s application for permission to disclose material from the Children Act Proceeding into the public domain and to prohibit the mother from further defamatory publication. Paragraphs 10 and 11 of the Orders made that day, which were reinforced by penal notices, state:


10: Until further order, the Respondent must not disclose, disseminate, or publish any information about these proceedings concerning the Applicant, or any proceedings in the Family Court that have involved the parties, and any allegations made within the context of proceedings in the Family Court, whether by print, electronic form, or on the world wide web and should not instruct, encourage or in any way suggest that another person should do so.

11: Until further order, the Respondent shall not copy any third party into her correspondence with the Applicant’s solicitor, save her own legal advisor.

She had breached that order

22.These provisions make it clear that the respondent (mother) must not disclose or publish any information generated from any Family Court proceedings. The objective of the order was to disable Mrs Gibbs from further denigrating the father’s reputation. She is unapologetic about what happened thereafter. Within 24 hours of Roberts J’s order Mrs Gibbs was barraging rafts of individuals with her unsubstantiated allegations. There were, by 6.45am on 20th June, a hundred further recipients to her allegations. The schedule below sets out the breaches of the order, each of which is admitted by Mrs Gibbs.

In respect of paragraph 10

i) Email at 06:45 on 20.06.17 to circa 100 recipients (at C309-C310);

ii) Email at 07:08 on 20.06.17 to Rev Horton and copied to circa 100 others (at C311);

iii) Email at 20:11 on 20.06.17 to Mrs Poxon and copied to circa 100 others (at C332-C333);

iv) Email at 20:16 on 20.06.17 to President of Methodist Conference and copied to circa 100 others (at C334-C335);

v) Email at 06:56 on 21.06.17 to Prof Jay and copied to circa 100 others (at C324-C325);

vi) Email at 07:05 on 21.06.17 to George Freeman MP and copied to circa 100 others (at C326-C327);

vii) Email at 22:58 on 21.06.17 to President of the Methodist Conference and copied to circa 100 others (at C336-C337);

viii) Email at 08:43 on 22.06.17 to circa 100 recipients (at C338-C339);

ix) Email at 02:39 on 23.06.17to circa 100 recipients (at C340-C341);

x) Email at 03:00 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C342-C344);

xi) Email at 06:47 on 23.06.17 to Mrs Poxon and copied to circa 100 others (at C344-C345);

xii) Email at 11.23 on 24.06.17 to Rev Horton and copied to 100 others (at C346-C347);

xiii) Email at 16:45 on 24.06.17 to Mrs Poxon and copied to 100 others (at C348-C349);

xiv) Email at 05:57 PM on 24:06.17 to circa 100 recipients (at C329-C330);

xv) Email at 17:36 on 25.06.17 to circa 100 recipients (C355-C356);

xvi) Email at 17:43 on 25.06.17 to Mrs Poxon and circulated to circa 100 others (C357-C358);

xvii) Email at 18:42 on 25.06.17 to circa 100 recipients (C359-C360);

xviii) Email at 06:14 on 26.06.17 to circa 100 recipients (C352-C354).

In respect of paragraph 11

xix) Email at 20:00 on 20.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C321);

xx) Email at 06:41 on 21.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C322-C323);

xxi) Email at 07:36 on 22.06.17 to Applicant’s Solicitor and copied to circa 100 others (at C328);

xxii) Email at 17:57 on 25.06.17 to Applicant’s solicitor and copied to 105 others (at C350-C351).

That put her at risk of a custodial sentence. Hayden J told her that she was entitled to free legal representation, and she declined it. He told her that he did not want to send her to prison and that an alternative would be for her to genuinely promise not to do this in the future and stick to it, she refused.

23.Mrs Gibbs appears before me today unrepresented. I have advised her at least twice that I have it within my power to order that criminal legal aid be provided so that she can be represented by counsel. She does not, she tells me, wish to be represented by counsel. She only wants to explain to me that it is her duty to stand up to what she perceives to be perjury. She has looked at the core material with me, she has been sent the bundle of documentation in advance, though she has not brought it with her to court. She tells me, she hardly needs it for she ‘has lived it’ and most of the documents relate to material drafted and sent by her.

24.This is an application to commit her to prison for breach of those orders. The breaches are not contested. Instinctively, the last thing I would want to do would be to send Mrs Gibbs to prison. I advised her of the options available to this court, one of which was to suspend a sentence of imprisonment on her undertaking that she would comply with Roberts J’s order. She declined to do so unless, as she put it, and I repeat verbatim, “This court could give assurance that it can require a judicial review of the background facts of the case.”

25.This case has been exhaustively litigated. Three senior judges have reviewed the scope of the protective framework, and Mrs Gibbs has flagrantly undermined or actively disobeyed Court Orders. She tells me that she has come to Court expecting to go to prison and is ‘happy, proud, and completely at peace to be in contempt of court’. In an email directed to the President of the Family Division she states ‘short of killing me or having me killed, you will not silence me…’

Even after sentencing her to prison for 9 months, Hayden J explained to her that she could apply to purge her contempt (i.e say sorry, promise not to do it again and go free) and she declined
this. Hayden J says “I do not find it necessary to repeat her defiant response”


[I know that I’m going to get comments about ‘gagging’ and ‘free speech’ and that she was sent to prison for speaking ‘the truth’ and for trying to protect her children. I would have no love for father if he had done what mother accused him of. But he obviously hasn’t. IF HE HAD, there’s no way that the mother would have agreed over and over again to drop the allegations against him. Please read the portions of the judgment that make it really clear that this mother had had many opportunities to place evidence of abuse before the Court and failed to do so time after time. And imagine for a moment being in the shoes of a father who has done nothing wrong, but is finding thousands of poison pen letters circulating to almost everyone he has ever met accusing him of the most dreadful things you can contemplate. You can accuse anyone of anything in a Court hearing and be free of libel – make your allegations and have the evidence for them tested. But don’t pass up that opportunity and write poison pen letters]

Taking photographs in Court

If you’ve ever been to Court, you probably saw at some point amongst all the pinstripes, cufflinks and bags under the eyes, signs telling you that you aren’t allowed to take photographs.

It is a criminal offence to take photographs in Court, you might even have had security staff take a camera away from you to be collected later.

The law about this is s.41 of the Criminal Justice Act 1925 (CJA 1925).   Of course, in 1925, it was probably an awful lot easier for a security guard to detect that you have come in with a camera in your possession

 

Are you illicitly taking a photograph? "No, just please stand very still for 20 minutes longer though"

Are you illicitly taking a photograph? “No, just please stand very still for 20 minutes longer though”

 

Nowadays, most people have camera phones. And not necessarily ones as obvious as this

 

As designed by Jermaine from Flight of the Conchords

As designed by Jermaine from Flight of the Conchords

 

Not only can you not take a photograph inside a Court room, any photographs within the building are within the offence. One of the photographs within a reported case R v Vincent D (Contempt of Court: Illegal Photography) [2004] EWCA Crim 1271 was taken in the Court canteen.  (You can insert your own Ronnie Corbett style joke about Court canteens if you wish)

You can’t make clay models of people either, or sketch them. Yes, even those Court artist sketches aren’t allowed to actually happen within the Court room, the artist has to do them later from memory, which explains a lot.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

No, to be fair this witness MIGHT have been Kevin Bacon after twelve months in Guantanamo and then being possessed by a demon.

I wrote about the weird intricacies of the law on photographing in Court buildings years ago, here

 

https://suesspiciousminds.com/2012/07/03/if-i-had-a-photograph-of-you/

 

That was an imaginary judgment. It is quite unusual to see a real judgment about someone being prosecuted for doing this, but that’s the subject of this blog. In particular, it deals with the situation where the taking of photographs wasn’t something which just happened, but where it was indicative of defiance and contempt for the Court process, particularly where the photographs were then placed on social media and comments added to them.

 

HM Solicitor General v Cox and Another 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1241.html

 

This case involved a nasty murder trial, where the accused (later convicted) was said to have filmed the murder and watched it on a mobile phone for enjoyment later. Two of his friends attended Court, and photographs were taken and placed on social media.

 

 

  • Parker-Stokes, aged 18 by 4 August 2014, had arrived at the Crown Court during the morning session. He noticed that another friend of his was appearing in Court 2. He went into Court 2. There, he took a photograph on his mobile phone of his friend on the screen, appearing by video-link. In the afternoon, Parker-Stokes was in the public gallery of Court 2 with Cox, Sheppard’s family and other friends, for the sentencing of Sheppard. From there, on his mobile phone he took five photographs and a short video of Sheppard in the dock. Some images show dock officers. Some images, and the video, include part of the notices prohibiting the use of mobile phones; the composition of the pictures suggests that that was deliberate.

 

Hint, if you are later going to argue that you hadn’t seen the signs saying that mobile phones and photography weren’t allowed – DON’T ACTUALLY PHOTOGRAPH the signs themselves.

 

  • Cox, now just 18, had also arrived at the Crown Court in the morning. He went into Court 10 where HHJ Picton was sitting. At 10.57 a.m. he used his mobile phone to take a photograph of the judge. The court was in session but it appears that no case was actually being heard. Cox was later present in Court 2 for Sheppard’s sentencing hearing.
  • Some of the images were uploaded on to various Facebook pages, with comments. On 4 August 2014, Parker-Stokes uploaded an image of Sheppard in the dock on to Sheppard’s Facebook page, adding the comment: “Respect g at least u had the balls to admit it accept some slaggy little girls who are two shock to admit it that had to try to blame it on u nuf love xx.” The two girls referred to were the acquitted co-defendant and a key prosecution witness. That same day, Cox uploaded the same image on to his own Facebook page, adding this: “Ride or Die Certified Southwest G”. It was not seriously disputed but that “G” was in common use as a shorthand for gangster, and “Southwest G” was a self-descriptor used among the likes of Sheppard and his friends, that is to say youth within the criminal justice system in Weston-super-Mare. Cox also commented on Sheppard’s Facebook page, under the image of Sheppard in the dock: “Ride it g love ya loads snm anyone got summat to say say it love ya kid xx”. On 6 August 2014, Cox uploaded on to his own Facebook page the picture which he had taken of HHJ Picton in court, adding the words “Fuk the judge!”.

 

Again, you have to admire the later chutzpah of Cox claiming that the comment ‘Fuk the judge!” was not directed at the Judge in particular, but the judiciary in general. I’m sure the Court loved that.

 

 

  • At that time, Sheppard’s Facebook page was accessible by 276 “friends”, and Cox’s by 1406 “friends”. 25 people “liked” the posting on Sheppard’s Facebook page, with 7 commenting on it. 63 “liked” the posting of the image of Sheppard, with commentary on Cox’s Facebook page, with 3 commenting; 43 “liked” the posting of the image of HHJ Picton, with its comment.
  • The family of the murder victim, Mark Roberts, brought the Facebook postings to the attention of the police team which had investigated his murder and, later, court staff did the same. HHJ Ford QC was informed of this and that the police were proposing to refer the matter to the Attorney General’s Office, once the investigation was complete. He asked that the Attorney General be informed that it was, in the judge’s view, important that the Attorney General appreciate that the image of Sheppard had been taken during the sentencing hearing for an offence of murder, and at a time when the deceased’s family was in court; and that the text material attached to the images suggested that they were being treated as “trophy images”.
  • Parker-Stokes was arrested and interviewed on 25 September 2014. He admitted taking the picture of Sheppard in the dock and posting it on Sheppard’s Facebook page, with the accompanying text, but said that he did not know it was an offence to take pictures in court. He “apologised” for his actions. It was only later that the other photographs and video on his mobile phone were discovered, and he was interviewed again in December 2014. He admitted taking them but maintained his ignorance that taking photographs was an offence. He denied having read or seen the signs at the Crown Court prohibiting the use of mobile phones in court. He again said that he “apologised” to the court and to the family of Mr Roberts, but continued to deny committing any contempt.
  • Cox was interviewed the day after Parker-Stokes was first interviewed. He admitted taking and posting the image of HHJ Picton, but also said, untruthfully, that he, not Parker-Stokes, had taken the image of Sheppard in the dock and had uploaded it to Facebook; indeed, he claimed that he had taken all the photographs. He refused to tell the police where the mobile phone was, giving “no comment” answers to questions about it. He too “apologised” for his actions, but denied knowing he was committing an offence.
  • Neither Cox nor Parker-Stokes are unfamiliar with courts and their procedures: Cox has been convicted on 9 occasions of a total of 16 offences, 4 of which related to police, courts or prisons. He was last convicted in March 2014, and was on licence on 4 August following a custodial sentence arising from earlier breaches of court orders; Parker-Stokes has been convicted on 21 occasions of 54 offences, with an extensive history of breaching court orders. 27 of his offences related to police, courts or prisons. His most recent conviction was in September 2014.
  • There are signs at the entrance to every court room at Bristol Crown Court, slightly larger than A4 size, saying: “Notice to All Court Users. The use of mobile telephones, recording equipment and personal stereos is not allowed in the courtrooms”. Another sign at the entrance to courtrooms, and it appears to be the one visible in the photographs taken by Parker-Stokes from the public gallery, states: “Switch off mobile phones. Please ensure all mobile phones are switched off before entering court or hearing room.” At the entrance to the public gallery for Court 2 is a sign saying, among a short list of requirements, “….Mobile phones should be switched off and remain out of sight.” The general information board has a notice saying: “It is an offence to take photographs, record video clips or make unauthorised audio recordings anywhere in this hearing centre.”
  • Parker-Stokes’ affidavit for these proceedings stated that his comments were meant to congratulate Sheppard for having the courage to admit what he did, unlike the two girls who were with him at the time, and who blamed it all on him. “Respect” was a greeting. “G” was simply something that his friends called each other; he did not know that it meant “gangster”. He wanted Sheppard to know that he was thinking of him. It was not done to glorify Sheppard. Mr Willmott on his behalf submitted that no alternative meaning had been put forward. He had no intention of interfering with the course of justice, and “did not foresee that justice might be interfered with”. He had not been to the Crown Court before and was unaware of the prohibition on taking photographs. He was distressed to learn that the victim’s family had seen the photographs and comment, since they would not understand what he was saying; he would like to apologise to them. Parker-Stokes was in custody at the time of the contempt hearing, and declined to come to court. He had the opportunity to give evidence before us, but in effect declined it.
  • Cox decided to give no evidence either, but he had failed to provide the required affidavit for that purpose anyway. We focus on the submissions made on behalf of Parker-Stokes, since, after the hearing, Cox admitted that he was guilty of contempt of court, and was therefore in a position to apologise for his contempt, as he did. This was a course of action for which he will receive credit.

 

 

The prosecution here were concerned that taking photographs in Court particularly of criminal trials, and particularly whereas here it seemed to be as a trophy and act of defiance, was increasing in prevalence, and the punishment required more than the level 3 fine of £1000 allowed by the 1925 Act. They sought to commit on the basis of contempt, which can obviously carry a custodial sentence.

For non-lawyers, the Latin here – actus reas and mens rea may seem a bit confusing. Any criminal act requires two ingredients – the guilty act (actus reus)  the thing you did, and the guilty mind (mens rea)  what was in your mind at the time.  The actus reas is always the easy bit to understand  “Did X stab Y, Did X take the DVD player from Y’s house, Did X take photographs inside a Court room?”.  The mens rea can be trickier – some offences can be Strict Liability  (just doing the act is enough, you don’t need the mens rea element – many driving offences, for example), some are “Intent”  – the prosecution need to prove that X intended to injure Y, or to dishonestly deprive him of the DVD player etc, and some are “Recklessness”  – that X did the act without proper care and attention as to what might be a likely or possible consequence of that.   [Sorry, I have just squashed about 3 weeks of Criminal Law into one paragraph, so it is necessarily a rough summary]

 

(a) Submission of the Solicitor General

 

  • Mr Watson on behalf of the Solicitor General submitted that the use of mobile phones to take photographs in courts, and in criminal courts especially, and then to disseminate the images on social media was an increasing concern. The Solicitor General sought to establish clearly that these were indeed contempts by both the taking of the photographs and by their subsequent publication on social media, which Parker-Stokes continued to dispute, and that these two forms of contempt were to be taken very seriously indeed, with commensurate punishment.
  • Although s.41 of the Criminal Justice Act 1925 (CJA 1925) makes it an offence to take pictures in court, and also to publish them, each punishable on summary conviction by a Level 3 fine, the Solicitor General considered that such summary proceedings would inadequately reflect the gravity of the conduct in the present case and the wilful defiance and affront to the authority of the court. The context in which the photographs were taken, followed by their publication on social media, together with the “trophy” or “glorifying” element of taking and publishing the images, were among the main factors aggravating the contempts; the murder itself had been videoed by a person present at the scene, and the images of Sheppard had been designed, it should be inferred, to capture the prohibition on what was being done in the images themselves. The contemptuous statements accompanying the images on Facebook were another serious aggravating feature, as was the distress which such postings would obviously cause (and had in fact caused) to the victim’s family. The criminal records of Parker-Stokes and Cox, and the nature of their offending, were further aggravating features.
  • Mr Watson submitted that the actus reus of the contempts was made out in relation to the taking of photographs in court and their publication by the very fact that each was an offence under s.41 of the CJA 1925: it is an offence to take in any court any photograph under s.41(1)(a), or to publish any photograph taken in contravention of s.41(1)(a) under s.41(1)(b). The fact that the photograph of HHJ Picton in his court was taken at a time when no case was being heard did not prevent that being an offence in view of s.42(2)(c), which deems a photograph to have been taken in court if it is taken in the courtroom or in the building or its precincts. The use of the mobile phones for taking the photographs was also in breach of the various orders posted around the court buildings, which should be taken as judicial or judicially sanctioned orders made for the purpose of preventing interference with the due administration of justice. The publication of the images through the Facebook postings constituted a contempt for the same reasons. It was itself an offence, and it compounded or was a purpose of the contempt committed by the taking of the photographs. Orders prohibiting the use of mobile phones and photography prohibit, by necessary and obvious implication, the publication or other use of images obtained by breaching them.
  • Mr Watson did not contend that, on the facts of this case, the comments relating to the images of Sheppard, although significant aggravating features, were separate acts of contempt themselves. Cox, in interview denied that he had any feelings of hostility towards HHJ Picton; “Fuk the judge” was directed at the judiciary in general, personified for these purposes by the image of HHJ Picton in court. Although the offence of scandalising the judiciary was abolished by s.33(2) of the Crime and Courts Act 2013, the Act provided that an act of “scandalising the judiciary”, remained punishable as a contempt if it was also another form of contempt. We agree that on the facts of this case those words may not amount to another form of contempt, but that they should be regarded as an aggravating feature of the contempt committed by Cox’s admitted contempts in taking and publishing the photograph of HHJ Picton.
  • Mr Watson contended that the mens rea of contempt relevant here was that each of those acts was deliberate, though he also submitted that if a specific intention to prejudice the course of justice were required, this Court should infer that that intention had been proved on all the evidence.

 

 

 

What did the defence say? Well, unsurprisingly, they focussed on the mens rea element, as they were bang to rights on having actually taken the photographs.

 

b) Submission on behalf of Parker-Stokes

 

  • Mr Willmott submitted on behalf of Parker-Stokes that the actus reus of contempt was the creation of a real risk that the course of justice, in some not insignificant way, would be prejudiced or impeded. The fact that taking photographs in court was a criminal offence did not make the act of itself a contempt of court; nor of itself would the fact that an act was done in disobedience to a direction of the court. It would not be right to extend the ambit of contempt in this way when the statutory offence under the CJA 1925 had been created to deal with this particular issue. There was no evidence that the signs about the use of mobile phones were based on any order of the court. There was nothing in the photograph of Parker-Stokes’ friend appearing by video-link which could interfere with the administration of justice. There had to be a specific intention to impede or prejudice the course of justice, and that could not be proved here.
  • The issues revolved therefore around the actus reus and mens rea for contempt of court in the illegal taking and publication of the photographs.

 

The defence here are arguing that for contempt (rather than the statutory £1000 fine under the CJA 1925) the mens rea had to be that there was a SPECIFIC INTENTION to impede or prejudice the course of justice. The prosecution would have to prove that.

 

What did the Court decide on actus reas?

(3) The actus reus of contempt

(a) The interference with the proper administration of justice

 

  • The taking and subsequent publication of the photographs on Facebook, in our view, each constitute the actus reus of contempt. First, illegal photography will in general interfere with the proper administration of justice through the very fact that it defies the criminal law relating to the administration of justice. Second, the statutory prohibition on photography in court is also a reflection of the serious risk to the administration of justice necessarily inherent in photography in court without the permission of the court which can be given under the relevant statutory provisions in very limited circumstances. This prohibition is underlined by the notices forbidding the use of mobile phones and photography in court buildings. These were plainly worded as orders, obviously made to protect court proceedings and clearly made with the approval of the court to protect its proceedings from interference. Such photography inevitably poses serious risks to proceedings or participants in them; those serious risks may be continued or enhanced by the use made of illegal photographs, whether by publication or some other use. The facts of this case illustrate both those serious risks.
  • The real and specific risk of serious interference with the proper administration of justice are evident. Although the taking of the photographs was not noticed by any responsible person at the time, and these illegal acts did not in those circumstances disturb proceedings, the serious risk posed by photographs taken during the sentencing hearing to its proper conduct is obvious. If the taking of the photographs had been observed, the proceedings would have suffered a grave distracting interruption, perhaps at a very sensitive stage, adding greatly to the stress and grief of the victim’s family and friends; and perhaps to some of Sheppard’s. It would have been obvious that it was a friend of Sheppard who had taken the photograph. Furthermore, and especially in the context of the previous use of a video to record and revel in the murder, it is not hard to see not only the immense distress it would have caused to the family of the murder victim but also the public order consequences which could have arisen. Some of the photographs included the dock officer, and although he could not be identified from the photographs directly, it is possible that digital enhancement could reveal who he was. The taking of the photographs was also the necessary precursor to the publication of one on two Facebook pages, with offensive commentaries.
  • The photograph, taken in breach of the criminal law and of the various orders posted around the court building, of Parker-Stokes’ friend appearing in the morning over the court video-link, created the real risk of interference through disruption of the proceedings, though less sensitive, even if no use was to be or had been made of them. The same also applies, as is now accepted, to the photograph of HHJ Picton, taken by Cox.
  • The publication of the illegally taken images was itself a contempt, and one which aggravated the contempt committed by the taking of the images. The publication of an illegally taken image is an offence. It was also by obvious and necessary implication, contrary to the orders posted in the court building which forbad the images being taken at all. Any such publication shows, even boasts, that the criminal law and authority of the court, in its orders, has been successfully flouted, diminishing its necessary authority over the conduct of its proceedings and its role in upholding the rule of law.
  • The illegally taken photograph of Sheppard was published as the vehicle for comments which on any view were designed to express public support to the murderer, on behalf of his friends. Parker-Stokes’ and Cox’s posting showed to the public, constituted by their selection of Facebook friends and others, a successful breach of the prohibition on photography, which one of them had got away with, and which those with access to the image could then use for their own amusement or for support of a murderer. Those involved in other cases, in whatever form, but not least the youth of Weston-super-Mare, would be aware that a prohibition which they might equally wish to breach, could be breached for their own purposes. Those involved in upholding the proper operation of the criminal justice system, including witnesses, would be aware of the publicity which could be given to them through the use of illegal photographs. That obviously creates a serious risk to the due administration of justice.
  • The sentencing stage of criminal proceedings is serious for all concerned, including the family and friends of the victim, who are entitled to see, their loss notwithstanding, that the law and the authority of the court has prevailed and their status as victims of the most serious crime were properly respected. Instead, publication of the photograph of Sheppard, and the opportunity this gave for the various comments, underlined his friends’ affront to the proper administration of justice. Here, at a time when it sentenced Sheppard for murder, the authority of the court had been flouted by a friend of the murderer by taking the photographs, and then again by his two friends in the publication of the image on the two Facebook pages, aggravated by the commentary. The publications told the murderer’s friends that Parker-Stokes and Cox had got away with breaking the law and breaching the court’s orders; that they had no regard to the feeling of the murder victim’s family. It is important to recall that the sentencing of a criminal and its immediate aftermath and the respect to which victims are entitled are an essential part of the due administration of justice; the actions of Parker-Stokes was a grave interference.
  • We reject Mr Willmott’s contention that there had been no real risk to the course of justice from publication, even if he were right that digital enhancement could not lead to the identification of the dock officer. True it is that no court official could be identified; the photographs gave no information about the layout of the court which could not be obtained from a quick glance from the public gallery; the trial itself was over; the Facebook postings could not interfere with the actual sentencing hearing since that stage, the last in the process, had concluded before they were made. However, he entirely overlooked the grave interference and serious risks which did arise, as we have set them out, in enumerating others which might not.
  • Although the criminal proceedings were ended, absent any appeal, at the conclusion of the sentencing hearing, the interests of the due administration of justice did not simply end there, as we have explained. The CJA 1925 prohibition on taking photographs does not end; the prohibitory notices in the court building continued to have effect. Participants, including witnesses and jurors, may face reprisal, intimidation, abuse. One witness and the acquitted co-defendant did face such abuse through the comments accompanying one of the Facebook postings. The judiciary faced abuse. The due administration of justice plainly also includes the protection of victims and their families from the use of illegally taken photographs for whatever purpose, including to undermine or belittle the outcome of the criminal process or the authority of the court.
  • The fact that taking photographs in court and publishing them are criminal offences, does not prevent those acts being punishable as contempts of court as, for the reasons we have given, these actions pose serious risks to and interfere with the due administration of justice: the court obviously has power, as it needs, to deal immediately with anyone seen taking photographs, in order to maintain control over its proceedings, and to avoid it standing powerless while the law designed to protect the administration of justice is broken before it. With the current technical capabilities of mobile phones and the internet, such photographs can be published almost immediately, or emailed from the phone for later retrieval or use by others. Whilst the later publication of such photographs may not be a contempt in the face of the court, it is still a contempt, quite apart from the fact that it is a criminal offence, since publication for a variety of reasons may be the very purpose behind the taking of the photograph illegally. While a summary criminal charge may be the appropriate response to some illegal photography, there are other cases in which it will not be and needs either swifter or more condign action by the court to uphold the due administration of justice; this was such a case. It clearly required the Attorney General to bring proceedings for contempt, taking into account the gravity of the risks and of the interference with the due administration of justice.

 

 

 

And on mens rea. Firstly, the Court gave a judgment as to whether on the facts of this case, even the highest form of mens rea “Specific intent” was made out, and were satisfied that it was

 

 

 

  • First we will assume that it is necessary to prove specific intent. On the facts of this case, we are sure that the mens rea was proved on that basis to the criminal standard. It is sufficient mens rea, for the specific intent to impede the course of justice, if the contemnor intends to risk impeding the course of justice by his acts, even if he did not intend the precise manner in which his acts will have that effect.
  • Mr Willmott submitted that the acts were not ones which would obviously interfere with the course of justice. Subjective foresight was required at the time the acts complained of were done. The photographs created no risk to the administration of justice, but even if they did, there was no basis upon which it could be concluded that a young man with no record of significant educational achievement, doing acts which were not obviously likely to affect the administration of justice, had any intention of creating such a risk. The comments with the postings did not target the victim or his family. Neither taking the photographs nor publishing them could show an intent to interfere with the course of justice unless that accorded with his understanding of the course of justice and what would interfere with it. We reject this submission.
  • First, we are sure that, although Parker-Stokes did not know of the CJA 1925, he did know that the use of a mobile phone was prohibited in court, and that would include its use for taking and publishing the resulting photographs. Parker-Stokes denied knowing that he was not allowed to take photographs at court, as he was “too worried about Ryan Sheppard to notice any signs”. We reject this evidence as plainly untrue. There were many and clear notices which he would have passed, during his idle time at the Crown Court, telling him what the position was. He was there for some time, and went into two courts. No one noticed him taking the photographs, which suggests that he took them surreptitiously; that was because he knew it was prohibited. He did read enough at court to enable him to go into a different court in the morning where he had seen that a friend was appearing over the video–link. He also managed to capture relevant parts of the signs in the photographs themselves – from which it is obviously to be inferred that he wanted to demonstrate his contempt for the prohibition, his deliberate defiance of it and his disregard for the proper administration of justice. He had experience of court precincts and procedures. He also had convictions for offences of dishonesty. Mr Willmott pointed out that dishonesty was not necessarily to be equated with untruthfulness and his previous convictions did not involve telling lies; however he also has convictions for offences which show a willingness to disregard court orders. Parker-Stokes did not attend to give evidence and to be cross-examined on the basis of his affidavit, and there were many questions which merited being asked. We are entitled to draw the inference that he did not attend because he had no good answer to them: how could he miss the signs? How could he have been so anxious as to miss them all? Did he not see them as he photographed them? How it was nobody noticed him if it were not done surreptitiously and if so why so? What did he think that the purpose of the prohibition was?
  • Second, we are satisfied that, just as he lied over not knowing of the notices, he lied over the absence of intent to impede the course of justice. He knew that the taking of photographs was prohibited. It follows that he must have realised that it was equally prohibited to publish prohibited photographs. He must have realised that the prohibition served the due administration of justice, even if he may not have known precisely how. We are sure that he understood well the problems which he risked creating if he were seen taking the photographs. The one of his friend on the video-link would also obviously have interrupted the proceedings. The ones taken during the sentencing hearing, aware as he says he was of the distress which the Facebook postings caused and which he had therefore not intended relatives to see, would have caused obvious distress and disruption as he was well aware, if he had been seen taking them.
  • We are also satisfied that he intended to impede or to risk impeding the course of justice by the publication of the image on Facebook. That demonstrated that he intended to show to his friends and associates that he had breached the prohibition, and had got away with it. He knew that, as the prohibition served the administration of justice, so its breach would impede it. His deliberate act intended what he knew would happen, putting the course of justice at risk in that or in some future case by showing that he could disobey a court order for his own and his friends’ amusement, and do so by adding his offensive comments supportive of a recently sentenced murderer. The comments which he posted on the Facebook entry are relevant to what intent we infer he had. He may not have intended that the relatives or the police or courts should see it. But he intended that his breach of the prohibition should be seen by others, among whom would be the criminal youth of his area. That is damaging to the course of justice in other cases as people realise that a protection for them can be breached, or court orders disobeyed for their own purposes.
  • Although our conclusion on these matters puts the guilt of Parker-Stokes beyond doubt, on the assumption that we accept Mr Willmott’s on the required intent, we will also express our view on whether specific intent is in fact required as we have heard full argument. We do so even though we consider that the lack of specific intent will rarely arise in practice, given the inferences that can generally be drawn.

 

 

But then went on to decide that specific intent was not going to be necessary  (although someone who is able to evidence, for example that they genuinely could not read the signs prohibiting photograpy – perhaps they don’t speak English or cannot read, could be found to NOT have committed contempt)

 

(d) Conclusion on the intent required for this type of contempt

 

  • The circumstances in which contempts of court arise are too varied, in our judgment, for one mens rea to be applicable to all forms of contempt. Nor is that the law. We are not concerned with contempt in publication cases, where there is no court order prohibiting publication, and what we say does not apply to it. Nor are we concerned with the sort of order or act involved in the Spycatcher or Leveller Magazine cases. Nor may all acts be readily pigeonholed in to one broad and general category of contempt or another. But we are concerned with acts which fall into the broad category of contempt in the face of the court or contempts closely related to such contempt.
  • The general description of the nature of contempt in Robertson and Gough, at paragraph [29] of its decision, is a good starting point: “conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”. The purpose of contempt proceedings is “effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”; Salmon LJ in Morris v Crown Office [1970] 2 QB 114, 129, cited by the Law Commission in consultation paper 209 “Contempt of Court” at paragraph 5.8. A judge must be able to control proceedings so that they do not get out of order. Contempt in the face of the court, suggested the Law Commission at paragraph 5.3, borrowing from paragraph 10.2 of Arlidge, Eady and Smith on Contempt concerns “some form of misconduct in the course of proceedings, either within the court itself or, at least, directly connected with what is happening in court”. Such contempt need not be witnessed by the judge, and the concept of the face of the court is interpreted broadly; the photograph taken in the canteen in Vincent D is an example.
  • Contempt in the face of the court may require speedy action, whether by removing or detaining a person or lawful warning that that may happen if an act is repeated. If a person is seen taking photographs, the court has to have the power to seize his phone, for the images to be checked and if necessary deleted, for any onward transmission to be prevented, and for the person to be removed from court to the cells for inquiries to be made, followed by any punishment later that day. In the overwhelming majority of cases, it will no doubt be readily inferred that the person deliberately taking photographs intended to interfere with the due administration of justice.
  • However there may be rare cases where that is not the inference; in such cases it should be no bar to those steps for the person taking the photographs deliberately to say that he was unaware of the CJA 1925, or that he had not read or understood the prohibitory notices, for example if he were illiterate or foreign, or that he had no intention of interfering with the administration of justice, but had tried to take his photographs unobtrusively, just wanting a personal souvenir. It is therefore necessary to decide whether a specific intent is required. In our view, it is not. It is sufficient mens rea that the acts must be deliberate and in breach of the criminal law or a court order of which the person knows.
  • No specific intent is required beyond that. The substance of this part of the common law is to enable courts to prevent and punish interference with the administration of justice by acts done in the face of the court. The intent required cannot depend on the foresight, knowledge or understanding which the ignorant or foolish might have of the ways in which his acts risk or actually do interfere with the administration of justice. The ignorant and foolish, who are unaware of the law or who read prohibitory notices but do not understand their purpose, and do not realise the risks which their acts may create for the trial or other court process, and who may be right when they say that the risk or the actual harm was not what they ever intended, could not be dealt with at all for contempt in the face of the court. Yet they may cause the most serious harm. A defence that the contemnor is not guilty because he did not realise what could happen, and intended no interference, would put the court proceedings at greater risk the more ill-informed the contemnor was prepared to say he was, or actually was. The power of the court to react swiftly to acts of this sort, which risk interference with the administration of justice, cannot be dependent on any further specific intent to interfere with the course of justice, without creating a serious risk of neutering the court in the exercise of its powers when it may need them the most.
  • The fact that the contempt may not be noticed at the time and may be dealt with by an application for committal as here, cannot mean that the same acts must be accompanied by a different intent for the contempt to be proved. The question of what mens rea is required is not dependent on the form in which the contempt proceedings are brought. (There was at one time a suggestion on behalf of the respondents, but rightly not pursued, that the provisions of CPR Part 81 provided some assistance on these issues. But that is misconceived; those procedural provisions do not provide or change the substantive law of contempt.)
  • In the case of the person breaching the criminal law, it is not necessary that he should know what the law is before his deliberate and illegal act, risking interference with the due administration of justice, can be treated as a contempt; no court order, whether in the form of a notice or not, is necessary for that crime to constitute a contempt. A person cannot defend himself by evidence that, ignorant of the criminal law and unaware of the prohibition on photography, he could not intend to interfere with the administration of justice. If there were no signs prohibiting the taking of photographs in the part of the building where the act takes place or prohibiting the use of mobile phones in court, and there may be none say in canteens, the court could not be left powerless to deal with the risk created to the administration of justice as a result of ignorance of the criminal law on the part of the person whose acts create or risk creating the interference. The same applies to publication of illegally taken photographs in the Facebook postings.
  • Where the act which constitutes a contempt in the face of the court, or one closely akin to such a contempt, is not a crime, the deliberate breach of a court order of which he has notice will be sufficient. It is not necessary that the person additionally intended by his breach to interfere with the administration of justice, though for the reasons we have set out and which were considered in Dallas, it will generally readily be inferred that such an intention is established. It does not matter in principle whether the order is specific, as in a judge’s direction to a jury on internet searches, or general, as in the public notices in court buildings. The latter are there, either reflecting the criminal law, or, where not, expressing what every judge requires and relies on to let the public and participants know what is required for the administration of justice. Where a person knows of the court order and deliberately breaches it, he knows that the prohibition which he breaches was put in place to prevent interference with the course of justice. Therefore, the questions whether the breach was knowing and deliberate and whether it was intended to interfere with the course of justice amount to the same question, even if the person may not have realised or understood quite how the administration of justice could be interfered with. He would know that it would be put at risk.
  • The Facebook postings may not be contempt in the face of the court, as we have observed at paragraph 31 above. There were obviously no signs saying that illegally taken photographs could not be posted on the internet or published in some other way. However, even if such publication is not a contempt in the face of the court, the required mens rea should be no different from that applicable to contempt in the face of the court. First, the deliberate publication of illegally taken photographs is a crime under the CJA 1925. Second, the taking of photographs does involve a contempt in the face of the court, and their publication is directly connected to the purpose and effect of that contempt; it may take place almost simultaneously. Third, the prohibition in notices on the taking of photographs and the use of mobile phones must carry with it by necessary implication the prohibition on the publication of what their use achieves. The publication of what are known to be illegally taken photographs must be regarded as a breach of the same prohibitions. It is also a form of contempt which, in our judgment, can be dealt with by the summary procedure, if the circumstances are apt for it.
  • The authorities support this approach to mens rea for this sort of contempt. We do not need to repeat what is derived from Vincent D, Ivanov and Robertson and Gough; they plainly support it. We gain no assistance from authorities which do not deal with this sort of situation. The real issue is whether Dallas shows that to be wrong, as Mr Willmott contended. Mr Watson submitted that Dallas was not a case dealing with contempt in the face of the court, for which the tests were different.
  • Dallas did not consider the mens rea required for deliberate acts which were not in breach of some order of which the contemnor knew, but which were in breach of the criminal law. Whether ignorance of the criminal law by the contemnor is described as providing no defence, or whether there is a presumption that a person knows the criminal law, the contemnor is taken to know of the existence of the criminal law, and so a deliberate act, which is an offence, is treated as a knowing breach of the equivalent of an order. If punishable as a contempt in the face of the court on the basis of a deliberate act, it is punishable also on an application to commit on the basis of a deliberate act.
  • The Divisional Court did decide in Dallas, in our judgment, that a knowing and deliberate breach of a court order sufficed to provide the mens rea of contempt. The oral exchanges, noted but not relied on by the Strasbourg Court, support what is the clear meaning of [38] and [39] of the Divisional Court judgment in Dallas. We are satisfied that Dallas in the Divisional Court is wholly consistent with the conclusion to which we have come. The Strasbourg Court did not regard it as changing the law. This explains why Davey and Beard, above, in its very brief introduction to the law, treated Dallas in the Divisional Court as no different from cases which had referred to the need for a specific intent.
  • The Strasbourg Court was right that there is no difference in that sort of case between the answers to the questions of whether there was an intent to interfere with the course of justice, and whether the breach of the order was deliberate and knowing. The need for some specific intent over and above the deliberate and knowing breach of an order, made for the protection of the administration of justice, is not required. It is proven in reality by the deliberate and knowing breach itself.
  • In Schot and Barclay, to which we have referred at paragraph 51 above, it was accepted that mens rea was required but it suggests, p398 C-E, that evidence that someone did not want to disrupt proceedings by refusing to reach a verdict, had provided evidence that they lacked the relevant intent, and it was also for question whether they had foreseen that the judge would discharge the entire jury, rather than just the two jurors, so enabling the trial to continue. The real issues in that case revolved around the procedure adopted by the judge, and the exposure of jury deliberations. The debate about mens rea would now have to be read in the light of the several later decisions, and ones more applicable to the sort of acts of contempt here. Spycatcher shows that intent and desire are different; what the juror wanted is not the issue. It is interference which must be intended, and the precise course of disruption which followed does not have to be intended or foreseen. The risk of interference appears not to have been considered at all. This decision is not now, in our judgment, of any real assistance in ascertaining the mens rea for contempt.
  • If a deliberate act which breaches the criminal law suffices, as in our judgment it does, then Parker-Stokes would have been guilty of contempt of court by the deliberate taking of the photographs and by the deliberate Facebook posting of one of them, even absent the specific intent we have found as established to the criminal standard of proof.

 

 

 

[Just the deliberate act of taking the photographs and posting them on Facebook was sufficient. ]

The men were convicted of contempt. They have not yet been sentenced, but I would expect a custodial sentence. Obviously the Court are going to be much sterner on a criminal trial, particularly on a murder trial, but it is a warning that photographs taken for the purpose of defying the Court and put up on social media run the risk of not just the £1000 fine, but a prison sentence.

 

 

Suspended sentence for woman who saw her son “too often”

 

I read this story on ITV news way back in December 2015, and it took 20 seconds of googling to suggest that there might be more to it than the headline suggested.

http://www.itv.com/news/2015-12-15/suspended-sentence-for-woman-who-saw-her-son-too-often/

 

Because the woman in question had a previous history in the family Courts, that history being that she turned up with a report from a psychologist that she had in fact forged, by writing it herself and the named psychologist knew nothing about it. And that she went to prison for perverting the course of justice. That’s pretty unusual, even in the circles of contentious private law proceedings.

 

This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X’s life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.

 

That of course doesn’t mean that she wasn’t the victim of injustice THIS time around, but it does mean that you might be somewhat cautious about taking her word for it.

Anyway, the committal judgment is now finally up.

Y v Najmudin 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html

 

The contact order provided for supervised contact, seven times a year.

Having heard evidence over a number of days both from the parties, from the children’s guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.  

 

The mother breached that order by making her own arrangements to see her son, clandestinely and without the knowledge of the father. She was not taking up her sessions at the contact centre, because she was making her own arrangements.

Evidence

  1. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
  2. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court’s order and to ignore it.
  3. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
  4. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
  5. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father’s home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
  6. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o’clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found.

 

Contempt of Court and right to silence

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.
  2. 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.
  2. Three factors, in my judgment, pointed very obviously and, in the event, decisively to that outcome:
  3. 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.
  2. 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:
  3. (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.

Inaudible and jigsaw identification [Contains Agatha Christie Christmas spoiler gag]

You may be aware of the President’s guidance on Transparency, which sets out those judgments which ought to be published on Bailii, which is a site that is available for members of the public to use as it does not charge a fee or require a subscription.  The guidance sets out that all committal judgments should be published, and that’s a laudatory aim. It must be right that if a Family Court or Court of Protection are sending someone to prison (or even if they were asked to do so and said no) that the facts are put in the public domain so that they can be reported and debated.

You may be less aware that I’ve seen five examples since the Transparency guidance was published, of judgments going up on Bailii for all to see where the anonymisation process was insufficient.  For example, I have seen the real first names and ages of the children accidentally go in, the real address and name of a mother’s boyfriend said to pose a risk, the real surname of someone accidentally go into the Reporting Restriction Order judgment saying that the surname was not to be revealed, and in the worst example, a case that ended with the children going off for adoption accidentally leaving in one paragraph the real name of the mother.  In each of these cases, I and others have contacted Bailii who acted very swiftly in taking them down and making the corrections.  It isn’t Bailii’s job to proof read the judgments – they publish the transcript that a Judge has sent them saying that “This is okay to publish please” or similar.

Accidents can happen.

The process is that the judgment is transcribed, the Judge checks it carefully and makes any corrections, and then the corrected version goes onto Bailii, where it is available for anyone to look at. Sometimes that careful process can be a bit slow – when there’s a story in the news and you know that there’s been a Court case sometimes that careful process means that it takes weeks to get the proper judgment available to read and discuss and the newsworthy event is long forgotten then, and whatever slant the Press put on it becomes the definitive version.

But of course, Judges are people, and people under pressure. They have to read huge amounts of material, have to make complex and emotionally difficult decisions, and they have to listen to lawyers drone on and on for about six hours a day, which must be pretty close to intolerable.

 

Being a Judge could drive you to U.N.Owen methods of resolving stress

Being a Judge could drive you to U.N.Owen methods of resolving stress

 

[Apologies to those who haven’t watched it yet.  Apologies to those readers who were hoping for the Aiden Turner towel photo instead of this one]

 

So you can see perhaps that a Judge pressed for time could miss a stray reference – redacting a document is tricky and it takes time and concentration – and usually a second pair of eyes.  I’ve no doubt at all that the mistakes I’ve mentioned above were just honest mistakes that slipped through. Nonetheless, even an honest mistake can still be costly to the persons involved whose privacy ends up being breached.

 

This one, however, doesn’t entirely feel like it was checked at all before it went to Bailii.

 

Newcastle City Council v P and ABC 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B193.html

 

A shame, because the bits that aren’t  (inaudible) are largely very good, and it raises an important and interesting legal issue about the extent to which in a committal hearing which is to the criminal standard of proof, hearsay evidence (which is admissable in Court of Protection and family cases) can be relied upon, and also where the primary source of the evidence is from a person who lacks capacity.  It could have been a very helpful precedent. I don’t think any lawyer could safely hand this up to a Judge and invite them to draw any conclusions, because there are just too many gaps.

 

I’m not meaning to single this particular Judge out for a hard time – I think it is more broadly indicative that in amongst the many pressures on Judge time, perhaps checking transcripts of judgments comes lower down on the list of priorities that the President’s guidance really made allowances for.

Re DAD (application for committal, flawed process)

Hell yeah

Thank you Holman J for the best case name ever. Re DAD.  [Although annoyingly, the case is really about an uncle rather than a dad…]

 

If you are doing a committal case, either for or against, this case will be worth reading and taking with you. Paragraph 10 of the judgment, as underlined, makes a very difficult argument to overcome, due to the standard orders being flawed.

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2655.html

 

In this case, the father had allegedly abducted his son in breach of a Court order, and the child having been kept away from the mother for over 8 months.  The mother obtained a Collection Order, which compelled the father to return the child, but it had not been possible to locate the father to serve it upon him.

 

However, the father’s brother was at a known address and an order was made in these terms:-

 

“(2) If [the father, who is specifically named in the order] and/or any other person served with this order is in a position to do so, he or she must each deliver the child into the charge of the Tipstaff.

(3) If the respondent 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 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.”

It is important to mention that paragraph 7 of the order later provides that:

“The obligations under paragraphs 2 and 3 above will continue until the Tipstaff takes charge of the child…”

 

Fairly traditional order, and I have written about a number of these cases where a relative knows where the child is and conceals it and then is committed to prison.

 

5…on Saturday 27th June 2015, police officers acting on the instructions and authority of the Tipstaff attended at an address at which Muhammad Nawaz Chaudhry was residing. I mention that, as I understand it, it is not in fact his own home, but he was residing there with a relative of his. Muhammad Nawaz Chaudhry is the brother of the father of the child and, accordingly, the uncle of the child. The police officers introduced themselves to Mr Chaudhry and produced a copy of the Collection Order in Form 2A and asked him for any information he could give as to the whereabouts of the child. In summary, and in effect, he said that he did not know where either the child or his brother, the child’s father, were. The police officers then telephoned the Tipstaff himself. The Tipstaff himself considered that Mr Chaudhry in fact knew more than he was revealing and, accordingly, that he (the Tipstaff) had reasonable cause to believe that Mr Chaudhry was disobeying paragraph 3 of the Collection Order in Form 2A. He therefore instructed the police officers to arrest Mr Chaudhry in obedience by the Tipstaff himself to the provisions which I have mentioned of the Collection Order in Form 2B, which are directed to the Tipstaff. Mr Chaudhry was then conveyed to the local police station in custody and brought before a judge here at the Royal Courts of Justice on the following Monday. He was further remanded in custody by that judge and only finally released from physical custody on Friday 10th July 2015. In other words, following the evening of his first arrest on Saturday 27th June 2015 until his first release from actual custody, Mr Chaudhry spent thirteen nights in custody; eleven of them in Pentonville Prison. On Friday 10th July 2015 he was released on bail subject to certain conditions. There have been subsequent adjournments of the application to commit him to prison and it has come before me (dealing with the matter for the first time) for substantive resolution today.

  1. The essence of the case of the mother in support of her application to commit is that there had been considerable communication by text and/or email and/or telephone between the father and Mr Chaudhry before, and in the months following, the actual abduction of the child. Accordingly, even if Mr Chaudhry did not and does not now know the precise whereabouts of the child, he certainly had “matters within his knowledge or understanding which might reasonably assist [the Tipstaff] in locating the child” which he certainly failed to give information about prior to his arrest on 27th June 2015 and which even now he has not been fully forthcoming about. So it is that the solicitors on behalf of the mother issued a formal application on 7th July 2015, which was subsequently amended on 16th July 2015, for Mr Chaudhry to be committed to prison for contempt of court. The formal application notice for committal, as amended, seeks that he be committed to prison for contempt of court “because Mr Chaudhry disobeyed paragraphs 3(a) and (b) of the Collection Order made…on 20th February 2015…” in ways which were described in supporting statements made by the solicitors for the mother.
  2. Pausing there, it thus follows that the matter for which I am asked to commit Mr Chaudhry to prison is very specifically that he has disobeyed those paragraphs of that order

 

 

In this case, counsel for uncle, very generously and fairly told the Judge that the best points of the uncle’s argument had been arrived at through hard work of the uncle’s solicitor.

 

 I should mention that appropriately, but generously, Mr Main-Thompson made very clear today that all or most of these points – which are made in his most excellent position statement and skeleton argument, dated 15th September 2015 – are points which have been generated by the input and researches of his instructing solicitor, Ms Maria Wright. She is a solicitor who is employed by Freemans, who act on behalf of Mr Chaudhry, and who herself has conduct of this matter. There are within that position statement and skeleton argument a number of important points with regard to the lawfulness of the Collection Order in the form in which it was made in this case. There is, in my view, however, one knockout point with which I will deal in a moment. Since I regard that point, even standing on its own, as completely decisive in this case, anything I were to say in relation to the other points would be what lawyers called obiter. It happens that there is very currently a thorough – going review of the form and language of collection orders. In my view, it is undesirable that I should express in judgment any view or comment which would be obiter about these other points

 

 

Always  nice when a Judge praises the hard work of a solicitor. Even nicer when he describes one of your points as a knockout one.

 

 

Hell to the yeah

Hell to the yeah

 

 

What’s the knockout punch?

 

  1. I turn, therefore, to what, in my view, is the decisive point for the purposes of the present application and the one upon which I base my decision and judgment today. The Family Procedure Rules 2010 (as amended) make provision in relation to applications for committal. So far as is material to the present case, the first rule in point is rule 37.4, which provides as follows:

    “37.4 Enforcement of Judgment, order or undertaking to do or abstain from doing an act

    (1) If a person –

    (a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

    (b) disobeys a judgment or order not to do an act,

    then, subject to…the provisions of these rules, the judgment or order may be enforced under the court’s powers by an order for committal”

    Pausing there, it is clear from the language of that rule that the power to commit is itself subject to the provisions of those rules. The next relevant rule is rule 37.9. That provides as follows:

    “37.9 Requirement for a penal notice on judgments and orders

    (1) Subject to paragraph (2) [which is not in point in the present case], a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

  2. Pausing there, I emphasise from that rule the words “prominently displayed” and “on the front of the copy of the judgment or order served”. I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years. The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011. I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them. But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.
  3. The standard form of collection order and the one used in this case extends altogether to six sheets of paper, although the third page is largely blank. There is nothing remotely in the nature of a penal notice at all on the first four sheets of the order. The fifth sheet is headed with the following words in capital letters: “Important notice to the respondent and to any other person served with this order”. There are then a series of number paragraphs 1 to 5. These are headed respectively:

    (1) Liability to be arrested;

    (2) Liability to be committed to prison;

    (3) Your rights;

    (4) The Tipstaff;

    (5) Interpretation.

    The font or print size used on pages 5 and 6 is exactly the same as that used throughout the whole of the order and there is no particular use of bold type face on pages 5 and 6. Paragraph 2 on page 5 under the heading “Liability to be committed to prison” does contain the following words:

    “Breach of any part of this order would be a contempt of court punishable by imprisonment or fine. Accordingly, whether or not the Tipstaff arrests you, you may be summoned to attend court and, if you are found to be in breach of the order, you are liable to be committed to prison or fined.”

  4. In my view 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 format of the Court orders, which Holman J has previously complained about, now mean that the vital component for a committal, that the front page of the order shows the person what they must do or must not do AND that the consequences for not doing it can be imprisonment.  At the moment, the first page is a lot of dry and dull rambling about who was present in Court that day and the dates of birth of everyone involved and yadda yadda yadda.

 

The Rules do provide a judicial discretion to proceed with the committal if there’s a flaw in the process but it is satisfied that no injustice would be caused to the defendant.

 

Here, the Judge considered that this did not apply.

14.  I do have a discretion under paragraph 13.2, but I can only exercise it “if satisfied that no injustice has been caused”. In support of her submission that no injustice has been caused, Ms. Chaudhry invited me to watch and listen to the video that the police officer made contemporaneously whilst visiting Mr Chaudhry and arresting him. As I understand it, this is a video made from some form of camera attached to the clothing of the police officer. I mention that, as that video forms part of the evidence or material upon which I base my decision in this case, I have ensured that it was available to be seen by the accredited journalist who is in the courtroom and the journalist has seen it. I would indeed have ensured that it was able to be seen by any member of the public who had shown any interest in this case and had been present at any stage during the hearing, although in fact there has been none. The whole duration of the visit by the police lasted about twenty minutes. I wish to stress that the two police officers appear to have handled this whole matter with the utmost courtesy and lightness of touch. From start to finish, there was nothing remotely heavy handed by either of them. Rather, they treated Mr Chaudhry with the utmost courtesy, respect and indeed patience, whilst ultimately arresting him with minimum formality. He went with them in the car, but at no stage was he placed in a handcuff nor handled physically in any way by the police. After being admitted to the house, the officers went into the front room immediately adjacent to the front door. They were holding two copies of the collection order and, therefore, a number of sheets of paper. They handed several sheets of paper, which I assume to be one copy of the six page collection order, to Mr Chaudhry, and the officer said “Have a big old read of that. There’s quite a lot there”. Mr Chaudhry sat down in an armchair and did for the next ten minutes or more hold the sheets of paper in his hand, but he hardly glanced at them at all. There is one moment in the video when he can be seen to be turning through the sheets of paper, but, even in that moment, he does not appear to have reached page 5, upon which such warning notice as this order contains is printed. At no stage, so far as I could discern, did either officer specifically draw the attention of Mr Chaudhry to that warning notice, nor indeed talk him through the language of the order at all. I do not say that necessarily critically of the officers; I merely record the fact that his attention was not specifically drawn to any particular part of the order and certainly not to such warning notice as appears on page 5. After the officers spoke on the telephone to the Tipstaff, they informed Mr Chaudhry that they must arrest him. They allowed him time to go upstairs and into the kitchen; and, as I have said, the whole process was gentle, orderly and sympathetic. As the two officers and Mr Chaudhry finally left the front door of the house, one officer said: “You can take the paper if you like so you can read it”. As Mr Chaudhry got into the back seat of the police car one can see that he did still have pieces of paper (which I assume are the order) in his hand, but there is no sign, at any rate at that stage, of his actually reading it. Before leaving the content of that video recording of the whole process, I mention that at one stage the officer said to Mr Chaudhry that “someone from the court will do a quick interview” with him. Frankly, I do not think that either Mr Chaudhry or either of the officers imagined for one moment, when they arrested him and took him away in the police car that night, that he was about to spend no less than thirteen nights continuously in custody. The picture and impression that was conveyed was that he would have to go to the police station under arrest and no doubt in custody perhaps for that night, but that he would then be visited and interviewed by “someone from the court” and probably released soon thereafter.

  1. The essential submission of Ms Chaudhry is that the officers did hand the order to Mr Chaudhry that day. The officer did say “Have a big old read of that” and an opportunity to read the order was undoubtedly afforded. Thus Mr Chaudhry might have been able to say to the officers “Please sit patiently while I now read through this whole order”. I have no doubt that if he had said that they would have permitted him to do so, but that is not in fact what happened. Further, Mr Main-Thompson has drawn my attention to paragraph 5 of the affidavit sworn by Mr Chaudhry on 12th August 2015. In that he says that he left school at fifteen before taking any exams:

    “I don’t have any academic qualifications. I was slow at school. I was always in the bottom set and I had extra classes, one to one with a teacher. Despite this I did not complete my secondary education. I need to read things, particularly official documents, many times before I can understand them fully. My spelling is not good…”

    The picture there is, therefore, of somebody with relatively little and unsuccessful education and no great ability to comprehend complex documents such as this order.

  2. Ms Chaudhry submits that I can, and should, be satisfied that no injustice has been caused to Mr Chaudhry by the defect that a penal notice in the required language was not prominently displayed on the front page of this order. Far from being satisfied that no injustice has been caused to him, I am personally quite clear that a great deal of injustice was caused to him. Rule 37.9 exists for a purpose. The purpose clearly is so that somebody in the position of Mr Chaudhry can see prominently and at once, the moment a lengthy order of this kind is given to him, what the gravity of the situation is and that he is at risk not merely of being arrested at the time, but of being committed to prison as a punishment for contempt of court.
  3. In my view, therefore, this is not a situation where I can waive the procedural defect. All applications to commit require proper adherence to the requirements of any enactment and rule of court. In the present case there is a serious defect in the order upon which the application to commit is based. I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious. In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application. For those reasons, the application issued on 7th July 2015 to commit Muhammad Nawaz Chaudhry to prison for contempt of court is struck out.

 

You may be reading this and think that it is potentially applicable to any order drawn up in the standard way, where the warning does not appear until page 5 of the order. And yes, it is certainly arguable.  Less so of course when the person is given substantial time to read the order before being in breach of it, and much less so if the person is present in court and represented when it was made and the Judge gives the warning about the consequences of breach. But yes, expect to see Re Dad being photocopied and handed out a LOT in committal cases until the standard orders get fixed.

 

And if you are drafting, until the orders get fixed, make sure you put the wording that’s normally on page 5 on the first page, in the biggest and boldest type that you can get away with.

 

Because at the moment, Re DAD is a

 

Don't push your luck in asking for the £200 though

Don’t push your luck in asking for the £200 though