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Alleged contempt, whilst in prison for contempt

 

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

 

 

 

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

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

 

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

 

(I wrote about THAT contempt here

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

 

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

 

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

 

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

 

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

 

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

 

 

 

Amongst the documents filed by the father was –

 

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

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

 

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The law

 

 

 

 

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

 

 

 

 

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

 

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

 

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

 

13.The following principles emerge from these authorities.

 

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

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

 

 

 

The facts

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

24.I consider it appropriate to grant permission

 

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

A witness talking over the lunch adjournment

I don’t often write about ancillary relief cases, but this one

 

JE (Husband) v ZK (wife) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B87.html

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”

 

[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.

 

Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.

 

The District Judge had found that the father was in contempt, and said in his judgment

Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.

 

Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.

 

Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.

 

 

[This Judge was more sanguine about the incident itself than the DJ had been

 

iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]

 

His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation

 

  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686

 

Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

What’s app Doc Crippen?

 

This is going to be a bit of a meander, I’m afraid.

What’s App, if you don’t know, is a communication device – it basically allows a subscriber to send many many messages to other users for a small annual fee (much much cheaper than text messaging). It has become very popular very fast, and as is traditional, Facebook has now swooped in to buy it for an obscene amount of money (even though the money they are willing to pay to own it would not be recouped on the current business model until the year 2525).  

The case of London Borough of Tower Hamlets v Alli and Others  

 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/845.html&query=whatsapp&method=boolean

turns on the evidence having been obtained through Whatsapp.

That in turn, reminded me of the role that Dr Crippen played in the development of wireless telegraphy, hence the meander.

Marconi was the driving force behind the popularity of wireless telegraphy, although many said that his role in inventing it was rather less than his publicity would have you believe, that he had stolen significant elements from other inventors. That was what led Marconi to be the first example of hacking, well before Anonymous and Lulz-Sec and even well before Matthew Broderick in Wargames.

Marconi was holding a lecture at the Royal Institution in London, a centrepiece of which would be his receipt of a wireless telegraphy message from the Marconi station in Cornwall. Things didn’t go quite to plan, as the message that actually came through was a rude couplet about Marconi

There was a young fellow from Italy

Who diddled the public quite prettily

 

Sent by a magician named Maskelyne, who had been hired by the cable telegraphy companies (who obviously had a vested interest in embarassing or discrediting Marconi’s rival model) and he had set up a radio mast nearby and found the wave length that Marconi would be using.

What really popularised wireless telegraphy was the famous murder case, where Dr Crippen murdered his wife and before the body was found had fled on a transatlantic boat to Canada, with his mistress Ethel Le Neve ( a name which manages to be simultaneously glamourous and dowdy, but was at the time probably just purely glamorous). The Captain of the ship suspected that two of his passengers (Ethel dressed as a boy) were the suspects in the murder case and managed to send wireless telegraphs to that effect.

 

Because of the slow journey time in crossing the Atlantic, the public were able, on both sides of the Atlantic, to follow the story in the press, and knew that on disembarkation the lovers would be arrested, due to the wonders of wireless telegraphy.

 

Okay, back to the case

 

This was a committal application (we seem to be getting a lot of them) arising from the mother in care proceedings disappearing with two children, who were the subjects of Interim Supervision Orders and living at home with her. There was to be a five day final hearing in the case, and the parents were both legally represented.

 

 

  • A final hearing of the local authority’s application for orders in relation to the children has been listed for a date in May 2014 with a time estimate of five court days. I wish to emphasise that at that hearing both parents will have, or have had, the fullest opportunity to contest the local authority’s application and call evidence of their own. They are entitled to public funding so as to ensure that they are represented by family lawyers. Indeed, I note from the court bundle before me that they are so represented. I should also indicate that at the parents’ request within those proceedings a number of family members have been assessed as potential future carers for the children in the event that the court concludes that the parents cannot continue to care safely for the children.

 

 

 

 

  • I do not propose to rehearse the background history of the public law case. It is sufficient for me to record in this judgment that the local authority has significant concerns about the safety and wellbeing of these two children in the care of these parents or either of them individually. The mother is said to be, or have been, a heroin addict; the father has also been dependent on non-prescribed drugs. That said, the social workers have been attempting to work with the parents in order to maximise the prospects of the children being raised within their own family.

 

The Court made orders under the inherent jurisdiction for the location of the children. Part of that order was that anyone who knew of their whereabouts was to provide the information.

By the terms of that order any person served with the order – and I pause here to observe that the mother and the father were both named specifically in the order – must (a) inform the tipstaff of the whereabouts of the children 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 children. Later on the 11th March the father telephoned Social Services to say that he had received a telephone call from, he believed, the mother, and had heard one of the children in the background.

 

On the 12th March, in the morning, two Police officers acting on the instructions, and as agents, of the High Court tipstaff, attended at the parents’ address. After a short delay the father answered the door, indeed on their account only opening the door when they announced that they were Police officers. The officers asked where the mother was. The father claimed not to know. He told the Police officers that the children were “with their mother“. He told the officers that he had last seen the children and the mother on Sunday, the 9th March, and that his wife had taken them to school on the morning of the 10th March, though he had not in fact seen them leave. There is a discrepancy between the Police officers as to whether the father had actually said that he had seen his wife and the children on Monday, the 10th. I do not find it necessary to make a determination on that discrepancy. When challenged by the officers with the fact that the children were missing he said, “They are not missing, they are with their mother“. He told the officers that he had been separated from the mother for two weeks. He said that although he had known that they were missing for, by now, 48 hours, he had not reported them missing to the Police. He said that he had telephoned family members to inquire specifically naming two brothers, but could not provide the relevant phone numbers of those brothers. I interpolate here to say that the father’s brother told me this morning on sworn oral evidence that he had not in fact spoken with the father on the telephone in this period. There was evidence of the children being in the flat, coats on coat hooks in the hallway, children’s toothbrushes in the bathroom. The father handed the Police officers his mobile phone. It is reported by the officers that the father generally appeared evasive. The officers contend that they had reasonable cause to believe that the father was in fact withholding information about the mother’s and children’s whereabouts. After a telephone call to the High Court tipstaff they arrested the father. The property was searched but the children’s passports were nowhere to be seen. The father said that he did not know where they were (this was of course different from the information he had given the social worker). When the father was arrested he is reported to have asked how long he would be in custody, “because I am supposed to be going on holiday“.

 

Now the What’s App stuff

 

 

  • he father was brought to court on the 13th March, the following day, and at that hearing Russell J remanded the father in custody to today’s hearing. She made further orders requiring the attendance at court today of other family members. Pursuant to her order, the notice of committal was issued later that day and served on the father, as I have said, on the following day. This notice contains the following alleged breach of the location order:

 

 

 

“That the Respondent father has knowledge or information pertaining to the whereabouts of the children. He has given differing accounts to the local authority and tipstaff.”

 

 

  • At the outset of the hearing today I was advised that the father’s mobile telephone, seized by the Police on the 12th March, as indicated above, contained a number of ‘whatsapp’ or text messages in Bangladeshi or Sylheti and in English, and a recently sent photograph of Samira. The dates of the text messages appear to span a number of weeks. I put the case back so that an interpreter could be located to translate the text messages for the court.

 

 

 

 

  • In the meantime I heard brief sworn oral evidence from the father’s brother. He told me that he had a “feeling” that the mother and children were in Bangladesh but advised me that this was not because he had been told this but simply that the mother had travelled there in the past.

 

 

 

 

  • The evidence laid before the court by the local authority now reveals the following, that mobile telephone text messages or ‘whatsapps’ had passed between the father and his nephew, a man called Shahed, in Bangladesh in a period which spans about six weeks. It now transpires that the father believes that the mother is having a relationship with Shahed. In that period it appears that on one occasion the father had sought to send Shahed some information or documents by email or text but had not been able to do so. On the 18th February a number of pictures with typed text on them, possibly court orders, were exchanged by text. On the 8th March, that is Saturday of last weekend, the father received a ‘whatsapp’ message from Shahed which reads:

 

 

 

 

“On the way Dacca … need more 6 hour.” 

 

There is then a selection of photographs one of which is of Shahed in a car. On the following day, the 9th March, the father sent a message to his nephew, Shahed, which includes this phrase, “Anyway, tell my sister-in-law [the word in Sylhet was Babi, and the father told me that he could not say that it was not a reference to his wife] to enjoy the sex I could not give“.

 

 

  • The father on the 11th March at 0736 received three photographs from the mobile telephone of Shahed in Bangladesh. Two of those photographs are photographs of Samira. The local authority asserts, with considerable justification, that these text messages very strongly indicate that by the morning of Tuesday, the 11th March, not only was Samira in Bangladesh but the father must have known that.

 

 

 

 

  • The father gave evidence before me this afternoon. He told me that he could not now recall when he had last seen the children. Possibly it was Saturday 8th, or possibly Sunday 9th March. He ascribed his loss of memory either to a 2008 head operation or alternatively the after-effects of a tooth operation which had been conducted some time on the 4th March. He was now confused, he told me, whether the mother had taken the children to school on the Monday morning. If she had done so it would, on his case, have been during a time when he and the mother were in fact separated and she was living away from the home (though he did not know where). He believed that his wife and Shahed, his nephew living in Sylhet, Bangladesh, are engaged in a relationship. He had in the past seen messages from Shahed to his wife and had confronted Shahed and his wife about this in the past. She, Mrs. Khatun, had denied it, but the father went on to tell me that the mother had been to Bangladesh twice on her own to stay with Shahed, once in April 2012 and again in September 2012. Significantly, he told me that he first suspected that the mother and children had in fact fled abroad to Bangladesh sometime on Tuesday, the 11th. He told me because he was calling her and when he called her mobile phone he heard a different ring tone. He told me that when she did not pick up the phone he sent her texts. These texts have been read to the court. In the early hours of the 11th March he sent a text to the mother which includes these terms:

 

 

 

 

I’m so stupid and naïve that everything was happening in front of my eyes but did not see. Anyway, I hope you are getting enough now because you have a lot of load to offload if you get my drift. Anyway, enjoy the passionate making out and don’t worry you get pregnant because I’ve taken the long-term precaution … Love you still. 

 

He goes on:

 

 

Good luck with your new good looking husband and please don’t bullshit me that it was just a phase because I know that you got married to this guy. 

 

In the early hours of the following morning, the 12th March, about eight or nine hours or so before the Police went to the father’s property, the father texted the mother again.

 

 

I can’t believe you forgot. I went out begging for money because we didn’t have any after doing all this for you. You still deceive me. I hope it was worth it … 

 

And then two minutes later:

 

 

Sorry for all the trouble I’ve caused you so forgive me, my love.” 

 

 

  • As is apparent from my earlier account of the history, the father did not tell the Police on the 12th March that he knew or suspected that the mother was with Shahed in Bangladesh. He told me that he did not tell anyone, he does not know why he did tell anyone, but he thought he may be able to sort it out. In relation to the text from his nephew, “On the way to Dacca“, the father unconvincingly told me that, “I thought he was on a trip or something“. The father told me that he did not see the 11th March message from his nephew with the photographs of Samira even though these had been received by his phone for 24 hours or more before the Police went to his property and I know, as the father has accepted, that he used his phone and the ‘whatsapp’ facility on it to communicate with his wife at least twice since the arrival of those photographs.

 

 

With all that in mind, the evidence against father was damning. The Judge made his decision

 

 

  • Having regard to the totality of the evidence, I am satisfied beyond reasonable doubt that when served with the location order on the 12th March the father had knowledge which might reasonably assist the tipstaff in locating the children. I so find for the following reasons:

 

 

 

 

(a) first, that the father has himself admitted to believing that the children and the mother were abroad in Bangladesh as early as Tuesday, the 11th March. His text messages to the mother are clear evidence of this. 

(b) In fact I find that the father, beyond reasonable doubt, suspected that they were in Bangladesh before that time.

(c) I further find that the father had received and seen the photograph of Samira (taken in Bangladesh) on the 11th March shortly after it had arrived, certainly well before the Police attended at his home.

(d) I find that the father deliberately misled the Police in declining to assist in disclosing what was a high probability in his own mind that the children and the mother were in Bangladesh at the time that they questioned him about it.

 

The only issue that remained was what sentence would be passed

 

  • Mr. Ali, will you stand, please. Mr. Ali, it appears almost certain that your wife has left this country with your two children who are the subject of court proceedings. I suspect, but do not find, that if she has done so it has been to frustrate the due process of the law and specifically to avoid participation in the court hearing at which the Family Court would be considering the local authority’s concerns about the wellbeing of the children. You have said yourself you believe that the mother is a heroin addict yet you have failed, as I have found, to assist the court in attempting to locate these children, allowing the children to remain in the care of their heroin addict mother without supervision by authority.

 

 

 

 

  • On the 11th March, Mr. Ali, I made orders designed to trace and locate these children, and once located to restrict their movement while decisions were made about their immediate futures. As you will have just heard, I did not make orders at that time permitting their immediate removal into foster care. However, you, Mr. Ali, have deliberately withheld and, in my judgment, continue to withhold information which could lead to the whereabouts of the children. You have obstructed the Police, you have obstructed Social Services, and you have obstructed this court in our joint endeavour to trace your missing children. It is your obstruction of the court order which provokes this application for committal.

 

 

 

 

  • Mr. Ali, untold damage is done to children who are spirited away from one home to another, let alone from one continent to another, without warning or preparation. Disruption to their routines, the predictability of their lives, their family relationships and social relationships and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot, and should not, go unpunished. Parents who seek to protect those who remove children in these circumstances, who deliberately obstruct the due administration of justice, and knowingly breach court orders should also expect to be punished appropriately by the court.

 

 

 

 

  • I accept, Mr. Ali, that there is no evidence of your involvement in any preplanning of this trip to Bangladesh, but you have, in my finding, deliberately obstructed the due administration of justice and, by your lies to the court today, continue to do so.

 

 

 

 

  • I have taken into account your home circumstances, that you presently assist in caring for your elderly mother, but the sentence which I impose has to be a custodial sentence to reflect the gravity of your breach.

 

 

 

 

  • The sentence I impose is one of four months imprisonment. You will serve one-half of that sentence.

 

 

London Borough of Ealing v Connors (committal hearing)

I wrote recently about a committal hearing arising from a breach of orders made in private law proceedings. This is one that relates to public law proceedings. The committal hearing was held in open court, thus it is possible to report the names of those involved.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3493.html

 

The background which led to orders being made on these children is very worrying. The Court report it in this way

    1. This matter concerns two girls, A born on 12th October 1999, who will be 14 years of age tomorrow, and B, born on 22nd November 2001, who is now 11 years of age, nearly 12. The Respondent is the mother and the father has taken no part in the proceedings. The children have an older brother C who is now 16 years of age. There are seven half siblings as a result of the mother’s previous marriage, or relationship.

 

    1. Both of these young girls were made the subject of emergency protection orders on 23 September 2013 and interim care orders on 1 October 2013. Both of those orders were accompanied by recovery orders as the girls had gone missing and their location was unknown. Immediately prior to the emergency protection order on 23 September 2013 they had been living with their mother. Neither child has been seen since 23 September 2013. On the application of the Local Authority on 8th October 2013 I made a Collection Order to assist the Local Authority in seeking to locate the whereabouts of the children.

 

    1. There is a background to this matter which is carefully set out in the case summary provided by the Local Authority. In summary, there has been involvement between this family and the Local Authority since about October 2012, following A being admitted to hospital with suspected meningitis. Further investigations were undertaken in relation to her medical position. She is currently under treatment for rheumatic fever and requires monthly injections of penicillin. Since May of this year there has been inconsistency in relation to her attendance for these injections. She missed her August injection, was late for her September injection, and, as far as I am aware, has not had her October injection. So the medical position in relation to A is extremely worrying.

 

    1. The Local Authority have sought to engage with the mother around issues concerning lack of school attendance and A’s behaviour. Unfortunately, that has not been very fruitful. There have also been issues in relation to domestic violence within the home with the father. He is reported not to live at the home, but attended there in April when there was an incident and he was asked to leave by C. The father damaged the property and left before the police arrived. C has been arrested in relation to a criminal matter concerning a burglary, and has been bailed back to the home.

 

    1. The matters that precipitated the issue of these proceedings occurred on 19 September when it is alleged that A was assaulted by being kicked repeatedly and punched by C and her father in the family home. At the time of the incident those present were A, C, the father, the mother, and a five year old niece and young six month old nephew. A reported that the brother and father had called her a prostitute and accused her of sleeping with her uncle. It is alleged that during the argument C specifically put on steel toe capped boots to carry out the assault, and it is alleged that the father punched and kicked her, pulled her hair, and threatened to kill her.

 

    1. The mother was noted to be intoxicated by the London Ambulance Service when they attended, and A was observed to be shaking, crying and extremely distressed. There was swelling on her leg, redness to her face and ribs, and she was taken to hospital and kept overnight. It is clear from the examinations that subsequently took place there were a number of injuries on A’s body which are consistent with the account of assault that had been given, including bruising, grazing, and areas of redness in various parts of her body. A was discharged to the home of her cousin K on 20th September.

 

  1. The whereabouts of B are unknown. C has been bailed in relation to the assault back to the home address. The question of police protection was discussed. The Local Authority undertook home visits on 20 and 23 September. The mother was not at home, and it had not been possible to contact the mother. On 23 September the EPO and recovery orders were granted without notice.

 

Over and above the concern then that children whom the Court had determined there was reasonable grounds to believe had suffered significant harm, in the form of both assaults from adults and intoxication of their main carer, there were considerable health reasons why A needed to be found so that her treatment for meningitis could be resumed. It is no great surprise that the Court made what is called a Collection Order (this being one of the powers of the High Court, to authorise an officer of the Court known as the Tipstaff, to conduct investigations as to the whereabouts of a child and to recover them if possible. I like to think, personally, that the Tipstaff looks like the motorcycle cop robot from Terminator 2.   I note from a quick search for information on Tipstaffs/Tipstaves that they are the only people permitted to arrest a person within the precincts of the Royal Courts of Justice – which given that there are only two of them and it is a massive, massive building, is slightly unnerving)

In terms of that investigatory/recovery process, the Court said this

    1. This matter came back before me the following day, 9 October, because the Tipstaff had arrested the mother on the Tuesday evening for alleged breach of the Collection Order. The actual order required her to deliver the children into the charge of the Tipstaff, or inform the Tipstaff of the whereabouts of the children, or in any event inform the Tipstaff of all matters within her knowledge or understanding which might reasonably assist the Tipstaff in locating the children.

 

    1. The record in relation to the visit when the mother was arrested states that the police officers attended the address and spoke with the mother. She informed the police that the children were with Paddy and Mary in Manchester and she had no contact details for them. Further, she said that the children may now be with a different unknown family. The suggestion by the mother that she did not understand the terms of the order, and that she may be arrested, is not supported by that account because she must have clearly understood the terms of the order requiring her to give information otherwise she would not have given the information that she did. So as of Tuesday evening that was the information that the mother had given.

 

    1. When she attended court on 9 October and was asked by her legal team about the whereabouts of the children she said that they were with her sister-in-law, BC at an address in Edgware. She gave oral evidence on that day when she said she had not seen the girls since 23 September but had “heard” from others that they had been in Manchester with her cousins, Paddy and Mary. She said she had been told by one of her older daughters, called M, that the children had returned to London on Monday of this week and were staying with BC. Her daughter M told her she had seen them there; she had seen them playing outside BC’s home.

 

    1. When the police attended on the Tuesday evening the mother agreed she knew what the order required her to do, but she did not disclose this important information as to the whereabouts of the children to the police. I remanded the mother in custody on Wednesday until the following day so that the police could make enquiries at BC’s address to see if the children were there. They attended at BC’s property on three occasions; once at about 9 o’clock on the Wednesday evening, when BC was there but denied that she had the children; again in the early hours of the morning of 10 October, when there was no response to their knocks on the door; and, finally, yesterday afternoon when BC was arrested. BC was going to be brought before me this morning, but I have been told this morning that she had been taken ill overnight and is currently in hospital waiting to be seen by a consultant.

 

    1. Once it became apparent yesterday afternoon that the children were not at BC’s home I heard further oral evidence from the mother. She was adamant that the children were with BC. I remanded the mother in custody again to this morning as it was expected BC would be brought to court.

 

    1. In her oral evidence given on Wednesday and Thursday the mother accepted that there have been many opportunities when she could have produced the children, but did not do so as she did not want them to come into care. She accepted that at any time she could have got the children back. She maintained she had no address or phone number for Paddy or Mary, who allegedly had the children in Manchester. She further maintained that she did not have A’s mobile telephone number, although she did accept that A had a mobile phone. She revealed that when the police sought to execute the recovery order at BC’s home on about 23 or 24 September, after the EPO was granted, the children had in fact been there but they were hiding; and that is why they were sent to Manchester. The mother said in her oral evidence that she would now co-operate with the Local Authority and that she was concerned about A not receiving her injections.

 

    1. When the matter was listed before me this morning counsel for the mother, Mr. Nosworthy, who has been present at all the hearings made an application that I should adjourn this matter until the court could hear from BC. I rejected that application, for the reasons that I have given earlier. Importantly, on his instructions, he said that if the mother is given the opportunity to speak to K (who is the daughter of BC) and gives the instruction for the children to be brought to Social Services they will comply with her instructions. She believes K will be at BC’s accommodation looking after BC’s children. Mr. Nosworthy stated as follows:

 

“Once the mother relays her permission that the children are to be brought to Social Services whoever has them will do so.”

  1. That demonstrates to me that this mother has always known where these children are, she has always known that they would be able to be brought back at her command, but for reasons which are known only to her she has chosen not to do that.

 

The issue then was whether this conduct on the part of the mother amounted to a breach of the Collection Order punishable by committal for contempt.

    1. I remind myself, of course, that the test in this matter is that I have to be satisfied to the criminal standard, namely, that it is beyond reasonable doubt. I have to be satisfied so that I am sure. Having seen the mother it is quite clear there are strong emotions felt by her about the orders made by the court regarding the children and she opposes them. Her lack of co-operation with the court process to date in locating the children supports that view. I have made clear to the mother that any orders I make today are not final decisions about the children, those are for another court on another day. It is extremely regrettable that due to the circumstances of this application, and the mother’s behaviour, a hearing set in Willesden County Court for today to consider a contested interim care application cannot take place. The mother has failed to act in the children’s interests by denying them the opportunity to attend that hearing.

 

    1. I am satisfied so that I am sure that this mother knows perfectly well where these children are, or at least where they can be contacted or located and she knew that when she was arrested on Tuesday. She acknowledged as much in answer to questions from Ms Hall in her oral evidence yesterday, when she accepted that she could have got the children back any time prior to her arrest by the Tipstaff if she wanted to. Despite saying that she has refused to give any details about the whereabouts of the children other than them being at BC’s house when clearly they were not. She told the police on 8 October, just prior to her arrest, that they were in Manchester, which on her own account to the court the following day was a lie.

 

    1. I have reached the conclusion that it is inconceivable that as their mother who had their full time care prior to 23 September she has taken no active steps to find them or speak to them. Her evidence is inherently unreliable due to the inconsistencies in her accounts, coupled with her acknowledgment that she does not wish the children to be placed in care. In that context, her expressed intentions of future co-operation with the Local Authority rings very hollow. That is reinforced by the submission made by her counsel, on her express instructions this morning, that once she relays her permission to the family that the children should be produced at Social Services they will do so. That, in my judgment, makes it very clear it is within her control to ensure that these children are produced to the Local Authority and she has failed to do so.

 

  1. Therefore, I am satisfied so that I am sure she is clearly in breach of paragraphs 2 and 3 of the Collection Order that I made on 8th October, and she has failed in the continuing duty to provide information in relation to the whereabouts of the children.

 

There then followed a plea in mitigation (i.e mother’s lawyer setting out the reasons why this breach should not result in imprisonment, or if it did, that the sentence should be lenient.

    1. Mr. Nosworthy has very thoughtfully and eloquently made submissions on behalf of the mother in relation to the sentence that this court should impose in relation to the contempts that I have found. He has very properly referred me to the case of Hale v Tanner, reported at [2000] 2 FLR 879, and the guidance that is given in that case, in particular at paragraphs 26 and 29, and the summary in the head note in relation to the matters that the court should take into account, and I do take those matters into account.

 

    1. In mitigation he says that the mother has a clear sense of remorse, which of course I accept at face value, but I have to take into account that that remorse has not been coupled with any kind of direct action by her to assist in recovering the whereabouts of these children. He also says that the evidence is clear, she has failed to co-operate in the past but now wishes to co-operate. Again, I understand why that submission is made, but there has not been co-operation in relation to locating the whereabouts of these children.

 

    1. In relation to the cultural background, whilst of course that is an important consideration that the court has to bear in mind, in particular the concern by this mother that she may be ostracised by her community if she worked together with the Local Authority. Whilst it is a factor it does not give her an entitlement to be able to disobey orders of the court.

 

    1. I accept the difficult background this mother has had, as is clear from the papers that I have read, which have included unhappy relationships with her partners, and also difficulties with a number of her children. I also take into account that she has, I think, two other children living with her, C who is 16 years of age, and M, who is 24 years of age. But I look at that in the context of what has been clear in this case, there is a wider family that step in and support where necessary.

 

  1. I take into account the mother has spent three days in custody, and also that there may be difficulties in relation to her rental payments and practical matters as regards her living accommodation. However, I am very clear that the message needs to go out loud and clear in relation to court orders relating to the whereabouts of children. It is an extremely serious matter when the court is unable to trace the whereabouts of children, and it is particularly serious when the court is unable to do that because the person who can assist in that will not provide the help to locate the children.

 

The Court imposed a custodial sentence of 28 days, taking into account the 3 days that the mother had already spent in prison, but reminded her that if she remained in breach of the order (by not providing the details of where the children were) that a further application for committal could be made and that the maximum sentence would be 2 years. The Judge urged the mother to consider her situation, and that she could purge her contempt at any point (comply with the order, apologise, and be released/have her sentence reduced)

 

It is worth noting that however much you disagree with orders made by the Court, and however much you want to fight those orders, there are significant consequences and risks for taking that challenge or fight out of the Court room and taking things into your own hands.

 

I suspect the Tipstaff can't turn his arms into metal knives. he wouldn't get through the security checks at the RCJ entrance

I suspect the Tipstaff can’t turn his arms into metal knives. he wouldn’t get through the security checks at the RCJ entrance

Inconsistent statements and eating more porridge than Orinoco Womble

The decision of the Court of Appeal in Re L-R (Children) 2013, which was an 18 month sentence for not giving evidence

http://www.familylawweek.co.uk/site.aspx?i=ed117035

The case involved the appeal of a father from a committal for contempt for his refusal to give evidence in care proceedings during a finding of fact hearing and he received an 18 month custodial sentence as a result of the committal.

I have written before about where section 98 stands, now that section 119 of the Criminal Justice Act 2003 allows for evidence of inconsistent statements to be used in criminal proceedings.

Section 98 is designed to do two things – firstly in subsection (1) to compel a parent to give evidence in care proceedings and (2) to ensure that their right to silence in criminal proceedings is preserved by ensuring that the evidence they give in care proceedings can’t be used against them in criminal proceedings.

98 Self incrimination
(1)  In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from—

(a)  giving evidence on any matter; or

(b)  answering any question put to him in the course of his giving evidence, on the ground that doing so might incriminate him or his spouse or civil partner of an offence.

(2)  A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse or civil partner in proceedings for an offence other than perjury.”

In the writer’s humble opinion, the intention of section 98 is a very important one. In order to properly and fairly decide matters relating to children it is vital that the Court hear frank and candid evidence from parents, and in order that they feel able to give that evidence with candour and honesty it is vital that they be able to do so without fear.

The father in this case, and other parents in other cases where criminal proceedings are pending or contemplated, are receiving conflicting legal advice. Their family lawyers are telling them of the need for frankness and candour, and the criminal solicitors are warning them that if they speak frankly and candidly, those words might come back to bite them in criminal proceedings.

It is therefore very disappointing that when given the opportunity to resolve this tension, or to indicate that in relation to evidence given in court in family proceedings, s119 CJA might be incompatible with Article 6, the Court of Appeal firmly pushed the problem over to the criminal courts.

16. In this appeal we have been invited to give guidance on the approach to be taken in this regard where there are concurrent criminal proceedings and family proceedings.  For my part I do not see that the issue arises in any form on the facts of the present case where, as I will in due course relate, Mr K effectively provided no material information to the Family Court that might fall for disclosure into the criminal process.

17. Going further, and looking at the matter more generally, the position as a matter of law and practice in the Family Court has been well settled since Re EC.  If problems are to arise, they are much more likely to surface in front of the criminal judge in the Crown Court and relate to how any disclosed material is to be deployed in the criminal process.

18. As such it seems to me that this civil court, both on the facts of this case where the issue simply does not arise and more generally, should resist the encouragement to give general guidance on this topic. 

In doing this, and in upholding both the committal for contempt for not giving evidence and the sentence, the Court of Appeal have put parents and those representing them in a considerable spot.

In the family proceedings, the parent must give evidence – if they do not, not only will adverse inferences be drawn, but they may be committed for contempt and face a custodial sentence. That sentence might be 18 months. Their family lawyer MUST therefore advise them to give evidence.

But it is uncertain whether that evidence can be deployed by the police and CPS in a criminal prosecution IF it shows that the parent has given an inconsistent statement.   (If father gives a no comment answer in police interview, but answers the same or similar question in the family case, that appears to me to be capable of being an inconsistent statement)

That being the case, their criminal lawyer would have to advise them that for the purposes of the criminal trial, it would be better for them not to give evidence in the family court.

Until such time as a criminal court decides – yes, s119 CJA 2003 overrides s98 Children Act 1989 and that the evidence of an inconsistent statement can be used in the prosecution of a parent for an offence other than for perjury, OR determines the opposite, a parent may very well be unwillingly waiving their right not to self-incriminate and their right to silence. They are at least taking the risk that they might be.

Imprisoning someone for following legal advice doesn’t sit too well with me. I hope that the criminal courts do address this issue soon.  I suspect that if and when they do, it will be in favour of s119, not s98  – the criminal courts are certainly far more familiar with the former than the latter.

The other approach is for the family courts to row back from the previous policy of generously giving the police information and material that might inform their investigation, pace Re EC [1996] 2 FLR 625 which established that the Family Court can and often does disclose transcripts of oral evidence given, or copies of witness statements provided by parents or other records in expert reports or social work documents of what parents have said into the criminal process.

That case of course, was decided on the basis that the parents were protected wholly from self-incrimination by s98, which may no longer be the case.