RSS Feed

Tag Archives: perverting the course of justice

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.
Advertisements

Faking medical evidence

 

This is a County Court case (if there is such a thing any more, I have largely decided to ignore most of the Children and Families Act 2014 and just wait for the reboot restoring all the terminology to the way it was). So it isn’t precedent, and isn’t one of those case that you HAVE to read.

 

It is unusual though, and I am grateful to one of my readers (waves at Cara) for drawing it to my attention.

 

Re E (a child) 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B136.html

 

This is a private law case, albeit one with a Social Services flavour. In effect, when mum and dad separated and got themselves embroiled in an argument about contact (see, I told you that I was just going to ignore the new terminology) dad started to become enamoured with the idea that if he could show the Court that mum was abusing the children, that would improve his own case.

 

In part, this involved him making a series of allegations to his GP, Dr C, and getting Dr C to take up the battle on his behalf and trying to get Dr C to make referrals to Social Services about how mum was abusing the children. That’s not nice, but it isn’t necessarily unlawful.

 

What IS unlawful, is that when the father produced documents to the Court  provided by Dr C and signed by Dr C, they were partially faked.

 

There were a string of findings that the Judge was invited to make, but these are the pivotal ones for our discussion

 

 

    The father has perverted the course of Justice:

 a)              The father has amended and/or created a false statement purporting to be from his GP, Dr C dated 4 October 2013, and forged his signature on the statement and then filed and served the statement with the court;

 b)                 The father has amended and/or created a false second page to a letter originally written by Dr C dated 15 August 2013 and forged his signature upon the letter then filed and served the letter with the court in support of his application to call Dr C to give evidence. Both allegations are admitted by the father.

 c)               Altered the recording of E that he played to the police and to Dr C and presented it in edited form with the court to present a dishonest and/or misleading account of the original content. The father admits this allegation save that he does not accept producing a dishonest account.

 

 

For reasons that I cannot fathom at all, having produced this fake evidence from Dr C, the father was very keen indeed for Dr C to attend Court and give evidence. There’s a phrase ‘cognitive distortion’ which relates to when someone is so deep into their own lies that they start to believe them, and I can only think that this father for some reason thought that calling Dr C as a witness in the case was not (as you or I would think) a sure-fire way of exposing the documents as being fake, but in some way going to improve his case.

 

On 11 February 2013 [location redacted] Social services sent an email to Dr C informing him that Mr P had contacted them and had suggested that he, Dr C, had further concerns about E. They asked him to complete a referral form if that was the case. The doctor completed the referral form in which he stated:

 

“ The actions of the mum towards E are causing concern to E and the father R. Including withholding medicines, safety issues making her cross the road on her own, leaving her outside in the street, forcing cough syrup….” The father admits tippexing out the words which followed this entry before he filed the document with the court.

 

 

[Tippex is perhaps not the most sophisticated method of forging a document. It is rather beneath the level that one expects of a forger. Colin in The Great Escape, for example, would not have stooped to using tippex to create his German identity papers for those escaping POWs]

 

The father within the proceedings had also involved the media

 

 

During the course of these proceedings the father on two occasions threatened to tell his story to the press. On two occasions two judges, DDJ Murphy and HHJ Allweis warned him not to do so. However on [date in early 2014 redacted] 2014 an article appeared in the [name of newspaper given] in which the father’s account of his battle for residence and contact are repeated alongside a pixilated photograph of himself and E. Although the names were changed it was not too difficult for anyone in the relatively small local Jewish community to identify the parties. He gave the reporter details of her school so that the head teacher was interviewed. Her mother was also approached by the reporter.

 

In his statement the father acknowledged that what he did was wrong. The consequences for him have been stark as E has now refused to see him and the future of his contact is now uncertain.

 

 

The Judge gave judgment specifically on the consequences for father of having falsified documents lodged with the Court and relied upon

 

The father’s action in respect of the falsified documents

 

With regard to the falsifying of evidence. I find that the father falsified the letter from Dr C dated 15 August 2013 addressed to [location redacted] County Court at page C182 in the bundle by amending the second paragraph the paragraph at the bottom of page C182/3. He then forged the doctor’s signature. Thereafter he filed the document with the court as part of his evidence in the case. The letter which Dr C had signed is to be found at C 183(a).

 

I find that the father submitted a statement dated 4 October 2013 which he knew to be false in that it had not been approved or signed by Dr C purporting it to be a genuine document knowing that it would be used in litigation in the private family law proceedings being conducted in the County Court. This to be found at page C201.

 

The consequences of his actions are that there could have been a miscarriage of justice which could have affected the welfare of his daughter.

 

This is a serious and potentially criminal act. I have come to the conclusion that it warrants reporting the matter to the DPP for her to consider what if any action to take. A copy of my judgment and copies of the letters dated 15 August 2013 and the statements dated 4 October 2013 and 10 October 2013 shall be disclosed to the DPP or the police.

 

 

The Judge was also invited by those representing the mother to consider a referral to the General Medical Council in relation to Dr C, who had become embroiled in the litigation and had neglected his duties of fairness and safeguarding. Dr C had also learned that the father had submitted a fake document to Court but had left it up to father to own up rather than alerting the Court to this deception.

 

 

The role played by Dr C

 The mother supports the guardian in submitting that the doctor should be referred to the GMC.

 

The doctor’s involvement has been summarised above in that he knew that the father was involved in a dispute about the welfare of a child which was proceeding before the courts yet he did not exercise caution before writing the letters and making the referrals to social services. He sought to question the child with her father present in order to obtain evidence of abuse.

 I accept the submissions of the mother and the guardian. I make the following findings:

 i)                   Dr C was naïve and was manipulated by the father. The evidence suggests that he was targeted by the father as a means of obtaining evidence to further his case. In so doing he allowed E to have unnecessary medical appointments;

 ii)                 Dr C could and should have spoken to the mother. He did not know that the mother was a patient at the practice. A simple check before proceeding to refer to social services would have made him better informed in assessing the issues being raised by the father. He therefore failed to follow the safeguarding guidelines in that he did not provide support to the primary carer, the mother, before making the referral to outside agencies. Speaking to the mother would not have put the child at risk of harm.

 

iii)               Dr C failed to keep an open mind as to the truth of the allegations. In doing so he failed to protect her from the father’s allegations and he allowed the father to be present when the allegations were being discussed. He accepted, and I find, that his letters were too subjective.

 iv)               Dr C admitted that he was not up to date with his safeguarding training;

 v)                 Dr C’s clinical notes of appointments with E, where allegations of ill treatment were discussed, were not properly kept.

 vi)               He also admitted that he was not fully aware of the court procedures. This explains his willingness to issue the letters on Practice Headed notepaper. He did not consider what use the father could have made of these letters.

 

vii)             Dr C failed to contact the Cafcass officer or the court to alert them to the fact that the father had admitted to fabricating his statement and had forged his signature and had submitted the statement to the court as evidence in support of his case.

 

viii)           I accept the submission of the guardian that his actions albeit unwittingly, facilitated father’s emotional abuse of E.

 

I have carefully considered the submissions of the mother and the guardian. I agree that a copy of my judgment and a transcript of Dr C’s evidence should be sent to the GMC so that they can further investigate this matter and take appropriate steps if they consider that this is necessary.