RSS Feed

Tag Archives: right to avoid self-incrimination

X and Y (Children : Disclosure of judgment) 2014


This is a case arising from care proceedings where the parents gave evidence about physical injuries to a child, and a judgment was given that the father had caused the injuries and told lies about it. The police sought disclosure (wanted to see) the judgments in the care proceedings. The father resisted.

As this case was decided by Baker J, you get the excellent distillation of the law in this area to date  (if I were still of an age where I had to write law essays, Baker J would be my first port of call for finding the answers)

As you probably know if you’ve read this blog before, I have a view on the issue of whether the police ought to be able to USE what is said by a parent in care proceedings in the criminal proceedings. I think firmly that they should not, that the whole ethos of care proceedings is to encourage and promote honesty and that the provisions of s98 of the Children Act 1989 removes a parents right to silence and as a trade-off promises them that what they say can’t be used against them in criminal proceedings for anything other than perjury.

If the police aren’t hoping to make use of the material, that rather begs the question of why they want to see it at all.  Of course it informs and shapes their investigation and the way they put their case and even the questions asked, even if the documents themselves never appear before a jury.

Baker J touches on the critical problem (a problem that keeps getting ducked by the family Courts) here

Furthermore, it is suggested by Mr Storey QC on behalf of the father in this case that, whilst section 98(2) prevents an admission made in family proceedings being introduced in evidence in a criminal trial, it may still be possible for that admission to be put to a defendant in the course of his oral evidence as a “previously inconsistent statement” pursuant to section 119 of the Criminal Justice Act 2003. No reported case was cited in support of this submission.

There are several reported cases in the family Courts where this has been raised, and they have never ruled on whether s98(2) trumps s119 or vice versa. Whilst this is undecided (and one of the cases where it was raised ends with the father who had been silent in care proceedings on advice from his criminal lawyers being committed to prison for contempt), lawyers are going to remain very apprehensive about whether their client’s interests and rights are being properly observed.

The law, at present, is very much in favour of disclosure  (that the police can SEE the documents) – there’s less reported law on whether they can USE the material.

This case only decides that the police can SEE it, and if, having seen it they wish to USE it (ie produce it in the criminal trial, or put it to the parents in police interview) they need to make another application and the Court make it clear that letting them SEE it doesn’t automatically mean that they would succeed in the next application to use it.

A very nice point was taken by the father’s team

    1. On occasions, a judge gives a warning or direction to a witness in care proceedings as to the ambit of section 98. This procedure was adopted at first instance by the judge in Re ECand was subsequently described and considered by Swinton-Thomas LJ in the Court of Appeal at page 732.


“Prior to the hearing of the care proceedings, there were five members of SC’s family who fell under suspicion of having caused her injuries. Each of them gave evidence. Before they gave evidence, the judge gave them this warning:

‘Before you give evidence I have to tell you, as I will tell the others who give evidence, that anything you say from the witness-box cannot be used in any criminal trial against you which relates to the death of SC.

Where relevant the judge added the words ‘or your wife’ and ‘or your husband’. That statement by the judge was somewhat wider than the words of s98 envisage.

The Judge did not tell any witness that the evidence given by that witness would remain confidential. The proceedings themselves are confidential but subject to the power of the judge, in appropriate circumstances, to order disclosure. Nothing in s98 detracts from that power. Section 98(2) gives protection only against statements being admissible in evidence in criminal proceedings except for an offence of perjury. Accordingly, the judge could not give any guarantee for all time as to confidentiality, even had he wished to do so because the law makes no provision which would enable him to do so. It may well be that in fairness to persons giving evidence in these circumstances judges may wish to point this out to a witness to whom the warning is given and, almost certainly, a legal adviser should do so. “

  1. In this case, I gave no such warning to the parents at the conclusion of my first judgment when encouraging them to be more frank with the court as to the circumstances in which Y had sustained the injuries. The absence of any such warning in that judgment is a crucial component of the arguments advanced by Mr Storey against disclosure of the judgment of the police in this case

    1. On behalf of the father, Mr Storey QC and Mrs Storey-Rea craft their submissions as follows.


(1) The father has an absolute right to a fair trial. The Court having failed to give the parents any warning as to the consequences of making a confession, it would be an infringement of the father’s article 6 rights were the court now to allow disclosure of the transcripts in which his confession can be described and analysed.

(2) Alternatively, exercising its discretion by applying the criteria identified in Re EC, the court should conclude that the balance comes down against disclosure. In particular, Mr Storey submits that two factors identified in Re EC should carry decisive weight, namely (a) the welfare of the children and (b) the perceived unfairness in disclosing a confession in respect of which no warning had been given.


      1. Mr Storey submits that, by failing to add a warning at the end of my first judgment to its encouragement to the parents to be frank about the causes of Y’s injuries, the court was infringing the father’s article 6 rights. In the course of argument, Mr Storey clarified his submission by indicating that the failure to give the father such a warning amounted to an infringement of his rights to a fair trial in these proceedings (i.e. the care proceedings), not any future criminal proceedings. His submitted that the warning should have been along the following lines.


“But you should know that, if you do confess to causing injury to your child, the rules without more enable the guardian and local authority to convey the judgment in this respect to the police who may use it to investigate you or investigate you further in relation to child abuse. I therefore make it clear that, though I have issued this invitation, I can give no guarantee of confidentiality in respect of any admission that you make.”

Mr Storey and Mrs Storey-Rea submit, that if the potentially far-reaching consequences of the current rules are not explained to a party at the time when a judge makes a plea for transparency, later dissemination of any admission is unfair. They contend that there can be no greater inducement than that of a person of high authority such as a judge who has the power to bring about or inhibit family reunification.


The Judge didn’t go for it.

        1. I accept that the father’s confession was induced by the encouragement voiced at the end of my first judgment. I do not, however, accept the submission that the court’s failure to give a warning in the terms proposed by Mr Storey amounted to a breach of the father’s right to a fair trial in these proceedings. By urging both parties to tell the truth, the court was seeking to ensure a fair trial in these proceedings for all parties, in particular the parents and the children. The inducement held out was that, if the perpetrator of Y’s injuries gave a full and frank account, the children could be rehabilitated within the family. The father duly confessed, the mother has been exonerated and as a result the children have been returned to her care. The father does not resile from his confession, and the outcome of these proceedings is manifestly fair to all parties.


      1. I accept that the fact that no warning was given is relevant to my decision as to disclosure of information relating to the proceedings, but only as one factor to be considered when undertaking the necessary balancing exercise.


It is a very careful and considered judgment, and much as I dislike the outcome, I think that on the existing law, the Judge got it right. The problem is that I think that the law, as it has developed, has not properly taken account of the potential erosion of the s98 protection against self-incrimination as a result of the inconsistent statements can be put as evidence s119 Criminal Justice Act 2003.  The law which favours disclosure to the police and puts the burden on the parent resisting disclosure emerged prior to s119, and has been relied on to bolster decisions made subsequently. Without properly determining whether, notwithstanding the ability to put inconsistent statements as evidence, s98 prevents the Crown doing so where that statement was made in care proceedings, we are left at sea.

The problem for this particular case is (a) I think the judgment is right, on current law and (b) we already know that the Court of Appeal aren’t interested in the s119 argument, so an appeal isn’t much use; unless one is going to go all the way to the Supreme Court, who would be able to say either s119 trumps s98 and the prosecution of offenders is more important than honesty and openness in care proceedings, or vice versa.


(This becomes even more of an issue once all judgments are published, since even if the Court doesn’t give permission, the police who know the Local Authority area, judge who decides the case, date of the hearing and the factual background, will very readily be able to spot that Re H, L and K 2015 relates to real life people, and be able to read all about it online. As will any inquisitive juror…)

Enjoy the (right to) silence


Another case on the right to silence, and the frustration of the family Court in having parents refuse to give evidence or file a “no comment” document on the basis of legal advice given by their representatives in criminal proceedings.

I have written about this a few times

 Essentially it is that s98 of the Children Act 1989 has two key provisions – that a parent cannot refuse to give or provide evidence on the basis that to do so might incriminate them  AND vitally that such evidence that they give many only be used in prosecutions against them for perjury and nothing else.

 Over recent years, that principle has been rather eroded, as the family Courts have become more and more amenable to requests by the police for disclosure of care proceedings AND more importantly, changes to the criminal law which allow for inconsistent previous statements to be admissible in evidence.  S 119  of the Criminal Justice Act 2003  (which never really seems to get tackled when the family courts look at this issue)

 That is a backdoor by which admissions made in care proceedings could be evidence in criminal proceedings if they are an inconsistent statement. The s98 protection may prevail, and a criminal judge rule that it overrides the later legislation which permits inconsistent statements to be adduced as evidence, but it may not. When your client might be looking at an eight year prison sentence, that’s not a risk you want to be taking.

 As a lawyer, it is part of your job, if a client says “Is there any risk in my doing this?” to advise them whether there is or not, including whether it is a grey area.  [It is not necessarily a question of telling them NOT to give a statement in care proceedings, but you have to advise them that doing so involves a risk to them.  HOWEVER, note this judgment, which now makes it plain that it is a contempt of court for a lawyer to tell a parent not to make a full and frank account in their evidence in the family Court, even if that lawyer’s job is to defend them in the criminal court]

 That means that if a parent in care proceedings gives an honest account of what went on, as they are encouraged to do and on the basis of the s98 protection, it may come back to haunt them in criminal proceedings and they are unwittingly potentially waiving their right to silence.

 It is little surprise then that where the issues in question relate to serious criminal offences where a significant custodial sentence might await a parent if convicted, that those representing the parent in criminal proceedings are keen for them not to incriminate themselves.

 One of the other problems is that there are relatively few lawyers who are utterly at ease with both the criminal justice system and the family justice system – so criminal lawyers are nervous and wary about anything that goes into the family court, and family lawyers aren’t going to tell their client to go against the advice they’ve been given by their criminal lawyers.

 The family Courts have been less keen on the parent taking that legal advice, rebuffing the argument in various appeals and also last year committing a man to prison for failing to give evidence in a family court on legal advice.


[So actually, the risk is twofold – if you file the statement it is possible that the prosecution get it and use it as an inconsistent statement, and if you don’t you can be sent to prison by the family court.  If you are thinking that it seems unfair that you might get sent to prison for trying to exercise your right to silence because the framers of legislation left a grey area, then I agree with you]

The family Courts have AGAIN had a crack at this thorny issue, which is not going away, and will not go away until either a very senior criminal court or  family Court address once and for all whether s98 genuinely does offer protection against prosecution for anything other than perjury.

 Part of the problem here is that we have two statutes in conflict with one another – it is all very well for the family courts to think that s98 Children Act 1989 beats s119 Criminal Justice Act 2003, but it ain’t necessarily so.


A Local Authority v DG and Others 2014

 Exactly this issue arose – father in care proceedings was directed to file a response to threshold, his legal advice was not to waive his right to silence and that if he was to file anything it should be very very anodyne.

 The Judge was unhappy about the whole debacle, and was  critical of the advice given to the father  although understood why it had been given.


The Court was asked to provide some guidance, which it duly did. It does not resolve the ultimate issue of whether it is safe to make admissions in care proceedings or not, but it does clarify WHEN that argument should be heard.  (Clue, if you guessed “When it is too late”, you would be right)


40.   Guidance

  1. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
  1. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court’s determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.



Well, that’s helpful in a way, because the Court makes it plain that the parent HAS to file a statement, HAS to comply with the orders of the family Court, HAS to do so on time (even where this means that they are filing a statement that might later be contradicted by their defence statement)  and that the TIME to argue about whether or not the statement might prejudice their right to silence is when the police ASK for it and not before.


At least there is a clear process and procedure now. But it still puts the parent and their legal team out on a limb – this is “Tell us everything now, and we’ll decide later whether it will be shared with the police”


This isn’t an easy situation, and I have sympathy for all involved, including the Courts. For me, it is a real shame that when this issue got up to the Court of Appeal, the Court of Appeal didn’t just grasp it and make it plain that s98 stands, exactly as written, and that nothing a parent says in evidence in a family Court can be used against them in a criminal court, other than in a prosecution for perjury.