Committal to prison and children proceedings: Part 1

20190501_172208[1]

Committal of an unknowing paralegal

 

The suspended committal order imposed on the paralegal – set aside by the Court of Appeal in Re Nasrullah Mursalin [2019] EWCA Civ 1559 (3 September 2019) – was justifiably widely reported in the press at the beginning of September. It was another case where a circuit judge had failed to follow basic procedures. These two articles will look at the facts of the case and the background to the law. The second article will look at the law as it was applied – or not applied – in this case; and that will involve looking at the procedure for making a committal application which is by Family Procedure Rules 2010 (FPR 2010) Pt 37 Ch 4 which seems to have had no regard in either family court or Court of Appeal.

 

The appellant Nasrullah Mursalin (NM) was working for a solicitors firm which specialises in immigration law and family law. In the course of his work for a client he prepared and filed a bundle of documents for the Immigration and Asylum Tribunal. It is said that the documents included a number of papers from family proceedings involving the client’s children.

 

Baker LJ stated that as a result pursuant to Administration of Justice Act 1960 (AJA 1960) s 12 and FPR 2010 r 12.73 the passing on of such documents ‘would be a contempt of court unless the Family Court has given permission for the disclosure’ (at [2]). (As will be seen, Baker LJ’s assumption is controversial in itself: more than just passing on of documents is needed for contempt.) No such permission was obtained, or applied for. An application was made to commit NM. The court directed his firm to file a statement, which he prepared at the request of his employer. When the hearing was called on, and NM had arrived at court (at [6]) Baker LJ described the following exchange between him and the judge, HHJ Mordifar:

 

‘JUDGE: I have read your statement. For me to formally accept it, because it is not a sworn document I have to ask you to take the oath and confirm it as true whilst you are under oath, okay? It may be that you will be asked other questions about what has happened. What is at stake here is potentially a very serious breach of the court rules which in itself may lead to a committal which can carry a term of imprisonment of up to two years…. So, with all those factors in mind, if I ask you to take the oath, would you like to have the opportunity of seeking independent legal representation and legal advice first or do you want to proceed today?’

 

NM said he wanted the case dealt with then. The judge told NM that: ‘[8] The rules against disclosure are in place for very good reasons that include the protection of the parties and the children who are the subject of court proceedings…’; and he concluded by giving him ‘a six-month term of imprisonment that is to be suspended for six months beginning today’.

 

The Court of Appeal allowed his appeal and set aside the judge’s order. They were very critical of the way the judge had dealt with the committal application. So first, what is the statutory or common law source for of the committal application (this article, Part 1)? And then why was NM made subject to an application in the first place (Part 2)?

Part 1 involves dealing with the following:

 

  • Sources: AJA 1960 s 12(1)(a) and FPR 2010 r 12.73
  • Meaning of contempt at common law
  • The distinction between civil and criminal contempt
  • NM’s was a criminal contempt: so is it necessary for the court to find any guilty intention (mens rea).

 

(1)        Administration of Justice Act 1960 s 12(1)

 

The source of this case is AJA 1960 s 12(1)(a) which says:

 

‘12 Publication of information relating to proceedings in private.

(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor…’

 

This raises two immediate questions of construction: what is meant by ‘publication’ and what of ‘proceedings’:

 

To get off the ground a committal application must show there to have been a ‘publication’. What does that mean? In a print medium, on-line or a broadcast that is easy enough. In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Munby J defined it as:

 

‘(iii)     There is a ‘publication’ for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

‘(iv)     Specifically, there is a ‘publication’ for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, etc…’.

 

The person who receives the material must surely reads, or be intended to, read it?

 

And then ‘proceedings’? In Re X (A Minor) (Wardship: Injunction) [1984] 1 WLR 1422, Balcombe J was being sked to make an order contra mundum (ie all possible publishers of information) for a ward. He needed to be satisfied that his order would go wider than s 12(1) ‘proceedings’; and for explanation of the meaning of ‘proceedings’ he referred to Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA. First Lord Denning MR at 88–89 said:

 

‘But none of those old cases considered the publication of information relating to a ward of court. There is no suggestion anywhere that it was a contempt of court to publish information about the ward herself, be it favourable or adverse, helpful or injurious to her. But these are cases to show that it was a contempt of court to publish information relating to the proceedings in court about a ward.’

 

Scarman LJ. said, at 93:

 

‘It is, I think, a necessary implication in all the speeches in Scott v Scott [1913] AC 417 that the cloak of secrecy was available to conceal from the world, not the life story of the ward, but only so much of it as was properly to be regarded as the subject of the proceedings.

 

He follows that up, after referring to section 12(4) of the Administration of Justice Act 1960, at  99: ‘what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. And ‘the judgment of Geoffrey Lane LJ is to the same effect’. Balcombe J was satisfied that he had jurisdiction, if he chose to use it, to make a contra mundum order.

 

(2)        Meaning of contempt: undermining administration of justice

 

The ill which contempt proceedings are intended to address is interference with the administration of justice. ‘Contempt of court’ is rarely appropriate as a descriptor. The meaning of the term was discussed recently in HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin) (9 July 2019), QB Divisional Court where Sharpe LJ said:

 

‘[25] Contempt of court is principally a common law doctrine. Its purpose is to protect the integrity of civil and criminal proceedings by imposing appropriate penalties on those who interfere with, obstruct, impede or prejudice the due administration of justice, or expose the process to risk that these consequences will follow. The label “contempt of court” has long been considered inappropriate. As Salmon LJ observed in Morris v Crown Office [1970] 2 QB 114, 129: “The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: Skipworth’s Case, L.R. 9 Q.B. 230 and Rex v Davies [1906] 1 KB 32….”

 

(3)        Civil or criminal contempt

 

In Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 273 at 307H-308 Lord Diplock explained the difference between civil and criminal contempt:

 

  • ‘civil contempt’ consists of disobedience to a court order by one party to proceedings (for example, a person who allegedly breaches a domestic abuse injunction, or fails to comply with a CA 1989 s 8 prohibited steps order); and

 

  • ‘criminal contempt’, which Lord Diplock defined as (at 308C-D and 310G):

 

‘… It must relate to some specific case in which litigation in a court of law is actually proceeding…. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.’

 

Committal for criminal contempt turns ultimately on whether an alleged contemnor has undermined the administration of justice. The contempt may take a number of forms (eg breaches of privacy of proceedings; dishonesty and statements of truth etc). Contempt of court under AJA 1969 s 12(1) is a matter of undermining administration of justice.

 

Lord Diplock explained this form of contempt in Attorney General v Leveller Magazine Ltd ([1979] AC 440 at 449):

 

… Although criminal contempts of court make take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.

 

(4)        Guilty intent (mens rea)

 

An application where s 12(1) is said to have been breached is a criminal contempt, for which a person may go to prison; yet on what charge and is any intent (mens rea) involved. This was considered by the Court of Appeal in Re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA where the court (Lord Denning MR, Scarman and Geoffrey Lane LJJ) were considering as application to commit the editor of the Daily Telegraph (and a Slough newspaper), where they had published information about a ward, but where they thought – wrongly as it turned out – her wardship had ceased. Lord Denning MR made the point on this question, even if they had not exercised ‘reasonable care’ then (at 90-91)

 

‘… [This] does not mean there was any guilty knowledge or intent. I base my decision on this simple ground: The offence of contempt of court requires mens rea — guilty knowledge or intent. None such was proved to exist in the two newspapers. They were, therefore, not guilty. I would accordingly allow the appeal.’

 

Scarman LJ summarised his view of the law on intent (at 100):

 

‘… That in this class of case — publication of information relating to proceedings which the court has ordered to be in private — no contempt is proved unless it is shown that the publisher knew that he was giving information relating to court proceedings and that the proceedings were private proceedings.’

 

Geoffrey Lane LJ (at 107) held that ‘honest mistake is a defence providing that had the mistaken circumstances been true, no offence would have been committed. The section is not intended to enlarge the scope of the offence as it existed at common law.’

 

Family Procedure Rules 2010 r 12.73

 

FPR 2010 r 12.73 is a rag-bag of a provision. It permits information from the proceedings to be ‘communicated’ to certain individuals (‘a party’ – really?; a party’s legal representative’ the Legal Aid Agency and so on) but it does not say who may communicate this information. It is said to be ‘for the purposes of the law relating to contempt’; but what does that mean. A court rule cannot create an offense; nor can it create a defence if someone is otherwise in contempt.

 

This provision and AJA 1960 s 12(1)(a) and the common law offence of contempt of court will be considered in Part 2.

2 thoughts on “Committal to prison and children proceedings: Part 1

  1. Pingback: Committal to prison and children proceedings: Part 2 | dbfamilylaw

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