Release of court material
The first part of this two part series looked at the appeal in the unfortunate case of Re Nasrullah Mursalin  EWCA Civ 1559 (3 September 2019) in the context of Administration of Justice Act 1960 (AJA 1960) s 12(1)(a) and Family Procedure Rules 2010 (FPR 2010) r 12.73; and especially at the extent to which a committal application needs guilty intent. An application that the administration of justice has been interfered with – which is what a committal application is – is a criminal contempt which may result in the defendant (accused?) being sent to prison.
It is worth recalling that contempt proceedings, albeit in civil and family cases, are treated as ‘criminal’ proceedings under European Convention 1950 (Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81, 85 and 86) so that a respondent has the rights guaranteed by Art 6.3.
In NM’s case, Baker LJ first recalled the ‘utmost seriousness’ of contempt proceedings. Therefore strict procedural rules must be followed. He mentioned the words of Vos LJ in Re L (a Child) Re Gous Oddin  EWCA Civ 173 at : ‘The process of committal for contempt is a highly technical one as this case shows. But it is highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court.’
In cases of an alleged contempt, Vos LJ said, no-one should be at risk of being sent to prison for contempt of court unless they have notice of what is alleged, they information that they may remain silent, and that the application is proved to the criminal standard.
Where the circuit judge went wrong
Baker LJ (at -) listed what went wrong in NM’s case:
- ‘ The appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him; [and NM] says he did not understand the significance of what was being said.’ If the judge thought proceedings against NM were appropriate he should have set out exactly the particulars of ‘the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. It was not sufficient for the judge to proceed simply because the appellant agreed that he could do so.’ (European Convention 1950 Art 6.3(a).)
- ‘ The failure to particularise the allegations led to a further defect in the process. So far as I can see from the papers, the judge was never shown the specific documents from the family proceedings which had been disclosed to the First-tier Tribunal. In those circumstances, it was impossible for him to gauge the seriousness of the alleged breach.’ He was entitled to plead mitigation, but without these documents any plea would lack substance (see eg Douherty v The Chief Constable of Essex Police  EWCA Civ 55 (30 January 2019)).
- ‘ There is little sign that the judge considered the extent of the appellant’s culpability for what had allegedly occurred…. It does not seem to have occurred to the judge that [the solicitor for who NM was working] may have been the real culprit. That omission stemmed from the failure to particularise the alleged contempt.’ This is the mens rea point (Re F (orse A) (a Minor) (Publication of Information)  Fam 58,  3 WLR 813, CA) discussed in Part 1.
- The errors above were compounded by the judge’s direction to the appellant to go in the witness box. It seems he overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The principle is of long standing, although it has been overlooked in other cases; see, for example, the case of Re Lcited above (and see Dougherty (above); Mubarak v Mubarak  1 FLR 698).
And to cap it all, a cosmetic complaint: any committal application must be in open court Practice Direction (Committal for Contempt: Open Court)  1 WLR 2195,  2 AllER 541. No one was robed, the Court of Appeal was told.
Postscript: material which can be released
As a postscript to all this: what can be released in children proceedings under FPR 2010? Despite what the provisions of s 12(1)(a) appears to say – that it will be a contempt if material is published from children proceedings – FPR 2010 rr 12.73 and 12.75 allow for some release of documents from family proceedings.
The operation of r 12.73 can be seen in Re X and Y (Disclosure of Judgment to Police)  EWHC 278 (Fam),  1 FLR 1218. Baker J (as Baker LJ he was the judge in Nasrullah Mursalin) was dealing with an application by the police who wanted to see a judgment in which he had recorded that the father of a child had admitted, after the making of a care order, that he had perpetrated the injuries on one of three children.
The father applied for an order prohibiting the local authority or any other party from communicating any information to the police or CPS. The police filed a statement asking for ‘disclosure of any information that had come to light in these proceedings indicating the perpetrator of [the child’s] injuries “in order that the decision to prosecute that person can be taken”’.
Baker J explains the working of r 12.73 and its accompanying Practice Direction 12G. Rule 12.73(1) says:
12.73 Communication of information: general
(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated –
(a) where the communication is to [various individuals and bodies such as the legal representative of a party, Legal Aid Agency, a court appointed expert etc, formally entitled to receive information];
(b) where the court gives permission; or
(c) subject to any direction of the court, in accordance with rule 12.75 and Practice Direction 12G.
PD12G provides three tables which set out what communications in children proceedings can be passed on to particular bodies or individuals. Paragraph 2.1 is the first of these and sets out a table which deals with ‘any information relating to the proceedings’. The rule and PD table enable information to be passed on by specified individuals as of right – for example, a party, a legal representative or others lawfully in possession of the information – to other individuals or bodies and for specified purposes, other than the proceedings (eg information to a person conducting ‘an approved research project’). Communications under r 12.73(1)(c) and PD 12G paras 1 and 2, which may be made. Other communications, which under 12.73(1)(b) may only be made with the court’s permission.
In S v SP and CAFCASS  EWHC 3673 (Fam) Baker J dealt with a committal application by a father who objected to a Cafcass officer who provided information to police when asked. The judge gave short shrift to S’s argument that this passing on of information was ‘publication’ as anticipated by AJA 1960 s 12(1), and dismissed the committal application.
Procedure for a committal application
Given the state of the rules which govern all this, it is perhaps not surprising that judges make mistakes. An application for committal for NM’s mistake, is ‘interference with the due administration of justice’ (since case law tells us that that is what a breach of AJA 1960 s 12(1) is deemed to be). Anyone looking at the rules has to know this and to know, therefore, FPR 2010 Pt 37 Ch 4 applies – I think….
The application under this Ch 4 must be with permission (r 37.13(2)). Application is to a High Court judge (FPR 2010 r 37.14) for permission. If this is correct, why was HHJ Mordifar dealing with this case at all? Rule 37.15 tells you how to make the application for permission; and that is all Ch 4 tells you. Nothing is said about how the court proceeds with the application itself once an application has permission; nothing is mentioned about the points made by Baker LJ above; and especially nothing is said about service of any application. The accompanying Practice Direction PD37A gives some tips on procedure generally, but says nothing about Ch 4.
All this is only if an individual is making the application. If it is the court proceeding on its own motion, the rules are silent altogether (as far as I can see). This may have been how HHJ Mordifar proceeded; though it is not obvious from the Court of Appeal judgment on what basis Judge Mordifar thought he was proceeding – except that he seems to have been cross that the family proceedings document had got into the Immigration Tribunal bundle. But judicial crossness is not a good basis for a criminal charge against someone who seems to have made a genuine mistake; and to have had no intent to do anything wrong.
It is hardly surprising that cases like NM’s go so badly wrong.