Mubarak and the right to a fair trial
A great lawyer and a man concerned for rights, and that they be protected by legal aid, died yesterday. I am not qualified to comment on his life or his many achievements. However my professional career has been influenced by two cases which go to his concern for the rights of individuals in legal proceeding, and to the importance of European Convention 1950 rights.
In my many years of defending individuals (almost invariably men) who were taken to the magistrates’ court by Child Support Agency (Child Support Act 1991 s 40A) and their imprisonment sought for alleged arrears (which the Agency were not required to prove) I came to rely on the judgements of the Court of Appeal in Mubarak v Mubarak  1 FLR 698 (Judgment: 14 December 2000). In that case Sir Henry, then Brooke LJ sat with Thorpe LJ and Jacob J and started his judgment – ‘a few words of my own’ – with:
 The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.
Mr Mubarak was no angel. However, the case shows that entitlement to rights – ‘human rights’ – does not discriminate: rich or poor; male or female; or on grounds of gender or transgender; or religion or race. Mr Mubarak was an international jeweller who was ordered, following a hearing where he had submitted fraudulent evidence, to pay his former wife just under £5M. On his failure to pay the first £3M the wife issued a judgment summons under the then rules and in accordance with Debtors Act 1869 s 5. The wife stated simply that the husband had not paid the money which he had been ordered to pay. In a judgment which also considered the court’s inability to enforce the lump sum order against the husband’s companies, the judge made an order on the judgment summons, committing the husband to prison for 6 weeks, not to be put into force if the husband paid.
On the husband’s appeal and on his argument that the judgment summons procedure was not Human Rights Act 1998 compliant, the Court of Appeal agreed with him. The effect of the procedure was to require an alleged contemnor to provide evidence for his accuser; that is to self-incriminate.
Debtors Act 1869 s 5 in the twentieth century
Debtors Act 1869 s 5 provides a still-surviving Victorian procedure which, even 25 years ago, was described by Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan  2 FLR 196) as
The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.
Sir Henry’s was a classic of modern Human Rights Act 1998 informed procedural analysis. A person must know the case against them, and cannot be required to make their opponents case for them. He started with the case which lead to CPR 1998 rules being amended, Newman v Modern Bookbinders Ltd  1 WLR 2559 where Sedley LJ set out principles of general application to all cases of civil contempt which were going to be caught by European Convention 1950 Art 6:
… Although the facts of that case are very far removed from the present, Sedley LJ spelt out the requirement for clarity of procedure and also the requirement that a person who faces what is now to be regarded as a criminal charge under Art 6 of the Convention should understand in detail the true nature and cause of the accusation against him. In para 26 of his judgment, Sedley LJ pointed out that this was one of the rights known longest to the law of England, ‘since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained the sight of the indictment on which he was to be tried’.
An application to commit amount to a criminal charge and therefore Art 6.3 applies. Debtors Act 1869 s 5, he says, puts the onus correctly on the debtor to prove a case, which may then be followed by a means enquiry:
 What follows in s 5 is a procedure for a means inquiry. It reads: ‘Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.’
Privilege against self-incrimination and European Convention 1950
This both Brooke and Thorpe LJJ emphasised obliged ‘ …. the person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under European Convention 1950: nobody is obliged to incriminate themselves.’
And Sir Henry went on to explain how the then procedure in family proceedings (now modernised under FPR 2010 Pt 33) put ‘the burden of proof upside down’; and he concluded with a reminder then – in late 2000 – of the importance of the Convention:
 I have mentioned the requirements of the Convention. So far as they are relevant for current purposes, Art 6(1) requires ‘a fair and public hearing’. Article 6(2) requires that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’… Article 6(3) provides that:
‘Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him [the John Lilburne point];…
(d)to examine or have examined witnesses against him …’
 Both these requirements seem to have been completely overlooked
by Mrs Mubarak’s former advisors when preparing their case in these proceedings.
Proceeds of Crime Act 2002 Part 7
Sir Henry gave the judgment of the court (himself, and Mance and Dyson LJJ) in Bowman v Fels  EWCA Civ 226,  2 FLR 247. That case was of personal interest to me. Many family lawyers – including Dame Elizabeth Butler-Sloss P and Mostyn QC – believed the Proceeds of Crime Act 2002 Pt 7 meant lawyers must breach their clients’ privilege and pass confidential information to Government agents. I did not believe the Act meant this; but I was in a minority of one on the SFLA (Resolution) committee. I had no choice but to resign from the committee in January 2004. Bowman v Fels showed that I had been right, though y then it was much too late to go back to my job.
 There is nothing in the language of s 328 [the section which was said to cause privilege to be overridden] to suggest that Parliament expressly intended to override legal professional privilege. In his speech in R (Morgan Grenfell & Co Ltd) v Special Commissioner for Income Tax  UKHL 21,  1 AC 563 Lord Hobhouse said at paras –:
‘ It is accepted that the statute does not contain any express words that abrogate the taxpayer’s common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect…. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.
‘ In the present case the statutory language falls a long way short of meeting this criterion.’
…Much stronger language would have been required if s 328 could be interpreted as bearing a necessary implication that legal professional privilege was to be overridden. As Lord Hoffmann said in R v Secretary of State for the Home Department ex parte Simms and Another  2 AC 115 (see para  above): ‘Fundamental rights cannot be overridden by general … words.’ For these reasons, even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege.
And there the subject has rested…