Reporting Restrictions – a thought

I noticed the other day that the standard order on the CopyDirect website (sorry, now the slips-off-the-tongue " Press Association Injunction Application Alert Service") standard order for a RRO does not include either the publication of information by email or all forms of print publication. The former is not surprising on one level since the purpose of the service is to assist those dealing with applications aimed primarily at the press. But the truth is that this standard order is drawn on in other circumstances too, where advocates are looking for a starting point for an order that will prohibit other sorts of conduct, not just that involving the maintstream media. The standard order prohibits "the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service" of the relevant information. It is easy to assume it covers print publication generally, but it doesn't. It does not, for example, cover the publication of information in the form of a book, or a leaflet / flyer.

Worth remembering if you are drawing up a RRO. Is "newspaper and magazine" enough?

For example, readers may recall the case of Vicky Haigh, which involved distribution of information in the form of emails to a distribution list.

Gale Force

I came across a chap called David Gale recently when he posted a comment on my blog, and in one of my more idle moments I clicked through to find out about who he was. David Gale it seems, is a UKIP activist, an unsuccessful candidate for Police Commissioner, and the man behind a campaign called "Kids for Cash Court Scandal" - and it's this campaign which interested me (I don't usually spend much time trawling UKIP websites).

I'll just give you a flavour of the article in which this campaign was launched, as a plank it seems of the unsuccessful bid to become Police Commissioner for Derbyshire (a plank not entirely consistent, I note in passing. with his promises to focus police resources on anti-social behaviour and gang related crime):

"Judges and lawyers will go to jail if a new Police Commissioner has his way.

David Gale, UKIP’s candidate to become Derbyshire’s first Police and Crime Commissioner, is setting out his stall to tackle what he says is corruption and criminality within the family justice system. Accusing judges and lawyers of routine involvement in perverting the course of justice, Gale says that where parents are encouraged to fabricate allegations and the court turns a blind-eye, there must be a formal criminal investigation."

Alright. Let's take this piece by piece shall we? Are you sitting comfortably?

This is not the usual stuff about women making up allegations of domestic violence in order to shut out their ex partners from the lives of their sons and daughters. No, this is something beyond that mundane plea (and of course sometimes such pleas are correct, whilst other times they are the desperate denial of a guilty conscience). No. This is a suggestion - nay, a campaign built upon a suggestion that: the judges and the lawyers know this, ignore it, encourage it. In ways that amount to criminal offences by conspiracy. These are not general allegations that we all know something is rotten, the system doesn't work, doesn't get to the bottom of it. No. These are allegations that individual judges know about individual fabrications and do nothing (or presumably make findings they do not believe to be true), and that individual lawyers know that individual clients are lieing (know, rather than just suspect), and that individual lawyers directly tell their clients to lie.

Well these are pretty serious allegations, so where is the evidence?

"Gale said, “I’ve received detailed accounts from professionals and parents both in Derby and further afield that large parts of the family justice system are being run like an organised crime racket. There is an epidemic of mothers being advised by their lawyers that if they make false statements against partners attesting to domestic violence they will be fast-tracked to legal aid, will be able to testify unopposed to gain a Non-Molestation Order, and will not be held to account even if their perjury is uncovered. Women are being advised of this legal mechanism as a means of severing the relationship between a father and his children.”"

Ah ha. Some parents have told you that something is rotten. That their exes have made up the allegations, the judge won't listen to them and its all very unfair? Rock solid evidence that. All at the wrong end of such fabricated allegations were they?

But professionals? Who are these professionals? Are they telling you about their own clients and thereby breaching legal professional privilege and exposing themselves to all sorts of nasties? Doubtful. Or are they giving your their cynical view about what the other lawyers say, in privileged conversations they know nothing of? Are these professionals whistleblowing or talking big over a whisky? Are the "professionals" even lawyers?

Of course I don't know the answers to any of these questions. But that is rather the point. It's a bit thin. And a bit broad. And in a system where there are approximately 30,000 children who are the subject of private law disputes alone (England & Wales, Jul-Sep 2012) there are bound to be a few examples of things gone wrong. But these allegations are that this is systemic and widespread not a few bad apples. Epidemic to be precise.

Let's look at this epidemic. If we take out the word "false" it reads like this: "there is an epidemic of mothers being advised by their lawyers that if they make false statements against partners attesting to domestic violence they will be fast-tracked to legal aid, will be able to testify unopposed to gain a [non-mol]". And your point is? It is factually correct to advise that a woman (or man) who makes allegations of domestic abuse will probably be eligible for legal aid, their solicitor will be able to devolve powers to grant legal aid in an emergency and may be able to obtain an ex parte injunction. Because that is how the system must operate in order to protect genuine victims of domestic violence in the short term until there can be a proper hearing where the accused can put his side. In the longer term the allegations will either be upheld - if the evidence of the alleged victim was more compelling than that of the alleged perpetrator - or not: if the evidence did not stack up. Allegations that are totally fabricated have a nasty habit of unravelling when tested. That's why we have things called trials. And things called lawyers to pick at the loose ends and pull. Well, we did have lawyers picking at the loose ends but that's another blog post.

Gale also suggests that the makers of false allegations are told they won't be held to account when found out. Well, if you mean they may have been advised that the enforcement powers of the court are difficult to make effective and they are unlikely to be sent to Holloway for a short spell, quite possibly - although in extremis such consequences have flowed from malicious allegations (See Vicky Haigh case) and if they have had good advice it will have included the risk of a transfer of residence or of a teenaged or adult child rejecting them if they have been prevented from knowing the truth or from having a relationship with their other parent. They will also be routinely advised that if they pursue allegations and fail to prove them they run the risk of losing the protection of their injunction and will have to face the fact that their bid to prevent the kids from seeing their father has failed. They will be advised if their evidence is thin or inconsistent, and if they are likely to fail to prove their allegations. Many a case has been compromised following such perfectly proper advice about risks and possible outcomes and consequences.

Of course all this talk of false allegations is part of a mindset that conceives of the narratives of family life as being either truth or lies. I am aware of cases which are referred to the authorities for a decision on prosecution following findings that a witness has lied - so there are consequences in some cases - but the truth is that many (most) cases are not black and white - the court may be able to make findings on the balance of probabilities but the criminal standard is far higher, and many will be the case where the evidential threshold for a prosecution would simply not be met. And of course it is one thing to say an allegation is not proved, and quite another to say it was fabricated. People's experience of the same relationship is often profoundly different to that of their ex. Many is the time that a family lawyer or judge watches evidence where the parties give accounts of their relationship which cannot both be correct - and yet they appear to be saying it how they saw it. Memory is a funny thing.

The article goes on:

Judges are routinely turning a blind-eye to uncorroborated, fabricated witness statements made by women seeking to abuse the legal process. The family law industry’s lawyers are milking this for all it’s worth, with judges in some cases allocating completely unnecessary court hearings that ramp up costs, acting like brokers in an insidiously corrupt scam that defrauds the public purse.

I think that this sweeping remark is probably a poor description of the system of the granting of ex parte injunctions - which has its basis in statute rather than judicial whim, and where in order to be article 6 compliant a return date hearing is always listed. I wonder rhetorically what Mr Gale thinks of the "Go orders" recently piloted in several Local Authorities. Are they also unnecessary? And why is this cabal of mainly male judges colluding in active discrimination against their own kind?

"Gale continued, “I will make it clear that the current response from police when presented with evidence of perjury ‘that it is a court matter’ will not wash. If evidence of a criminal offence committed within civil proceedings is presented to Derbyshire Constabulary officers, they will investigate it thoroughly. Those guilty of perjury should expect to go to jail, along with lawyers or judges who have participated in perverting the course of justice. It’s been eighteen months since Christopher Booker exposed the reality of the family justice system, citing it as “callous, corrupt and staggeringly expensive”. I see no evidence to suggest that the problems are isolated to just Children’s Services.”"

One suspects that any investigation would be rather compromised by the small inconvenience of legal privilege. As might the welfare of any children unfortunate enough to find their parent in clink. And possibly Mr Gale's aspiration to focus police resource on street crime and anti social behaviour might itself be rather compromised by the amount of energy that would need to be spent on such matters which are routinely complained of but less often provable to the criminal standard (google Vicky Pryce for an example).

Note that the further evidence cited is the opinion of a journalist. And note the presumption of guilt applied to professionals working within the system. Like a breath of fresh air this not-police commissioner, isn't he?

I'm particularly fond of this passage:

Increasingly, we’re seeing adolescent boys being left fatherless with positive male role-models being replaced in some cases by gang culture. There is a significant on-going cost to the public purse that continues long after unscrupulous legal professionals have dipped their snouts into the legal aid trough.

And thus the evidential link between fat cat lawyers and hoodie culture is made. WE ladies and gentlemen of the legal profession have BROKEN BRITAIN. And in fact, the whole campaign against "the system" is an indirect way of tackling street crime.

The article ends with an olive branch...

It isn’t the politically correct thing to do to identify women as potentially being the instigators of an abuse of domestic violence legislation but telling it like it is is not about being part of a popularity contest. I will have an amnesty for those women who come forward to testify on their lawyers’ illegal advice but I have a duty to the people of Derbyshire to root out this institutionalised corruption once and for all.

Did I mention he didn't win the police commissioner popularity contest election?

And, does a police commissioner even have power to direct the police to investigate some cases and not others, to grant "amnesties" or to direct the CPS to prosecute some cases and not others? I don't know, but I'm guessing not. This sounds a tiny bit like a policy whereby some criminal acts would be ignored in order to secure conviction of the lawyers. Such conviction being dependent on the evidence of someone who had perjured themselves. Can't see any problems with that at all... And it sounds like a policy which would, one imagines, cause a rather severe difficulty for victims of domestic abuse seeking the advice and representation of lawyers. It's pretty fundamental that a lawyer is able to fearlessly defend his client precisely because he is not responsible for the decisions or instructions of his client. That he must fearlessly defend his client because he is not the arbiter of her case, he is merely the framer of that case.

Anyway. That's the initial post in Dec 12. It gets better. On the facebook campaign page here, you can see an entry on 7 Jan suggesting the LSC are also colluding in criminal activity.

There is a lot of strong language in all of this. Strong language applied to the whole legal profession and the judiciary at large - not just in Derby. From reading this material one might form the impression that for Mr Gale everything is a potential criminal offence, except when women are making allegations of domestic abuse. He'd have made a smashing police commissioner. Did I mention he didn't win?

Purging like a kitten

wall ljI'm a bit behind the curve on this one. Others have covered it already so I can do no better than to point you to their work. Elizabeth Watson has purged her contempt in relation to the publication of material concerning the Vicky Haigh family proceedings. The judgment is astonishingly blunt and in my view spot on. Family Lore covers it here, and the UK Human Rights Blog here. No doubt there are others.

In fact, it is so pithy a judgment that it runs to only 23 paragraphs and I am going to set it out in full below. It won't get much of an airing sitting in some dark corner on Bailii.

[2011] EWHC 2376 (Fam)

THE PRESIDENT:

    1. This is an application by Elizabeth Watson to purge the contempt in which I found her on 15 August 2011. On 22 August 2011 I committed her to prison for a period of nine months.
    1. Before I deal with her application I would like to take a few moments to dispel a number of myths. The first myth I wish to explode is that a person can be sent to prison "in secret". Nobody in this country is sent to prison for contempt of court "in secret". I propose to read the rule which deals with these matters: it is taken from the Rules of the Supreme Court Order 52, rule 6. which now appears in Schedule 1 to the Civil Procedure Rules (CPR)

"(1) Subject to paragraph (2) the court hearing an application for an order of committal may sit in private in the following cases, that is to say –

(a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;

(2) If the court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in public state –

(a) the name of that person;

(b) in general terms the nature of the contempt of court in respect of which the order of committal is being made; and

(c) the length of the period for which [she] is being committed."

    1. As it happens, I sat in open court to hear Ms. Watson's case and I gave judgment in open court. Had I sent her to prison in private my decision would have been unlawful and the Court of Appeal would have had the power to set it aside. I, myself, have been very critical of a judge who sentenced a contemnor without hearing mitigation and without going into open court to do so; see the case of Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 133, in which the order of the judge was set aside.
    1. There is, of course, an automatic right of appeal against a committal order. Permission to appeal is not required - see CPR rule 52.3(1)(a)(i). Added to which, of course, the Court of Appeal sits in public.
    1. My second point is, I appreciate, repetitious. The Family court are frequently accused of acting "in secret". It needs to be emphasised that courts hearing cases involving children under the Children Act 1989 sit in private to hear evidence because they are democratically authorised to do so by Parliament. They do so to protect the interests and confidentiality of children. The courts thus regard - and I certainly regard - with particular seriousness any breach of a court order designed to protect the identify and confidentiality of a child.
    1. Thirdly, judges believe in the rule of law and in free speech. Every child case involves a balance between the rights enjoyed by everybody to respect for their private and family lives: see Article 8 of the European Convention on Human Rights (ECHR). In each case section 1 of the Children Act 1989, enacted by Parliament, requires the welfare of the child to be paramount; that is more important than anything else.
    1. Fourthly, where a judge makes an order restricting publicity and forbidding the identification of a child, he or she is duty bound to carry out what has been described by the House of Lords as "an intense focus" on the rights of a child and the rights of everybody else to free speech. It will no do harm in this judgment to read in Article 10 of ECHR which, of course, is now part of the English law as enacted by the Human Rights Act 1998:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    1. In the case of Re S [2004] UKHL 47 Lord Steyn said:

The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

I am entirely satisfied this is how Baker J approached the present case and helps to explain why I take Ms. Watson's contempt so seriously.

    1. Another aspect which makes Ms. Watson's contempt particularly grave is that she breached the order not only by communicating through e-mails with a large number of third parties, but also gave material to an internet provider, one Sabine McNeill who runs a website called Inquiring Minds. Ms. McNeill (who at one point acted as Ms. Watson's McKenzie Friend in these proceedings) lives, I am told, in Germany although she has a flat in London. The mischief of the publication, as Ms. Watson now appreciates, is that the publication of allegations which I and two other judges held to be without foundation not only puts the identity of the child into the public domain and renders it accessible to anybody who cares to look for it or to read it; but equally, Ms Watson has put herself in the hands and the power of the internet provider. The omens do not altogether look good.
    1. Yesterday Ms. McNeill wrote to Ms. Watson's solicitors in these terms:

Why on earth does the Guardian who has NOT acted in the child's interest request me to remove the page about [the earlier fraud?]

Re Inquiring Minds I wrote to Malcolm & Co. and cc him for your convenience." – [That is another matter on the website] – I am happy to cooperate but I am not happy destroying all the evidence that Liz [Ms Watson] has found and was just not sufficiently able to present effectively. The same evidence will help to get Vicky [that is the mother] her daughter back after all and the Guardian CERTAINLY has no right/authority/jurisdiction to tell me anything.

Sorry, but you will have to fight for the fact that Liz has undug more than 'they' would have liked her to.

With best wishes, Sabine."

    1. I forbear to comment; the e-mail speaks for itself.
    1. Ms. Watson, fortunately, however, has had the good sense, at long last, to take legal advice and has been ably represented before me by counsel, Mr. Littlewood. She should be extremely grateful to her counsel and to the solicitors whom she has chosen.
    1. However, the factors I have outlined and the contents of my previous judgment explain why a prison sentence for Ms. Watson was inevitable. She has today, herself, expressed (both through counsel and personally) contrition. In plain language she has told me she is very sorry for what she has done. I have thought about this very carefully and I am satisfied that she has done what she can to remove from the internet the offending material which she caused to be placed there.
    1. What I propose to do in these circumstances is to suspend Ms. Watson's sentence. I would be entitled, if I wished, to keep her in prison until such time as the blog to which I have been referred and which is the one outstanding matter has been investigated and those responsible for it have been given the opportunity to remove the e-mail. I have considered that option very carefully. I have decided, however, in the end not to do it. I am satisfied that Ms. Watson has had a very unpleasant experience in prison. I am willing to accept her undertaking – which has the force of a court order – to use her best endeavours to remove the offending e-mail from the blog and I am satisfied that to keep her imprisoned would serve no real purpose as far as she is concerned.
    1. I therefore propose to direct that the sentence which I passed of nine months is suspended for a period of two years. This will enable Ms. Watson to be released immediately and I so direct.
    1. However, the sentence remains. Provided there is no repetition and provided Ms. Watson complies with her undertaking and provided she is not in breach of the order within the next two years, that will be the end of the matter. If she is in breach or if there is any repetition for which she is responsible or partly responsible, she will go back to prison and serve the remainder of her term.
    1. I also hope that the sentence will be a lesson not just to Ms. Watson but for anyone else who may be tempted to breach an order of the High Court.
    1. To the operator of the blog which continues to print the offending e-mail – which I will not read out – I say very simply that it would be in the interests of the child with whom I am concerned for it to be removed. Its presence does not and will not advance mother's cause one iota. Of course, there can be criticism of the family justice system, but the criticism must be rational, balanced and fair. The e-mail in question is none of these things and the sooner it is removed the better.
    1. However, for the reasons I have given and as an act of some considerable mercy, I propose to release Ms. Watson immediately although the sentence will remain in suspended form.

Postscript

    1. Since giving the judgment set out above, I have received a letter from Ms Watson's solicitors, copied to the other parties, inviting me to accept that Ms Watson has complied with her undertaking to use her best endeavours to ensure that any further remaining offending material be removed from publication on the internet. I have read the Emails written by Ms Watson to Sabine McNeill. I have not heard from the local authority.
    1. Ms Watson's solicitors report the deletion of offending files and I accept their conclusion that Ms Watson had addressed each and every concern raised by the local authority. I also accept their assurance that they have been instructed by Ms Watson to carry our their own checks, and that these have revealed one further potentially offending article which has been removed. Subject to the emergence of material about which I am currently ignorant, I am content to accept that Ms Watson has complied with her undertaking.
    1. I conclude by making two points: the first is to note that the independent Family Justice Review, whilst making a number of criticisms of the Family Justice System, went out of its way in paragraph 7 of its Interim Report to say: "We have been impressed by the dedication and capability of those who work in the Family Justice System. Their work is hugely demanding and often highly stressful". Those who criticise the System and the integrity of those who work within it would do well to bear these findings in mind.
  1. Secondly, I wish to re-emphasise that committal proceedings are not issued in order to stifle free speech, but to ensure obedience to orders of the court. Everybody is entitled to free speech; but equally nobody is entitled to breach an order of the court.
You can find the backstory on Pink Tape here, and the relevant judgments are:

and

 [UPDATE 5 July 2012 : A further judgment completes the sequence in this case: Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2498 (Fam), in which the court deals with an error of law made concerning the correct way to deal with the purging of contempt.]