Jersey & Guernsey Law Review – October 2010
The Interplay
between Criminal and Family
Proceedings
Pamela Scriven QC and Timothy Hanson
Circumstances may
arise that lead not only to the institution of family proceedings but also to a
criminal investigation and subsequent prosecution. Which proceedings ought to
be heard first and what particular evidence may be disclosed from one sphere of
jurisdiction to the other are all issues that can cause problems for
practitioners. This article provides guidance as to the legal principles
applied in England
and Wales
and also in Jersey.
Introduction: the overlap between family and criminal law
1 The courts
now frequently encounter cases in which the parties are, or have been, engaged
with both the criminal and family justice system.
This may arise, for example, where there are allegations of domestic violence
within a family, or where allegations of physical or sexual abuse
arise. There may be situations in which the children who are the subject of
care proceedings are themselves the perpetrators of crime.
2 Criminal
proceedings may be the precursor to public law proceedings, for example by the
police making a referral to social services when they are called to an incident
involving a child. Alternatively, investigations and assessments of risk within
the family law context may reveal historic criminal allegations such as the
criminal convictions of a parent or cohabitee; or an investigation by the
police of allegations which did not result in any prosecution.
3 This paper
considers the current law and procedure in respect of such parallel proceedings
and aims to provide some practical guidance to the difficulties encountered
when allegations are tried in concurrent jurisdictions.
Understanding the criminal and family
law interface
4 It can be
tempting to adopt the fallacy that family proceedings and the criminal trial
process are born of fundamentally different objectives.
5 It is
frequently stated, for example, that care proceedings (and the associated
fact-finding exercise) are wholly inquisitorial in nature due to them having,
ultimately, the best interests of the child as their paramount consideration.
Conversely, it is said, criminal proceedings are wholly adversarial, being
concerned solely with apprehending the guilty and bringing them to justice.
6 This
analysis is, arguably, over-simplistic, inter
alia because—
(i)
No judicial process is wholly
adversarial or inquisitorial. In care proceedings, for example, one can
differentiate between the process whereby the Minister for Health and Social
Services seeks to establish the existence of the threshold criteria in order to
justify state intervention (perhaps more realistically described as “adversarial”)
and the “disposal stage” in which the court must decide what order,
if any, would best promote the welfare of the child (more properly “inquisitorial”);
see Re R (Care: Disclosure: Nature of Proceedings)
where Charles J said (at 722)—
“To my mind, some tension
exists between the statements that [care] proceedings are essentially
non-adversarial and the points made as to establishing the threshold criteria
and the establishment of facts for the purposes of ss
31 and 1 of the Children Act 1989.
In accordance with the guidance
given in Re M (A Minor) (Care Orders: Threshold
Conditions) [1994] AC 424, [1994]
2 FLR 577 and Re H (Minors: Sexual Abuse: Standard of Proof) [1996]
AC 563 ... the approach in practice at the threshold stage, where the local
authority has to establish the existence of the threshold criteria on the basis
of facts proved to the civil standard, and thus, on that basis, that the
parents have not acted as it would be reasonable to expect a parent to act, is largely an adversarial process. Further
at that initial stage, the test that the court is applying is not one as to
what would best promote the welfare of the child, rather the issue at that
stage is whether the threshold or trigger exists to enable public authorities
to interfere in the lives of a family and thus possibly remove children from
their parents.
Human nature
and the respective roles of the parties at that stage of public law proceedings
have the result that those proceedings are treated at that stage as being
adversarial or as having a substantial
adversarial element. In my judgment,
it is at the next stage, namely the welfare or disposal stage, when the issue
is what would best promote the welfare of the child, that the non-adversarial
or inquisitorial nature or element of the proceedings comes to the fore.”
(ii)
Children are regularly involved in the criminal justice system, whether as
perpetrators, victims or witnesses. In criminal proceedings, the Attorney
General may consider the interests of the child in relation to both the
decision whether to prosecute and the conduct of the trial process itself. For
example, an application may be made for special measures such as a child
witness to be separated from the view of the defendant when giving evidence in
Court or even to give evidence by way of video recording or live
television link;
(iii) Both court
systems rely on evidence of physical or sexual abuse or neglect by an
identified perpetrator, tested through cross-examination by advocates, albeit
to differing standards of proof. Whilst the fact-finding exercise is
technically not concerned with apportioning “blame”, it equally
would be wrong to assume that the consequences for a parent of an adverse
finding in a family law setting are any less severe than in the criminal arena;
(iv)
Human rights implications infiltrate both jurisdictions and the conduct (or,
indeed, fairness) of one set of proceedings may directly or indirectly effect
the other;
(v)
Children as witnesses: whilst an alleged child “victim” will almost
always give evidence within criminal proceedings, the child is far less likely
to do so within care proceedings, although it should be noted that the Supreme
Court has recently removed the presumption that children should not be
compelled to give evidence in family proceedings (considered later in this
paper).
Initiation of proceedings; case management and fact-finding
7 In recent cases coming before the Jersey courts, it is interesting to see that practice
appears to have altered in respect of the initiation of care proceedings.
Historically, when faced with allegations of abuse that might
also have amounted to criminal offences, the Children’s Service might
have taken its lead as to whether or not to institute care proceedings by
reference to the decision on whether or not there was sufficient evidence for a
prosecution. Cases such as Minister for
Health and Social Services v KG and Re X suggest that historically this may have been the case, although
more recent experience (including these cases themselves) reveal a greater
awareness of the importance of avoiding delay and obtaining an appropriate
adjudication from the family court.
8 However,
assuming both jurisdictions of the Royal
Court are engaged, which comes first: the criminal
or the family proceedings? In some cases there will be arguments in favour of
concluding a criminal trial before embarking on a fact-finding hearing (not
least because the higher standard of proof in a criminal trial means that a
conviction in criminal proceedings will, in all likelihood, render a further
fact-finding exercise unnecessary). In addition, as a matter of Jersey
customary law, it is important not to overlook the maxim “le criminel tient le civil en état”
(“the criminal law suspends the civil”): issues in a criminal case
will generally be heard before being the subject of any determination in a
civil matter, although exceptions do exist. Most importantly to the exercise of
discretion, is the avoidance of any prejudice to the criminal proceedings.
Holding civil proceedings in private, coupled with specific undertakings may be
a sufficient means of avoiding such prejudice.
9 In reality,
however, the “no delay” principle enshrined in s 1(2) of the
Children Act (“CA 1989”) as interpreted by the case law and in
Jersey under article 2(2) of the Children (Jersey) Law 2002, may make it difficult
to convince a court that the criminal proceedings should go first.
(i) R v Exeter
Juvenile Court ex p H & HR v Waltham Forest Juvenile Court ex parte B. These were linked applications for judicial review of youth court
decisions to refuse to adjourn care proceedings pending the hearings of the
criminal charges on the basis that further delay would be
contrary to the best interests of the children. Both applications were refused,
the Divisional Court
ruling that—
·
there was
no bar to the hearing of the care proceedings where criminal proceedings were
pending;
·
in both
cases the justices had taken all relevant matters into account and considered
the risk of possible prejudice to the applicants against the overwhelming need
for the children to have their future settled with the minimum of delay.
(ii)
Re TB (Care Proceedings: Criminal Trial).
Applications for care orders on the grounds of neglect were made in
respect of four children in a case in which criminal charges had also been
laid. On the application of the father the fact-finding was vacated so that the
criminal trial of the parents could take place before the applications for care
orders were heard. The Guardian appealed. The Court of Appeal held—
·
where
there were parallel proceedings the welfare of the child should take precedence
over the family who faced criminal proceedings;
·
the fact
that criminal proceedings were pending was not of itself a reason to adjourn
care proceedings. It needed to be shown that some detriment would be caused to
the children if the care proceedings were not adjourned;
·
the issue
of delay was all-important. That said, the court acknowledged that there would
be cases in which the child’s welfare would be best served by the care
proceedings taking place after the criminal proceedings had been concluded;
·
in
determining what was in a child’s best interests, it was relevant for the
court to consider what the effect would be on the parent’s trial of the
care proceedings being heard first although that would not of itself be a
determinative factor;
·
in the present case the outcome of the care
proceedings was unlikely to be greatly influenced by the outcome of the
criminal proceedings.
(iii) Contrast the
case of Re L (A Child).
The case involved the identification of the perpetrator of injuries to a child.
The father was represented by the Official Solicitor in care proceedings and
did not give evidence. At a fact finding hearing the judge
was unable to identify whether he or the mother was the perpetrator. In
criminal proceedings which had yet to be heard, the father alone was charged
with inflicting the injuries, and the mother was charged with neglect. The
mother would have a chance to cross-examine the father in the criminal
proceedings (if he gave evidence) which she had not had in the care
proceedings. The Court of Appeal (per
Wall LJ, as he then was) held that the outcome of the criminal proceedings was
clearly relevant to the outcome of the care proceedings and that the criminal
proceedings were likely to throw up material which was likely to inform the
final hearing of the care proceedings.
Case management—keeping the court fully informed
10 Where there
are related criminal and family proceedings the case law makes it abundantly
clear that it is vital that the parties’ representatives ensure that the
court hearing the family proceedings is fully informed as to the state of play
in the pending criminal proceedings.
11 In Re W
(Children) (Concurrent Care and Criminal Proceedings),
a father faced allegations of sexual abuse of his stepdaughter. In the care
proceedings, which preceded the criminal trial, findings were made that the
father had raped his stepdaughter. The child had been unwilling to give
evidence at the fact-finding hearing and applications for her to be compelled
to do so were refused.
12 Following
the criminal trial (at which the child gave evidence and was cross-examined),
the father was acquitted. Supported by the mother, he appealed against the
decision against him in the fact-finding hearing. He submitted, inter alia, that the judge should have
required the child to attend to give evidence in the care proceedings or,
alternatively, that the judge should have adjourned the care proceedings until
the outcome of the criminal trial so that he could be properly informed of the
evidence given by the child and the information which emerged from the trial
generally.
13 The
Court of Appeal held—
(i)
The starting point was that the existence of criminal
proceedings was not of itself a reason to adjourn care proceedings (in line
with Re TB, above);
(ii)
Where there were concurrent proceedings, it was essential that each was kept
fully informed of the other and that the judge conducting
the care proceedings exercised his or her case management functions not only
with a full knowledge of the state of play in the criminal proceedings but also
with a view to ensuring that each was heard at an appropriate time.
(iii)
Lawyers are familiar with the situation where a judge applying the civil burden
of proof makes findings of abuse whilst a jury, applying the criminal standard,
acquits the defendant. In such circumstances judges had a particular duty to
ensure that the process was seen to be fair which meant, as a minimum, having a
detailed knowledge of the criminal proceedings and when they were likely to be
heard;
(iv) The Court of
Appeal was extremely critical of the apparent ignorance of those involved in
the family proceedings of the state of the criminal proceedings and of the lack
of liaison between the criminal prosecution and the care proceedings. Wall LJ
stated (at para 39)—
“There is an almost
embarrassing volume of authority on the interrelationship between criminal and
care proceedings. But what is clear beyond peradventure is that it is for the
family court (1) to be aware at all stages of what is happening in the criminal
proceedings; and (2) to be the proactive
coordinator of the proceedings, to ensure that each is heard timeously and with
as little prejudice as possible to the competing interests involved.”
[Our emphasis]
Linked case management hearings
14 Is it
appropriate to hold linked case management hearings? In England there
are now a number of local case management protocols for linked care and
criminal proceedings (e.g. the Practice Statement of the South East Circuit
Presiding Judges of November 2003). Currently, no such guidance exists in Jersey. Despite this, in reality there are relatively few
such linked hearings in England
and Wales.
It is partly that the geography and limited availability of judges can cause
difficulties; there is considerable regional and local variation. But, more
fundamentally, in practice it is often (although not invariably) the case in England that
prosecuting authorities wait for the conclusion of the fact finding part of the
care proceedings before making a decision whether to charge a parent.
Disclosure of the judgment to the police is now automatic under the new Rule 11
of the English Family Proceedings Rules (unless an order is made otherwise);
and application by the police for disclosure of experts’ reports and
other material is often made. Armed with this greater information, the
prosecuting authorities then come to a decision about charging a parent.
Obtaining the available evidence
15 Both
criminal trials and family fact-finding hearings rely on evidence of a
past/present state of affairs in order to justify intervention by the state in
the lives of private individuals.
16 The
disclosure of evidence is a significant bridging point between child protection
proceedings and criminal proceedings precisely because the same information is
often highly relevant in both sets of proceedings.
17 It is
therefore vital to appreciate the evidential/disclosure considerations that
have particular relevance to parallel proceedings.
Applications for disclosure—confidentiality and
litigation privilege
18 Article 73 of the Children (Jersey) Law 2002
provides for the Court to sit in private in children proceedings and also
provides criminal sanctions for any publication intended or likely to identify
the child in question, including revealing the child’s address or school.
Similarly, the confidentiality of documents in children proceedings is
protected by Rule 25 of the Children Rules 2005. However, as is the position in
England
and Wales,
the Court can grant leave for deviation from such protective provisions in
appropriate cases.
19 As a
further but different fetter upon disclosure is litigation privilege. Litigation
privilege is an essential component of the adversarial procedure adopted in
ordinary civil litigation. It prevents one party being compelled to disclose
expert evidence and similar material which has been prepared for use in pending
or anticipated litigation.
20 In Causton v Mann Egerton
(Johnsons) Ltd,
Roskill LJ (at 170)
said—
“I am clearly of the view
that this court has no power to order production of privileged documents ... so
long as we have an adversarial system a party is entitled not to produce
documents which are properly protected by privilege if it is not to his
advantage to produce them, and even
though their production might assist his adversary.”
21 Children’s
cases fall into a “special category” and litigation privilege does not
apply in proceedings under CA 1989 and presumably also will not apply in Jersey under the 2002 Law. As a result, where the court
has given leave for the relevant papers to be disclosed to an expert witness,
the resulting report of the expert must be disclosed to the court and to the
other parties to the proceedings.
22 In Re L (A Minor) (Police Investigation:
Privilege) a
two-year old child whose parents were heroin addicts became seriously ill after
ingesting methadone. The mother’s case was that the child had
accidentally consumed the methadone which had been left lying around carelessly
in the kitchen. The mother obtained the court’s permission to disclose
the court papers to a consultant chemical pathologist in order to obtain his
expert opinion as to whether or not the child’s condition was consistent
with her account. The order required the report to be filed and served on the
other parties to the care proceedings. The report cast doubt on the mother’s
account of the time when the accidental ingestion of the drug had occurred.
23 At a later
case conference the police dealing with the parallel criminal investigation
into the mother’s actions became aware of the existence of the medical
report and sought an order that it be disclosed to them. A majority of the
House of Lords held that—
“An expert’s report
created in the ‘non-adversarial’ context of child protection
proceedings will not be protected by litigation privilege. The report could not
have been prepared without leave of the court. Once it has been disclosed in
family proceedings it is therefore potentially disclosable
in any other type of adversarial proceedings, notwithstanding that it would
ordinarily have been so protected. Any communication between the instructing
solicitor and the expert is also disclosable in
future criminal proceedings.”
24 There are
implications in revealing even the name of an expert—there is no property
in a witness and it would be open to the other side to summon the expert and
ask them to give opinion evidence. This contrasts with the position as regards
legal professional privilege which remains sacrosanct. Legal professional
privilege attaches to all communications between solicitor
and client whether related to litigation or not.
25 The
position is different where an expert’s report is prepared for the
purpose of criminal proceedings and the local authority in the care proceedings
makes an application for disclosure. In that instance, the defendant/respondent
is entitled to rely on litigation privilege to refuse disclosure of
direct/indirect communications with experts prepared solely for the purpose of
the criminal trial (see S County Council
v B ).
26 It would
seem to be a likely consequence of the decision in Re L that a parent may well be deterred from retaining experts to
advise them in family proceedings whilst a parallel criminal prosecution is
ongoing because such information disclosed in the family court could become available
to the prosecuting authorities for use in the later criminal proceedings. On
the other hand, the benefit to the parent in being able to maintain a
relationship with the child may outweigh their concerns about possible criminal
sanctions.
27 What is the
position as regards disclosure without an order into children proceedings? In Re L it was further argued that the duty
of full and frank disclosure required a party to make voluntary disclosure of
all matters likely to be material to the welfare of the child. The House of
Lords did not reach a conclusion on the question of whether a party has an
obligation to inform the other parties of the existence of documents that may
be unfavourable to his or her case.
The privilege against self-incrimination and the interplay
with art 74
28 Article 74
of the Children (Jersey) Law 2002 is in
similar terms to s 98 of the Children Act 1989. It provides—
“(1)
In any proceedings in which a court is hearing an application for an order
under Part 4, no person shall be excused from—
(a)
giving evidence on any matter; or
(b)
answering any question in the course of giving evidence,
on the ground that doing so
might incriminate him or his spouse or civil partner of an offence.
(2)
A statement or admission made in such proceedings shall not be admissible in
evidence against the person making it or his spouse or
civil partner in proceedings for an offence other than perjury.”
29 The
rationale behind art 74 (as with s 98) is that frankness in children’s
proceedings is an important adjunct to the paramountcy
principle. “Statement or admission” has been interpreted as
including witness statements filed in the proceedings, statements or
admissions made to the Guardian during the course of his or her investigation
and any statement made to an expert during his assessment.
30 However, art
74 does not provide absolute protection for a parent. There are situations
where statements made in family proceedings may be disclosed with the court’s
permission to a third party, including the police. Once the police have
received those documents, “there is nothing in the terms of s 98 which
inhibits further questioning [by the police] certainly before the suspected
person is charged with the offence”.
If the suspect accepts those statements they will form part of the admissible
interview. If the suspect does not adopt, or makes no comment on, the statement
then it remains inadmissible.
31 There is
also nothing in theory which prevents the documents being used in
cross-examination if they amount to a prior inconsistent statement, subject to
the discretion of the court.
Putting inconsistent statements to a witness in order to challenge his or her
evidence or attack his or her credibility does not amount to “using those
statements against him” within the meaning of s.98. Whilst the Crown
cannot use material that is disclosed in order to “make its case against
the defendant” it can use such material in order to challenge any account
the defendant seeks to put forward in the Crown Court or Royal Court which is inconsistent with
it.
32 Ultimately,
the decision as to what is admissible in criminal proceedings will be a matter
for the court. However, it is possible for the judge in family proceedings,
when granting disclosure of documents, to make a statement indicating that he
or she considers the material inadmissible.
33 Material
may also be disclosed for the purpose of fully informing a criminal court that
sentences a defendant.
Social services records: public interest immunity (PII)
34 Evidence relevant to an issue in court
proceedings must be excluded if, as a matter of public policy, the public
interest requires that it should be so excluded, notwithstanding the competing
public interest which normally requires the full disclosure of documents
relevant to the facts.
35 In the case
of Re M (A Minor) (Disclosure of
Material), Butler
Sloss LJ considered (at 42–43) that social work
records were a class of documents protected by PII,
but that did not mean that there was an absolute bar against disclosure. In
each case the court was required to conduct a balancing exercise as to whether
the public interest in the protection of the records overrides the public
interest that the party to proceedings should obtain the information he or she
is seeking to obtain legal redress.
36 In the case
of Re R (Care: Disclosure: Nature of
Proceedings),
Charles J expressed the view that—
“In light of the
development of the law in relation to PII
since 1990, public
interest immunity was unlikely to attach to any material simply because it
belonged to a particular ‘class’ of document, and that each claim
for public interest immunity must therefore be determined by considering the
contents of the material itself.”
37 A person
with appropriate authority in a public body is able to decide not to advance a
claim to public interest immunity in any given case. Anyone advancing a claim
to public interest immunity in respect of material held by a local authority
should set out with particularity the harm that it is alleged will be caused to
the public interest, for example the proper conduct of the duties of the local
authority to protect children, if material which passes the threshold test for
disclosure is disclosed.
Social services records: disclosure into
criminal proceedings
38 A party to
pending criminal proceedings may apply to the criminal court for an order
requiring the disclosure of material from social services files which may be
relevant to the issues raised in the criminal trial. Where the documents are
confidential there is a duty
to assert that the documents are immune from production on public interest
grounds.
39 The judge
must read the material in dispute
and require the party seeking disclosure to establish the need for the
documents to be disclosed. The party seeking disclosure should set out
precisely which documents are sought and the extent to which it is asserted
that justice would be at risk if access to the undisclosed material were denied.
Where the judge concludes that non-disclosure will lead to a miscarriage of
justice, he is under a duty to admit the evidence.
Where a judge initially has ruled that material should not be disclosed, that
decision must be kept under review by the judge throughout the trial, so that
if a development occurs which alters the balance in favour of disclosure, it
may take place.
40 The
principles identified in the case of R v Reading Justices ex p Berkshire County Council
apply to the Crown Court and appear equally applicable in Jersey,
although there has been no reported case yet upon the point:
(i) To be material evidence, documents must not only be
relevant to the issues arising in criminal proceedings but also be documents
admissible in evidence.
(ii) Documents
desired merely for the purpose of cross-examination are not admissible in
evidence.
(iii) Those
seeking production must satisfy the court that the documents are likely to be
material, this to include a real possibility though not probability.
(iv) The
procedure should not be used as a disguise to attempt discovery.
Social services records: disclosure
into family proceedings
41 In England and Wales, helpful
guidelines were given by Cazalet J in Re C (Expert Evidence: Disclosure: Practice)
which still hold good today:
·
It is the responsibility of the local
authority actively to consider what documents it has in its possession which
are or may be relevant to the issues as they affect the child, its family and
any other person who is relevant in regard to an allegation of significant
harm, and to the care and upbringing of the child in the context of the welfare
checklist issues.
·
The local authority should not content itself
with disclosing the documents which support its case, but must consider itself
under a duty to disclose in the interests of the child and of justice documents
which may modify or cast doubt on its case.
·
If there is any doubt about whether the
information is relevant, consideration should be given to notifying the affected
parties of the existence of the material.
·
There should be a presumption in favour of
disclosure of potentially helpful information. If documents are obviously
relevant and not protected from disclosure by public interest immunity, then
the local authority should initiate disclosure.
·
If documents are apparently relevant but
appear to be protected by public interest immunity from disclosure, a letter
should be written by the local authority to the parties’ legal advisers
and to the guardian drawing general attention to the existence of the documents
and inviting an application to the court if disclosure of the relevant
documents is required.
·
The local authority should identify and flag
the documents which they believe are or may be relevant. A short precis of the information should be prepared in order to
assist the court which is to make the decision. If the court orders disclosure
of the documents and if the nature of the precis
satisfies the party affected that the material identified and disclosed is
sufficient, then the directions hearing can proceed upon a short basis. However,
if the precis does not achieve agreement and the
other party wishes to see more of the files, then some further guide to the
file should be provided so that the court can carry out the balancing exercise
envisaged in Re M (A Minor) (Disclosure of Material).
·
It is for the court to make the decision as
to disclosure of documents covered by public interest immunity. If the view is
taken that the witness statement served by the local authority identifies the
matters of concern, then this can generally be taken to satisfy the disclosure
requirements.
·
In all cases it is particularly important
that the local authority should draw the guardian’s attention to any
matters of concern within the documents. Whilst it is the court’s task to
decide any contested disclosure matter, the guardian’s full knowledge of
the material may enable him to assist the court as to its relevance.
42 Recent Jersey
decisions have also emphasized the need for the Minister for Health and Social
Services to disclose all matters relevant
to his decisions that have a significant impact upon the welfare of a child in his care. Such
an approach applies once court proceedings are on foot and also to decisions outside
the court arena. In the Matter of the X
Children the Court of Appeal stated the position as follows:
“… there is no doubt
that there has been a change in the attitude of the courts to the degree to
which, as a matter not merely of good practice but of law, public authorities
making decisions which vitally affect children and their parents have
procedural obligations towards them … This phenomenon is particularly notable when
the authority proposes to sever temporarily or permanently the family link but
it is not, in our judgment, applicable only to that special class of
decision.”
43 In
emphasizing that parents and children involved in care proceedings not only
have substantive protection against any inappropriate interference with their
private and family life but also significant procedural safeguards, the Jersey
Court of Appeal went on to endorse English authority that such safeguards
included—
“… positive obligations of disclosure of all key documents
in its possession or available to it…, and fairness in the
decision-making process at all stages of child protection …”
44 In ensuring
that all relevant evidence is available, the Royal Court has also (adopting
English authority) ordered that relevant documentation from one set of care
proceedings should be disclosed into other care proceedings.
The role of the Children’s
Guardian in relation to the disclosure to other parties of the contents of social
services files
45 If a Children’s
Guardian examines and takes copies of social services records which the
Guardian believes are relevant, but which the Minister does not intend to
disclose to the other parties, the Guardian should bring the nature of the
documents to the court’s attention with a view to seeking directions (Re C (Expert Evidence: Disclosure:
Practice)). The
Guardian should not disclose the documents without an order from the court: he
is not entitled to disclose documents in breach of public interest immunity.
Disclosure by the prosecution to social services/into care
proceedings
46 Where the
police are not agreeable to disclosing a document in their possession to a
local authority or into the care proceedings, the local authority or any other
party may apply to the court which is seized of the family proceedings for an
order against the police (or Crown Prosecution Service (CPS))
seeking disclosure of the document on the ground that information contained
within it may assist the local authority in discharging its statutory duty with
respect to a child who is the subject of care proceedings.
47 In deciding
whether to order disclosure, the court will have to balance the public interest
in maintaining the confidentiality of documents, the disclosure of which might
prejudice or inhibit a pending prosecution or investigation, against the public
interest in ensuring that a local authority has all material that may assist it
in making the best proposals for the future of the child whose case is before
the court.
48 The issue
of disclosure often falls into two stages: first, that of disclosure by the
police to the local authority; and, secondly, whether there should be further
disclosure by the police or local authority to others who are parties to the
care proceedings.
49 At the
second stage, if a party, for example a parent, makes an application to the
court for disclosure by the local authority of documents which it has received
from the police, whether voluntarily or by court order, it would be wrong for
the court to determine the application in the absence of representations from
the police.
50 In
this context, there have been a number of cases in Jersey
but few appear to have been contested and resulted in any formal published
judgment. In re W disclosure
was sought from criminal proceedings into care proceedings by the lawyer for the
Guardian, such documents having been obtained in the course of the successful criminal
prosecution of the child’s maternal grandfather “C”. Whilst
the application was not determined on this occasion, the Court reminded itself
that it retained all of its inherent powers to make such an order, subject only
to the restrictions imposed under Article 76 of the Children (Jersey) Law 2002.
The court also noted that the victim of C’s abuse needed to be given the
opportunity to be heard and for adequate safeguards to be imposed given the
“serious risk” of confidential and highly sensitive information
being disseminated by the parents.
Disclosure from family proceedings to the police
51 In the case
of In re C (A Minor) a
case where a child had suffered injuries leading to death and the police sought
disclosure of evidence given in care proceedings, Swinton Thomas LJ said (at
330–331)—
“In the light of the
authorities, the following are among the matters which a judge will consider
when deciding whether to order disclosure. It is impossible to place them in
any order of importance, because the importance of each of the various factors
will inevitably vary very much from case to case.
(1) The
welfare and interests of the child or children concerned in the care
proceedings. If the child is likely to be adversely affected by the order in
any serious way, this will be a very important factor.
(2) The
welfare and interests of other children generally.
(3) The
maintenance of confidentiality in children cases.
(4) The
importance of encouraging frankness in children’s cases. All parties to
this appeal agree that this is a very important factor and is likely to be of
particular importance in a case to which s 98(2) applies. The underlying
purpose of s 98 is to encourage people to tell the truth in cases concerning
children, and the incentive is that any admission will not be admissible in
evidence in a criminal trial. Consequently, it is important in this case. However, the added incentive of guaranteed
confidentiality is not given by the words of the section and cannot be given.
(5) The
public interest in the administration of justice. Barriers should not be erected
between one branch of the judicature and another because this may be inimical
to the overall interests of justice.
(6) The
public interest in the prosecution of serious crime and the punishment of
offenders, including the public interest in convicting those who have been
guilty of violent or sexual offences against children. There is a strong public
interest in making available material to the police which is relevant to a
criminal trial. In many cases, this is likely to be a very important factor.
(7) The
gravity of the alleged offence and the relevance of the evidence to it. If the
evidence has little or no bearing on the investigation or the trial, this will
militate against a disclosure order.
(8) The
desirability of co-operation between various agencies concerned with the
welfare of children, including the social services departments, the police
service, medical practitioners, health visitors, schools, etc. This is
particularly important in cases concerning children.
(9) In
a case to which s 98(2) applies, the terms of the section itself, namely, that
the witness was not excused from answering incriminating questions, and that
any statement of admission would not be admissible against him in criminal
proceedings Fairness to the person who has incriminated himself and any others
affected by the incriminating statement and any danger of oppression would also
be relevant considerations.
(10) Any
other material disclosure which has already taken place.
I have, then, to apply those
general considerations to the present case.”
This
formulation has come to be regarded in subsequent English cases as the starting
point for any judge conducting the balancing act as to whether or not to order
disclosure, and is a corner stone decision.
52 As far as
specific Jersey authority is concerned, In
The Matter of D (Disclosure: Private Law),
the Deputy Registrar of the Royal Court of Jersey’s
Family Division granted leave to a husband to disclose to police legal advisers
certain documents that had been considered in family law proceedings following
an allegation of assault made against him by the wife. Despite the wife’s
objection to such disclosure, the Deputy Registrar was persuaded by arguments
made on the husband’s behalf that the documents produced within the
family proceedings were directly relevant to his defence. In making her
decision and applying Re D (Minors) (Wardship: Disclosure),
Re C (A Minor) (Care proceedings:
Disclosure),
and Re Z (Children) (Disclosure: Criminal
proceedings)
the Deputy Registrar considered the following matters to be of particular
relevance to the exercise of discretion:
(a) The
welfare and interests of any children;
(b) The
importance of confidentiality;
(c) The
desirability of encouraging frankness in family law cases;
(d) the
public interest in the administration of justice;
(e) the
interests of justice that a defendant in a criminal trial should have all
relevant and necessary material for the proper conduct of his defence; and
(f) the
gravity of the alleged offence and the relevance of the evidence to it.
53 The Court further noted that expert evidence,
such as medical reports, would be more readily disclosed than affidavits or
transcripts of evidence, because it was not subject to the same provisions
concerning the right not to incriminate oneself. (See further above.) It was
further held that, when granting leave to disclose documents, the Family
Division could impose “any appropriate conditions” such as in the
instant case, for the court to retain control over any further dissemination of
the documents.
Child witnesses: oral evidence in family proceedings
54 Until
recently the presumption in family proceedings was that it was undesirable for
a child to give evidence and that instances in which
children would be compelled to do so would be rare (Re M (a child) (care proceedings: witness summons) ).
55 This
position arguably stood in stark contrast to other trial models, in which it is
trite law that a defendant be permitted to cross-examine a complainant and
directly challenge the allegations made against him or her. As Lady Hale SCJ
points out in Re W (children) (care
proceedings: evidence)
(at para 5)—
“The starting point of
English criminal and civil procedure has historically been that facts must be
proved by oral evidence given on oath before the court which can then be tested
by cross-examination ...”
56 The
development of the presumption against children giving evidence in family proceedings
was linked to the premise, stemming in part from the Pigot report, that the process of
giving evidence is harmful to children. More recently in Jersey,
the Royal Court
appears to have echoed such sentiment in In
the Matter of C.
57 However, the
Supreme Court in Re W has now removed
this presumption, giving judges broader discretion in deciding whether or not a
child should be compelled to give evidence. Lady Hale stated (at para 22)—
“[the presumption against
children giving evidence in care proceedings] cannot be reconciled with the
approach of the European Court of Human Rights, which always aims to strike a
fair balance between competing convention rights. Article 6 requires that the
proceedings overall be fair and this normally entails an opportunity to
challenge the evidence presented by the other side. But even in criminal
proceedings account must be taken of the article 8 rights of the perceived victim
… striking that balance in care
proceedings may mean that the child should not be called to give evidence in
the great majority of cases, but that is a result and not a presumption or even
a starting point.”
58 The Supreme
Court in Re W outlined the following (non-exhaustive) factors as relevant to
the balancing exercise:
·
What are
the issues for the judge to decide? Is it possible to determine the case
without making findings on particular allegations?
·
What is
the quality of the evidence the court already has (in particular the ABE
interview)? Is it sufficient to rely on this evidence without needing to call a
child to give evidence?
·
The age
and maturity of the child;
·
The length
of time since the alleged events took place;
·
What
family support (or lack thereof) the child has;
·
The
child’s own wishes and feelings as regards giving evidence;
·
The views
of the Guardian;
·
The views
of those with PR (if appropriate);
·
The risk
of delay;
·
Risk of
harm specific to the particular child; and
·
Risk of
harm where there are parallel criminal proceedings.
59 Will
children now more routinely be compelled to give evidence in care proceedings?
Lady Hale stated (at para 26)—
“We indorse the view that
an unwilling child should rarely, if ever, be obliged to give evidence.”
This suggests that not
much may have changed.
Vulnerable/intimidated witnesses
60 As
discussed earlier, some witnesses will require special protective measures, for
example giving evidence behind screens and/or with the support of a victim
support worker to be present in court.
Pamela Scriven, QC is a barrister practising from 1 King’s
Bench Walk and a Commissioner of the Royal Court of Jersey.
Timothy Hanson is an advocate and partner in Jersey
law firm Hanson Renouf.