Can the police use witness statements you make in family proceedings to investigate, and possibly prosecute you for an offence?
That was the key question in M (Children)  EWCA Civ 1364, where the police asked the court to disclose statements made by two people under investigation for terrorism offences.
The appeal concerned issues about the disclosure of that information, and the parent’s rights to silence and against self-incrimination. This is not a new area of law, but this case reviewed the previously established principles. The Court also considered whether they were still compatible with aspects of human rights law.
What had M’s parents done?
This was a case of alleged terrorism offences. The police had asked for disclosure of two position statements from the court to aid their investigations. The police information was that the parents had travelled to Syria and lived there for four years. At the time, Foreign and Commonwealth Office advice was not to do so. They also travelled while ISIS was active in the area.
The Home Office had made the father the subject of a Temporary Exclusion Order; an order made to disrupt the return of British citizens to the UK. It is used where people are suspected of taking part in terrorist activity abroad.
The right to silence?
English law has long recognised the right of a person not to answer questions put to them by investigators. Usually that will be the police, either after arrest or in an interview under caution. Although this right was eroded at the end of last century, so that it is now possible for a jury to draw an adverse inference from that silence, it is still the generally applicable rule.
In this case, as was their right, the parents refused to answer questions put to them by the police.
The privilege against self-incrimination?
An even longer-established right than that of silence is the privilege against self-incrimination. This is the right in civil proceedings not to make an admission that would expose you to criminal liability. It is, in fact, more comprehensive than that and allows silence in the face of questions that would expose you to any penalty.
The Children Act 1989 makes an exception and disapplies the rule in care proceedings such as those in this case. There is a proviso that any information given in those proceedings is not admissible as evidence in a subsequent criminal trial. Effectively sidestepping the rule but with the same effect that no prosecution will occur based on the admissions alone.
When can witness statements in family proceedings be given to the police?
The general position is that material created for family court proceedings is private. However, it may be disclosed where the court gives its permission.
Just because there is a bar on those statements and admissions being used as evidence does not mean they cannot be disclosed to the police. The police would use them to further a chain of inquiry leading to different evidence, possibly of the same facts.
Defendants and others can, of course, refuse to answer questions in an interview based on those statements. Instead of risking an adverse inference as usual, those questions are inadmissible as evidence entirely. They are, therefore, purely investigatory.
Questions which are put based on evidence gathered from the disclosed statements are in a greyer area. They are subject to the usual provisions that evidence should not be admissible if it is unfair; it will be for any trial judge to weigh the circumstances as a whole.
When will that material be disclosed?
The test is set out in Re C (A Minor) (Care Proceedings: Disclosure)  Fam 76. The court set out ten of the factors to take into account, but ultimately, all the circumstances are likely to be relevant.
The relevant circumstances are – the interests of the child; the interests of other children generally; the maintenance of confidentiality in child proceedings; the importance of frankness in child proceedings; public interest in the administration of justice; public interest in prosecution of crime; the gravity of the alleged offence; inter-agency cooperation; fairness to the person accused and incriminated by the statement; and any other material disclosure that has occurred.
The court in M confirmed that this was good law. In the event, the parents’ challenge failed because the witness statements disclosed did not actually contain any admission of criminality. They were simply a description of normal life in Syria away from any conflict.
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If you are being sentenced, the court will be aware of, and may take into account, any convictions you have. Whether this has any impact upon the sentence passed will very much depend on the date of those convictions and the relevance of any to the more recent offending.
If you plead not guilty, the court or jury can only be made aware of any convictions in certain circumstances. The relevant law is known as the ‘bad character provisions”.
What are the circumstances?
Prior to these provisions being introduced the court could be made aware of any bad character by way of similar fact evidence. So, for example, if a burglar had a particular or unusual way of committing offences, an ‘MO’, the detail could be given to the trial court. Whilst there were other ways in which evidence of bad character could be admitted, the general presumption was against evidence of previous convictions being used.
The new provisions expanded on the old law.
A defendant’s previous convictions may be admitted in court in the following circumstances:
- all parties agree
- a defendant introduces them himself
- it is relevant to an important matter in issue between the defendant and the prosecution
- there is substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
- it is necessary to correct a false impression given by the defendant
- the defendant has made an attack on another person’s character
If you said in evidence when charged with theft, that you would never steal anything, and you had convictions for theft, it would mean the court is likely to be told about them.
If you called the prosecution witness a liar, you might find your convictions before the court.
As with the old law, any convictions based on your ‘MO’ could also be introduced. So, if you have previous convictions for burglary and are now charged with burglary, the prosecution may apply to admit this evidence.
Does this only apply to defendants?
You can also make an application for the bad character of a non-defendant or witness to be out before the court in certain circumstances.
How can we help?
The law in respect of the bad character provisions is extremely complicated. There is extensive case law on the subject and this article is a very brief overview. Some practitioners are of the view that there is little that can be done to avoid bad character evidence being admitted. However, this is not something that we agree with. No concession should be made unless and until a detailed analysis of the circumstances has been carried out.
We can oppose any application on your behalf or make an application for a non-defendant’s character to be introduced.
We have the knowledge and experience to make these arguments on your behalf and guide you through the process.
The introduction, or otherwise, of any convictions may play a crucial part in the outcome of any trial. If you would like to discuss any aspect of your case, please contact John Howey on 020 73881658 or firstname.lastname@example.orgRead More
You have been convicted of a crime you didn’t commit, your appeals are exhausted, and you serve time in prison. Part way through, you’re eligible for parole. So you hope finally to get out and put this behind you.
The parole board give you their decision, but parole is refused, seemingly because you refuse to accept your guilt. What can you do?
The Parole Board
The role of the Parole Board is to decide if it is safe to release a person. They mainly make decisions in relation to life prisoners, extended sentences, or offenders of particular concern such as terrorists or child sex offenders; they do not make a release decision about all prisoners. The decision to re-release someone who has previously breached their licence conditions is also down to the Parole Board.
They will consider one question: whether the prisoner is a serious risk to the public.
Those who are a serious risk will remain in prison. However, those who are not will be released on licence, serving the remainder of their sentence in the community under the watch of the Probation Service.
How does the Parole Board decide who to release?
To assess any risk to the public, the Board will consider many factors.
They may look at the circumstances that led to the offence being committed — such things as lifestyle, including any drug or alcohol use or abuse, relationships and acquaintances, living conditions and other factors. The Board will consider if those factors have changed.
They may also look at the circumstances the prisoner will be released into. For example, will they have a family network, a place to live, or a job? These things are likely to help the Board feel that any risks can be effectively managed outside of prison.
They will also look at a person’s record in prison. This includes their behaviour, their engagement with the opportunities in prison, and their relationship with their Offender Manager.
It is at this stage that problems can arise for people who deny they committed any offence.
Various programmes available to help offenders confront and manage their behaviour require them to accept guilt, because the programmes are built around gaining insight into the offence.
This can be an effective bar to those who deny their guilt from taking part in these schemes and disadvantage them in front of the Parole Board.
How do the Parole Board make their decisions?
The Parole system is complicated and it can take six months or more. The process begins with a ‘dossier’ of information being considered by a member. This stage is called the Member Case Assessment.
The case can then have one of four outcomes: the prisoner is released, transferred to an open prison, an oral hearing is directed, or the prisoner is refused parole.
An oral hearing is precisely that: a hearing that happens face to face. The Parole Board wants to hear evidence from the prisoner and other witnesses to find out more about the factors above.
An oral hearing can end in any of the other outcomes that the Member Case Assessment can.
What happens if I deny that I am guilty?
This can be tricky for a Parole Board because one of the ways in which they assess risk is looking at the insight a prisoner can demonstrate into their offending. When a person says they have done nothing wrong, it’s difficult to show any insight.
However, a denial of guilt is not, and should not be treated as an automatic bar to parole. This was made clear in the leading case of R (Owen Oyston) v The Parole Board  EWCA Crim 3552.
A denial of guilt can be taken into account when assessing risk. The court made it clear in Oyston that it was only one factor to take into account. The Parole Board should consider it in the context of all the evidence.
Do people who deny guilt face a disadvantage at parole hearings?
The court in the Oyston case set out the ways in which a person who maintains their innocence may be at an evidential deficit compared to those who accept they committed an offence.
Those who maintain they are innocent are unlikely to express any, or any real, remorse or contrition. They are unlikely to express sympathy for any victims, except that they may express general sympathy for them having been the victim of a crime.
Places on prison programmes designed to address the cause of the offending often require acceptance of guilt. Not going on those courses can harm your chance of release.
They may, in every other way, be a model prisoner, and they may show a willingness to engage in those programmes but be unable to by virtue of their denial of guilt.
As a result, the Parole Board may, in these cases, have a fear that they will have no motivation to obey the law in future. Prisoners who deny guilt can only undertake not to do what they maintain they have not already done.
What happens if I have been denied parole?
You can challenge decisions of the Parole Board by way of judicial review. This means asking a judge to review the decision. This is not a re-hearing and can only be used where the law has been wrongly applied, something has gone wrong in the procedure, or discretion has been exercised unreasonably.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on all aspects of your case.Read More
In February 2019 the Court of Appeal quashed Sally Challen’s conviction for the murder of her husband and ordered a retrial.
Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody.
Why was the appeal allowed?
Challen advanced two grounds of appeal:
- The fresh evidence on coercive control and the fresh psychiatric evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.
- The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.
The foundation for both lines of the challenge was her husband’s controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse.
Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control.
The lack of knowledge about the theory of coercive control at the time of the appellant’s trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant.
The appellant’s actions were not, therefore, put into their proper context.
Did the court agree?
“We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor’s] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.
We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all.”
Accordingly, a retrial was ordered.
In the end the prosecution accepted the plea to a lesser charge of manslaughter in light of overwhelming evidence as to the husband’s behaviour and the effect on Challen’s state of mind at the time of the killing.
What does this case tell us?
From a legal perspective it tells us two things:
- Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and
- That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or email@example.com and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.Read More
Many people face very lengthy court proceedings, and it is therefore hardly unusual that on occasion a person may be unwell and unable to attend court.
Despite this fact, courts are sceptical of alleged illness and unless the rules are followed in close detail, a non-attendee faces the serious prospect of being arrested by the police and taken to court in custody. This may involve a stay in police cells over the weekend, so it is essential that you understand what you need to do.
The first step is to inform your solicitor as soon as you are able.
Our firm has a 24-hour contact number, 07939 958767, so that you can contact us before office opening (say around 8 am) to inform us as to what is happening.
In almost all cases, if you do not need to see a Doctor, the court is unlikely to accept your illness as an excuse not to attend court.
It will, of course, depend on the exact circumstances, so again it is essential to speak to us and obtain advice as to what is the best course of action.
A Doctor will be able to issue you with a sick note.
This is not, however, necessarily the end of the matter, and the opinion of a Doctor does not bind a court.
Doctors have been issued with guidance concerning medical notes for court non-attendance, but a busy practitioner may very well miss the detail.
The Criminal Practice Direction sets out the following minimum requirements:
(a) The date on which the medical practitioner examined you;
(b) The exact nature of your ailments;
(c) If it is not self-evident, why the ailment prevents you attending court;
(d) An indication as to when you are likely to be able to attend court, or a date when the current certificate expires
Circumstances where the court may find a medical certificate unsatisfactory include:
(a) Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court);
(b) Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
(c) Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help, we have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.Read More