“The Importance of Procedure Rules Underpinning the Rule of Law” – An Article by Islam Khan

……“the consequences of the infringement of the procedural rules about contempt proceedings may be just as serious as the consequences of unauthorised disclosure of court documents”…

A recent case highlights the importance that procedure rules should be applied and followed at all times by the judiciary, ensuring the fairness of proceedings and enabling a person the equality of arms. The Court of Appeal regards the infringement of these rules as serious as the consequences of not following a court order.

Furthermore, the principles in this case overlap with the procedure of criminal proceedings and the standard required therefore, much of the findings are relevant in public law, criminal and civil law and other jurisdictions.

Mr Nasarullah Mursalin survived a contempt of court order against him recently, and any record expunged from the record, including preventing him pursuing his ambition for a legal career, the dream of becoming a barrister. The Court of Appeal in the case of Mursalin [2019] EWCA Civ 1559, allowed his appeal against the family court sitting at Reading quashing the Contempt of Court committal against him.

Mr Mursalin was a member of Lincoln’s Inn and was training to practice as a barrister. At the same time he was working as a paralegal for a firm of solicitors in Hounslow. The firm specialised in immigration and family law. In the course of his employment, Mr Mursalin assisted in the preparation of an appeal case in the Immigration and Asylum Tribunal on behalf of a client of the firm. In the course of his work on the case, he prepared and filed a bundle of documents to the Immigration Tribunal for the appeal hearing. The documents included a number of papers from family proceedings involving children in support of the appeal.

Pursuant to section 12 of the Administration of Justice Act 1960 and Rule 12.73 of the Family Procedure Rules 2010, the disclosure of such documents in those circumstances would be a contempt of court unless the Family Court has given permission for the disclosure. No such permission had been sought or granted in this case by either party. In due course, the appeal to the First-tier Tribunal was determined by a judge who, at the conclusion of his judgment dated 8 May 2019, made the following observation:

“the behaviour of the appellant’s legal representatives………..I am satisfied falls a long way below that expected of solicitors. They have included in the appeal documents a court document that contains a very clear warning about publication and they seem unable to either read that or have any knowledge of family law proceedings or indeed very limited knowledge of immigration proceedings given their repeated applications for adjournment in order that the Family Court proceedings are determined. I request a copy of this decision is forwarded by the appropriate Immigration and Asylum Chamber officer to…Family Court case number …in order that the relevant family judge can consider the position and whether contempt proceedings are appropriate or not.”

The family proceedings resumed on 12 July 2019 before a recorder in the Family Court in Reading, having received particulars and responses from Mr Mursalin’s side with decision of the First-tier Tribunal judge.  The Family court committed Mr Mursalin six-month term of imprisonment.

The appeal, whilst permission of appeal is not required against a committal order, was against the conduct and process of the committal proceedings by the Recorder in Reading. These were:

 

(1) The failure to give the appellant proper notice of the contempt allegation and the fact that he was facing an application to commit him to prison, the recorder’s direction having been simply an order for the filing of an explanatory statement and no other notice having been issued or served on the appellant.

(2) The failure to particularise the alleged contempt, no attempt having been made to identify precisely the documents which had allegedly been unlawfully disclosed.

(3) The failure to give the appellant a fair opportunity to consider whether he wished to be legally represented. It is said that the judge ought to have appreciated that he did not understand what was going on and, in those circumstances, should have adjourned the hearing.

(4) The failure to ensure the allegations were put expressly to the appellant and to establish whether it was he who was responsible for any unauthorised disclosure rather than his Principal.

(5) By requiring the appellant to go into the witness box, thereby compelling him to give evidence.

(6) Further complaint is made as to the sentence imposed. It is submitted that the judge failed to give the appellant a proper opportunity to put forward any matters in mitigation and then passed a sentence which was unduly harsh.

 

Committal proceedings in Contempt cases are serious and grave. The courts have vigorously emphasised the need to follow strict procedural rules. The test was reminded in the case of Re L Re G O [2016] EWCA Civ 173 at [75]:

….The process of committal for contempt is a highly technical one as this case shows. But it is highly technical for a very good reason, namely the importance of protecting the rights of those charged with a contempt of court. In cases of an alleged breach of a previous court order, persons should not be at risk of being sent to prison for contempt of court unless

(i) They have been served, or otherwise made fully and properly aware in accordance with the rules, of the order they are said to have breached before the alleged breach occurs;

(ii) the fact that they have been served or so made aware is established before the committing court;

(iii) They have been informed before the hearing of the precise details of the breach that they are alleged to have committed;

(iv) They have been informed of their right to remain silent before they give evidence, if they choose to do so, and

(v) The allegation of contempt is proved to the criminal standard. The principles as to the need for service have always been axiomatic in civil proceedings where injunctions are frequently made against defendants in their absence.

It can be no different in family proceedings.”

The Court of Appeal underpinned that disclosure of confidential issues in family law proceedings without consent is unlawful and nothing can justify or excuse that stance. However, even if the breach in this case was not of as serious nature it was still a breach of an order. Even inadvertent disclosure has severe consequences.

 

Nevertheless, LJ Baker et al found that due a number of procedural errors in the process by the Recorder at Reading the committal order was set aside for the following reasons:

(i) No record that hearing was not conducted in open court;

(ii) It was clear that the appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him. The proper course which should have been adopted at that stage was either (a) to have issued a reprimand to the Principal, who seems to have been principally responsible for any unauthorised disclosure, or (b) if the judge considered the matter merited committal proceedings, to have particularised the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice. It was not sufficient for the judge to proceed simply because the appellant agreed that he could do so.

(iii) The failure to particularise the allegations led to a further defect in the process. The judge was never shown the specific documents from the family proceedings which had been disclosed to the First-tier Tribunal. In those circumstances, it was impossible for him to gauge the seriousness of the alleged breach.

(iv) In addition, there is little sign that the judge considered the extent of the appellant’s culpability for what had allegedly occurred when others were also involved in the process.

(v) Finally, the errors set out above were compounded by the judge’s direction to the appellant to go in the witness box. It seems he overlooked the fact that a defendant to an application for committal is not obliged to give evidence. The principle is of long standing.

This case illustrates again the very great care which all courts have to take when dealing with allegations of contempt, the importance of following procedure rules and ensuring a fair and just process irrespective of which jurisdiction the process falls under.



Published on October 1, 2019 by Islam Khan

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