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P v Griffith [2020] EWCOP 46

Application by the Official Solicitor on behalf of the protected party [PP] to commit the respondent for contempt of court, where the allegation was that the respondent had falsified a court order.

The court considered the contempt alleged to be a criminal contempt being 'an act which so threatens the administration of justice that it requires punishment from the public point of view.', a criminal contempt being a contempt which is a crime of itself and where 'liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice—an intention which can of course be inferred from the circumstances.'. Such an application required the court's permission to be made, which was granted. The court noted, as confirmed in Att-Gen v Times Newspapers Ltd [1992] 1 A.C. 191 it had also to be satisfied on the criminal standard of proof that the contemnor had mens reas in the form of an intention to interfere with or impede the administration of justice, an intention which may be inferred from the circumstances demonstrated by the admissible evidence.

The court first set out the procedural 'imperatives' that must be followed in the committal process, the court having to consider the contemnor's failure to attend either of the committal hearings or the discrete sentencing hearing [para 5]. The court considered Sanchez v Oboz [2015] EWHC 235 (Fam), a decision of Cobb J, which set out the relevant legal principles to be considered when a court is considering whether to proceed in the contemnor's absence or not, also noting that Articles 6(1) and 6(3) of the ECHR were engaged. The court considered inter alia that, in the light of a failure to substantiate that she was too ill to attend a prior adjourned committal hearing, that the contemnor wished to exercise her right to silence and instead rely on the challenges to the evidence made by her advocate, the court was content to proceed bearing in mind the likely, considerable prejudice to the PP of any further delay.

During protracted CoP proceedings, the court held that the PP had suffered significant brain damage, having a diagnosis of Minimally Conscious State Minus. There had been disputes amongst the contemnor and the other parties as to, inter alia, the PP's condition and prognosis, treatment and a DNR CPR notice. A number of disclosure orders related to the protected parties' medical notes were made with each being disclosure only to solicitors instructed by the Official Solicitor. The contemnor had made an application for disclosure of P's 'full medical file', but this was dismissed. A further application was made, and, again, dismissed. The applications were referred to on 3 instances in court orders as having been considered, the court concluding that it was not satisfied the disclosure orders were required.

Notwithstanding that, the contemnor later wrote to Barts Health NHS Trust [Barts] by email attaching what purported to be a court order, which bore a date pre-dating her first application for disclosure, requesting disclosure be sent to a firm of solicitors that she had instructed. This came to light, completely by chance, when a further disclosure order made by Cobb J was sent to Barts, who indicated they had already received such a request, which included a copy of a court order.

In her defence, the contemnor claimed that the she had sent the purported order, which had been drafted by another, unidentified person, possibly someone at her solicitors, 'in good faith', and that certain parts of a number of other case management orders made by the court would have given Ms Griffith the idea that she was entitled to the disclosure sought by the purported order.

The court found the contemnor in contempt for falsifying a court order with the requisite mens rea.

The court adjourned the matter for sentencing to allow the contemnor a further opportunity to attend court. She failed to do so, sending the court an email saying she was ill, but providing no medical note. The court refused an application for a further adjournment and proceeded to sentence the contemnor.

With regards to sentencing, the judge considered Patel v Patel and Ors [2017] EWHC 3229 (Ch), noting that the objective of penalty in such a case was 'to uphold the authority of the court by marking the disapproval of the court of the contemnors actions and to deter others from engaging in the conduct comprising the contempt', noting also that in R. v. Montgomery [1995] 2 Cr App R 23 Potter LJ held that "an immediate custodial sentence is the only appropriate sentence to impose upon a person who interferes with the administration of justice, unless the circumstances are wholly exceptional".

The court noted the contemnor's mitigation but concluded given:-

i) the falsification was deliberate;

ii) it was done in the face of repeated, principled decisions of the court;

iii) there was no indication that the contemnor appreciated the gravity of her conduct,

iv) 'the act of forging a court order strikes at the very heart of the due administration of justice.';

v) '[a]ny course that acts to undermine confidence in the integrity of court orders is accordingly highly corrosive of both the administration of justice by the courts and to the rule of law more widely.';

vi) such a course being considered a very serious contempt of court; and

vii) in order 'to deter others from engaging in the course pursued by the contemnor',

that an immediate term of imprisonment of 12 months should be imposed, reduced from 18 months by reasons of mitigation that the contemnor had not to date experienced prison, and the current impact on the nature of custody of the COVID-19 pandemic. It is a reminder of the jealous zeal with which the court protect the integrity of its orders and the administration of justice.

Summary by Barry McAlinden, barrister Field Court Chambers

Read the full judgment of  P v Griffith [2020] EWCOP 46 on BAILII