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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Re D [2009] JRC 067A (09 April 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_067A.html Cite as: [2009] JRC 67A, [2009] JRC 067A |
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[2009]JRC067A
royal court
(Family Division)
9th April 2009
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Before : |
J. M. O'Sullivan, Deputy Registrar, Family Division, sitting alone. |
IN THE MATTER OF RE D (DISCLOSURE: PRIVATE LAW)
Advocate H. J. Heath for the Husband.
Advocate C. R. G. Davies for the Wife.
judgment
the Deputy registrar:
1. The wife has alleged the husband has assaulted her. A Parish Hall inquiry is scheduled to take place in due course and the police legal advisers need to decide whether or not he should be charged with assault. The husband wishes the above documents to be disclosed to the police legal advisers, as he considers that they should have all the relevant information before them when coming to a decision as to whether or not to charge him with assault on his wife.
2. There are no reported Jersey cases dealing with the matter. The husband does need leave of this Court to disclose papers, and in this regard I was referred to Rule 25 of the Children Rules 2005:-
3. The family proceedings being held in private in accordance with Rule 17/7 of the Children Rules 2005. It is within the Court's power to permit documents produced in family proceedings to be used in other proceedings or for other purposes. This is a matter of discretion and the husband therefore requires leave of this Court for the documents to be disclosed to the police legal advisers so that they have all relevant information before them when coming to their decision as to whether or not to have the husband charged with assaulting the wife.
4. The wife's advocate was instructed to oppose the application by the husband. When the advocate for the husband addressed me on the reasons why she considered that the legal adviser should have sight of the documents, the advocate for the wife absented herself from Court in order for the husband to keep his 'powder dry' and avoid the dilemma of explaining clearly why disclosure was being sought, which could have alerted the wife as to what she might expect in the criminal court and might prejudice the husband's case in those proceedings. The husband had sought to make the application on an ex parte basis for this reason but I ordered that there be a hearing to enable the wife's advocate to address me on the legal issues in respect of disclosure.
English Case Law
5. As there are no reported Jersey cases I was referred to English case law.
6. In Re D (Minors)(Wardship: Disclosure) (1994) 1 FLR 346 350-351 Sir Stephen Brown P said:-
7. In the case, Re C (A Minor)(Care Proceedings: Disclosure) (1997) Fam 76 there are guidelines identifying certain matters which a judge should take into consideration when deciding whether or not to order disclosure which include:-
(i) The welfare and interest of the child or children concerned in the care proceedings; if any child is likely to be adversely affected by an order in a serious way this will be an important factor;
(ii) The welfare and interests of other children generally;
(iii) The maintenance of confidentiality in children cases;
(iv) The importance of encouraging frankness in children's cases;
(v) 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;
(vi) The 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;
(vii) 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. In Re C permission was granted to disclose medical reports. Such expert evidence is more readily disclosed than affidavits or transcripts of evidence, as expert reports are not subject to the same provisions regarding the right not to incriminate oneself.
9. In Re D & M (disclosure: Private Law) [2003] 1FLR 647, Hedley J found that the father was in a sexually active relationship with his half-sister, a criminal offence. Leave was granted to disclose the fact of this relationship to the social services but not the police. The court should give weight to the need to encourage frankness in private law proceedings but regard had to be given to the guidelines in Re C above.
10. In Re Z (Children)(disclosure: Criminal Proceedings) [2003] 1FLR 1194, Munby J allowed an application by a father to use a witness statement in private law proceedings in his criminal trial. The father was charged with murder and wounding after driving at mother's relatives and neighbour. Father's relatives told the father that the mother's witness statement in the private law proceedings was materially different from her criminal witness statement. Munby J considered that it would be an exceptional case where the family court would deny a defendant facing such a serious charge access to material that might assist his defence. .
11. Munby J also made it clear that it is not necessary that the document will certainly be used or that it would certainly undermine credibility, merely that this might be the case:-
12. 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.
13. I was referred to the case A District Council v M (2007) EWHC 3471 (Fam) where the police sought disclosure of a transcript of 'confessions' made by the mother to a professor and certain doctors. Baron J considered that the mother's confession fell within the scope of section 98(2) of the 1989 Children Act, the equivalent of article 74 of the Children (Jersey) Law 2002 in respect of self-incrimination. Baron J accepted the following propositions:-
14. Baron J also considered rule 10.20A of the Family Proceedings rules which came into force on the 30th October 2005. A party may communicate directly with a police officer and give the text or a summary of the whole, or part of a judgment given in proceedings, for the purpose of a criminal investigation. However, there is no equivalent in the Jersey Family proceedings rules. Baron J noted that this had been considered by Sumner J in a case entitled 'A Local Authority v D, Chief Constable of Thames Valley intervening' reported at 2 FLR [2006] 1053. The change in the English rules, Sumner J observed:-
15. In Re X Children [2008] 1FLR 589, Munby J ordered disclosure of limited papers to the Crown Prosecution service for the criminal proceedings. He observed:-
He observed in paragraph [38]:-
and at paragraph [39]:-
16. I therefore exercise my discretion taking into account the law as outlined above. I have been told that the documentation required to be disclosed is directly relevant to the husband's defence. His advocate submits that he has the right to defend himself fully against any criminal charges, that his liberty could be at stake, and in any case could cause him embarrassment and problems in his professional life.
17. The wife's advocate says that I must consider this in two stages:-
(i) whether there is an order to release at all;
(ii) what conditions if any are to be placed on any disclosure, including to whom it should be disclosed, whether individuals names are removed or redacted and even if disclosed to the police legal advisers, whether the documents should not be used in a trial without further order.
18. I bear in mind the importance of confidentiality and for parties to be frank in cases affecting children. However, the husband is faced with criminal proceedings. I am not in a position to say how relevant the documentation and information his advocates want released is to his case, but I have borne in mind that a judge in family proceedings should be certain before concluding that documents should not be disclosed on the footing that it cannot assist his defence. The husband is asking that these documents be disclosed to the police legal advisers. In balancing these factors I consider that there should be disclosure, but what conditions if any should I impose?
19. I give leave for the documents requested to be disclosed to Mrs. O'Donnell and other of the police legal advisers, only for the purpose of determining in the criminal proceedings against the husband, and for no other reason, whether the documents disclosed undermine the prosecution case or would affect whether it is in the public interest to prosecute the husband. The name of the child (the subject of the psychological report) is not to be redacted from that report or from the joint report with his sibling, given he has made a witness statement. However the name of the other sibling is to be redacted where it appears in the joint report and in the other report. The court order dated the 30th January 2009 shall be disclosed to Mrs. O'Donnell and other of the Police legal advisers, the reference to the sibling who has not made a witness statement being deleted
20. If the prosecution do decide that the case against the husband is to proceed further then a further application will need to be made to this Court by the Attorney General or a representative appointed by him or the husband's lawyers.
