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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Egeneonu v Egeneonu & Anor  EWHC 1392 (Fam) (06 June 2018)
Cite as:  EWHC 1392 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| Ijeoma Egeneonu
|- and -
Mr. Paul Hepher. (instructed by Bindmans LLP ) for the Applicant
Mr. Levi Egeneonu (Respondent) represents himself
Mr. Lue (instructed by Miles and Partners) for Mr. Victor Egeneonu
Hearing dates: 21 and 23 March 2018
Crown Copyright ©
Mr. Justice Williams :
i) Consideration of M's applications for permission to pursue grounds of committal against F and V that (a) they had interfered with the due administration of justice and (b) they had made false statements of truth
ii) Timetabling of the committal proceedings against F; the committal notice also includes 3 Grounds on which permission is not required,
iii) The timetabling of the committal proceedings against V,
iv) Whether the court should grant leave to disclose telephone transcripts to the Home Office to investigate immigration irregularities regarding V, and
v) Determination of F's 'application' to dismiss the committal proceedings on the basis that they are fraudulent.
i) Grounds re Fa) 1. Breach of an order of Roberts J of 8 August 2017 to inform V of various matters by failing so to do despite speaking to him on 4 occasions on 8 and 9 August 2017b) 2. Breach of an order of Cohen J of 10 November 2017 to cause the return of the children by 15 December 2017 or subsequently by failing to cause their return by that date or subsequentlyc) 3. Breach of an order of Williams J of 9 February 2018 to cause their return by 27 February 2018 by failing to cause their returnd) 4. Interfering with the due administration of justice by creating and causing letters to be sent to the court purporting to come from the children with the intention of misleading the court as to the children's wishes and feelings.This Ground is subject to permission being granted pursuant to FPR 37.13(2)e) 5. Interfering with the due administration of justice by causing a false statement from a third party to be produced to the court with the intention of interfering with the administration of justice.This Ground is subject to permission being granted pursuant to FPR 37.13(2)f) 6. Making a false statement of truth in statements dated 21 September 2017 and 20 October 2017 by (amongst others) stating the children are in the care of M's siblings, and that he is unable to cause their return; such statements being made without an honest belief in their truth.This Ground is subject to permission being granted pursuant to FPR 37.16(4)
ii) Grounds re Va) 1. He gave false testimony to the court on 11 August 2017 and 10 November 2017 intending to interfere with the due administration of justice.This Ground is subject to permission being granted pursuant to FPR 37.13(2)b) 2. Causing false evidence as to the children's wishes and feelings to be produced to the court with the intention of interfering with the due administration of justice.This Ground is subject to permission being granted pursuant to FPR 37.13(2)c) 3. Interfering with the due administration of justice by causing a false statement from a third party to be produced to the court with the intention of interfering with the administration of justice.This Ground is subject to permission being granted pursuant to FPR 37.13(2)d) 4. Failing to file a witness statement by 20 October 2017 in breach of the order of Holman J dated 25 September 2017.e) 5. Breach of an order of Williams J dated 9 February 2018 requiring him (amongst other matters) to use his best endeavours to cause the return of the children by failing to use his best endeavours so to do.
They are supported by Affidavits with lengthy exhibits.
i) A document which in its effect invited me to recuse myself from hearing the case,
ii) A Position Statement,
iii) A statement to proof fraudulent claim/committal – March 2018
iv) An application to purge his contempt
v) A statement from Chief Ted Ofoduru, a traditional chief in Nigeria which pointed out that this court has no power or right to tell 'us' what to do.
vi) An application inviting me to make provision for the Foreign and Commonwealth Office to assist V who F asserted had been kidnapped in Nigeria and was (I was told) missing.
i) To a 1 day hearing on 8 May 2018 before Cohen J to determine issues of admissibility and permission and
ii) To a 2 day hearing on 21 and 22 June 2018 before HHJ Atkinson sitting as a Deputy High Court Judge.
Mr Lue thereafter played a very limited role in the remainder of the hearing. This judgment in so far as it bears on matters which are also relevant to V may not therefore be technically 'binding' on him or Cohen J but I anticipate that both in respect of the law and my factual evaluation of the circumstances in which the transcript evidence came to be disclosed and its transcription it will carry some weight.
Admissibility of Evidence
i) Regina-v-Khan (Sultan)  AC 558
ii) Regina-v-P  1 AC 146
iii) Regina -v-SL and Others  EWCA Crim 1829
i) The power to exclude evidence under s.78 PACE is at least as wide as the common law power to exclude evidence in the interests of a fair trial.
ii) The principle test for admissibility of evidence is relevance.
iii) Relevant evidence is not excluded simply because it has been unlawfully or improperly obtained, this includes evidence obtained in breach of a persons Article 8 ECHR rights. Illegally or improperly obtained evidence does not amount to a breach of a person's Article 6 ECHR rights.
iv) Unlawfully or improperly obtained relevant evidence may be excluded if it would have such an adverse effect on the fairness of the proceedings.
v) Fairness includes fairness to the prosecution and to the defendant. Trial by ambush may be unfair.
vi) Evidence obtained by flagrant non-use or misuse of authorised procedures may well provide grounds for exclusion because it will affect the fairness of the trial. In extreme cases where the abuse of process is of such gravity the prosecution may be halted.
vii) The court must consider all the circumstances in determining whether a trial will be fair or unfair.
i) The evidence was plainly relevant as the transcripts showed F and V discussing creating evidence or the situation of the children which supported the allegations of contempt
ii) The transcripts were obtained as a result of an innocent circumvention of the order
iii) Their exclusion would lead to gross unfairness to M as the relevant Grounds were incapable of proof without them.
iv) Exclusion would lead the court to deal with the matter on a basis that ignored reality.
v) There was no ambush of F or V; they have had access to the transcripts for a long period of time.
i) The transcripts were obtained illegally. The order is clear: M's solicitors were to return to the court to get the recordings or transcripts. The solicitors have acted deliberately and dishonestly to circumvent the order. M went through the backdoor to get them and the court should not sanction this illegality.
ii) There has been manipulation of the transcripts which calls into question both the legality of the M's actions and whether they can be relied on as containing relevant evidence. The interpreter seems to be a novice. There is a letter that says not to include the Igbo original so they can say anything they like
i) On 11 August 2017 Roberts J made an order in the following termsHM Prison Thameside/HM Prison Service shall…. Provide the following information and documents(a) Provide the itemised call records in relation to all telephone calls made and recived by [F} from hs incarceration(b) Confirm whether or not the telephone calls are recorded(c) Confirm whether or not they would object to an order being made by this Honourable Court that audio copies should be released and/or a transcript of the calls should be disclosed…..
ii) It is immediately apparent that the order did not require the Prison Service to disclose the recordings or the transcripts.
iii) The sealed order was sent out by the court on 23 August.
iv) Ms Bennett said she had not been at the court hearing as she was on leave. When the order came in she said she did not have a memory of reading it but assumed she would have done.
v) On 23 August 2017 Ms Bennett's para-legal drafted and sent a letter to HMP Thameside enclosing the Court order and accurately setting out the terms of the order in the body of the letter.
vi) On 11 September 2017 HMP Thameside responded providing a list of all calls made and received by F and confirmed that they were recorded. The letter said '…please.. provide me with a list of numbers which you would like the telephone recordings for, I will then ask the Security staff to review these calls and burn them to disc'. It is clear from this response that the author thought the court order required or authorised the release of the recordings of the calls themselves rather than just the details of the calls.
vii) On 15 September 2017 Bindmans responded saying 'We have highlighted the calls we want recordings from. Please see attached.' The author of the e-mail was a para-legal. Ms Bennetts evidence was that when she discussed the response with the para-legal she was working on the assumption that the order authorised the release of the transcripts. She said she did not go back to the order to check its precise wording but assumed because the prison had said they could have the recordings that that was what the order authorised. She accepted in evidence that she was mistaken in her belief about what the order provided for. She said she did not realise the transcripts had been provided not in compliance with the order until F's solicitors pointed it out on 13 December 2017.
viii) She was pressed hard by F and by me on how it can be that an officer of the court could have authorised the sending of an e-mail which furthered the release of material which was not in compliance with the terms of a High Court order which plainly envisaged a further application would be made to this court to seek an order that the transcripts or recordings be provided. Ms Bennett accepted that it was a failure on her part. She appeared, rightly, somewhat embarrassed that this had happened on her watch. F put it to her that it was a deliberate attempt to mislead the prison and to get evidence by improper means. She denied this and pointed out that there was nothing to be gained in doing so as the court would almost certainly have approved the obtaining of the recordings that had been sought.
ix) Having regard to all the circumstances I accept that this was a mistake rather than a deliberate act. The letters sent between Bindmans and the prison, her explanations and the absence of any motive to have deliberately mislead the court persuade me that a combination of matters led to a situation where both the prison service and Bindmans mistakenly assumed the order provided for the release of the recordings themselves.
x) Given the context of these applications, namely contempt of court and in particular interference with the administration of justice this is regrettable but it is not malign.
xi) Ms Bennett also explained how the recordings came to be interpreted and transcribed. It is clear that the following is the casea) The transcripts were prepared by an NRPSI (National Register of Public Service Interpreters, an independent voluntary regulator) interpreter in Igbo/English, Charles Chinedu Mottoh.b) In a series of witness statements dating from 24 October 2017 to 11 January 2018 he produces the transcripts of 222 clips of recordings which he identifies by Exhibit No and by their File Name.c) The clips themselves are identifiable by a code (File Name) which appears on the list provided by HMP Thamside. Thus 146203 01 07 2017 10_38_18 refers to a call recorded on 1st July 2017 at 10.38 and 18 seconds in the morning. The first 6 digits seems to be a code applied by the prison service to the individual.d) Each transcript produced by Mr Mottoh bears the File name and so each is readily identifiable by date and time.e) Each transcript contains only the English translation of what was said not the Igbo original.
xii) I am satisfied that the transcripts are readily identifiable as relating to F, that their dates and times are ascertainable and that the contents are a bona fide interpretation of what Mr Mottoh heard. It may be that F or V would be able to identify errors or mistakes in the transcripts but I am satisfied they represent a sufficiently reliable record of what passed between F and V for the purposes of this application. If F or V produce alternative transcripts then the interpreters may need to give evidence but that is a matter for another day. F says Mr Mottoh's interpretation of certain Igbo phrases is either wrong or too definitive and that some words can bear more than one meaning. F will no doubt identify any errors in the critical transcripts M relies on.
i) The transcripts appear to be a proper interpretation into English of Igbo conversations between F and V. The interpreter is qualified and has provided statements of truth with appropriate records evidencing the recordings he has interpreted.
ii) The evidence is relevant to the Grounds of Committal against F and V. As I will explain below, in respect of F (I have not looked in detail at V's position) it is strong evidence and without it the Grounds could not be pursued. That would be unfair to M.
iii) It was not obtained illegally or dishonestly or as a result of behaviour that might qualify as a gross misuse of process or abuse so as to fall into a category where the court might contemplate its exclusion on the basis that its obtaining and deployment was itself an abuse of process and offensive to justice.
iv) F will have the opportunity to challenge the contents of the conversations in his own evidence; there is no ambush.
v) It would be to ignore reality to exclude the evidence.
PERMISSION TO PURSUE COMMITTAL
i) In determining whether to give permission the court must have regard to the public interest alone. Usually it is for public authorities to determine whether to pursue acts which tend to interfere with the course of justice but a private individual directly affected may bring the proceedings.
ii) In determining whether it is in the public interest to grant permission to a private individual there are many factors to consider, foremost among them are,a) The strength of the evidence showing not only that the statement was false but that it was known to be so,b) The circumstances in which it was made,c) Its significance having regard to the proceedings in which it was made,d) Such evidence as there is as to the maker's state of mind including his understanding of the use to which it would be put and the likely effect, ande) The use to which it was actually put.
iii) Such factors are likely to indicate whether the matter is sufficiently grave for there to be a public interest in proceedings being taken.
iv) The court should also consider whether it justifies the use of the resources that will be devoted.
v) Will the proceedings further the over-riding objective?
vi) The court should not exercise the discretion too freely as vindictive litigants might harass others. Great caution should be exercised – probably only where there is a strong case that both the statement is untrue and that the maker knew it was untrue when he made it should permission be granted.
vii) In granting permission the court should give reasons but being careful not to prejudice the outcome of the substantive proceedings.
i) The evidence was strong in respect of each of the grounds in showing both that the act had been done with the intention of misleading the court or that it was known that the statement was false and the intention was to mislead the court
ii) Committal proceedings are justified both in furtherance of the return of the children but also to punish such behaviour and ensure that F and V do not behave thus again.
iii) These are very serious examples of contempt if proved.
i) It is not in the best interests of the children to pursue the proceedings. It will not secure their return; in fact it will impede their return as the family and community in Nigeria have been greatly vexed by the attitude of M and this court. It is counter-productive.
ii) Whilst he is in prison he cannot secure the children's return. At present he has no chance. If released and allowed to return he would have as 70% chance of getting the children to England for a visit.
iii) It is inappropriate given the views of the Nigerian family
iv) The evidence is not strong but is misleading.
v) These are a threat. M says she will not pursue them if I return the children. This is improper.
i) The evidence is strong both that the acts were committed and they were done knowingly. As examplesa) The transcript at Exhibit 28 (p.491) appears to show F dictating to V the words of a letter purporting to be from the children which appears in almost identical words at Exhibit 29(p.524) and which was submitted to the court.b) The transcript at Exhibit 32 (p.539) appears to show a conversation between F and V on 25 August 2018 about creating a witness statement from Ola Ajibola which subsequently was produced to the court dated 24 August 2018.c) The transcript of 27 July 2017 at Exhibit 22 (p.354) and 28 July 2017 at 360 appear to show conversations between F and V in which the whereabouts of the children are discussed as are arrangements for moving them around. The subsequent statements in which F denies any control or knowledge over their whereabouts are plainly inconsistent. I disbelieved his evidence but the transcripts arguably provide a very clear and different reality.
ii) I am unable to ascertain the children's best interests. I have appointed Cafcass as their guardian in an attempt to make some progress in looking at ways in which their current best interests might be ascertained.
iii) I do not accept that the committal proceedings are counter-productive. F did not secure the return of the children during the 3 years he was at liberty in Nigeria. I do not know whether what F says about the position of the family and community in Nigeria are correct. I am not able to rely without independent verification on material produced by F. He has still not produced the later order he asserts has been made by a Nigerian court.
iv) M is pursuing committals for breaches of orders and it is more proportionate for these proceedings to be dealt with at the same time rather than a public authority pursuing them
v) The nature of the contempts if proved are very serious indeed and would represent a concerted effort to create false evidence to deliberately mislead the court.
vi) It is in the public interest to determine these serious allegations. I do not consider it appropriate to make a request to the Attorney-General given the other aspects of committal which would be proceedings in this court in any event.
i) Firstly F had not been provided with M's Position Statement well in advance of the hearing. Mr Justice Peter Jackson (as he then was) emphasised in Re B (Litigants in Person: Timely Service of Documents)  EWHC 2365 (Fam) the need for Litigants in person to be provided with documents in good time in order to ensure a fair hearing. This seems to give rise to particular difficulties where the Litigant is a serving prisoner as I was told that post can be delayed by several days for screening and that only by booking a legal visit can documents be provided. This seems to be a considerable waste of funds and I intend to explore this issue further through the Family Justice Council and the FPR Rules Committee. For the future good management of this case though M's solicitors should take steps to ensure that F has the relevant documents in good time for hearing even if this means booking legal visits to deliver them. Until a different and equally effective way is devised of getting the documents to him adopting this approach will allow that to happen.
ii) Secondly F himself produced his documents at court when produced from the cells. Again it seems to me that a more effective mechanism for ensuring that a serving prisoner Litigant in person – of whom there are a significant number – is able to provide documents in advance is needed. It may be that M's team will also need to collect F's documents from him the day before the hearing or it may be possible for a direction to be made to the prison to ensure that F is able to have his document transmitted to M and the Court the day prior to the hearing.
iii) Thirdly F produced a significant number of documents which could be characterised as applications, witness statements (from himself and others) position statements and other species of documents. In Barton v Wright Hassall LLP  UKSC 12 Lord Sumption stated that a LIP's: "…lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to [LiPs] a lower standard of compliance with rules or orders of the court… The rules do not in any relevant respect distinguish between represented and unrepresented parties." Lord Sumption further confirmed (in his majority view) that "Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a [LiP] to familiarise himself with the rules which apply to any step which he is about to take." Although said in the context of the CPR the logic applies as much to the FPR. If F wishes to make an application in future I doubt that the court will indulge him to the extent it has so far. Any applications made by F should be made on the correct forms and issued out of the court office in compliance with the FPR. Evidence should be filed and served in accordance with orders made. Fairness to the parties' cuts both ways; M should know in advance and be able to instruct her team on applications made by F or evidence produced him.
iv) In order to assist LiP's to understand the obligations that for instance PD27A places on them it may be worthwhile for further consideration to be given in the appropriate forum on whether any further guidance (perhaps in the form of templates) could be given when Notices of Hearing are sent out to LiP's directing them to the form and content of Bundles and the best form and content of Position Statement.