Posted: 09/10/2023
Can a reckless misstatement be a contempt of court? Is evidence unchecked and incorrect, under a statement of truth, enough for a potential prison sentence? Or is honest negligence a defence to an allegation of making a false statement?
Ten years ago, in Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC), [2013] All ER (D) 42 (Mar), Mr Justice Akenhead concluded that a reckless disregard for the truth of a statement was sufficient for contempt of court; and if a person had no idea, one way or the other, whether what they were saying was true, then there was not an honest belief in its truth and the maker of the statement risked being found in contempt. The comments were obiter but were followed, without argument being heard, by the Court of Appeal in Elliott v Tinkler [2014] EWCA Civ 564, [2014] All ER (D) 216 (May). In 2021, Mr Justice Kerr, sitting in the Administrative Court in Norman and another v Adler and another [2021] EWHC 3029 (Admin), disagreed:
‘I do not think there is much room for reckless falsity of that kind in a case such as this, if indeed the notion is sound at all’ (para [27]).
An application for permission to bring contempt proceedings against two serving police officers was rejected by the court. The applicant appealed. Lord Justice Stuart-Smith determined that it would be ‘beneficial for the Court of Appeal to give guidance’ and granted permission for the appeal. After a decade of reckless falsity being a sufficient threshold for a contempt of court, and the deprivation of a person’s liberty as a result, the Court of Appeal in Norman and another v Adler and another [2023] EWCA Civ 785, [2023] All ER (D) 33 (Jul), held that for permission for an application for contempt of court to be granted, a judge had to be satisfied that there was a strong case that a person knowingly, and so dishonestly, misled the court:
‘The purpose of contempt proceedings is not to punish incompetence or errors of judgment... The purpose of proceedings is to protect the public interest by punishing those who dishonestly mislead the court’ (paras [96]-[97]).
Following the Court of Appeal handing down the judgment on 7 July 2023, there are three (and a half) key takeaways from this significant decision to be examined.
First, Norman v Adler is now the leading authority for applications for permission for contempt of court.
An application for contempt of court must proceed in accordance with CPR 81. Pursuant to CPR 81.2(3) and (5), permission must be sought first if the allegation is not related to existing proceedings or relates to making a false statement verified by a statement of truth.
Norman was the first case of significance to deal with the CPR since its revision in 2020, but more than this, the Court of Appeal (Lord Justice Bean, Lady Justice Thirlwall and Lady Justice Nicola Davies) sought to review the authorities and provide definitive guidance on the law, with the lead judgment delivered by Thirlwall LJ, and Bean LJ adding emphasis.
The Court of Appeal immediately identified KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 as providing a correct statement of the law for permission to apply for an order of contempt of court. The court held that the single question to establish if permission should be granted was ‘whether it is in the public interest for such proceedings to be brought’ and in doing so, provided a number of factors to consider. In particular, the court approved the threshold test of a ‘strong prima facie case’ first introduced in the case of Kabushiki Kaisha Sony Computer Entertainment Inc (t/a Sony Computer Entertainment Inc) v Ball & Ors [2004] EWHC 1192 (Ch) as the ‘foremost consideration of the public interest being the strength of the evidence’.
But how strong is a strong prima facie case?
Thirlwall LJ went so far as to provide examples, from the authorities, of the nature of evidence required:
‘I would add that absent an admission or compelling documentation it may be difficult to prove the mental element in contempt to the criminal standard. In Sony v Kabushiki Kaisha Pumfrey J gave permission only in respect of matters which had been admitted. In KJM Superbikes this court overturned the decision below and gave permission in the light of admissions from the witness that he had lied in the proceedings. In Walton v Kirk [2008] EWHC 1780 (QB) Cox J gave permission in the light of compelling evidence that the alleged contemnor knew she was making false statements when she made them, and the purpose of the statements (to increase the award of damages) was clear but even in that case only a very few of the allegations were found proved at the hearing of the application by Coulson J’ (para [63]).
The threshold for contempt of court proceedings is high, and is set deliberately so.
The second key takeaway from this judgment is that the identification of ‘reckless falsity’ in Berry Piling Systems was wrong.
When considering the mental element to be proved in contempt of court, there can be little doubt that the Court of Appeal rejected the concept of reckless falsity. Thirlwall LJ set out the elements to be proved:
‘In the cases to which I have referred the practical starting point when considering permission to bring proceedings for contempt in the public interest is whether there is a strong case (capable of being proved to the criminal standard) that the alleged contemnor made a statement to the court knowing it to be untrue and knowing that it would be relied upon by
the court’ (at para [39]).
Bean LJ, in his agreeing judgment, repeated this test, and expressly rejected the obiter comments in Berry Piling Systems:
‘Moore-Bick LJ said in KJM Superbikes Ltd v Hinton (following established authority such as the decision of Sir Richard Scott VC in Malgar) that an applicant for permission to bring contempt proceedings in respect of a false statement must establish a strong prima facie case “not only that the statement in question was false but that it was known at the time to be false”. Akenhead J should not, in my view, have departed from this principle in Berry Piling. The apparent deviation from it in para [44](iii) of Tinkler v Elliott should not be relied on either, since (a) Gloster LJ was simply setting out what the parties in that case agreed to be the law; (b) the subparagraph in question was unnecessary to the decision; and (c) it was contrary to the doctrine of precedent’ (para [101])
The Court of Appeal was able to reject the concept of reckless falsity, which now has no place in the consideration of contempt of court proceedings, but not overrule either Berry Piling Systems or Tinkler as the concept was irrelevant to the decisions in either case. Akenhead J’s original comments were obiter in the truest sense, being entirely tangential to the decision not to grant permission. In Tinkler there was no suggestion that statements had been made recklessly; rather the court was only concerned with deliberately false and dishonest statements.
It is worth noting that in reaching their decision on reckless falsity, the Court of Appeal drew support from the decision in JSC BTA Bank v Solodchenko [2013] EWCA Civ 1961, [2013] All ER (D) 55 (Jul), per Lord Justice Lloyd, who held that the relevant state of mind in contempt proceedings is entirely subjective. This was consistent with the submission which had been made on behalf of the respondent officers in Norman v Adler. Whether or not a person acts reasonably may be indicative of their honest knowledge, but the test remains subjective. A dishonest person may deliberately not check information, but not checking information does not make a person dishonest.
The third takeaway to consider is that police officers are no different to the public.
The appellants sought to argue that police officers should be held to a higher standard, as the court relies upon ‘the integrity of what they are told by public officials in making applications for highly invasive warrants to search and seize’.
The fact that the public interest requires police officers to act with integrity at all times was not disputed. Indeed, Thirlwall LJ confirmed that where a strong case of contempt can be demonstrated in the context of search warrants, then it is ‘overwhelmingly likely’ that permission will be granted (as was not the case here). This was qualified however by confirmation that this is simply the correct application of the public interest test: ‘There is no different test for police officers’ (para [65]).
Taking into consideration the wider implications that this case could have had on police forces across the country, this, in our view, must be correct. It is surely not in the public interest to apply significantly higher thresholds to be met before the police may apply for warrants to search and seize. The potential interference risk with the ordinary course of justice (and the potential slippery slope that this may cause) should not be underestimated, although this must of course be balanced with the intrusive nature of search warrants on the alleged suspects. In reaching his decision, Kerr J had in mind the impact that search warrants had on the appellants, and his judgment addressed this.
To summarise, the court was not prepared to accept that that the threshold for contempt of court proceedings should be lower for police officers, as public officials, than for ordinary members of the public. One could argue that this decision is the latest in a recent line of cases (including the leading authority of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] All ER (D) 47 (Feb)) that has grappled with this wider question. The outcome in this judgment illustrates both the benefit and detriment caused to both sides. While it is important to prevent overly cautious or defensive policing generally, there is clearly a need to hold police officers to account in circumstances where duties have been breached.
Cementing this as the leading authority, Thirlwall LJ, at paras [20]-[28], sets out the procedure for contempt of court applications under CPR 81 (as reformulated in 2020). An application for permission to bring contempt of court proceedings should be considered on the papers first, for reasons of cost and general efficiency. It is then open for an applicant, where permission is refused, to make an application pursuant to CPR 3.3(5) (a) for the decision to be set aside at an oral hearing, as was applied for in this case. If permission is granted, directions may be given for the contempt hearing without a directions hearing unless sought.
This is now the leading authority for contempt of court, providing guidance on the procedure, test and threshold for permission to apply for an order, and properly defining the elements for the consideration of the court when granting an order for contempt.
The concept of reckless falsity has been rejected. An order for contempt of court can only be made if a person made a statement to the court knowing it, subjectively, to be untrue and knowing that it would be relied upon by the court.
This article was originally published in the New Law Journal in September 2023, and was co-authored with Sam Thomas, barrister at 2 Bedford Row. Together, the authors of this article were the legal team for the respondent police officers in Norman v Adler.
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