UK: Can A Witness Be Guilty Of Contempt By Communicating With A Third Party When They Are Part-Way Through Giving Evidence?

Last Updated: 5 February 2019
Article by Clare Stothard and Karen Jacobs

If during trial a witness is part-way through giving evidence and needs to come back after lunch or the next day to carry on, the judge will usually warn them not to talk to anyone about their evidence during the intervening period. This can be difficult for a witness, but the main reason is to prevent a third party from interfering with the witness's evidence and to prevent the witness from consulting with a third party about their answers.

What are the consequences if the witness does not heed this warning? In a recent case, Hughes Jarvis Ltd v. David Searle and Neil Jarvis (Third Party) [2019] EWCA Civ, the witness emailed his lawyers and spoke to a third party while he was part-way through giving evidence. When the judge found out, she directed that he spend the night in prison. The following day she sentenced him to 14 days' imprisonment suspended for three months. Was this sanction correct and what, in any event, is the legal basis for making such an order?

Background

Mr Jarvis was part-way through giving evidence at trial. Before adjourning until the next day, Her Honour Judge Clarke said to him:

"I have to give you the same warning, which I gave you at lunch time, but it is an important one, not to discuss the evidence you have given or any evidence you may give, with anybody."

Despite the judge's warning, overnight Mr Jarvis sent his counsel and solicitors a number of emails and spoke to a third party, Mr O'Neill, about what would happen if his claim failed. The next day, his counsel told the judge that Mr Jarvis had emailed her, but that she had not looked at the emails. However, during re-examination Mr Jarvis admitted that he had spoken to a third party. The judge found that the communications amounted to contempt "because they breached the explicit order that I made and I find them to be a wilful disobedience."

She directed that a hearing to determine sentence should take place the following morning and that it would not be necessary for it to be determined by a different judge as she explained that she "had no personal involvement or interest in it".

The judge explained her reasoning was not about preventing further harm; it was about marking the seriousness of what had happened. She remanded Mr Jarvis in custody overnight until the hearing. At the hearing the next day, she sentenced him to 14 days' imprisonment suspended for three months. Mr Jarvis appealed to the Court of Appeal.

Impact of the witness's actions

Lord Justice Patten gave the leading judgment. He explained that the purpose of a judge's warnings is to protect the witness from any attempt by a third party to influence their evidence and to ensure, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person.

As to the impact of Mr Jarvis's actions, given that his lawyers had not read the emails, the Court of Appeal did not regard the mere sending of emails to his lawyers as a contempt. Although Mr Jarvis should not have spoken to the third party, the only purpose of that conversation was to ascertain whether lenders would step in and complete the development before selling it if Mr Jarvis failed to obtain a possession order. This was opinion evidence and Mr Jarvis had identified the source of his new evidence. In actual fact, the change in his evidence was more favourable to the other side than it was to him.

The judge was free to attach either some or no weight to it given that the third party was not going to be called as a witness. But that did not mean the evidence was untrue, still less that all the other evidence which Mr Jarvis had given could not be believed or relied upon. The judge was treating his evidence as false on every other issue. There was no proper basis for this, given that Mr Jarvis had been quite open about how he obtained the information. He was doing no more than relaying what the third party had told him. It was more accurate to criticise him for attempting to improve his evidence.

Consequences of the judge's warning

The Court of Appeal decided that, although trial judges frequently warn witnesses not to discuss their evidence while still under oath, this is not to be regarded as amounting to an order and should not be treated in this way.

The obvious sanction is to ascertain what was discussed and, if appropriate, discount or give no weight to the evidence.

If the judge wanted to make her warnings an order of the court, which if breached could lead to the witness's committal, it was incumbent on her to spell out to the witness the precise terms of the order and the consequences. She had not done this.

Jurisdiction of the county court to make committal orders

Criminal contempt

In relation to a criminal contempt, the jurisdiction of the county court has been clarified by s.118 of the County Courts Act 1984 (CCA). Under that provision, if a person wilfully insults or interrupts a judge of the county court or the proceedings of the county court, or otherwise misbehaves, any officer of the court may make an order committing the offender for a specified period not exceeding one month or impose upon the offender a fine not exceeding £2,500.

There are no reported cases in which a witness has been held to commit a contempt by discussing his evidence with a third party during an adjournment. As the concept of interference with the administration of justice is a wide one, Lord Justice Patten did not want to exclude the possibility of a witness being held in contempt, particularly if they did so with a view to providing false evidence. However, on the facts known to the judge, the Court of Appeal held that there had not been criminal contempt.

In any event, the judge had no jurisdiction to deal with that type of contempt as permission of the High Court judge would be required for a criminal contempt.

Civil contempt

The judge had not considered the provisions of the CCA because she treated Mr Jarvis's conduct as breach of an order. However, as explained above, her warning was not an order of the court and she had not warned Mr Jarvis that, should he not comply, he would be in contempt.

Where committal is sought for breach of an order, the procedural code which should be followed is set out in CPR 81. These rules give detailed provisions for the time for compliance; for the affixing on the order of a penal notice; and the making and service of a committal application. They also allow the respondent to apologise and give them an opportunity to explain their actions and behaviour.

Furthermore, although a county court judge has jurisdiction to commit a person for breach of a court order of the court's own motion, it should not be exercised unless no other course is open to the judge in order to protect the process of the court and the proper administration of justice. "He should not appear to be both prosecutor and judge: for that is a role which does not become him well." (Lord Denning in Balogh v. Crown Court at St Albans [1975] QB 73)

Lord Justice Patten concluded that the judge had completely lost sight of the principles. The witness's committal to prison overnight was a completely disproportionate reaction. The judge did not follow a fair procedure. This was a misuse of judicial power and as a result the committal order was set aside.

Comment

The most obvious point about this case was that, when warned not to contact anyone about the case, the witness should have heeded the warning. Those in the position of dealing with witnesses should stress the importance of listening to that warning. Even though the committal order was set aside, if the witness had followed the warning, he would not have found himself in this position irrespective of whether or not the judge's response was disproportionate.

Nonetheless, following the Court of Appeal reasoning, it is now clear that the status of a judge's warning about not speaking to any third parties is simply that and it is not an order of the court. If a witness fails to comply with this warning, then the usual response should be that the judge should take that into account on the question of credibility of the evidence when deciding how much weight should be attached to it. Consequently, not heeding the warning may be detrimental to the case as it may impact on the prospects of success, but normally a breach of the warning should not land the witness in prison. As Lord Justice Leggatt remarked in his supporting judgment, when witness evidence is compromised a measured approach is called for. Unfortunately this could well serve as a case study in how not to deal with such a situation.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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