False Statements by Investigators, Contemptible?

Arran Coghlan v Daniel Bailey [2017] EWHC 570 (QB)

This article applies to anybody who may provide a statement to a court or tribunal, whether it be family, crime or civil. It is not hard to imagine the statements of social workers, healthcare professionals, police officers or even lawyers being scrutinised for error or untruths.

Statements of Truth

A Statement of Truth, howsoever phrased, acts as a linchpin for the veracity of the rest of a person’s statement. Notwithstanding its importance, how often does the professional writing that statement, often ignoring the pro forma blurb, stop and reflect on what they are signing and the consequences of their squiggled John Hancock?

Procedural Framework

The law and process for the bringing of committal proceedings in relation to false statements is governed by CPR 32.14. The key authority in this area is Walton v Kirk [2009] EWHC 703 (QB).

CPR 32.14 provides as follows:

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

As a small aside, for the most part permission is required to bring these types of proceedings unless the false statement is contained within an affidavit, where permission is not required.

When seeking permission, it should be remembered that the applicant must meet a high bar:

...the question for the court on such an application is not whether a contempt of court has in fact been committed but whether proceedings should be brought to establish whether it has or not.KJM Superbikes v Hinton [2008] EWCA Civ 1280

Ingredients

Once permission has been granted, Walton, adopting the principles set out in the High Court decision of Caerphilly County Borough Council v Hughes and others (2005) (unreported), confirms that the onus is on the applicant for committal to prove the necessary ingredients. Also, that the standard of proof is the criminal standard.

The following matters must be proved for a ‘false statement’ committal:

  • the statement was false;

  • the false statement (or the aspects which are false) interfered, or were likely to interfere with the administration of justice in a material respect; and

  • when the false statement was made, the maker did not honestly believe in its truth and knew of the likelihood that it would interfere with the administration of justice.

But What About Professionals?

The case of Arran Coghlan v Daniel Bailey [2017] EWHC 570 (QB) serves as a timely reminder that anyone who provides a statement which is ostensibly false may be subject to contempt of court proceedings. Even if ultimately successful in defending such proceedings, the stress, inconvenience, reputational damage and the risk that proceedings could have resulted in imprisonment will weigh heavily on the mind of any statement writer.

Background

Mr Coghlan had been acquitted of (or proceedings had been discontinued in relation to) various criminal allegations, including three murders. Nevertheless, using the civil powers of the Proceeds of Crime Act (PoCA) the Asset Recovery Agency (ARA), now part of the National Crime Agency (NCA), sought the recovery of a property and some land on the basis that it had been funded by drugs money. As the Daily Mail would put it, “depriving criminals of their ill-gotten gains”.

Step in the defendant in these proceedings, Mr Bailey. Mr Bailey was a relatively junior financial investigator. It may be suggested that he had been promoted too quickly and without proper training. He worked for the ARA, he was a newish recruit. From the papers it appears that he adopted an ongoing investigation into Mr Coghlan, from a more senior colleague whom had been promoted.

Rather than undertaking much investigation himself, he seemed to act as a myopic curate, picking and choosing bits of the investigation and presenting this evidence through his witness statement. Of course, he signed a statement of truth as part of the process.

As the reader will have guessed from the above description, the accuracy of that statement left a lot to be desired.

Eventually, as a result of the PoCA proceedings, Mr Coghlan lost his property and land. He wasn’t best pleased. Therefore he decided to issue proceedings against Mr Bailey for contempt, based on the false statements, no doubt intending to use this as a spring board to challenge the PoCA order later on. It may even be suggested that there was a little bit of malice in his actions but that’s for another article.

The Issues

Various inaccuracies in the statement were identified by Mr Coghlan.

Due to the nature of the proceedings, the primary issue related to a phrase used in Mr Bailey’s statement about sums of money being from an ‘unknown source’. Those who practice in the criminal field will know that ‘unknown source’ is often used as a euphemism for ‘dodgy’ and it is fair to say in this case, that was the impression of the phrase as used.

This was incorrect; banking material in possession of ARA indicated the source and further, easy enquiries with the bank could have discerned the source. But the phrasing of ‘unknown source’ coupled with a statement littered with phrases such as ‘my investigations revealed...’ led to the impression that the matter had been investigated and no source identified.

Permission

Permission to bring contempt proceedings was given on the following basis:

Contrary to what Mr Bailey said...the source was not, on true analysis, unknown...In the absence of any explanation from Mr Bailey, it is difficult to understand how he could have come to say that, having analysed the conveyancing files...

Mr Bailey was a public officer appearing in coercive proceedings against an individual...there was a duty of candour upon him...In my judgment, there is a high public interest in ensuring that public officials making statements in these kind of proceedings do so with, as far as is humanly possible, complete accuracy and certainty with no intention to mislead...

The Judgment

It is clear from the judgment that the court wasn’t entirely satisfied with the explanations of Mr Bailey as to those inaccuracies. For instance:

            “In many respects the evidence of Mr Bailey was less than impressive...

            “I did not form the impression that Mr Bailey was the most careful of persons

            “Mr Bailey was not someone who checked very carefully what information he had”. 

Ouch.

The court had no difficulty in finding that the statements were false and tended to mislead. There was argument about whether it interfered with the course of justice. The court found that it did, applying the following rationale:

It is, in my view, to interfere with the course of justice to give evidence which potentially can, and is likely to, influence the court when that information is untrue, irrespective of whether in the eventual outcome the court reaches the same decision as it would do if no such attempt were made”.

However, the crux of the case came down to “honest belief”. The court found that:

I cannot conclude beyond reasonable doubt that Mr Bailey was dishonest (or, if it be different, that he had no honest belief in the truth of his personal belief)...”.

Conclusions

The readers of this article will, very quickly, have in mind other professionals who may fall into similar traps. The overworked, the myopic, the sloppy, the biased professional may well make statements that are untrue.

When the stakes are high, if it relates to children being taken from their parents, an expert’s report in a building dispute, proceeds of crime being recovered or a discrimination claim for a six-figure sum, it is not hard to see why and how statements, and the maker of those statements, will come under particular scrutiny.

If they are found wanting, the maximum sentence for contempt of court is two years. A sobering thought.

Richard Shepherd

Practice Areas: 
Crime
Family
Employment
Disciplinary
Inquest
Regulatory
Personal Injury
Probate
Court of Protection
Landlord and Tenant
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