R (Bailey) v Secretary of State for Justice [2023] EWHC 821 (Admin) (judgment here)
A challenge to the Secretary of State for Justice amending the Parole Board rules and issuing guidance about those changes is not obvious bed-time reading for those who work in the coronial jurisdiction. But hidden within the series of judgments arising from this JR claim is a little nugget that inquest practitioners might wish to note and bear in mind regarding the consequences of a witness refusing to answer questions put to them at an oral hearing.
The Issue
The Divisional Court was asked to consider whether the Secretary of State for Justice was entitled to amend the Parole Board rules to prohibit staff employed or engaged by HM Prison and Probation Service (HMPPS) from expressing a view in their evidence to the Parole Board on the question of whether a prisoner was suitable for release or transfer to open conditions. The amended rules would, for example, prevent a prison psychologist giving an opinion or making a recommendation that might assist the tribunal considering an individual’s continued detention.
The Court concluded that the Secretary of State for Justice had overstepped the mark by trying to prevent prison staff giving their view on ‘the ultimate question’ of a prisoner’s parole. The amendment, being an interference with the independent judicial determination of the legality of detention, was declared unlawful.
An important ancillary question that then arose was whether the guidance issued by the Secretary of State had induced HMPPS staff to commit contempt of court by refusing to express their opinion to the board when requested of them. This of course turned on whether a failure by HMPPS staff to answer a relevant and necessary question posed by the Parole Board during proceedings could properly constitute a contempt.
What is a contempt of court?
The Divisional Court heeded the earlier words of Lord Donaldson that: [1]
‘Contempt of court’ is an unfortunate term which conveys to some the concept that the court and the judges are concerned for their personal dignity. Of course they are not. Their concern, and that of the law, is that the authority, impartiality and independence of the courts shall be upheld, which is quite different. Accordingly, the principal types of contempt are (a) conduct which impedes or prejudices the course of justice and (b) disobedience of orders made by the court.’
Lord Diplock had made clear four decades ago:[2]
‘…a refusal to answer the question if ordered to by the judge to do so would constitute a contempt committed in the face of the court and thus a criminal contempt.’
So it was unsurprising that the Divisional Court’s view drawn from the authorities was that, in a court or tribunal to which the law of contempt applied,[3] refusal to answer a relevant and necessary question put by the tribunal would constitute a contempt in the face of the court, unless the answer attracted a legally recognised form of privilege.[4]
Relevant and necessary
This of course led on to the next issue, of what actually is a ‘relevant and necessary’ question? The Divisional Court, happily, adopted a simple definition: a question is relevant and necessary if the answer to it would serve a useful purpose in the proceedings in hand.
The Secretary of State sought to argue that HMPPS employees could not be required to give opinion evidence, because such evidence would not be admissible in civil proceedings to which the MOJ was a party. It was argued that HMPPS staff would be giving ‘expert evidence’ and that as they were employed or engaged by an entity for which the MOJ was responsible to do so would offend the rule that requires an expert witness to be independent of the parties.
This argument was rejected: a Parole Board hearing was not civil litigation and so the strict rules of evidence did not apply. Whilst a witness cannot be required to express a view on an issue if they do not have one, a witness who does have a view and refuses to give it in circumstances where no privilege applies could be in contempt of court.
The Court therefore concluded that a failure to answer a question posed by the Board, even if eliciting an opinion, could constitute a contempt of court provided that the question was relevant and necessary, and the witness had a view to give and could not assert a legally recognised privilege against answering.
Implications for Coroners’ courts
Much of what applies regarding contempt in the Parole Board can be read over into the inquisitorial jurisdiction of a Coroner’s court. A professional witness, even if employed by an interested person,[5] can give opinion evidence where they have relevant expertise on the issue and so they should not decline to proffer a relevant opinion if to do so would serve a useful purpose.
Whether an answer will serve a useful purpose will of course be context-specific, [6] and of course the weight given by a coroner or their jury to opinion evidence from someone who may have an interest in the case will need to be carefully assessed. But the sometimes heard objection of “I can’t offer an opinion on that, as I am only here today as a witness of fact” may not hold water.
A professional witness cannot lawfully be required to give an opinion on a particular issue if they do not have one. But, unless the rule 22 privilege against self-incrimination or some other legally recognised privilege against answering arises, a refusal to answer a relevant and necessary question posed in a Coroners’ court could amount to a contempt of court.
Taking action on contempt
As an inferior court of record coroners only have a power to deal with contempt in the face of the court, coroners may not punish for contempt in respect of a matters outside their doors.
Nor is a court required to initiate proceedings for contempt when one occurs. Where what is primarily required to enable the inquest to proceed is the cessation of the impugned behaviour, then obtaining an apology alongside an agreement for future compliance will often be the preferable way forward. In most cases the coroner’s first step will be to explain their contempt to the potential contemnor, seek an explanation of their actions and give the contemnor an opportunity to apologise and purge their contempt and/or to mitigate their behaviour before any sanction is imposed.
Once those steps, which natural justice requires, have been taken a coroner who concludes that the breach was intentional or is continuing might act on the contempt. A coroner may commit a contemnor to prison for a period that may not exceed one month,[7] although a term of detention should only be imposed where the contempt is ‘so serious’ that no other penalty is appropriate. Alternatively, the coroner may impose a fine not exceeding £2,500.[8]
Where the particular disobedience is non-compliance with a properly issued and served schedule 5 notice[9] requiring a witness to attend court to give evidence or to produce documents, this will usually be dealt with in accordance with Schedule 6, Part 2, para 6 of the Act, rather than as a contempt of court.
Footnotes
[1] Pickering v Liverpool Daily Post and Echo Newspapers plc. [1991] 2 AC 370
[2] Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, 347
[3] The issue of whether the Parole Board is a court also had to be determined in this case (spoiler alert – it is!) Although for coroners courts the matter is beyond question given s. 19 of the Contempt of Court Act 1981 defines ‘court’ as including ‘any tribunal or body exercising the judicial power of the State’.
[4] See Attorney General v Mulholland [1963] 2 QB
[5] or who is an IP themself
[6] see for example AG v Lundin (1982) 75 Cr App R 90. Where in the circumstances of that case a question requiring a journalist to reveal his sources could not be said to be necessary when it would have served no useful purpose
[7] Section 14(1) Contempt of Court Act 1981.
[8] Section 14 (2) Contempt of Court Act 1981 (as amended by the Criminal Justice Act 1991).
[9] Under Coroners and Justice Act 2009