Al-Baker v Al-Baker [2015] EWHC 3725 (Fam)

[2015] EWHC 3725 (Fam)Case No ZC15D00024
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 14 th December 2015
Before
MR. JUSTICE MOSTYNB E T W E E N:__________
Between
SAREH KIMURA AL-BAKERApplicantABDUL AMIR AL-BAKERRespondent__________Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com__________MR. R. TODD QC and MR. N. YATES (instructed by Vardags) appeared for Applicant. for THE RESPONDENT did not attend and was not represented.__________J U D G M E N T
[1]On 27th October 2015 I gave a judgment in this case ([2015] EWHC 3229 (Fam)), where I found the husband to be guilty of contempt of court and sentenced him to nine months' imprisonment. During the case counsel then appearing for the wife applied to me to back my committal order with the issue of a European arrest warrant.[2]In para.10 of my judgment I said this:
"The wife is proceeding on advice that this is a sensible way of advancing her claim and it is not for me to question that. It has been asserted that this being a sentence of nine months it would be open for this court to request that a European arrest warrant be issued. That would have the effect of detaining the respondent anywhere within the European Union and having him brought to this court if the European arrest warrant procedure is available. I confess that when I first read this I was surprised that it was being asserted that the arrest warrant procedure was available as it was my belief (it is fair to say not based on much education) that the European arrest warrant was confined only to what can strictly be described as criminal offences and a civil contempt was not in that category. However, Mr. Calhaem has placed before me the Council Framework Decision of 13th June 2002 on the European arrest warrant and Surrender Procedures between Member States of which Article 2.1 states: 'A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.' The use of language for "acts punishable by law" would certainly embrace a custodial penalty imposed for contempt of court and, recognising I have only heard only one side, I am satisfied in these circumstances that the sentence I have awarded is properly to be backed by a request for a European arrest warrant and I will complete the necessary annex form when the order is made."
[3]That passage shows my initial surprise that it was suggested that the issue of the warrant was a legitimate course. As it happens, it was, in fact, a completely illegitimate course. The decision of the Supreme Court of R v O'Brien [2014] UKSC 23 confirms, first, that a European arrest warrant can only be sought by an appropriate person and that counsel for the wife would not constitute such an appropriate person and, secondly, that the scheme does not act to encompass civil contempts, even if they result in a sentence of imprisonment.[4]It is a matter of some surprise to me that this recent decision from the highest court had not been alighted upon by those representing the wife when they made the application that they did. This has resulted in me giving a judgment which is legally incorrect and which, for all I know, may have led other people in other cases to have applied for a European arrest warrant following a finding of contempt. So I take the opportunity today to correct my previous judgment so as to delete para.10 and to confirm that the European arrest warrant procedure is not available in contempt proceedings.[5]Following the decision made by me on 27th October 2015, the wife (as I will call her) issued her present application on 4th November 2015. This asks in the application notice for the following relief:(1) That the applicant have permission to disclose documents set out in the witness statement attached to this application to the police in order to support a charge of perjury against the respondent; and(2) for the judge to refer the respondent's alleged perjury to the police and to make an order in the enclosed draft terms".[6]In the skeleton argument produced for this hearing, at para.24, it is said this: "It is clear from H's statement of 16th April 2015 (D45) that H has perjured himself in relation to his alleged business dealings in Dubai. He says within that statement (see paragraph 84 at D68) that he does not own property in the Emirates and, in correspondence, has never owned any. This is clearly incompatible with the evidence produced from the wife's Dubai lawyers in their affidavit at D88. H has lied".[7]The material to which I am directed by that passage is contained in a statement made by the husband which was verified by a statement of truth under Part 17 of the Family Procedure Rules. The statement itself was not sworn. To make a false statement, as opposed to a false affidavit, is not perjury. This was by design of those who framed the Civil Procedure Rules which have been mirrored by the Family Procedure Rules. To file a false statement is a contempt of court but it is not perjury. To file a false statement can lead to an order for civil committal for up to two years, but it cannot lead to criminal proceedings for perjury. Arguably it could lead to criminal proceedings under the Fraud Act but it cannot lead to criminal proceedings for perjury.[8]So when I asked Mr. Todd what was the actual perjury relied on in this case, which the wife now, during the case's pendency, wishes to be able to disclose to the police and wishes me to disclose to the police, Mr. Todd swiftly abandoned para.24 of his skeleton argument but referred me to para.6 of an affidavit made by the husband on 10th May 2015. In para.6 of that affidavit it says this:
"Sareh [that is the wife] has produced on page 62 to 81 of her exhibit bundle (SAB2) two title deeds which allegedly show me as owner of two properties in Dubai and two further property contracts in my name. I reiterate that I do not own any properties in the UAE. I do not believe these documents are genuine. The documents are not signed by me. The signature appearing on the documents is not mine. I do not recall having granted a power of attorney to anyone in the UAE"
. It is the second sentence that is said to represent the core crime of perjury, namely "I do not own any properties in the UAE".[9]In fairness I note that this affidavit is mentioned in the witness statement in support of this application as a further instance of perjury, even if it was not mentioned in the skeleton argument.[10]It can be seen from the husband's response that he strongly disputes the accuracy of the documents obtained by the wife which are said to demonstrate this perjury. Indeed, in a witness statement produced by him for the purposes of this case dated 9th December 2015, at para.14, he reiterates his case that the documents are not authentic and are untrue. The authenticity of the documents will be a central feature of the case that will be tried by Mr. Cusworth QC, to whom this case is allocated.[11]However, it is the wife's application, pursuant to what appears on the face of her notice of application, that at this stage, during the pendency of the case, there should now be a reference to the police of her allegation of perjury. This is, to my belief, wholly unprecedented. Mr. Todd is constrained to agree that he cannot identify any case in the ancillary relief field where there has been a reference to the police of perjury or fraud during the pendency of proceedings. Moreover, under the comparable jurisdiction which is incorporated in CPR 31.22(1), which requires the court's permission to reveal disclosed documents to any third party, Mr. Todd has been unable to identify one case where there has been a reference to the police of fraud or perjury during the pendency of the proceedings, where the very allegation that is sought to be referred to the police is in issue in those proceedings.[12]In my judgment, this application has been made prematurely. It seems to me that the motive is to replace the pressure of the European arrest warrant with a different kind of pressure to try and bring the husband, who is steadfastly not engaging in the proceedings (he is not negotiating, to my knowledge, or making proper disclosure), to heel in order that the case can be adjudicated fairly. But that is not a proper motive for seeking what, in my mind, is a premature reference to the police. In my judgment, it would be wholly wrong for this court to refer these matters to the police in advance of its judgment on those very matters and for these reasons the application is dismissed.[13]However, I want to make it clear, when dismissing the application, that I am not in so doing preventing the wife from making a comparable application once judgment on her main claim has been rendered. No question will arise of issue estoppel or other abusive of conduct on her part. If, following the giving of judgment in this case and the making of findings, the wife nonetheless thinks it is appropriate to invoke the criminal justice procedures then it will be open to her to make a fresh application in the terms of her application of 4th November 2015.[14]I have mentioned that Mr. Cusworth has this case allocated to him. However, I do reserve to myself any further application in this case which either relates to the husband's contempt or which relates to the husband's alleged perjury or other alleged criminality.[15]I make no order as to costs.

LATER

[16]Mr. Todd applies for permission to appeal. Under FPR 30.3(7) permission to appeal may only be given where(a) a court considers the appeal would have a real prospect of success or(b) there was some other compelling reason why the appeal should be allowed. In my judgment, an appeal would not have a real prospect of success. It would have no prospect of success at all. Furthermore, I cannot identify any other compelling reason why the appeal should be heard. The fact that there has never before been a case in the annals where a reference has been made during the pendency of proceedings to my mind hardly supplies a compelling reason why an appeal should be heard. To my mind, the empirical evidence suggests quite the opposite, that this is an appeal which should not be heard.

LATER STILL

[17]Although para 1 of this judgment makes it perfectly clear on a natural reading that counsel who “then” appeared on 27 October 2015 was not the same as counsel who appeared on this occasion, and although a reading of the first judgment referred to there would have confirmed this to be the case, Mr Todd QC is highly insistent that this is spelt out in this judgment. I am doubtful that the clarification procedure extends to requests for editorialisation for counsel’s personal reasons, but this additional paragraph has that effect. _______