P v Griffith

In this matter, I am concerned with an application by P acting through her litigation friend the Official Solicitor for an order committing Ms Dahlia Griffith to prison for contempt arising out of her alleged interference with the due administration of justice. On 31 January 2020 the court granted P permission to make her application for committal of Ms Griffith. The applicant is represented by Ms Simcock of counsel. Ms Griffith has not attended the hearing in circumstances I will come to below but is represented by her solicitor advocate, Mr Adam Tear.

The grounds for the application to commit Ms Griffith are set out as follows in the application form issued on behalf of P:

“[Dahlia Griffith] falsified a court order and presented this in support of her request in order to obtain disclosure of confidential medical records of P. [Dahlia Griffith] conduct in falsifying a court order is a contempt of court, being an interference with the due administration of justice, as well as a breach of the court order(s) of HHJ Hilder of 22 August 2019 dismissing

The evidence in support of the application for committal is before the court in the form of an affidavit of Nicola Mackintosh QC (Hon), an affidavit of Kris Jackson and an affidavit of Marian Shaughnessy. At the last adjourned final hearing I directed, with the consent of all parties, a further statement from Nicola Mackintosh QC dealing with those questions that Mr Tear on behalf of Dahlia Griffith wished to put to Ms Mackintosh, Mr Tear having confirmed that the scope of the challenge he was instructed to make to the evidence filed and served with respect to the committal application was sufficiently limited to render this a just and proportionate approach.

The process of committal for contempt is a highly technical one. Within this context it is important, in circumstances where the liberty of the citizen is at stake, to recall at the very outset the strict procedural requirements of a properly constituted committal hearing that have to be complied with, which principles apply with equal force in the Court of Protection.

Within this context, and in addition to having regard to the provisions of the Court of Protection Rules 2017 r. 21.28, I have also borne in mind the following requirements:

In this case, I am satisfied that each of the aforesaid procedural imperatives has been met. In this case, the court is also faced with a preliminary issue in circumstances where Ms Griffith has again failed to attend the final hearing of the committal application notwithstanding that she has had proper notice of the same, she also having failed to attend the final hearing listed on 1 September 2020. On that occasion, having been informed by Mr Tear that Ms Griffith was stating she was too ill to attend court, I adjourned the final hearing to allow her to provide medical evidence to that effect. Ms Griffith failed to supply that evidence and her further failure to attend the first stage of this hearing remained unexplained despite attempts by Mr Tear to contact her ahead of the matter being called on.

The relevant legal principles on whether the court can proceed with a committal hearing in the absence of the Respondent were summarised by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam). Namely:

In considering these factors, the court must bear in mind that committal proceedings are essentially criminal in nature and the court should proceed in the absence of the accused with great caution, that findings of fact are required before any penalty can by imposed and the presumption of innocence applies penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/ family jurisdiction and that Arts 6(1) and 6(3) ECHR are actively engaged, entitling the respondent to, inter alia, a 'fair and public hearing' and to 'have adequate time and the facilities for the preparation of his defence.'

Having given careful consideration to the factors articulated in Sanchez v Oboz I am satisfied it is appropriate to proceed with the final hearing of the committal application in the absence of Ms Griffith. Ms Griffith has had proper notice of these proceedings and has had proper notice of this hearing, which was listed to provide a further period of 14 days’ notice to Ms Griffith following the adjourned hearing on 1 September 2020. Within this context, I am satisfied that Ms Griffith has had sufficient notice to enable

The substantive Court of Protection proceedings from which the alleged contempt arises concerned P, a 50 year old woman who resides at a specialist hospital on a long term care ward. She was admitted to that hospital on 17 September 2018 having previously been at a different hospital from 28 May 2018. On 28 January 2018 P suffered a bilateral stroke which caused significant brain damage, leaving her with profound cognitive impairment. P has a diagnosis of a permanent disorder of consciousness of the type known as Minimally Conscious State Minus.

Within the proceedings in the Court of Protection, Ms Griffith was the applicant. Ms Griffith is a relative of P. The proceedings, in which P was represented by the Official Solicitor instructing Mackintosh Law, concerned a dispute between Ms Griffith and the other parties as to P’s condition and prognosis and as to her best interests in relation to her medical treatment, her residence and care and in relation to whether she should be subject to a DNR CPR notice.

As I have noted, the substantive proceedings before the Court of Protection have now concluded. On 8 April 2020, following a final hearing before Mr Justice Cohen, the court made final declarations. In addition to the making of final declarations, Ms Griffith’s application was dismissed by Cohen J. Ms Griffith made an application to the Court of Appeal for permission to appeal the orders of Mr Justice Cohen. That application for permission to appeal was dismissed by Lady Justice King on 10 July 2020.

The application for the committal of Ms Griffith arises out of alleged actions taken by her during the course of the proceedings summarised above, to which alleged actions I now turn.

On 10 July 2019 HHJ Hilder gave directions in the substantive Court of Protection proceedings and made three third party disclosure orders for disclosure of P’s medical

On 12 August 2019 HHJ Hilder made a further third party disclosure order in respect of P’s medical records against East London NHS Foundation Trust, for all records held. No further third party disclosure orders in respect of P’s medical records were made by the court and each of the third party disclosure orders that were made by the court directed the disclosure of the medical records to P legal representatives only. None of the disclosure orders made by the court made provision for disclosure of medical records to Ms Griffith.

Within the foregoing context, Ms Griffith made application for disclosure dated 26 July 2019, by which application she sought an order for disclosure to her of what was described in her application as P’s “full medical file”, Ms Griffith asserting that such disclosure was required in circumstances where the Official Solicitor had only sought disclosure from September 2018. In response to that application on 13 August 2019 HHJ Hilder made no order, noting that disclosure orders had already been made on 10 and 12 August 2019, which orders appeared to meet the request for disclosure made in Ms Griffith’s application dated 26 July 2019.

In response, Ms Griffith made a further application for disclosure on 21 August 2019, again seeking disclosure to her of what was again described in her further application as P’s “full medical file”. Within that application, Ms Griffith described herself as the Second Respondent to the Court of Protection proceedings and asserted that the application for disclosure to her was now urgent.

In response to this further application by Ms Griffith HHJ Hilder made two further orders. On 22 August 2019 HHJ Hilder made an order which, referring to Ms Griffith’s application of 26 July 2019, stated that:

“For the avoidance of doubt the Court is not presently satisfied that it would be appropriate to make an order providing for disclosure of P’s medical records to her [relative][Dahlia Griffith] [Orders have already been made to P’s own representatives]”.

A further order was made by HHJ Hilder on 22 August 2019 which referred to both applications by Ms Griffith, dated 26 July 2019 and 21 August 2019 as well as the order of 22 August 2019 referred to above. The second order of 22 August 2019 provided that:

“...the Court is not presently satisfied that it would be appropriate to make an order providing for disclosure of P’s medical records to [Dahlia Griffith] (as previously recited at paragraph 6 of the first order made today)...For the avoidance of doubt, the COP application by DG dated 21 August 2019 is refused...The first order of 22 August 2019 stands”.

Within the foregoing context, as at 22 August 2019 no order had been made by HHJ Hilder that provided for disclosure of P’s medical records to Ms Griffith. Moreover, as at 22 August 2019 HHJ Hilder had expressly declined to grant two applications made by Ms Griffith for disclosure to her of P’s medical records.

On 18 October 2019 Ms Griffith sent an email to Barts Health NHS Trust attaching what purported to be a court order made on 10 July 2019. A copy of that email is before the court. In the body of the email, Ms Griffith informed Barts Health NHS Trust that she was “submitting the above stated form and associated proofs required” and that “she had been alerted to the fact that I needed to approach this organisation for the information myself”. The purported court order attached to Ms Griffith’s email is also before the court. That purported order provides for the disclosure of P’s medical records directly to Ms Griffith from Barts Health NHS Trust. The purported order bears no court seal and contains none of the recitals that characterise the third party disclosure orders made by HHJ Hilder. The court confirmed in December 2019 that no such order for disclosure is held on the court file and that no such order for disclosure had, in fact, been made by the court.

Whilst as at 10 July 2019 Ms Griffith was acting in person, by 18 October 2019 she had engaged Sinclairslaw Solicitors. Barts Health NHS Trust acted in good faith on the purported order attached to Ms Griffith’s email of 18 October 2019 and disclosed P’s medical records to Sinclairslaw. The court has before it the affidavit of Marian Shaughnessy of Sinclairslaw deposing to the fact that the medical records were sent to Sinclairslaw by Barts Health NHS Trust at the request of Ms Griffith. Ms Shaughnessy further confirms that she did not read the records nor did she show them to Ms Griffith.

The circumstances by which the purported court order sent by Ms Griffith to Barts Health NHS Trust came to the attention of the Official Solicitor are set out in the affidavit of Mr Kris Jackson. In short, on 6 November 2019 further orders were made by Cohen J enabling the Official Solicitor and the solicitors retained by her, Mackintosh Law, to obtain P’s records from St Georges University Hospitals NHS Foundation Trust and Barts Health NHS Trust. When Mackintosh Law made the request to Barts Health NHS Trust pursuant to the order of Cohen J Barts Health NHS Trust informed Mackintosh Law that it had already received a request for P’s medical records from Ms Griffith, which request included a copy of a court order.

On 10 December 2019, Mr Justice Cohen made an order requiring Ms Griffith’s legal representatives to send to Mackintosh Law the records pertaining to P that they had received without opening, considering or copying those records, together with a continuing obligation to act in this manner with respect to any further records received. I pause to note further that the order of Cohen J of 10 December 2019 contains the following recital:

“AND UPON the court noting that no order has been made which enables [Dahlia Griffith] to obtain or receive a copy of P’s medical records, the orders which have been made enabling disclosure to be made to P’s legal representatives.”

On 21 January 2020 Mr Justice Mostyn made an order directing that, upon the Official Solicitor having made an application for permission to make an application for committal under rule 21.15 of the Court of Protection Rules 2017, there be a permission hearing in February with a time estimate of one hour. Again, I pause to note the following observation made by Mostyn J during the course of his judgment on 21 January 2020:

“Since Cohen J’s order of 8 January 2020 disclosure was made by solicitors acting for Royal London Hospital, Whitechapel, of the purported third party disclosure order. That purported order was never made by the court. In those earlier hearings, HHJ Hilder made disclosures orders but not against Royal London Hospital Whitechapel. She made orders against Northwick Park, RHND and TowerHamlets Clinical Commissioning Group. In each instance, disclosure was to be made to P’s legal representatives. No order was made in the terms of the purported order. These are circumstances in which the permission application will be made and the facts will need to be verified by affidavit.”

Ms Griffith was represented at the hearing for permission to make a committal application before me on 25 February 2020 when I granted permission for the application pursuant to Rule 21.15 and gave directions. As I have noted, Ms Griffith failed to attend the final hearing of the committal application listed on 1 September 2020 and, having heard submissions, I declined on that occasion to proceed in her absence and adjourned the final hearing of the committal application to today. As I have also noted, Ms Griffith has again failed to attend and I decided to proceed in her absence for the reasons set out above.

As I have noted, Ms Griffith exercised her right to silence. On her behalf, Mr Tear submits that the circumstances I have set out above, which circumstances are relied on by the Official Solicitor in support of the committal application, do not prove beyond reasonable doubt that Ms Griffith falsified a court order and presented this in support of her request in order to obtain disclosure of confidential medical records of P. Within this context, Mr Tear informed the court that Ms Griffith denies forging the purported order dated 10 July 2019 and contends that she simply sent to Barts Health NHS Trust in good faith a purported order that had been drafted by another, unidentified person, possibly someone at Sinclair Solicitors. Within this context, Mr Tear also pointed to certain parts of a number of other case management orders made by the court in this case that he submits would have given Ms Griffith the idea that she was entitled to the disclosure sought by the purported order of 10 July 2019, which in turn would have led Ms Griffith to forward the order drafted by another in all innocence. Mr Tear submitted that the applicant has failed to demonstrate that the foregoing scenario did not take place.

In addition to the procedural imperatives set out above, the following legal principles are also relevant in the particular circumstances of this case. As set out in Aldridge, Eady & Smith on Contempt 5^th Ed. At 3-28 for largely historical reasons, different forms of contempt have been allocated to one or other of the two traditional broad categories, namely criminal contempts and civil contempts. The learned authors go on to note that:

“Most examples of conduct classified as contempt have been characterised as “criminal”. They include contempts in the face of the court; publication of matter scandalising the court; acts calculated to prejudice the fair trial of a pending case (criminal or civil); reprisals against those who participate in legal proceedings for what they have done; impeding service of, or forging, the process of the court; and also most contempts in relation to wards of court.”

Within this context, in England and Wales the general approach has been that an act which so threatens the administration of justice that it requires punishment from the public point of view constitutes a criminal contempt. By contrast, a civil contempt involves disobedience of a court order or undertaking by a person involved in litigation, in response to which the court may invoke its summary contempt jurisdiction.

This distinction has been referred to as an unhelpful one (see for example Salmon LJ in Jennison v Baker [1972] 2Q.B. 52 at 61G). More recent decisions of the House of Lords and the Supreme Court tend to suggest however, that the distinction is one that remains. In Att-Gen v Times Newspapers Ltd [1992] 1 A.C. 191 at 217-18 Lord Oliver stated as follows:

“A distinction (which has been variously described as ‘unhelpful’ or ‘largely meaningless’) is sometimes drawn between what is described as ‘civil contempt’, that is to say, contempt by a party to proceedings in a matter of procedure, and ‘criminal contempt.’ One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice—an intention which can of course be inferred from the circumstances.”

In R v O’Brien [2014] A.C. 1246 at [42] Lord Toulson noted as follows with respect to the existence of a distinction between civil contempt and criminal contempt:

“The question whether a contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on nature of the conduct. To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial. Conversely, disobedience to a procedural order of a court is not in itself a crime, just because the order was made in the course of criminal proceedings. To hold that a breach of a procedural order made in a criminal court is itself a crime would be to introduce an unjustified and anomalous extension of the criminal law. ‘Civil contempt’ is not confined to contempt of a civil court. It simply denotes a contempt which is not itself a crime.”

The Court of Protection Rules 2017 make specificprovision for a Tier 3 Judge of the Court of Protection to deal with an alleged contempt that amounts to an interference with the due administration of justice (as opposed to a contempt committed in the face of the court or disobedience of a court order or breach of an undertaking to the court). Rule 21.13 of the Court of Protection Rules 2017 provides as follows:

“Scope

21.13.—(1) This Section regulates committal applications in relation to interference with the due administration of justice in connection with proceedings in the Court of Protection, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court.

(2)

A committal application under this Section may not be made without the permission of the court.”

The standard of proof applicable where the contempt is alleged to comprise interference with the due administration of justice remains beyond reasonable doubt. In Aldridge, Eady & Smith on Contempt 5th Ed. At 3.45 the authors note that “In the case of criminal contempts not falling within the strict liability rule, it would appear that an intention to interfere with the administration of justice is required, at least for publication contempts. For other types of criminal contempt, the mental element is less clear.”

As I have noted, and as confirmed in Att-Gen v Times Newspapers Ltd,this will require not only proof of the actus reus but also mens rea in the form of an intention to interfere with or impede the administration of justice, an intention which may be inferred from the circumstances demonstrated by the admissible evidence. For the avoidance of doubt, in this case I have proceeded on the basis that to prove the alleged contempt in this case beyond reasonable doubt the applicant must prove both the relevant act on the part of Ms Griffith, namely the counterfeiting of the purported court order, but also an intention on her part to thereby interfere with or impede the administration of justice.

The matter is listed today for final hearing. Rule 21.28 of the Court of Protection Rules 2017 governs the final hearing:

“(1)

Unless the court hearing the committal application or application for sequestration otherwise permits, the applicant may not rely on—

(a)

any grounds other than—

(i)

those set out in the application notice; or

(ii)

in relation to committal applications under Section 4, the statement of grounds required by rule 21.15(1)(a) (where not included in the application notice);

(b)

any evidence unless it has been served in accordance with the relevant Section of this Part or a practice direction supplementing this Part.

(2)

At the hearing, the respondent is entitled—

(a)

to give oral evidence, whether or not the respondent has filed or served written evidence, and, if doing so, may be cross-examined; and

(b)

with the permission of the court, to call a witness to give evidence whether or not the witness has made an affidavit or witness statement.

(3)

The court may require or permit any party or other person (other than the respondent) to give oral evidence at the hearing.

(4)

The court may give directions requiring the attendance for crossexamination of a witness who has given written evidence.”

On the evidence before the court, I am satisfied that the court made no order, whether on 10 July 2019 or otherwise, requiring Barts Health NHS Trust to disclose to Ms Griffith P’s medical records. A comprehensive review of the court file has revealed no such order. Within this context, I am satisfied beyond reasonable doubt that the order sent by Ms Griffith to Barts Health NHS Trust was not an order made by the court during the course of the substantive proceedings.

Whilst Ms Griffith contends that, notwithstanding this, the applicant has not been able to prove beyond reasonable doubt that she fabricated the purported order in circumstances where she contends that she simply and in good faith forwarded an order drafted by another, as yet unidentified, person, I am satisfied that the applicant has discharged the heavy burden of proving beyond reasonable doubt that Ms Griffith forged the purported order dated 10 July 2020. I am so satisfied for the following reasons:

Within this context, I am satisfied that the only reasonable inference to be drawn from the foregoing matters is that Ms Griffith’s persistent and strongly held desire to obtain the medical records she sought regarding P, and the repeated dismissal of her applications for orders to this end, led her deliberately to fabricate the purported order

I am further satisfied that the evidence before the court demonstrates beyond reasonable doubt that Ms Griffith’s took this action with the intention of interfering with the due administration of justice. The evidence demonstrates that, at the time she sent the forged order of 10 July 2019 to Barts Health NHS Trust, Ms Griffith was plainly aware that her applications for the disclosure sought in the forged order of 10 July 2019 had twice been expressly considered and refused by HHJ Hilder on 13 and 22 August 2019. Within this context, I am satisfied that the only reasonable inference that can be drawn from Ms Griffith’s action in seeking to obtain, by way of a forged court order, disclosure of P’s confidential medical records that she knew the court had repeatedly declined to order in the course of the proceedings is that she intended to circumvent the court’s principled decision on this issue. Within this context, I am satisfied beyond reasonable doubt that Ms Griffith intended by her actions to interfere with the due administration of justice.

Within the foregoing context, I am satisfied beyond reasonable doubt that Dahlia Griffith forged the purported court order and sent the forged purported order to Barts Health NHS Trust with the intention of obtaining the medical confidential records of P despite the court refusing to direct this. This action constituted a very serious interference with the due administration of justice. I am further satisfied beyond reasonable doubt that Dahlia Griffith took this action with the intention of interfering with the due administration of justice, her applications for the disclosure provided for by the purported order having previously been refused by the court on a principled basis.

Having found the contempt proved, I adjourned the question of sentencing for the contempt that I found to be established for two days, in order to allow Ms Griffith a further opportunity to attend court.

Ms Griffith has not attended the resumed hearing to consider the penalty for her contempt. Prior to this hearing, Ms Griffith sent an email to my clerk stating that she would not be attending the hearing by reason of illness, stating that she had acquired a medical note. No medical note was attached to the email. Mr Tear has attempted this morning to contact Ms Griffith but has been unable to elaborate on the reasons for her non-attendance. Whilst Mr Tear applied to adjourn sentencing, for the reasons I gave for proceeding with the first stage of the hearing in the absence of Ms Griffith, I am satisfied for those reasons that it remains appropriate to proceed to sentence Ms Griffth in her absence.

As Marcus-Smith J made clear in Patel v Patel and Ors [2017] EWHC 3229 (Ch)at [22] and [23] a penalty for contempt has two primary functions. First, it upholds the authority of the court by marking the disapproval of the court and deterring others from engaging in the conduct comprising the contempt. Secondly, it acts to ensure future compliance. Whilst in some cases therefore, and in particular those cases where the contempt arises from the breach of a court order, a penalty will have the primary objective of ensuring future compliance with that order. In this case however, the proceedings are concluded. In the circumstances, in this case the objective of any penalty for the contempt is to uphold the authority of the court by marking the disapproval of the court of the contemnors actions and to deter others from engaging in the conduct comprising the contempt.

In considering the appropriate penalty in this matter, I have had regard to the following principles applicable to that exercise:

In the particular circumstances of this case I also note that, whilst a criminal case, in R.

Within this context, considering the appropriate punishment in this case, I have of course borne carefully in mind the mitigation ably advanced by Mr Tear as follows:

It is proper also to record that whilst Ms Simcock acknowledged that the applicant is not ordinarily involved in the question of penalty, the Official Solicitor made clear through Ms Simcock during the course of the hearing that she had no wish to see Ms Griffith sentenced to a term of imprisonment but felt compelled to bring the conduct of Ms Griffith before the court by way of an application for committal on behalf of P given the gravity of that conduct.

Against these matters, Ms Griffith acted intentionally in forging a court order in order to obtain disclosure which the court had denied her. Ms Griffith’s action in forging a court order, whilst not resulting in her receiving P’s medical records, resulted in confidential medical records to which she was not entitled being disclosed to her solicitors. It was only a matter of chance that Ms Griffith actions were discovered when a legitimate order was made by the court. Within this context, P was, to a certain extent, prejudiced by Ms Griffith’s contempt, particularly in circumstances where medical records are confidential to the individual and it is crucial to respect the privacy of a

Further, the act of forging a court order strikes at the very heart of the due administration of justice. The need for litigants and third parties to be able to have confidence in the integrity of orders made by the court is fundamental not only to the integrity of individual proceedings but to the maintenance of the rule of law. Any course that acts to undermine confidence in the integrity of court orders is accordingly highly corrosive of both the administration of justice by the courts and to the rule of law more widely (see Commissioners for Her Majesty's Revenue and Customs v. Munir [2015] EWHC 1366 (Ch) at [9(i)]). Within this context, the counterfeiting of court documents is considered by the courts to amount to a very serious contempt of court (see for example Dryer v HSBC Bank Plc [2014] EWHC 3949 (Ch) and Patel v Patel and others).

Finally, as I have noted above, one of the legitimate objectives of any penalty for contempt is to deter others from engaging in the course pursued by the contemnor (see Patel v Patel and Ors at [22] and [23]) and this objective will have particular resonance in cases where the conduct in issue has impeded the proper administration of justice

In the foregoing circumstances, I am satisfied that the threshold for custody is plainly crossed in this case and that, having regard to the factors I have summarised above, the appropriate and proportionate penalty in this case is an immediate term of imprisonment of 12 months. I make clear that but for the fact that Ms Griffith has not to date experienced prison, and the current impact on the nature of custody of the COVID-19 pandemic, I would have imposed on her an immediate sentence of imprisonment of 18 months for forging the court order with the intention of interfering with the due administration of justice.

I do not consider it appropriate to suspend the sentence of imprisonment I have imposed on Ms Griffiths in circumstances where the objective of the sentence is to mark the disapproval of the court of Ms Griffith’s deliberate and calculated actions and to deter others from acting in a similar fashion, rather than to ensure future compliance with orders of the court in circumstances the substantive proceedings having now concluded.

Accordingly, for the contempt I have found proved in this case I sentence Ms Griffith to an immediate term of imprisonment of 12 months. I will make a committal order accordingly and, in circumstances where Ms Griffith has not attended today, will issue a warrant. I will reserve to myself any application Ms Griffith may wish to make in the future to purge her contempt.

That is my judgment.