UPDATE 16 September: We have now seen the appeal judgment itself and have edited and updated this post. Please scroll to the end of this post for the update.

A story appeared in The Times [paywalled] this week: ‘Trainee lawyer unfairly convicted of contempt over paperwork error‘ under the byline of Jonathan Ames, who is their legal editor.

The item relates that the Court Of Appeal has just quashed (i.e. rejected as invalid) a six month suspended jail sentence given to a trainee lawyer, Nasrullah Mursalin, by a judge at Reading Family Court in July. What this means is that Mr Mursalin has spent the last few weeks with a threat hanging over him that would probably have stopped him qualifying as a lawyer. Fortunately, the Court of Appeal has now said that he should go forward without a stain on his character.

Mr Mursalin had been working for a firm of solicitors that was acting for a client involved in both family court and immigration tribunal cases. According to the Times, he had sent some family court paperwork to the immigration judge. The family court judge, HHJ Moradifar, accepted that this was a mistake made in good faith but applied the strict rules about confidentiality of family court documents.

As we explain in our Media Guide and in more detail in this book by our trustees, section 12 of the Adminstration of Justice Act 1960, in combination with the Family Procedure Rules, has the effect that sharing family court information outside the case in many circumstances may be treated as contempt of court which can be punished by a fine or period of imprisonment (the Family Court has power to impose these punishments but they don’t result in a criminal conviction – so the Times headline is technically not accurate). Rules 12.73 and 12.75 and Practice Direction 12G set out what can be communicated to whom, and for what purpose. Those rules don’t permit sending documents to an Immigration Tribunal or to the Home Office, although the rules do allow a judge to give permission for that to happen if asked.

In the Court of Appeal, Mr Mursalin’s barrister said that the only people who saw the family court papers were the immigration judge and a civil servant in the Home Office who was involved in the immigration case. (It therefore seems to us that it was unlikely the child’s privacy was unduly breached because both these people would have been under an obligation not to share the information further.) However, HHJ Moradifar passed a six-month suspended sentence.

The Times report says that the Court of Appeal judges decided that this decision had featured several errors and was not fair or transparent. We await the judgment with interest but would comment, for now, that this is further evidence that section 12 and the fact that it has to be read alongside several bits of the Family Procedure Rules along with a separate practice direction to be applied, is confusing and unworkable. The procedure badly needs to be reformed, as has been argued by Louise Tickle.

[UPDATE 3.50pm, 8 Sept : Thanks to @_millymoo for pointing us in the direction of the original, now overturned, judgment here, and for noting that the Times headline has Mr Mursalin as a trainee lawyer, when in fact he has no legal qualifications at all, and is therefore simply a paralegal. We’ve amended our headline to reflect this.

The judgment of HHJ Moradifar is surprisingly short and lacking in detail. It does not set out the law, either by identifying which part of the rules were breached or the law about committal, including the fact that the judge must apply the criminal standard of proof, that the defendant cannot be compelled to give evidence and that he is entitled to notice, clearly spelt out allegations – and the judge does not set out the law about sentencing. It also isn’t at all clear who brought the application for committal, since a judge usually wouldn’t have the power to deal with this sort of contempt without one of the parties issuing an application for committal [see below].

One further interesting point concerns a barrister who attended the hearing, apparently ready to represent both Mr Mursalin AND Gull Law Chambers who had employed him, but s/he thought better of it once the obvious conflict of interest was pointed out. It’s not clear if they played any further part in the hearing. Unusually that barrister is not named and the judgment is worded so we can’t event identify their gender. We can’t see any real reason for that anonymisation. Certain remarks in the judgment suggest that the judge was decidedly unimpressed with Gull Law Chambers, but it is unclear from the judgment whether there was any consideration given to sanctioning some more senior person at that organisation instead of or as well as Mr Mursalin. [This update edited 16.9.2019]

UPDATE 16 September 2019

The Court of Appeal judgment is now published  here.

This sheds new light on the case in that the immigration judge was very critical of the law firm that sent him the family court papers and himself referred this matter to the family court to consider whether they had been in contempt. The immigration judge is quoted as saying:

‘the behaviour of the appellant’s legal representatives, Gull Law Chambers, I am satisfied falls a long way below that expected of solicitors. They have included in the appeal documents a court document that contains a very clear warning about publication and they seem unable to either read that or have any knowledge of family law proceedings or indeed very limited knowledge of immigration proceedings given their repeated applications for adjournment in order that the Family Court proceedings are determined. I request a copy of this decision is forwarded by the appropriate Immigration and Asylum Chamber officer to…Family Court case number …in order that the relevant family judge can consider the position and whether contempt proceedings are appropriate or not.’

In the Court of Appeal, Baker LJ comments:

‘Nothing I say hereafter should be interpreted as excusing the unlawful, unauthorised disclosure of confidential Family Court documents. ‘

However, he goes on to list the procedural irregularities when Mr Mursalin was committed for contempt:

  1. It was not clear whether hearing had been held in open court, as required.
  2. Mr Mursalin had not been give clear details by the family court about the situation – that he might be in contempt or the consequences of being found in contempt. He had mistakenly thought Mr Gull was looking after his interests.
  3. The family court judge had not been shown the papers that had been sent to the immigration judge, so could not evaluate the potential damage. It seemed that they may have included a Cafcass report but this was not entirely clear.
  4. It did not seem to have occurred to the family court judge that Mr Mursalin’s employer, Mr Gull, was ‘the real culprit’. (Although the firm was ordered to report itself to the regulator.)
  5. A defendant in a committal is not required to give evidence but the judge had ordered Mr Mursalin to do so.

Since you’re here…

We have a small favour to ask! 

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