Divisional Court
| Published date | 01 May 1996 |
| Author | J A Coutts |
| DOI | 10.1177/002201839606000201 |
| Date | 01 May 1996 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
CONTEMPT BY INTERFERENCE WITH POTENTIAL WITNESSES
Connolly v Dale
Interference with witnesses, actual or potential, may be such as to amount
to the offence of interference with the due administration of justice. The
application of this principle may give rise to a clash of interestes, in which
it would appear ex facie that both sides have an arguable case, as is
demonstrated by what happened in Connolly v Dale
[1995]
3 WLR 786. In
that case, the Divisional Court adopted and elaborated two propositions of
law:
(I)
conduct interfering with the due administration of justice either in
aparticular case or more generally, as a continuing process, is contempt:
see per Donaldson MR in A-G v Newspaper Publishing pic
[1988]
Ch 333;
and (2) interference with witnesses, actual or potential, is contempt: Rv
Kellett
[1976]
QB 372;
A-G
vButterworth
[1963]
I QB 696. In the present
case, Balcombe LJ added that 'the concept of interference with witnesses
extends to interference with proper and reasonable attempts by a party's
legal advisers to identify and thereafter to interview potential witnesses'.
The clash between these principles and that advanced by the police of non-
interference with the efforts of the police, in the interests of justice, to obtain
evidence in the course of an investigation into a particular crime, came
about in the following circumstances. The applicant for an order that a
detective superintendent be committed to prison for contempt had been
jointly charged with murder and had given the policedetails of the evidence
on which he would rely in establishing an alibi. The police investigation
involved visiting a hostel mentioned by the accused, in order to interview a
member of the staff, as a preliminary to mounting an identity parade. The
solicitors for the defendant instructed an inquiry agent (to whom they gave
aphotograph of the defendant) to make inquiries as to potential witnesses
in support of the alibi, all of whom were described as 'travellers', that is as
being of no fixed abode. When the agent proposed to visit the hostel, to
interview the staff, and in particular to show them the photograph of the
accused, the police protested that this would prevent the holding of the
proposed parade and that that, or indeed any interview with members of
the staff, would be regarded as an interference with, and an obstruction of,
the police in the execution of their duty. The police then arranged with the
manager of the hostel that the agent would not be admitted for the purpose
of interviewing members of the staff.
Although no authority was cited to the court upon the precise question
whether this conduct on the part of the police was or was not an interference
with the due administration of justice which amounted to contempt, the
court held that it could rely on the general principle that proceedings must
be protected from interference as the principle which must prevail over
others: see per Lord Denning MR in
A-G
vButterworth (above). The court
109
Journal
of
Criminal Law
also pointed to the further principle that interference with a solicitor's
discharge of his duties can also amount to contempt: see per Bowen LJ in
Re Johnson (1887) 20 QBD 68. In the present case, therefore, the court had
no difficulty in deciding that the actus reus of the afleged contempt had been
established. Was it necessary to establish mens rea; and, if so, had it been
established? Where wilful obstruction or interference is charged, it is
necessary to prove an intent to bring about a state of affairs which, viewed
objectively, amounts to obstruction or interference: see per McCullough J
in Hills v Ellis
[1983]
QB 680. The court was of the opinion in the present
case that, although the superintendent's motive was benign (to prevent the
contamination of the identification procedure), his intent was clearly to
prevent the defendant's solicitors from having access to potential alibi
witnesses.
The court agreed that if the police had a power (for the reason they
professed or for any other reason) to prevent access to potential witnesses,
the courts would have a very difficult balancing process to perform, between
the interests of justiceinvolved in the legitimate claim by the policeto follow
correct identification procedures and the interests of justice involved in
allowing every defendant full access to any potential witness for the defence.
The court held, however, that the police had no such power, because
(I)
there is no property in a witness: Harmony Shipping Company v Sandi
Europe Line
[1979]
1 WLR
1380,
and (2) everything is permitted except
where expressly prohibited: see per Megarry VC in Malone v
MPC
[1979]
Ch 344. Here, it could not be said that the inquiry agent's acts were an
obstruction of the police in the execution of their duty, for not only was he
not guilty of any mens rea, but he had also acted with lawful excuse, namely
that he had acted in the lawful pursuit of potential defence witnesses. He
was, therefore, not guilty of any offence contrary to s 51(3) of the Police
Act
1964.
It
followed that the superintendent's threat to 'take appropriate
action' (which could only be construed as a threat to prosecute) was
therefore in itself a contempt of court, as an act of interference with the due
administration of justice. The court therefore held that the contempt was
made out and, although in the circumstances it also held that it would be
inappropriate to apply any penal sanction, it concluded that it would have,
if necessary, power to grant injunctive relief against the police: see Peacock
v London Weekend Television (1985) 150 JP 71. In the result, however, an
injunction was not necessary, as the police gave an undertaking that they
would not interfere with the solicitors or their agents acting in the course of
their making proper inquiries in accordance with the present decision. The
significance of the present decision is that it declares lawful an action,
namely the showing of a photograph of an accused to those who may be
called upon to take part in an identity parade, even where the person
showing the photograph has been warned that the action will render the
parade ineffective. This is so where the person showing the photograph has
'a lawful excuse'; in the absence of such an excuse (in this case, the lawful
search for potential alibi witnesses for the defence), the showing of the
photograph would be an unlawful obstruction of the police. In the realm of
reality, will the prosecution ever be likely to establish that the person's aim
is simply to stultify the parade?
110
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