R v Ashford, Kent, Justices. ex parte Richley (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE PARKER |
| Judgment Date | 03 November 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1103-1 |
| Court | Court of Appeal |
| Date | 03 November 1955 |
[1955] EWCA Civ J1103-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Parker
In the Matter of an application by Peter Blair Richley of 25 East Hill, Ashsford, in the County of Kent
In the Matter of an Affiliation Order made by the Court of Summarily Jurisdiction sitting at Ashford in the Petty Sessional Division of Ashford in the County of Rent on the 29th day of December, 1953.
Mr. FRANK WHITWORD (instructed by Messrs Kingsford, Dorman & Co., Agents for Messrs Kingsford, Flower & Pain, Ashsford, Kent) appeared on behalf of the Applicant.
Mr JOHN COWER (instructed by Messrs Lovell, Son & Pitfield, Agents for Messrs W. Taylor & Co., Ashford, Kent) appeared on behalf of the Respondent Miss. Mann.
On the 27th April of this year there was before the Divisional Court a motion on behalf of Mr. Richley for an order of Certiorari to bring up and quash an order made by the Justices of Kent sitting at Ashford, whereby he was adjudged the father of an illegitimate child of one Pansy Patricia Mann. The Divisional Court refused the application, and ordered that the Applicant should pay the costs. From that order of the Divisional Court Mr. Richley appeals to this Court.
It is an interesting and somewhat unusual case. It is desirable that I should state some of the history. On the 6th October, 1953, a child was born to Miss Mann. It was said that it was a late delivery, and the probable time of conception was about the end of December, 1952. Miss Mann took proceedings before the Justices at Ashford, and on the 29th December, 1953, an order of the Magistrates adjudged that Mr. Richley was the father of her child; and he was ordered to pay certain sums by way of maintenance or support for the child. He appealed against that order to the Appeals Committee for the County of Kent. His appeal was heard on the 1st March, 1954, and it was dismissed. In October 1954 an information was laid by Mr. Richley against a man named Ricket, who had given evidence, he being called as a witness by Mr. Richley's Counsel. On the 18th November, 1954, Ricket was committed for trial at the Kent Assizes at Maid stone. The trial took place on the 2nd and 3rd December. He was convicted of perjury and sentenced to 18 months imprisonment. Some time later the application for an order of certiorari came before the Divisional Court. It was heard on the 27th April, as I have already stated.
When the hearing of the affiliation summons took place before the Magistrates in December 1953, evidence was given by Miss. Mann, and witnesses were called upon her behalf. Her father and her mother both gave evidence as to frequent visits by Mr. Richley to the house at which Miss. Mann was living, and there were documents - a letter and a postcard - written byMr. Richley which provided support for her case. Undoubtedly there was a case on which the Magistrates might make an order, and there was sufficient corroboration for the purposes of the statute.
Mr. Richley himself gave evidence, denying the evidence which had been given by Miss Mann; and there was called as a witness on his behalf the man Ricket. Ricket was a taxicab driver who was employed by Mr. Richley. Mr. Richley at that time was the proprietor of a taxicab business, and he employed several drivers. It is quite clear that Ricket, when he was called on behalf of Mr. Richley, was expected to say that he had had sexual intercourse with Miss Mann about the date of conception. In fact, he did not give evidence to that effect. His evidence was that he had driven Miss Mann in a taxicab occasionally, and that on one occasion he had had coffee and biscuits with her, but that that was the extent of his association with her. Whether the Justices thought anything of his evidence or not, I do not know.
When the case was before the Appeals Committee, Ricket was again called on behalf of Mr. Richley, and Ricket, having answered one or two questions of no materiality, declined to answer further questions. So thathis evidence was of no use whatever to the Appeals Committee, who upheld the order of the Magistrates.
Some time later a police officer saw Ricket and made enquiries from him. Ricket gave an answer which was given in evidence by the police inspector on the trial of Ricket for perjury. The case developed in a somewhat extraordinary way. Mr. Richley gave evidence; several witnesses were called as to conversations with Ricket, evidence of a kind which clearly would not have been admissible against Miss Mann; and a police officer gave evidence to the effect that Ricket had admitted to him that he had had sexual intercourse with Miss Mann. There was a substantial case in support of the allegation that Ricket hadcommitted perjury on the hearing before the Magistrates at Ashford.
At the conclusion of the case for the Prosecution, Ricket did not give evidence, but his Counsel called Miss Mann into the witness box and she gave evidence in support of Ricket's defence. I do not know how she came to be there, though I can well understand that she had an interest in the result of the case. We have been told that she was advised by Counsel. She gave evidence to the effect that she had not had sexual intercourse with Ricket at any time; that it was not right to say that she had.
The issues which were before the Jury were whether or not it was approved that Ricket had committed perjury on the occasion when he gave evidence called as he was as a witness on behalf of Mr. Richley. Ricket had said first one thing and then another, and when he was on his trial for perjury, he did not go into the witness box, but the girl was called in support of his case. She gave evidence which it might be said was in accord with the evidence which she had given before the Magistrates on the first occasion's to the effect that she had not had sexual intercourse with Ricket. The Jury convicted Ricket.
It is not surprising that they did so, for he must have said to someone before he was called as a witness at Ashford that he had had sexual intercourse with the girl; else he would not have been called as a witness. When he was called as a witness, he said he had not had sexual intercourse with her. When he was seen by the police inspector, he said that he had. When he was on his trial on a charge of perjury, he did not give evidence. It is not surprising that this having witness, who said first one thing and then another, but whose courage evaporated from time to time, was convicted of perjury.
Upon that conviction and upon what took place at the trial, Mr. Whitworth on behalf of Mr. Richley bases his applicationevidence before the Magistrates and before the Assize Judge at Maidstone was to the same effect, this Court ought to say that her evidence was proved to be untrue, and that she herself had been guilty of perjury. Thus he submitted that the order of the Magistrates ought to be quashed, did that she must have been a party to the fraud as she had given false evidence herself.
The first question to be considered is: Is it proved that her evidence was false? She has not been convicted of perjury. I am far from satisfied that if she had been Prosecuted first, she would have been convicted of perjury. Furthermore, I am not satisfied that if she was prosecuted now, she would be convicted of perjury. Much of that which was given in evidence on the trial of Ricket was evidence against him but which would not be admissible against her. The fact that he had been convicted would not be admissible to prove her guilt. The evidence to secure her conviction would have to be evidence admissible against her, sufficient to prove that she had committed perjury. I am not sure that it can be said with any certainty that it follows either that she committed perjury.
In those circumstances, it seems to me that this appeal is misconceived; but there are other questions to be considered. I do not know of any case in which an order made at the behest of one party has been quashed by reason of perjury committed by a witness called for the other party, who now seeks to have the order quashed. It would be going a long way if such a course was taken. Over and above that, though Mr. Whitworth only seeks to quash the order of the Magistrates at Ashford, the case was considered by the Appeals Committee for the Countyof Kent, who came to their decision in favour of Miss Mann without any material evidence from Mr. Ricket. Mr. Whitworth says that all he seeks to quash is the order of the Magistrates, the first order, but it is a fact to bear in mind that there was an appeal and that that appeal was dismissed by the Appeals Committee.
In the Divisional Court the Lord Chief Justice said this: "We are really, in effect, being asked to say that we disbelieve Miss Mann's evidence before the Justice and, therefore, we are going to quash this order. We cannot possibly say that. The conviction of this man Ricket is no evidence against her. If she is prosecuted for perjury now, she could not be convicted merely by showing that Ricket had been convicted of perjury. It would have to be proved to the satisfaction of the Jury that she had committed perjury, and I do not know whether a jury would have been satisfied or not".
The cases to which we have been referred show that an order of this nature has been brought up and quashed in certain circumstances, and no-one doubts that it can be done. The last is the case of The King v. The Recorder of Leicester, 1947 King's Bench, page 727, where the respondent in affiliation proceedings, against whom an order had been made by Justices, appealed to Quarter Sessions. The appeal was heard by the Recorder, who accepted the evidence of the respondent in regard to material facts and allowed the...
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