Disclosure of material from family proceedings in a criminal investigation

Olliers’ most recent signing, former Senior Crown Prosecutor Anne-Marie Nicholls, offers her perspective on disclosure of material from family proceedings in a criminal investigation. Anne-Marie Nicholls recently joined Olliers as a Senior Associate having been a Senior Crown Prosecutor at the Crown Prosecution Service.  She joined the CPS in 2004 and most recently spent seven years as a specialist prosecutor with the Rape and Sexual Offences Unit (RASSO).  Anne-Marie was also the CPS North West ‘area lead’ on cases involving domestic violence for 10 years and began working as a pre-charge lawyer in 2006 when the charging scheme initially commenced. Anne-Marie has 17 years’ experience of pre-charge advice and preparation and extensive knowledge of the process from the prosecution perspective. Of the Olliers team of 25 or so defence solicitors, three are former crown prosecutors. This brings an extra dimension to the level of service the team at Olliers can provide. Here Anne-Marie answers some of the questions our lawyers are most frequently asked in relation to disclosure of material from family proceedings in a criminal investigation.

Can material from family proceedings be disclosed in a criminal case?

A defendant is not able to disclose material from their family proceedings to their criminal solicitor. Any proceedings involving children or that are undertaken in the Family Court sealed as family court proceedings are of a private nature. It is not possible for a criminal practitioner to rely upon any material provided to them without specific permission for it to be disclosed in criminal proceedings. To do so without permission would be in contempt of the Family Court and indeed defendants should not be providing this material to their criminal lawyer.

Can I apply for material from family proceedings to be disclosed in a criminal case?

Any party to family proceedings can apply to the Family Court under family procedure rule FPR12.73 for permission to disclose material. Within criminal investigations it would usually be the police who would apply for the material on behalf of the prosecution to the family proceedings Prosecutors are reliant upon the police informing them there are current or recent family court proceedings. Of course the police are only aware of this if they are informed of the same, generally by the complainant. Failure of the complainant fail to mention that they have been party to proceedings would be unusual if the final hearing outcome went in their favour – it is therefore always of benefit to find out more about the family court case. When a reviewing lawyer is aware of linked family court proceedings they would usually ask the police to make such application if they consider the material is relevant and justifiable to see. Disclosure of such material could be explosive – it could blow the case apart or could strengthen it.  Anne-Marie’s experience is that the family courts can be reluctant to disclose such material as it relates to children and sensitive issues. If proceedings are completed more than likely they would allow documents to be disclosed to the police/prosecutor but no one else. If the defendant is party to the proceedings, they will have the documentation/material but they must not disclose the same.

What material could be disclosed?

Hearing notes and final orders could potentially be disclosed. A prosecutor should be able to apply directly for other sensitive material for example Social Services records. A prosecutor can’t go directly to CAFCASS and such reports would need to be disclosed as part of the process for material within family court proceedings. The procedure is that police or the prosecutor will make an application to the family proceedings. This would be on notice. This means that parties within the proceedings from which disclosure is sought would be made aware. They would have the right to attend any hearing and make submissions on the issue. If the application is successful, then the applicant will need to draft an order listing the specific documentation to be disclosed and this should be lodged with the court to be sealed.

Can I use my knowledge of the family proceedings and discuss that with my criminal lawyer? 

Absolutely. A client will have knowledge of what has been said during the context of family proceedings. This knowledge can be discussed with their criminal lawyer and used to direct lines of enquiry to the prosecution. They will have knowledge of what has been said within hearings, findings, chronologies, all of this can be discussed with their criminal lawyer. Of particular interest to clients is discussing inconsistencies with what a complainant has said during the course of the criminal allegation and what has been said within the family proceedings with their solicitor. Of course the police/prosecution will be interested in this and it is completely proper for a criminal practitioner to draw this to the attention of the prosecution within the context of pre charge representations although clearly any defence lawyer will want to check the accuracy of any assertions they are putting forward.

My ex-partner has only made criminal allegations when I have applied for child contact

We are often informed by client’s that the complainant has only made a police complaint as a result of a specific event in the timeline of family proceedings. Prosecutors are certainly alive to this and the prosecution are very interested in the timing of allegations. It can be helpful where a chronology clearly illustrates what has happened within the family proceedings and the timings of the same compared with the timings in criminal proceedings. Prosecutors can be made aware of the significant timing issue of an allegation in the defence case statement, which puts forward the defence case; when allegations have only been made after a defendant has made a C100 application for contact with their child.

There are inconsistencies with what has been said in family proceedings and what is being alleged in criminal proceedings

Material in family proceedings may be inconsistent with what has been said to the police. There may also be adverse findings against the complainant that suggests they have not been believed in the family court. There may be decisions and final orders made in relation to financial proceedings/child contact that up the ante and lead to increased hostility so as to motivate a criminal complaint.

My ex is alleging domestic violence to obtain legal aid in family proceedings

We often hear from clients that they believe a complaint has only been made against them so that the complainant is entitled to apply for legal aid in family proceedings.

What is the position in relation to legal aid in family proceedings?

An individual be entitled to legal aid for a family proceeding if they have been a victim of domestic abuse or violence and are financially eligible. Regulation 33 of The Civil Legal Aid (Procedure) Regulations 2012 as amended by The Civil Legal Aid (Procedure) (Amendment) Regulations 2016 sets out the circumstances where this may be possible:

• Where the other party to proceedings has been arrested for a relevant domestic violence offence
• Where the other party to proceedings has received a relevant police caution for a domestic violence offence
• Where the other party to proceedings has a relevant conviction for a domestic violence offence
• Where a domestic violence protection notice has been issued under section 24 of the Crime and Security 2010 against other party to proceedings
• Where the other party to proceedings is subject to police bail for a domestic violence offence
• Where there is a relevant protective injunction
• Where there has been a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by the other party to proceedings
• An expert report produced as evidence in proceedings in the United Kingdom confirming that a person with whom the other party to proceedings is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence
• Where a letter or report from an Appropriate Health Professional, independent domestic violence assessor, independent sexual violence assessor or local authority/housing officer supports this

Specialist lawyers for domestic violence offences

At Olliers, we specialise in representing individuals facing investigation or prosecution in relation to allegations of a domestic nature. We understand the complexities of cases involving allegations of domestic abuse and matters are rarely as straightforward as they may appear to be initially.  Investigators will inevitably only have one side of the story and are rarely as straightforward as may be initially presented to police. We are frequently contacted by clients who have been asked to attend a voluntary interview or following an interview under caution have been released on bail or under investigation.

Pre-charge domestic violence lawyers

At Olliers we specialise in representing individuals at the pre-charge investigative stage of the case and advocate a proactive approach to pre-charge engagement with investigators. We look to engage with police at an early stage of the investigation and will always look to make representations against charge by arguing there is not a ‘realistic prospect of conviction’ or that ‘it is not in the public interest to prosecute’.

Contact our specialist team of domestic abuse lawyers

If you are being investigated or face prosecution in relation to allegation(s) of domestic violence please contact our specialist team by completing the form below, telephoning 0161 834 1515 (Manchester) or 020 3883 6790 (London) or email info@olliers.com. Whilst our Head Office is based in Manchester, we also have a London office and our team of specialist lawyers represent individuals across England and Wales frequently in relation to domestic allegations.