Last week, the Court of Appeal handed down judgment in Griffiths v Tickle  EWCA Civ 1882. The case concerned an application by members of the press to remove reporting restrictions attached to a fact-finding judgment of the Family Court. The High Court had determined that details of the judgment (including the names of all parties) could be published. The Appellant sought for that decision to be overturned. The Court of Appeal upheld the decision, meaning that the facts found by the Family Court could be reported on.
Not, in itself, a headline case. However, the judgment in question concerned the former Conservative MP Andrew Griffiths and his (current Conservative MP) ex-wife, Kate Griffiths. His political profile and the consequent reputational damage likely to be caused by publication of the facts found by the Family Court explain his quest for secrecy.
What were those facts? In short, in 2019 the Family Court presided over proceedings between Mr and Ms Griffiths concerning the care of their child following their separation in 2018, prompted by his involvement in a ‘sexting’ scandal with constituents. As part of those proceedings, Ms Griffiths made allegations in support of her position that contact between Mr Griffiths and the child should be restricted, and justifying steps taken by her to achieve that end. The allegations included, inter alia, several instances of rape, coercive and controlling behaviour and repeated assaults. The judge found her schedule of 15 allegations to have been proven after considering statements provided by both parties and hearing them give oral evidence.
This type of “finding” in a Family Court need only be established on the civil test of the balance of probabilities (i.e. more likely than not to have happened) rather than the more stringent criminal test of beyond reasonable doubt. However, this does not mean there is no role for the criminal law to play. There is an evidential equivalence between the civil standard of proof that the Family Court found satisfied and the threshold required to support a criminal charge by the Crown Prosecution Service (CPS). In order to charge a suspect with a criminal offence such as rape or controlling or coercive behaviour, the Crown must be satisfied upon reviewing the evidence that the matter would have a “reasonable prospect of conviction at trial.” In other words, do they consider it “more likely than not” that a jury, properly directed, could find the suspect guilty of the offence(s)? This threshold is equivalent to that which the Family Court judge applied and found satisfied.
Importantly for any future criminal proceedings, the Family Court judge found that elements of Mr Griffiths’ own evidence amounted to admissions that he had engaged in sexual activity with Mrs Griffiths whilst she was asleep or otherwise not consenting. Whilst section 98 of the Children Act 1989 contains a statutory protection against self-incrimination in certain cases, it would not (from the publicly available information) appear to apply here. The case before the Family Court concerned an application by him, and the evidence provided was not apparently under any compulsory power. Whilst the criminal courts may, in due course, be required to grapple with issues of admissibility, once such admissions are in the open and known to prosecutors considering whether to charge a person, it can prove difficult to put the genie back into the bottle in terms of their investigative use.
All of the allegations made by Mrs Griffiths, either alone or taken together, would on their face be capable of forming the basis of a criminal investigation. The Daily Mail reports that Mrs Griffiths has not made a complaint to police. The lack of a report would not itself be a barrier to the police commencing an investigation, although Mrs Griffiths’ statement and support for a prosecution would likely be required. If she did support a prosecution, one thing is for sure: the Family Court judgments and evidence submitted during the course of those proceedings would be an attractive evidential resource for the police. Ordinarily, Children Act proceedings are held in private and there are strict rules governing when and to whom relevant materials (including judgments and findings of fact) can be disclosed. In this case, however, those materials are now in the public domain courtesy of the media’s application and the Court of Appeal decision. The police would need to make applications to the Family Court for further documents where their use is for the purpose of criminal investigation, including any documents or transcripts in which Mr Griffiths made admissions in whole or in part to offences of rape. The detail of those admissions would likely be put to Mr Griffiths in any future police interview under caution, whereupon he would be invited to either refute or agree with what he said previously. Should he choose at that point to revise or retract what was said in evidence to the Family Court, the inconsistency of the two accounts would become an issue for consideration by the jury at a future trial. Thus the apparent protection afforded by the civil court’s strict rules on confidentiality and disclosure is more apparent than real, and where there is a public interest in the publication of the factual findings, is not as robust as the losing party – and potential suspect in a criminal investigation – might hope for.
In Mr Griffiths’ case, whether or not it proceeds to a criminal charge or beyond, the damage has already been done. The differing standards of proof in criminal and civil proceedings is a nuance which has been inevitably lost in media reporting on the case. The Guardian’s headline on the story was “Former Conservative MP Andrew Griffiths raped his wife, court finds” and the BBC ran with a similar lead; “Ex-Tory minister Andrew Griffiths found to have raped wife.” The conclusion drawn by any reader of these stories is that a court of law (regardless of jurisdiction) has found Mr Griffiths to have done the criminal acts alleged by his ex-wife. As far as the court of public record is concerned, he is guilty of the offences. Whilst the consequence of this finding is not a deprivation of liberty or lifelong criminal record, it is a stain that Mr Griffiths will find impossible to remove from his character. Time will tell whether it will also contaminate any future criminal proceedings.