T v B & Anor

A Family Division judge may, under section 8(1) of the Supreme Court Act 1981, exercise Crown Court jurisdiction in an appropriate case. However, restraint orders made under the Prevention of Crime Act are ordinarily dealt with by the Crown Court that made the order. A person seeking disclosure from restraint proceedings for use in bona fide maintenance or ancillary relief proceedings should apply there, particularly where confidentiality and possible collusion require assessment. The POCA regime does not ordinarily require the prosecutor to provide information about a restrained person’s expenditure. Questions about the person’s available funds should instead be pursued through disclosure and interrogation in the substantive family proceedings.

The applicant mother sought periodical payments under Schedule 1 to the Children Act 1989 for a child of the respondent father. The father was subject to a Crown Court restraint order made under the Prevention of Crime Act during a criminal investigation. The mother sought to use the Family Division proceedings to obtain documents and information from the prosecutor, including permission under rule 57.8(2)(b) of the Criminal Procedure Rules 2005. She also invited the judge to exercise Crown Court jurisdiction under section 8(1) of the Supreme Court Act 1981.

The central issues were whether the judge had jurisdiction to make the proposed orders, whether disclosure should be directed from the Family Division, and whether the prosecutor could be required to provide information about the operation of the restraint order.

1. The application was refused. The refusal was not based on lack of jurisdiction. Under section 8(1) of the Supreme Court Act 1981, a High Court judge could, in an appropriate case, exercise the jurisdiction of a Crown Court judge.

2. The regimes under Schedule 1 to the Children Act 1989 and the Prevention of Crime Act were competing but essentially separate regimes. Following Webber v Webber [2007] 2 FLR 116, matters of restraint, confiscation and enforcement under POCA fell within the Crown Court’s jurisdiction. The proper forum for an application concerning a restraint order was ordinarily the Crown Court in which the order had been made.

3. Section 42(3) of POCA permitted a person affected by a restraint order to apply to discharge or vary it. The mother had made no such application. Section 58(5) did not clearly apply to Schedule 1 proceedings for periodical payments, as opposed to proceedings concerning identifiable restrained property.

4. Rule 57.8(2)(b) of the Criminal Procedure Rules 2005 preserved the confidentiality of witness statements served in restraint proceedings unless the prosecutor consented or the Crown Court ordered otherwise. The judge declined to grant permission without the relevant material before him. In principle, absent reason to suspect collusion, tainted knowledge or an improper motive, disclosure for a bona fide maintenance, ancillary relief or Schedule 1 claim should be considered favourably. If consent was not given, the issue belonged in the Nottingham Crown Court.

5. The POCA provisions did not require the prosecutor to provide information about whether the father had used the spending exception in the restraint order, or about the source and details of any expenditure. In any event, the father had stated that he had not used that mechanism. The question of what funds were available to him, and their source, was a matter for disclosure and interrogation of him in the Schedule 1 proceedings.

6. The mother’s proceedings were to be adjourned generally with liberty to restore on notice. The question of joining them with the former wife’s ancillary relief proceedings was left premature and open for further submissions.