Terence William Norman & Anor v DI Yoni Adler & Anor

Permission to bring contempt proceedings based on a false statement requires a strong prima facie case, capable without more of satisfying the criminal standard, that the statement was false, that its maker knew it was false and that it would be relied upon by the court. Recklessness, carelessness, incompetence or a serious error of judgment does not replace the requirement of knowing dishonesty.

Police officers applying without notice for search warrants must disclose matters known to them which might reasonably undermine the application. The same contempt test applies to them. If a strong case of dishonest misleading is established in that context, the public interest will overwhelmingly favour permission. An omission may support an inference of dishonesty where it is sufficiently glaring, but contempt proceedings do not exist to punish inadequate investigation or professional incompetence.

The appellants sought permission to commit two Essex Police officers for contempt. They alleged that the officers knowingly or recklessly misled the Crown Court when obtaining search warrants for their home and purported business premises. The warrants had previously been quashed by agreement, while a related claim concerning the appellants’ arrests was dismissed in R (Norman) v Crown Court at Chelmsford and the Chief Constable of Essex Police [2020] EWHC 3456 (Admin).

Sir Ross Cranston, sitting as a High Court judge, refused permission on the papers. Kerr J reconsidered the application at a hearing and also refused permission. He found a strong prima facie case of serious failures of judgment, investigation and care, but no strong case that either officer had dishonestly misled the Crown Court.

The central issues on appeal were whether recklessness could supply the mental element for contempt, whether the officers’ omissions and inaccurate statements disclosed the required strong prima facie case, and how applications for permission should ordinarily be processed.

1. Appeal dismissed. Kerr J applied the correct test and was entitled to conclude that there was no strong prima facie case of contempt against either officer. Permission to bring committal proceedings was therefore correctly refused: paras [98]–[103].

2. The practical threshold is a strong case, capable without further evidence of satisfying the criminal standard, that the statement was false, that its maker knew it was false and that the maker knew it would be relied upon by the court. The expressions “strong case” and “strong prima facie case” describe the same threshold. The test in KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 remained controlling: paras [34]–[39], [62], [79], [101].

3. Recklessness does not provide a separate or lesser mental element. The approach suggested in Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC) was obiter and should not be followed. The corresponding agreed proposition reproduced in Tinkler v Elliott [2014] EWCA Civ 564 was unnecessary to that decision and did not supersede KJM Superbikes. A claimant relying on conscious lack of knowledge must still prove that the alleged contemnor knew that they did not know whether the statement was true: paras [40]–[62], [101].

4. Police officers seeking search warrants without notice owe a duty to disclose matters known to them which might reasonably undermine the application. No different contempt test applies to police officers. Once a strong case of dishonest misleading in such an application is shown, the public interest will overwhelmingly favour permission: paras [64]–[67].

5. The Crown Court had been misled and the warrants should not have been granted. That did not establish knowing dishonesty. DI Adler genuinely suspected fraud and money laundering but failed to undertake adequate research or disclose relevant regulatory material. DC Wilkinson relied on information supplied by her senior officer and was professionally out of her depth. These matters supported findings of incompetence, inadequate investigation and serious errors of judgment, rather than a strong case of dishonest misleading: paras [68]–[75], [86]–[98]. A sufficiently glaring omission could justify an irresistible inference of intent, but the evidence was far from that position.

6. Applications for permission to bring contempt proceedings falling within rule 81.3(8) of the Civil Procedure Rules 1998 should ordinarily be considered initially on the papers by a judge of the King’s Bench Division. Following refusal, an applicant may seek to set the decision aside at a hearing under rule 3.3(5)(a): paras [20]–[28].

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld Kerr J’s refusal of permission to bring contempt proceedings: [2023] EWCA Civ 785.
2. High Court, King’s Bench Division: Kerr J reconsidered the permission application at a hearing on 12 November 2021 and refused it because the evidence did not disclose a strong prima facie case of dishonest misleading.
3. High Court, King’s Bench Division: Sir Ross Cranston, sitting as a High Court judge, initially refused permission on the papers.