The Sharland and Gohil appeals being heard by the Supreme Court this week have caused an enormous amount of interest in the popular media. The reason why there has been such interest is, I think, the basic issue of the consequences of lying to a court. That issue goes to the heart not just of our legal system but also of our whole concept of right and wrong. If someone can ‘get away’ with lying to a court then that seriously undermines one of the basic foundations of our society.
Amongst the media coverage I followed, I watched an interview between a BBC reporter and a leading family lawyer (no, not Marilyn Stowe, who gave an excellent interview on BBC Breakfast). The reporter, clearly having done his research, pointed out that the Form E Financial Statement, which obviously must be completed by all parties to financial remedies claims, includes a warning to the person completing it of the consequences of failing to include in it accurate details of their means. In fact, the front page of the form contains not one but two warnings. Firstly, it warns that if you are found to have been deliberately untruthful, criminal proceedings may be brought against you for fraud under the Fraud Act 2006. Secondly, it points out that the information given in the form must be confirmed by a statement of truth, and warns that proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth.
The leading family lawyer responded that he had never heard of anyone being convicted of an offence of failing to properly disclose their means. Nor, as far as I can recall, have I. What, then, is the point of the warnings on the Form E?
A cynic might point out that the reason why the system does not prosecute everyone who fails to tell the whole truth about their means on their Form E is that our prisons would soon be overflowing. There may be more than a grain of truth in that, but eventually the message would surely get through, and people would realise that they must tell the truth.
Seriously, the reality is that in most cases the failure of a party to make full disclosure of their means is dealt with in some way within the family proceedings, without the need for criminal sanctions. For example, the other party will usually be aware of it and will take steps to force full disclosure. Even if full disclosure is not forthcoming, the court can make adverse inferences, if there is evidence that undisclosed assets exist. There may also be costs consequences for the non-disclosing party. Ultimately, as the Form E also points out, failure to give full and accurate disclosure could result in any financial order being set aside.
In short, most of those who fail to give full disclosure of their means in a financial remedies dispute do not ‘get away with it’. The courts are usually able to identify them and ensure that there are, indeed, consequences. It is just that the consequences are not criminal, as the Form E warns. But that does still seem to make the warnings somewhat pointless, save as a method of ‘scaring’ the parties into telling the truth.
Which brings me back to the media attention. Perhaps the real worry is not that the warnings have no consequences, but rather that the knowledge that they have no consequences will mean that even more people will routinely ignore them, and therefore the authority of our courts.