What is interesting is that the judgment relating to his imprisonment (which should have been public in any event) has not been published.
Contempt of court is not an extraditable issue. However, at the moment he is a bit stuck in Spain and unable to return to the UK. I do personally think there should be a published judgment explaining why he was imprisoned. The new practice directions require this (I accept the case happened before the issuance of the new PD, but after the imprisonment of Wanda Maddocks). There also needs to be a way forward without public funds being wasted on imprisoning someone where it is difficult to see the public interest in imprisoning him.
Summary from the judgments
I have extracted some elements from the judgments.
3. The background is that in 1995, Mrs Clarke suffered serious injuries, including brain injuries, in a road traffic accident. She later received damages of £775,000, calculated on the basis of a life expectancy of 70. Mr Jones was appointed as receiver because Mrs Clarke's children could not agree who should be appointed to administer this fund.
7. Since the beginning of 2010, Michael Clarke has carried on an online campaign against the Deputy, the Office of the Public Guardian and the Court of Protection. He has routinely placed copies of confidential documents and expressions of his strong opinions on a website.
11. Capacity assessments of Mrs Clarke have been performed by Dr Donna Schelewa, Consultant Clinical Psychologist. She examined Mrs Clarke in December 2010 and found her to have neurological deficits predominantly characterised by very poor verbal expressive skills (dysphasia). She nonetheless concluded that Mrs Clarke had the capacity
to decide where and with whom to live
to manage a small income
to make a will
to appoint Michael Clarke to act as her deputy
to give her house to Michael Clarke
13. On 16 November 2011, the present application was issued and directions were given by the court. Michael Clarke immediately objected to the lawfulness of the proceedings on the basis that they have no legal authority. It is his fixed view that "statute law" has no effect and that the matter must be decided under "common law".
20. On 2 July, Dr Waite assessed Mrs Clarke and wrote a report. He diagnoses cognitive impairment following brain injury and ischaemic brain damage (ICD 10 F07.8). He advises that Mrs Clarke has severely limited abilities to manage her finances and that she cannot manage her financial affairs generally
She cannot manage her day to day financial affairs
She cannot understand and use information about transferring her property to Michael Clarke during her lifetime
21. Dr Waite further concludes that
While there is no doubt that Mrs Clarke trusts Michael Clarke and wants him to act on her behalf in the management of her financial affairs, it is not possible to assess the level of influence that Mr Clarke has over his mother on a single visit: this would require an extended period of separation that is not in her best interests.
22. Similarly, the possibility of undue influence upon Mrs Clarke cannot be confirmed or excluded on the basis of his assessment.
Dr Waite also says that
Mrs Clarke clearly wishes to bequeath her Blackpool property to Michael Clarke, understanding that, by doing so, she will not leave anything to her other children or her grandchildren. He believes that she would have the capacity to make a will for this purpose.
27. The Deputy said that the question now is whether the property should be sold. If it is not, there is no purpose in the deputyship. If it is, he would be prepared to continue to act at a proportionate fixed cost.
(from another judgment)
IT IS ORDERED THAT
The costs of Ms Angela Wilde and Mr Kevin Clarke and of the Deputy shall be charged to the estate of Mrs Ann Clarke.
Pursuant to CPR Rule 164:
(i) The costs of Ms Angela Wilde and Mr Kevin Clarke are summarily assessed at £3500 + VAT;
(ii) The costs of the Deputy are summarily assessed at £7000 + VAT.
The issues are more issues with the way the law works rather than necessarily issues with the judges interpretation of the law.
The first issue, which is common in cases like this, is that the Deputy (previously a Receiver) has total control over the finances. That also means control over any funds requested to prove that someone has capacity. (this creates a conflict of interest in that the deputy can refuse to facilitate a challenge to the deputy's control of the estate)
The second issue is the question as to what controls there are or accountability in terms of what the Deputy charges the estate. I have not found OPG to be that good in other cases.
The third issue is whether Mrs Clarke had sufficient capacity to discharge the deputy at an earlier stage or not. Evidence exists to state that she did, but it was not considered in these judgments.
The fourth issue is that the estate pays the costs of the deputy when the deputy is discharged even though the deputy opposes the application.
An additional point to note is under the para 13 above. There are a number of people who argue against the sovereignty of parliament and statute law. They argue instead for what they call common law and the Magna Carta. There is a fundamental flaw in their arguments in that Magna Carta is itself statute law and not common law. What is left of it can be found on the legislation website here. There is a good argument for the extension of jury trials to cover more circumstances (particularly public law family proceedings). However, the arguments put forward by the "Freeman of the Land" achieve very little. I can understand people getting to despair about how the courts when it comes to matters like this. However FMOTL is flawed. I have never seen anything good come out of this in any case. I have even seen a case where someone's mental capacity was removed following arging a FMOTL case.
In the mean time Mike and Ann Clarke are stuck in Spain.
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