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Sexual assault investigation into a child with learning difficulties not a breach of article 3

In R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin), the Divisional Court considered a claim on behalf of a boy with severe learning and communication disabilities, that police had failed properly to investigate what appeared to be a disclosure by him of a sexual assault during a stay at in respite care. He argued that they had wrongly proceeded to interview him despite no witness intermediary being available and had subsequently failed to re-interview him with an intermediary. He argued that this was a breach of Article 3, and unlawful disability discrimination. The Court dismissed the claim, also giving important procedural guidance.

The facts

AB was a 15 year old boy with Down’s Syndrome and autism who had severe learning and communication difficulties. After spending a weekend at a respite care home, he acted in a way which was strongly suggested of his having been subjected to a serious sexual assault, possibly rape. Being a credible or arguable allegation of the infliction of Article 3 harm, the police were under a duty, the breach of which sounds in damages, to conduct an effective investigation (see D v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB) in the High Court, upheld in the Supreme Court at [2018] UKSC 11; [2019] AC 196.

When the matter was reported to them, officers interviewed staff at the care home and arrested the person who had been AB’s one to one carer that weekend, CD, seizing his electronic devices. There was no forensic or medical evidence and CD’s devices did not yield evidence. He was a man of good character and who denied all allegations in interview.

It was necessary to interview AB to see whether he could explain what had been done to him and by whom. His cognitive and communication needs were very complex and challenging indeed. He communicated by means of very simple 3- or 4-word sentences and by pointing to Picture Exchange Communication System (“PECS”). The police immediately realised that they would need to interview him with the assistance of an intermediary. They made a request through proper channels to the National Crime Agency, who administer the registered witness intermediary scheme on behalf of the Ministry of Justice. The NCA were unable to find a suitable intermediary because of very high demand and because the MoJ had not recruited sufficiently to maintain adequate numbers.

The Ministry of Justice settled AB’s claim against them on the eve of the hearing, paying costs and undisclosed damages, and a fulsome written apology from the Lord Chancellor and Secretary of State for Justice the Rt Hon Robert Buckland QC MP.

Officers decided to interview AB in the absence of a registered intermediary, as none was available. They enlisted the help of AB’s special needs teacher and his learning support assistant during the interview. It was argued on behalf of AB that either of them ought to have been asked to act as an unregistered intermediary, which would entail communicating and explaining questions asked and answers given, and which would require the administration of an intermediary’s oath. In the event, they did not do so, but they helped the interviewing officer by putting questions themselves, knowing how AB best communicated.

Despite their best efforts, and despite AB giving answers strongly suggestive of a rape, AB also appeared to describe his attacker (who he described as ‘Growley’) as short and fat and with red hair, which was very different from CD’s appearance.

On a later date, officers conducted a video identification procedure, again without an intermediary and with the same personnel present, in which they shows him pictures of CD and of others who looked similar to him. When shown a picture of CD, and asked who it was, he said “Growley”.

The CPS reviewed the case and said that the evidential threshold could not be met for charging CD.

Through his mother, AB sought judicial review challenging the sufficiency of the police investigation. Sir Wyn Williams directed that there be a ‘rolled up’ hearing to determine both whether the Claimant should have leave to seek judicial review and, if successful, whether his claims succeeded.

The claims

AB’s main criticisms of the police investigation were that (i) an intermediary was not used for the interview, (ii) early investigative advice was not sought until about June 2018, (iii) a special measures meeting discussion with the CPS was not held and (iv) medical evidence as to the competence of AB to be a witness was not obtained.

AB contended that, individually or cumulatively, these criticisms amounted to:

a. a breach of implied statutory duties imposed by the provisions of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), which heralded a sea-change in the way in which the evidence of vulnerable and frightened witnesses were dealt with in the criminal courts;

b. an unlawful failure to follow relevant guidance documents;

c. a breach of the duty to carry out an effective investigation under Article 3 or discrimination contrary to Article 14 read with those articles;

d. a failure to make a reasonable adjustment contrary to ss.20, 21 and 29 of the Equality Act 2010; and

e. a breach of s.11 of the Children Act 2004 or of s.149 of the Equality Act 2010.

Expert evidence sought to be relied on without permission

The Claimant served two reports, highly critical of the MoJ and police, by Professor Penny Cooper, a barrister largely responsible for the introduction of the use, and for the early training, of intermediaries. However, he failed to first seek permission to rely on expert evidence and to comply with the rules requiring the expertise and cost of the proposed expert to be provided to the Court when seeking such permission. This was criticised by the Court in a section on procedure at the end of the judgment, with practitioners given a clear warning for the future about the need to comply with these rules. They held that her evidence was inadmissible, partly for non-compliance and partly because it did not provide evidence necessary to understand technical matters relied on in the making of the challenge.

The Court’s decision in relation to the Claimant’s arguments:

a. implied statutory duties imposed by the provisions of the YJCEA: the Claimant contended (in a new argument raised in his skeleton argument) that this Act, which regulates the way in which the criminal courts receive evidence from vulnerable and frightened witnesses, gives rise to implied duties with which the police had to comply. The Court held that no such duties arose.

b. unlawful failure to follow relevant guidance documents: the Claimant argued that the police are under a duty to comply with relevant guidance including that published on Achieving Best Evidence in Criminal Proceedings. The Court granted leave to seek judicial review under this head but rejected the Claimant’s arguments and further held that the supposed breaches did not demonstrate any illegality.

c. a breach of the duty to carry out an effective investigation under Article 3 or Article 14 discrimination: the Court granted leave to seek judicial review under this head but, importantly, held that, even though there was no intermediary at the interview of AB, the intermediary’s role of facilitating communication was fulfilled by AB’s teachers during the interview. They held that it was legitimate for the police to conclude that interviewing AB with an intermediary would not have resulted in better or different evidence. They rejected the contention that the ID procedure had been vulnerable to the criticism that AB had merely identified the only person in the images who he knew. They rejected the discrimination argument.

d. reasonable adjustments claim: this was said to be constituted by the failure to (re-)interview AB with an intermediary. The Court again granted leave to seek judicial review but held that the police had complied with the duty to make adjustments in enlisting the help of teachers who knew AB well when no intermediary was made available by the NCA.

e. a breach of s.11 of the Children Act 2004 or of s.149 of the Equality Act 2010 (the latter claim being raised for the first time in the Claimant’s skeleton argument): these are duties to have regard to the need to safeguard and promote the welfare of children and to have due regard to the need to eliminate discrimination etc., respectively. The Court gave these arguments short shrift and refused permission to seek judicial review in relation to the pleaded claim of a breach of s.11.

Implications of the case

This case is important because it demonstrates the limits on claims of inadequate investigation of Article 3 harm by the police, particularly where the central deficiency alleged (here, the lack of provision, by the MoJ, of a registered intermediary) it outside the control of the police. Criticisms of police for not making changes to their working procedure in difficult circumstances in Article 3 investigations are unlikely to succeed where it cannot be shown that they would have made any practical difference. The case also demonstrates that reliance on procedural breaches provide claimants with thin gruel.

The Court also deprecated the way in which the Claimant’s advisers had purported to add a claim concerning an alleged breach of s.11 of the Children Act 2004 (without seeking permission to amend) in their Reply to the Defendant’s Detailed Grounds and had sought to introduce claims concerning implied statutory duties under the YJCEA and a breach of s.149 of the Equality Act 2010 in their skeleton argument for the hearing.

In the future, those acting for claimants in judicial review claims, even very vulnerable ones such as AB, can expect to have to comply with the full rigours of the Civil Procedure Rules 1998 when it comes to amendment and to proposed reliance on expert evidence.

Dijen Basu QC represented the Chief Constable of Hampshire Constabulary.