England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/03/2017

Sir Wyn Williams:

1. The Claimant is the brother of a teenage girl to whom I shall refer as T. They are not siblings by birth; the Claimant's parents adopted T when she was ten years of age. In this judgment the relevant family members will be referred to as T, mother, father (or together the Claimant's parents) and A who is the Claimant's sister by birth.
2. In November 2014 T was an in-patient at the Bethlem Hospital. She was then suffering from mental health problems although a precise diagnosis had not been made. Although T was an in-patient at the hospital she spent periods of time at the family home. In November 2014 the family home was occupied by the Claimant, A and their parents.
3. On Saturday 29 November 2014 T stayed overnight at the family home. Mother picked her up at hospital at about 6pm on the Saturday evening and T was returned to the hospital at about 4pm the following afternoon.
4. At about 9.50am on Monday, 1 December 2014 a call was made by a member of staff at the hospital to the Metropolitan Police. As a consequence of the call police officers attended at the hospital. They were told that T had reported to a senior nurse that at about 10.30pm on 29 November 2014 she had left the family home and that as she was walking in the locality she had been attacked and then raped by a man who was a stranger to her.
5. In the face of this complaint the officers began an investigation. At some stage that day T produced her own short written account of her allegation in which she maintained that she had been attacked and raped by a stranger when walking in the vicinity of her family home. T's complaint was recorded as a crime. Even at this early stage, however, mother was doubtful about the veracity of this account. She informed a consultant at the hospital that she did not believe that T had left the family home on the night of 29 November.
6. The Police arranged for T to be examined. She would not give her consent for intimate samples being taken.
7. On 3 December 2014 T changed her account of the attack upon her. She told two fellow patients that the person who had attacked and raped her was the Claimant. She also gave that version of events to a member of staff at the hospital.
8. On 4 December 2014 DS Callanan visited T at Bethlem Hospital. He asked her to tell him what had occurred over the weekend. She declined. However she expressed her willingness to write down what had happened. She wrote:-

"[The Claimant] aged (23/24) can't remember only male at home on weekend with a "hangover".

[S] doesn't live there anymore.

In the double bed thing watching TV. I was wearing a holiday drop off work shirt (light blue) and jeggins blue also, but the same colour as this pen

The same as basically the other thing that I have told you lot (stranger) apart from I know who it was/is.

Got grabbed on my right wrist by him and as I was leaning on my left side to see the TV and rubbed on my right.

He'd come downstairs and jumped on the bed (there's no bannistery thing at the bottom of the bed) and lay next to me to ask how I was.

Then he started going on about how he doesn't think I need to be in one of those places and how it's nice to see me again.

The "stuff happened".

And he left and went back to his room with a hangover.

We he was there he kissed me on my arm and was rubbing my arm a bit.

The other stuff that I am comfortable to say not even with my best friend sorry."

9. At some point during the conversation between DS Callanan and T, he asked her whether she would be prepared to participate in a video recorded interview (an ABE interview). When she was told that she could write down answers to questions she agreed to participate. The officer asked T whether she would be prepared to write an account of "the stuff" which had occurred and she said that she would.
10. On 5 December 2014 DS Callanan visited T again. She handed him a piece of paper upon which she had written:-

"As he lay down behind me, started to rub me along my right arm; the sort of rub that says it will be okay, even that made me feel uncomfortable as I shrugged him off or at least attempted to. He grabbed me tighter first on my arm and then down on my rib area just at the bottom.

He then started to kiss me up my arm saying "it will be okay, it will be okay". He then started to rub and down my rib area on my side.

I carried on watching TV and thought nothing of it but he also carried on what he was doing.

He started to pull down my jeggins. I tried to wriggle away but he grabbed me tight on my ribs and pushed down hard. He then started to pull down my pants.

I kicked him but he ignored it. I couldn't scream 'cos [mother] would hear and I didn't want him to get into trouble, so I didn't scream.

He zipped down his trousers and pulled down his pants and he put his penis in my vagina. He started to finger me. Mother then called up and asked what I was doing. [The Claimant] replied "I am just talking to [T]". She said okay and went back outside.

He then left after this and went back upstairs to be "hungover"."

11. At 1.15pm on 7 December 2014 the Claimant was arrested at the family home. That same day he was interviewed under caution. He answered all questions which were put to him. His account of his movements over the relevant period was that he had gone out at about 7.45pm on the Saturday evening (i.e. on 29 November 2014) and that he had stayed out until about 6am on 30 November 2014. On his return home he had gone straight to bed and remained in bed until about 4pm. By the time that he got up T had returned to the Bethlem Hospital. In answer to specific questions the Claimant agreed that he had seen T at the family home. He said that he had seen her before going out on the Saturday evening but he had not seen her following his return home on the Sunday morning. He specifically denied all her allegations.
12. That same day mother made a witness statement. In it she described how she had picked up T at the Bethlem Hospital and then taken her to the family home at about 6pm on 29 November 2014. She said that T and the Claimant had been together for a short period of time (when she was also present) before he had gone out on the Saturday evening. T had gone to bed at about 10.30 and so far as she was aware T had slept all night. Her daughter, A, had returned to the family home at about 1am on 30 November and the Claimant had returned at about 6am. Shortly after the Claimant's return mother got up from bed. T got up at about 9am. For the remainder of the time until T was returned to Bethlem Hospital she was in the company of mother or A.
13. Following the interview under caution the Claimant was released on bail. The officers then investigating the case decided that any further interview with T should take place in the presence of an intermediary and should be conducted by officers with expertise in questioning persons who allege that they have been the victim of sexual assault.
14. On 20 December 2014 a senior officer, DI Humphrey, undertook a review of the case in accordance with specified procedures. The record of his review is in the following terms:-

"I am aware of the victim from a previous matter and have read through the contents of a report.

Victim alleges rape by her adoptive brother. He has been arrested and denies the offence. The victim requires an intermediary for interview which I have authorised.

Statements will need to be obtained from all present within the house, I believe [A] was also there.

We will need to establish in some detail whether this offence could possibly have taken place and where the victim says it took place.

Medical records detailing the victim's condition will also be required."

15. On or about 22 December 2014 T was transferred from Bethlem Hospital to a facility in Greater Manchester. This transfer occurred, apparently, by reason of T's deteriorating condition.
16. On 6 January 2015 DS Callanan visited the parents in order to explain to them the need for an intermediary when T was interviewed. The visit also took place because father had sent an email to DI Humphrey in which he had suggested that there was evidence to show that the offence did not take place. During the course of a detailed conversation with DS Callanan mother was adamant that the offence of rape as described by T could not have occurred.
17. On 8 January 2015 DS Callanan took a witness statement from A. The witness statement is not in the bundle but its substance is set out in the computer records maintained by the Defendant. A describes how she returned home from work at approximately 1.30am on Sunday 30^th November 2014. She went to bed unaware that T was in the house. She woke at 11am and, thereafter, she was in T's company until T returned to hospital.
18. On 15 January 2015 DS Callanan and two other officers travelled to the Greater Manchester area with a view to conducting a video recorded interview with T. They were joined by a registered intermediary, Paula Backen. A full account of what transpired is contained within the Defendant's computer records. The record was compiled by DC Marsden, one of the officers who accompanied DS Callanan. The pertinent part of the record reads as follows:-

"…when we initially saw T she was tearful and telling staff that she didn't want to speak with us. After some time I was told that T would speak but only to Charlotte and Paula. Myself and DS Callanan waited elsewhere for a while. Eventually the social worker attached to the .. hospital.. told me that he would speak to me. After much delay T said she would do an ABE interview. Myself and Paula remained with T and conducted the ABE interview. Prior to the interview T had been pacing up and down and talking in a very childish voice. When the interview started she appeared much more grown up. Introductions were covered, truth and lies were covered and T understood truth and lies. T said there was an incident with [the Claimant] about one to two months ago. She went on to say that she was in watching TV in S's old room, [the Claimant] came in and he was inappropriate, he stroked her right arm and right side of her body and 'stuff happened'. I asked T to tell me more about what 'stuff happened' and she kept saying 'stuff happened'. T at this point made no more eye contact, she looked down and could not give anymore details other than 'stuff happened'. It was agreed that we have a short break which T wanted. A few minutes later, in the corridor outside the room, T got very upset and demanded to staff that she go to the ward and she head butted the wall or door…she kept kicking the wall hard with just socks on, she was swearing and shouting. Eventually the staff let her go to the ward. A short time later T returned and said she would continue. Numerous times myself and Paula told T that she didn't have to talk but we also explained that we wanted to know what T knew. The ABE interview re-started, I recapped and T said 'stuff happened'. Despite our best efforts T could not/would not say anything further than 'stuff happened'. T told us she had previously written down what had happened. She would not tell us what she had written but said what she had previously written was true. (Police are in possession of what T had previously written). Eventually we stopped the interview, with T's agreement, as T told us that she had nothing further to tell us.

T was given the opportunity to give her account today during ABE interview but made no disclosure of any criminal offences. She only went as far as saying – 'stuff happened'."

19. On 10 February 2015 DS Callanan prepared a report for his superiors. It was a thorough appraisal of the investigation to that date. No useful purpose would be served by quoting the report verbatim. However a number of important points emerge from the report. First, T had made previous complaints about father. They had been demonstrably untrue. Second, T had refused to provide "intimate samples". Third, T had changed her account. She had first alleged stranger rape in the street; she had then alleged rape by the Claimant in the family home. Fourth, the statements of mother and A contradicted the suggestion by T that the Claimant had raped her in the family home. Fifth, T suffered from a significant though undiagnosed mental illness.
20. DS Callanan concluded that "the matter can be subject of no further action and consideration given to the matter being "No Crime". He ended his report with the following sentence:-

"I understand that one could consider the statement from [A] as biased towards her biological brother, but the strength of emotions shown by the whole family towards T and their hope for her to return displayed to me that they regard her as a full member of the family."

21. DS Callanan's report was considered first by DI Humphrey. He submitted the report to DCI Pople with a recommendation that the investigation be closed.
22. On 25 February 2015 DCI Pople sanctioned "no further action". At that point however, he was not prepared to conclude that no crime had been committed. In order to reach a decision upon whether he should determine that no crime had been committed he asked for further information. In due course the information which he sought was provided.
23. On 4 March 2015 DCI Pople determined that he could not be satisfied that there was "additional verifiable evidence" that a criminal offence had not occurred. I will return to the significance of the phrase "additional verifiable evidence" shortly. Accordingly, the officer concluded that T's complaint should remain recorded as a crime within the records held by the Defendant.
24. The Claimant and his parents were unhappy with DCI Pople's decision. DS Callanan received a number of emails from them to that effect. On 22 July 2015 mother met DS Callanan and handed to him a written statement which she had prepared. She explained to DS Callanan that at the time she had made her statement on 7 December 2014 she believed that T's complaint was that she had been attacked by a stranger in the street. The additional statement was being provided to provide as much detail as possible as to what had occurred in the family home.
25. On 11 September 2015 DCI Pople reviewed his earlier decision that he could not be satisfied that there was additional verifiable evidence which showed that no offence had been committed. In the light of the additional statement of the Claimant's mother, in particular, DCI Pople concluded that "there is sufficient evidence in witness accounts to now show that the incident could not have taken place as alleged by [T]." Accordingly, DCI Pople referred the case to a "No Crime Panel" with a recommendation that the panel should conclude that no crime had taken place.
26. By this stage the Defendant's Directorate of Legal Services had become involved because the Claimant and his parents were threatening a claim for judicial review. On 28 September 2015 Ms Wisbey, on behalf of the Directorate, notified the Claimant of DCI Pople's revised recommendation.
27. By letter dated 29 April 2016 father was notified that the "No Crime panel" had resolved that T's complaint should remain recorded as a crime. The important parts of the letter are as follows:-

"…in cases where there is additional verifiable information that no crime has taken place the police can ask for the allegation to [be] shown as "No Crime".

The more serious the allegation of crime the stronger the additional verifiable information should be. This is guidance from the National Crime Registrar and this additional verifiable information should demonstrate 'beyond doubt' that an offence has not taken place. If a crime is recorded as 'No Crime' the details are still held by the MPS in the same format but the classification page of the report is changed to reflect this decision.

I explained the process and who sits on the "no crime" panel within the MPS in my previous email. In reviewing the above allegation of crime the panel felt that it could not be convinced beyond a reasonable doubt that an offence of rape had not taken place. There were significant concerns regarding the mental health of the victim and her confusion around many of the facts. Often victims with mental health issues are confused around dates, times and suspects. As such this allegation remains on the CRIS as an allegation of crime.

However this does not mean that your son is considered a suspect for this allegation. He has been eliminated as a suspect on the CRIS report due to the lack of any evidence against him. Understandably this does raise concerns with members of the public as to what information is disclosed in subsequent vetting checks."

28. The decision communicated by the letter of 29 April 2016 was made in January 2016. Nothing turns on that since it is accepted that the decision was communicated to the Claimant and his parents, for the first time, by the letter of 29 April 2016.
29. These proceedings commenced by a claim form which was issued on 17 June 2016. The claim form specified that the decision to be challenged was that made or communicated on 29 April 2016. The Claimant served detailed grounds of claim and the Defendant filed a detailed Acknowledgment of Service. Permission to apply for judicial review of the decision of 29 April 2016 was granted by Collins J on 10 October 2016.
30. On or about 15 November 2016 the Defendant served detailed grounds for contesting the claim. On the same date the issue of whether T's complaint should be categorised as "No Crime" was reviewed by Mr Colin Duncan, the Force Crime Registrar employed by the Defendant. He concluded that T's complaint should remain recorded as a crime. His reasoning was as follows:-

"On the face of it there appears to have been no time for the circumstances reported by [T] to have occurred. However, all of the details supplied that contradict the reports made by [T] have been given by either the [Claimant] or members of his family. There is no independent corroboration of any of their reports apart from each other. As such there is a possibility that these reports or some of these reports are being made in the best interest of the family. With that in mind I am unable to be certain beyond reasonable doubt that the incident as described by [T] did not occur, so cannot authorise the crime to be cancelled. Additionally, the letter from [T] to [the Claimant] (provided by the family after the initial decision not to "No Crime" this matter) does not state that the incident did not occur. It did apologise for involving [the Claimant] in the allegation but it did not go beyond that. This therefore is not a retraction of the allegation and does not add any weight to the circumstances detailed above."

31. The reference in Mr Duncan's reasoning to the letter from T is a reference to a letter which T gave to mother on 11 April 2016 for onward transmission to the Claimant. The letter was actually handed to mother by a support worker involved with T's care. The letter was addressed to the Claimant and reads as follows:-

"To be honest I don't know what to say. I am scared of writing this letter to you. Since I made that complaint against you I have always felt bad. But the truth is I don't know why I made it in the first place and to this day I can't give you a straight answer of why.

I am sorry, so, so sorry for what I did. I don't ask for forgiveness only that you understand. I am sorry for the trouble and pain I caused you to go through. Everyday I remember and tell myself how much of a bad person I am for doing so and putting you through all that.

I just wish we could go back to old, happy times like the time I jumped out of a box to scare you or the time we went to Spain and read a whole heap of Harry Potter books. I wish we could go back to those times but I could understand if you did not want that.

Once again I would like to point out how sorry I am for all the pain and upset I gave you and hope that one day we can be friends again."

32. Although that letter had been received by the Claimant and his family prior to receipt of the letter of 29 April 2016 it was not disclosed, immediately, to the Defendant. The decision to disclose T's letter was taken only after the Claimant and his family had received the letter of 29 April 2016.
33. At the hearing before me it was common ground that my task was to determine the lawfulness of the decision made by the Force Crime Registrar, Mr Duncan on 15 November 2016. The earlier decision had, of course, been overtaken by events.
34. There is no doubt that when making his decision Mr Duncan sought to comply with a document issued by the Home Office and entitled "Crime Recording General Rules". The document is long and detailed. A core objective is that crime recording in England and Wales should be the best in the world. Section A of the document contains detailed guidance upon whether and when a reported incident should be recorded as a crime. An incident should be so recorded for 'victim related' offences if, on the balance of probability, the circumstances of the victim's report amount to a crime as defined by law and there is no credible evidence to the contrary immediately available.
35. Section C provides the criteria by which decisions are made as to whether an incident which has been recorded as a crime may be cancelled from the records. One of the criteria is expressed as follows:-

"C2: CANCELLED: ADDITIONAL VERIFIABLE INFORMATION THAT DETERMINES THAT NO NOTIFIABLE CRIME OCCURRED BECOMES AVAILABLE.

Where following the report and recording of a crime additional verifiable information (AVI) is available that determines that no notifiable offence has occurred the crime may be removed."

36. Ms Ventham realistically accepts that the phrase "the crime may be removed" is properly to be interpreted as being "should be removed" if additional verifiable information exists which determines that no crime has been committed.
37. Mr Gloag submits that a decision maker properly applying the criteria for the cancellation of a crime should decide that no offence has occurred if he or she is so satisfied on balance of probability. He submits that there can be no justification for adopting a different standard for deciding whether to cancel a record that a crime has been committed from that which is applied when deciding whether a crime should be recorded as such following a complaint.
38. Ms Ventham disagrees. She submits that the language of the guidance clearly demonstrates that a more exacting standard is to be applied when deciding whether an incident which has been recorded as a crime is to be reclassified. She points out that the phrase, upon the balance of probability, appears specifically in Section A but is nowhere to be found in Section C and, further, the use of the word "determines", emphasised in bold, is much more consistent with a decision maker proceeding on the basis that he or she has no doubt that a crime has not been committed.
39. As is obvious from the successive decisions made by the Defendant's decision makers each proceeded on the basis that T's complaint should remain classified as a crime unless, beyond doubt, no crime had occurred.
40. In my judgment, it is for the Court not the Defendant to ascertain the proper meaning of the guidance issued by the Home Office. The fact that successive decision makers considered that they should be satisfied beyond doubt that no crime had been committed does not, of itself, solve the interpretation issue.
41. Having reflected upon the rival contentions, I am satisfied that the proper application of criteria C2 as set out above demands that a decision maker is satisfied beyond reasonable doubt that no offence has been committed before he decides that the classification of an incident recorded as a crime should be cancelled. In my judgment the use of the word "determines" emphasised as it is points strongly to a different standard than "balance of probability". In reality in the context in which the Rules are intended to be applied if the standard is not "balance of probability" it can only be "beyond reasonable doubt." In my judgment, the Force Crime Registrar, Mr Duncan, was correct to proceed on that basis.
42. I turn next to the phrase "additional verifiable information." Those words are to be given their natural meaning albeit set within the context in which they are used. "Additional information" requires no elucidation. The word "verifiable" is no doubt intended to convey that the information is reliable and accurate. It may also, depending upon the circumstances, convey the notion that the additional information is supported by other information or, at least, is capable of being supported.
43. It is common ground that Mr Duncan's decision can be challenged successfully in this court only if it is shown to be unreasonable or irrational. That is a significant hurdle to jump. Mr Duncan, as the Force Crime Registrar, is given responsibility under the Rules for determining whether a complaint of rape should be classified as no crime. He is acting as would a "specialist tribunal" and his decision is entitled to significant respect. That said, I have reached the clear view that in the instant case Mr Duncan's decision is unreasonable.
44. The sole basis upon which Mr Duncan decided that he could not be satisfied beyond reasonable doubt that no crime had been committed was the possibility that the family members had colluded together, in effect, to exonerate the Claimant. I have no doubt that there will be many instances when a decision maker will be justified in adopting such an approach. However, each case must be scrutinised in the light of the information which is available. In this case the following is established beyond any reasonable doubt. First, T had made complaints against father which the Defendant accepted were demonstrably untrue. Second, T was suffering from mental illness at the relevant time. Third, she had written to the Claimant to apologise to him for making a false claim against him. That is the only sensible interpretation of what she wrote. There is not a shred of evidence to suggest that this retraction was improperly influenced. It came to the family via a responsible adult. It is true that in that letter T did not, in terms, assert that she had not been raped. She did, however, unequivocally renounce her previous suggestion that the Claimant had been the perpetrator. Fourth, mother had provided two written statements. They were detailed and consistent with each other. They provided powerful support for the Claimant's denial of the allegations made against him. Fifth, A had made a witness statement which also provided powerful support for the Claimant's denial.
45. On the basis of the information provided by the Claimant, mother and A together with T's known unreliability and her retraction of the allegation that the Claimant had raped her it is extremely difficult to see how a reasonable decision maker could harbour a doubt about whether T's complaint against the Claimant was false. Additionally, however, Mr Duncan knew or should have known of the views of DS Callanan and the recommendation of DCI Pople. DS Callanan's views were particularly pertinent given the reasoning of Mr Duncan since he had engaged in depth with the family. He was convinced that the family had T's best interests at heart. In my judgment that was an important factor for Mr Duncan to assess before reaching his conclusion about whether T's complaint should cease to be classified as a crime. There is no indication from his written account that he considered this aspect at all. Similarly, there is no express indication that he took account of DCI Pople's recommendation. In my judgment the views of DS Callanan and DCI Pople were significant factors to be taken into account in making an assessment about whether there really was a possibility that the Claimant and his family were colluding against T.
46. In my judgment the reasonable decision maker taking account of all the relevant factors in this case would have concluded, beyond reasonable doubt, that the Claimant had not committed the crime of rape against T.
47. The decision of 29 April 2016 was, of course, overtaken by the decision of Mr Duncan. The phraseology of the decision of 29 April 2016, however, left open the possibility that the panel considered that a rape had been committed against T albeit not by the Claimant. Mr Duncan does not appear to have adopted the same approach. To repeat, his reasoning process would be apposite only if the alleged crime was one committed by the Claimant against T. There is nothing to suggest that Mr Duncan was contemplating the possibility that T had been raped outside the home by a stranger. If, however, he was, it seems to me that such a possibility was also to be discounted in light of the fact that T retracted it within a few days of making the complaint and never repeated it again. Further, on the basis of the evidence of mother and A the reasonable decision maker would conclude that there was no doubt that T remained within the family home during the night of 29 November 2014. In my judgment it is incredible that she left the house, remained outside the home long enough to be raped and then returned to the home and went to bed for the remainder of the night without either mother or A being aware of anything, at all, untoward.
48. I have reached the conclusion that this is one of those comparatively rare cases in which it is proper to quash the decision of a specialist decision maker on the basis that the decision under review is unreasonable.
49. I make it clear that my decision is of comparatively limited significance. It is confined to determining that a decision to the effect that T's complaint should continue to be categorised as a crime is unreasonable. I do not and could not make any judgment upon what information, if any, should be disclosed about T's complaint in the future should circumstances arise in which such disclosure is contemplated.
50. Following the completion of the oral hearing I was informed that the parties had agreed that there should be no order for costs whatever the result of this claim. Accordingly the order which I will promulgate is that the decision of the Force Crime Registrar of 15 November 2016 is quashed and that there will be no order as to costs. I will hand down this judgment at 10 am on Wednesday 28 March at the Cardiff Civil Justice Centre. There need be no attendance by or on behalf of the parties.