QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE ANDREWS DBE
| THE QUEEN on the application of DOMINIC PURVIS
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Ben Douglas-Jones QC (instructed by CPS ARU) for the Defendant
Hearing dates: 9th May 2018
Crown Copyright ©
Lord Justice Holroyde:
"On my statement provided at approximately 1130 hours on Thursday 30/10/14 I detailed that JH had stated the dates were 02nd and 03rd July 2013, this was a mistake by myself. The correct dates should have been as detailed above (04th July 2013 and 05th July 2013)."
"I recommend that [the claimant's] complaint against the police is upheld in respect that DC Uren failed to follow correct procedure when amendments are made to witness statements and that the information he provided to the court was misleading, but this was not an intentional or malicious act to pervert the course of justice.
I recommend that DC Uren should be referred to formal procedures under the Police (Performance) Regulations 2012. His performance fell far below what is expected, making repeated mistakes, the consequences have been serious, and will still be scrutinised in the forthcoming new trial."
" that my intention when changing the dates in the statement was only to alter the statement to reflect the true and accurate evidence of the witness. There was no advantage to the investigation for the dates provided by the witness to be anything other than what she recollected."
"To then make further alterations to the original witness statement of [JH] by altering the numerical dates illustrates a deliberate act in the knowledge that to do so was incorrect procedure and I conclude was done with a motivation to avoid personal and "professional embarrassment" with no regard to the integrity of the evidence. DC Uren's assertion that he was "professionally embarrassed" suggests a conscious thought process and is at odds with his statements of having no recollection of making the second alteration.
During the voir dire it was specifically put to DC Uren by [defence counsel] that he had made a further alteration to [JH's] witness statement on 30th October 2014, only four days previously. I do not consider his account is credible that he had no recollection of this when he gave his evidence to the court. He was asked about this point a number of times and remained resolute he had only altered her statement on one occasion around March 2014. DC Uren maintained this until his written response dated the 9th April 2015. I conclude that DC Uren lied to the court whilst under oath.
Also during the voir dire DC Uren gave evidence that he had submitted a copy of [JH's] witness statement with the date alterations to the CJU. I concluded following an examination of every item of additional evidence submitted to the CJU that this was also a lie whilst under oath."
The investigating officer accordingly recommended that the claimant's complaint be upheld, and that there was a case for DC Uren to answer for gross misconduct in four respects: altering the original witness statement of JH in March 2014 in a manner which was contrary to procedure; further altering the witness statement at court on 30th October 2014, in a manner which again was contrary to procedure; lying on oath during the voir dire by saying that he had only altered the original witness statement on one occasion, in March 2014; and lying on oath during the voir dire by giving evidence that he had submitted a copy of the amended statement to the CJU.
The decision not to prosecute:
"It is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed."
a) How serious is the offence committed? The Code indicates that, the more serious the offence, the more likely it is that a prosecution is required.
b) What is the level of culpability of the suspect? The code indicates that, the greater the suspect's level of culpability, the more likely it is that a prosecution is required.
c) What are the circumstances of and the harm caused to the victim? The Code indicates that the circumstances of the victim are highly relevant and that, the greater the vulnerability of the victim, the more likely it is that a prosecution is required.
f) Is prosecution a proportionate response? The Code indicates that prosecutors should consider whether prosecution is proportionate to the likely outcome.
"DC Uren appears to lie on oath about submitting the first amended statement to [CJU] and then repeating on oath three times that there was only one amendment to [JH's] statement and not two."
She considered what would need to be proved by the prosecution in relation to three potential charges: attempting to pervert the course of justice; misconduct in a public office; and perjury. She said that the first of those potential charges
" can be discounted as the acts undertaken by Mark Uren were in essence to avoid an injustice in that he wished to correct the evidence in a statement to truthfully reflect the witness's recollection."
As to perjury, she noted that the contentious issues would be whether DC Uren made a false statement deliberately, rather than inadvertently or by mistake, and whether he knew it to be false or did not believe it to be true. She commented:
"DC Uren maintains he made a mistake but it appears from his answers in police interview that he was embarrassed that he had made a mistake in (a) not correctly taking a second SOE from [JH] and (b) then actually getting it wrong. This of course is at odds with [prosecuting counsel's] recollection that he only saw the amendment to the month when presented with the statement in the morning and that [CJU] had no record of any submission of an amended statement. Embarrassment suggests a conscious recognition of the situation you are in and therefore objectively you knew what you were doing/saying."
As to misconduct in a public office, the Reviewing Lawyer noted that the threshold for prosecution was a high one and that the offence involved an abuse of the public's trust in the office holder. Motive was also a relevant consideration. She expressed the view that lying upon oath by a police officer would constitute an abuse in the public's trust of officers. She also questioned whether DC Uren's failure to supply the amended statement to the CPS before the trial was itself a deliberate neglect of his duty which would materially affect the strength of the evidence in the case. She repeated her observation that DC Uren's feelings of embarrassment suggested rational thought about his predicament.
"The motivation for DC Uren's actions is an important part in considering the PI in the case and also what additional penalty in addition to inevitable gross misconduct proceedings against the officer will ensue.
The actions were born out of a (belated) desire to ensure the evidence was not incorrectly given before a court. It is argued that when [JH] was called that she would have corrected the mistake herself but that would have tainted the whole prosecution case. The inevitable retrial would have had to have occurred in any event.
Although I am unable to prejudge the outcome of the internal disciplinary process of the Constabulary I am of the opinion that the high evidential test for two serious criminal offences has been made out. The consequences for DC Uren would be demotion or more probably dismissal. What purpose would a criminal trial serve in these circumstances?
In considering paragraph 4.12 of the Code, especially para b, c and f, I have concluded that a prosecution is not a proportionate response to this offending, in light of the potential alternative personal outcome for the suspect."
The Reviewing Lawyer therefore decided that there should be no prosecution because the public interest stage of the Full Code Test was not met.
The judicial review proceedings:
"By the evidence so far disclosed the CPS accept that there is sufficient evidence to prosecute for these serious crimes but claim it is not in the public interest. This is an officer who has perjured himself on several occasions over several documents and oral statements in this case alone (without considering any other case he has conducted). It is absurd, irrational and unreasonable that the CPS/police have not prosecuted and dismissed this officer despite overwhelming evidence. These are serious criminal offences."
" is void, as there is no jurisdiction for the Court of Appeal Civil Division to grant permission to appeal after the refusal of the grant of permission following an oral hearing in a criminal cause or matter."
The claimant objected to that proposed amendment. He applied for an adjournment of the hearing, contending (amongst other things) that there was insufficient time for him to be prepared to meet this new issue. That application was refused by the court on 3rd May 2018, without prejudice to the outcome of the application for permission to amend, which would be dealt with at the full hearing.
The defendant's application for permission to amend:
"1). No appeal should lie to the Court of Appeal
a.) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter ".
The relevant provisions of the Administration of Justice Act 1960 do not apply to the circumstances of this case. By section 151 of the Senior Courts Act 1981, a "cause" is defined as "any action or any criminal proceedings" and a "matter" is defined as "any proceedings in court not in a cause".
" in its ordinary and natural meaning, 'proceedings in a criminal cause or matter' include proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning."
Lord Sumption went on to refer to case law which provided clear authority that the application for judicial review was a criminal cause or matter for the purpose of any right of appeal. He said, at paragraph 20, that the phrase spoke for itself:
"A 'cause' is a proceeding, civil or criminal, actual or prospective, before a court. A 'matter' is something wider, namely a particular legal subject-matter, although arising in a different proceeding."
"A challenge by judicial review to a decision not to prosecute would seem to me to fall naturally within the concept of 'proceedings in a criminal cause or matter'; and so too a challenge to a decision not to prosecute, the whole point of which would be to lead to a prosecution."
The grounds for judicial review:
i) The Reviewing Lawyer was not the appropriate person to make the decision, having regard to the CPS's own guidance;
ii) The Reviewing Lawyer acted unlawfully in taking into account an irrelevant consideration, namely the police internal disciplinary proceedings;
iii) The decision was Wednesbury-unreasonable or perverse: in the circumstances of this case, and having regard to the clear evidence that a police officer had lied on oath and had in fact perverted the course of justice, the Reviewing Lawyer could only have concluded that DC Uren should be prosecuted;
iv) The decision, that the evidential test for a charge of perverting the course of justice was not met, was wrong in law.
" should take into consideration likely or actual disciplinary outcomes when considering whether criminal prosecutions should be pursued."
"The CPS Special Crime Division will remain as a locus of specialist knowledge and experience:
- To continue to deal with the allegations of criminal offences against persons serving with the police; and
- To act as a focal point with other authorities, eg ACPO and IPCC."
In dealing with the process for handling complaints about the independence of CPS decision-making, the Guidance says:
" it will be appropriate when replying to refer to the arrangements which are in place. This is to ensure that decisions are not taken by a Crown Prosecutor who has had a working relationship or been involved with the officer concerned."
"systematic and organised attempts to pervert the course of justice or other conduct likely to seriously harm the administration of justice, in particular the criminal justice system."
"It is very important that the constitutional position of the Crown Prosecution Service as an independent decision maker is respected and recognised. The courts have therefore adopted this very strict self-denying ordinance. They will, of course, put right cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. But each of those is likely to arise only in exceptionally rare circumstances, and that must be borne in mind."
"Whether or not her motive in making the false statement which she undoubtedly made, and in persuading the witness M to make the false statement which he undoubtedly made, was, at first sight, a laudable one of protecting the elderly neighbour; and whether or not, if that was the motive, that bore upon her intention in making those false statements, were eminently, as it seems to us, matters for consideration by the jury. The fact that a police officer had made a false statement and had persuaded a lay witness to make a false statement and had, in the course of interviewing a suspect, made a false statement to him, were, as it seems to us, each capable of giving rise to the inference that there was the necessary intention to pervert the course of justice. There was certainly evidence there for the jury to be permitted to consider."