QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BARBARA HEWSON
|- and -
|COMMISSIONER OF POLICE OF THE METROPOLIS
Nick Yeo (instructed by Directorate of Legal Services) for the Defendant
Hearing dates: 16th & 25th January 2018
Crown Copyright ©
Mr Justice Dove :
"10. At some point on 23 February 2017, I also called the Claimant to invite her to attend the police station for interview. I do not now recall the exact time I called the Claimant however it would have been before the end of my shift at 17:00. Although I do not recall the exact words spoken during our conversation, I would have introduced myself by name and informed the Claimant that I was a police officer investigating an allegation of harassment which I wanted to speak to her about. My intention in speaking with the Claimant in interview was to gain further information on alleged communications as due to the number of instances of complaint, I suspected that there may have been an offence of harassment committed. However, rather than arrest the Claimant I felt it more appropriate to proceed by way of voluntary attendance.
11. The claimant agreed to attend and confirmed she would contact her solicitor and arrange a convenient time the following week. Unfortunately before completing the conversation the call was abruptly cut-off. I tried to re-dial the Claimant but was unable to get through to her. Given that the Claimant was aware of my request to attend the police station and that she had indicated she would make enquiries with her solicitor as to their availability, I was of the opinion that sufficient information had been provided and that she would contact me again to discuss an appointment time. She did not do this."
"I was working at home (I am a writer and a barrister) when my ex-directory home landline rang. The caller claimed to be an Adam Dowson from the Met and said I was required to attend for an interview at the request of Wiltshire Police. I asked how he had got hold of my ex-directory number and he said 'the police computer'. I could not understand this.
What happened?: I asked why and was told a statement had been given regarding me on Feb 2nd. I asked by whom but he would not say. He pressed me to give a date and explained I was in Court on Friday and all the following week. He suggested this weekend. I said that I would require my solicitor to be present and I did not think he worked weekends. I said I would need to contact him to find out his availability. I said that I have much experience of reporting complaints of my own to the Met and that the officer I dealt with is PC Alexander Michael who is based at Holloway. I said I was aware of a person who had been writing to my solicitors since last September – at this point the phone went dead. I contacted my solicitor immediately and we arranged some dates. No call has been returned to me by the person calling himself Dowson and I now think this was a hoax. I am afraid my private home phone number has been leaked to a third party by someone in the Met accessing my personal data for improper purposes."
"5. When T/DC Downs rang me, he said nothing about a PIN. I thought he wanted to interview me about an alleged offence. This has never happened to me before. He put me under some pressure to agree a date. I said I wanted my solicitor with me. I was in court the next day and all the following week. He suggested I attend at the weekend and I explained that I did not think my solicitors (Simons Muirhead & Burton) worked weekends. I also explained that the complainant had been writing to my solicitors for some months now. I got onto my solicitors as soon as our call was cut off."
"I object to a barrister @svphillimore of @StJohnsChambers making false, malicious claims about me. She is mischievous, manipulative & wrong." (5:15pm – 23 Feb 2017)
"Goodness. @svphillimore of @StJohnsChambers is now running around asking the police to oppose anyone who disagrees with her." (5:41pm – 23 Feb 2017)
"12. On 24 February 2017 I started work at 08:00 and saw I had 3 further emails from Ms Phillimore, with attachments of screenshots of further online tweets posted overnight. The emails were dated 23 February 2017 at 23:44 and 23:48; and 24 February 2017 at 06:03 and I exhibit copies of the same to this statement as AD/04. As a result of the ongoing tweets which had been posted by the Claimant I formed the view the Claimant needed to be informed before the chance to arrange an interview, that her behaviour was causing harassment to Ms Phillimore and ask that she stop. I therefore decided to send the Claimant a Prevention of Harassment letter ("the letter") and consulted with my supervisor, DS Barbe, in accordance with the Harassment and Stalking policy – Deal with witnesses and suspects who authorised this decision.
13. In particular, I had regard to the paragraph in the policy which reads:
"The police should warn a suspect whenever a first allegation of any harassment is received and if, following a thorough investigation, there is insufficient evidence available to establish a course of conduct or prove another substantive offence. A warning may also be used when the conduct could appear normal to others but causes the victim harassment, alarm or distress (for example, sending the victim flowers every week." (emphasis added)
14. My understanding of this paragraph is that there are two circumstances in which the service of a letter is appropriate. Firstly, when the investigation does not lead to charge because there is insufficient evidence to establish a course of conduct. Secondly, where the suspect may not recognise that the conduct might be causing harassment, alarm or distress.
15. It was clear in this case that there had been a number of instances of the Claimant behaving in the manner complained of and therefore it could not be said there was "insufficient evidence of a course of conduct". I therefore considered that the second circumstance for sending a person the letter applied."
"An allegation of harassment has been made against you:
Details of alleged conduct (specific actions that are cause for complaint):
It is alleged from 14th January 2017 – Present you have sent several unwanted tweets to Sarah Phillimore directly and indirectly. You have directly mentioned @SVPHILLIMORE even when the account holder blocked you for unwanted correspondance [sic]. You have mentioned @STJOHNSCHAMBERS in an indirect attempt to haras [sic] Sarah Phillimore. This unwanted correspondance [sic] to Sarah has been maliciously worded at times using abusive language.
HARASSMENT IS A CRIMINAL OFFENCE under the Protection from Harassment Act 1997.
"A person must not pursue a course of conduct which amounts to harassment of another and which he/she knows, or ought to know, amounts to harassment of the other."
Harassment can take many forms and examples can include: wilful damage to property, assault, unwanted verbal or physical threats, abusive communication or repeated attempts to talk to or approach a person who is opposed to this.
It is important that you understand that should you commit any act or acts either directly or indirectly that amount to harassment, you may be liable to arrest and prosecution. A copy of this letter which has been served on you will be retained by police but will not be disclosed now to the alleged victim. However a copy could be disclosed in any subsequent criminal proceedings against you as proof that police have spoken to you about this allegation. This does not in any way constitute a criminal record and will only be referred to should further allegations of harassment be received."
"I have reviewed the evidence in the form of screenshots from the complainant. At this present time there is no need to attend Islington police station as you have been issued a Prevention Harassment warning letter. Please find this attached in this email. I have been to your home address three times in an attempt to serve you this warning, you have not been home… Upon opening of this email you are in receipt of the warning."
Sarah Victoria Phillimore has been publicly cyber-stalking me since May 2016. She has been openly discussing her desire to sue me, she has publicised that she has reported me to the police, and so on. She appears to be an attention-junkie. She has repeatedly called for others to report me; she has tried to derail a talk that I was due to give by joining a public troll attack on the organiser and owner of the venue; and she has issued dozen and dozens of complaints about me to third parties including the chambers where I work and the legal regulator. She has also posted a series of menacing tweets, implying that she seeks my downfall and wants me dead. It can't get much nastier than this.
It is striking that she has not approached my union, the NUJ.
She has also deliberately allied herself with a group of Twitter trolls who use false identities online and who have been cyber-stalking me for upwards of 18 months.
The Met granted a RIPA authorisation to investigate the trolls last year. She is thus trying to undermine an ongoing investigation, on their behalf, seemingly. Her correspondence with others in particular the Bar Standards Board makes plain that she is acting in concert with these trolls.
This is shocking, and calls for public comment and criticism – from which it seems she is attempting to shield herself, by making bogus complaints of harassment to the police.
Our dispute has been reported in the "The Times", so it is public knowledge.
She has also publicised that she is seeking an injunction against me, that she has reported me to the police, etc etc.
She cannot attempt to shut down public debate and criticism about her dubious tactics.
This is highly manipulative behaviour on her part."
"1.— Prohibition of harassment.
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other."
"(b) Article 8(2) – Justification
57 According to the Practice Advice, harassment is a difficult offence for the police to deal with, partly because it comes in so many different guises and partly because conduct of a kind that might be welcome to one person may in different circumstances understandably be viewed as harassment by another. Moreover, it requires a course of conduct, i.e. something more than an isolated act, and that presents additional difficulties. An insult of the kind alleged to have been offered in this case may be no more than an isolated incident or it may be the first act in a course of conduct amounting to harassment. It is understandable, therefore, that the police should wish to respond promptly by drawing the suspect's attention to the law on harassment, hoping thereby to nip any risk of repetition in the bud. It is also understandable that they should wish to retain a record of that response in case further allegations are made by the same complainant against the same person. The question is whether the processing and retention of the information can be justified under article."
60 Mr. Bowen Q.C. submitted that the failure of the police to speak to Ms T before serving her with a warning letter was unfair and rendered the whole procedure disproportionate. We do not accept that. The letter did not involve a formal determination of any kind; it was not like a formal caution which requires an admission of guilt and might well have to be disclosed to third parties (for example, in response to a request for an enhanced criminal record certificate). Nor did it initiate proceedings of any kind. It simply informed Ms T that an allegation had been made against her and warned her of the possible consequences of behaving in the way it described. In those circumstances, although it would have been better if the police had asked Ms T for her comments before sending her the letter, we do not think that the failure to do so undermines the lawfulness of their action or the lawfulness of including in the CRIS report a record of what had been done. However, the retention of the information is a different matter. The judge held that the mere retention of information of the kind involved in this case was potentially justifiable because it served a useful social purpose (paragraph 98). To that extent we agree. In paragraph 99 he expressed surprise that the information should need to be retained for as long as seven or twelve years, but considered that the court should be slow to interfere with the expert judgment of the police. In the end he was not satisfied that any illegality was involved in the continued retention of the information."
"…Nor is there any need to discuss the submission that by failing to take reasonable steps to obtain Ms T's side of the story before serving the letter on her the police failed to observe common law requirements of fairness and so acted unlawfully. It might be thought, however, that in common fairness a person against whom an allegation of this kind is made should be invited to give his or her side of the story before the police decide whether action of any kind is appropriate."
"42 The purpose of the Prevention of Harassment letter is plain enough from its terms. Under the Act, harassment requires a "course of conduct", not just a single incident. The Prevention of Harassment Letter is intended to warn the recipient that some conduct on his or her part may, if repeated, constitute an offence. It also seeks to prevent the recipient from denying that he or she knew that it might amount to harassment. It therefore serves a legitimate policing function of preventing crime and, if a repetition occurs, it may also assist in bringing the accused to justice. It is, however, impossible to conceive how, in the circumstances of this case, that purpose could justify the retention of the letter in police records for as long as seven years or of the corresponding CRIS for 12. It seems obvious that within a few months the incident on 20 July 2010 would have become too remote to form part of the same "course of conduct" as any further acts of harassment directed against Mr S It is not suggested that the material has any relevance to the investigation or prevention of possible offences by others."
"61 I find in any event that had a proper balancing exercise been carried out on all the information that could reasonably practicably have been taken into account, the decision to use the Claimant's photograph and provide the details that were provided, and in the manner they were provided, was not reasonable and proportionate in the circumstances of this case. Firstly, in relation to the claim for breach of confidence, the photograph was over ten years old and showed the Claimant with a very different appearance to the description given by X, and different to a photograph contemporary with the alleged offence produced for this trial by the Defendant. No consideration appears to have been given to the discrepancy. Indeed, a paradoxical situation emerged, whereby Mr Stagg adduced the new contemporaneous photograph, and put to the Claimant in cross-examination that the released photograph did not look like him and, therefore, there was no reason to believe people would recognise him from it. On the other hand, the Claimant claimed that due to his ethnicity, uncommon in Clacton, and distinctive name, the photograph looked sufficiently like him that anyone in the area would have put two and two together and recognised him, even though he had not lived in Essex for some time. If Mr Stagg is right, the release of the photograph in breach of confidence was not necessary and proportionate in the public interest in the service of the legitimate aim of locating the Claimant, as people would not have recognised him. If they are both right, the same purpose could have been achieved without the photograph by giving the Claimant's details and description. On the basis that proportionate disclosure is minimum necessary disclosure, the use of the photograph taken in custody was a breach of confidence.
62 Further, unlike cases such as Hellewell and Stanley , Marshall and Kelly , the Claimant's details were published to the world at large. Whilst the press release in this case was to local media, no consideration was given to the realities of modern technology. Firstly, of the potential for the information to spread across the internet and, secondly, as to the difficulty, once spread, of retrieving and eradicating it, should that be necessary. As Mr Partridge acknowledged, once imparted, the police lost control of the data. It was not on posters that they could take down or photographs they could retrieve from shopkeepers. They were reliant on others to remove it, when notified. Detective Inspector Watson's report and evidence were instructive in this respect. Whilst he would have been prepared to go to the press, he would not have included the Claimant in this type of release or included the word "rape." …
64 However, accurate or not, the issue is whether it was proportionate to include all the details, including the allegation of rape. The nature of this allegation against the Claimant, in contrast to others included in the release, is highly relevant for two reasons, in my judgment. Firstly, sexual offences carry a stigma which does not attach to, for example, acquisitive offences such as theft or burglary. And, secondly, by section 1 of the Sexual Offences Amendment Act 1992 , complainants in rape cases are granted automatic anonymity. Section 1(2) prohibits the publication of any matter likely to lead to the identification of a claimant. Consequently, particular care has to be taken in assessing the release of information in such cases, not least where the suspect and complainant are known to each other. In this case, these factors were not considered either in relation to the Claimant or, indeed, in relation to X. Whilst in appropriate cases, the release of a suspect's photograph and the details of alleged crime including rape could undoubtedly be justified as being in the public interest, for example, where the suspect was evading arrest or the safety of the public was at risk or there was a pressing need to locate and detain him, this was not such a case. A less intrusive approach could have been taken which did not require the inclusion of rape in the details at the stage of the release, and the minimum approach would have been to identify him by name and that he was required to contact Essex Police. This was the conclusion drawn by DI Watson."