QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GARNHAM
| The Queen (on the application of Dominic Purvis)
|- and -
|The Director of Public Prosecutions
Ben Douglas-Jones QC (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 19th November 2020
Crown Copyright ©
Mr Justice Garnham:
(i) The decision suffers material legal error and is consequently legally flawed or wrong in law;
(ii) The reasoning of the decision wrongly usurps the function of a jury to hear evidence and make assessments of credibility and veracity to a defence presented in answer to a prima facie case;
(iii) The decision-maker placed wrongful or undue reliance on the audio-recorded account given outside this investigation in place of the formal interview process in this case and audio-recorded police interview under caution;
(iv) There was a failure to consider all relevant material and/or material matters were not taken into account or properly taken into account;
(v) The decision taken is a Wednesbury unreasonable or irrational decision and falls to be quashed. Any proper and correct consideration of the evidence and information in this case could only conclude that there is sufficient evidence of the commission of the offences or any of them.
"1. In October 2015 Dominic Purvis (to whom we shall refer as "the claimant") was convicted of offences of sexual assaults upon children, making and distributing indecent images of children, and breach of notification requirements. He is currently serving a sentence of imprisonment for those offences. He made a formal complaint to the Devon and Cornwall Constabulary about the conduct of an officer involved in the investigation of those offences, DC Mark Uren. He seeks judicial review of the decision of the Crown Prosecution Service ("CPS") not to prosecute DC Uren for offences of perjury and/or misconduct in a public office. This is the judgment of the court, to which we have both contributed.
2. The criticisms of DC Uren's conduct relate in particular to his dealings with an adult witness to whom one of the young victims of the claimant's offending had made a relevant complaint. In submissions to this court, the witness was referred to as "JH". We will continue to refer to her in that way.
4. On 12th February 2014 DC Uren saw JH, and took from her a statement of her evidence. As is often the case, he did so in manuscript. When he had done so, JH read the statement and signed it as correct. JH referred in her statement to two relevant events, the dates of which were said to be "Thursday 2nd June 2013" and "Friday 03rd June 2013".
5. In accordance with usual practice, DC Uren sent the manuscript statement to the relevant police department (the Criminal Justice Unit: "the CJU") so that it could be typed up. The typescript reproduced the dates stated in the manuscript original.
6. On 19th March 2014 JH telephoned DC Uren to tell him that she had made a mistake about the dates. In a statement which she later made describing this telephone call, JH said that she had initially told DC Uren that the events occurred on 4th and 5th June 2013, but had subsequently realised that the correct dates were 4th and 5th July 2013. She asked DC Uren to adjust her statement.
7. In response to that telephone call, DC Uren changed the two relevant dates in the manuscript original witness statement. He did so by striking through the word "June" and inserting the word "July". He placed a small "x" in the margin adjacent to each of those two alterations.
8. The trial of the claimant began on 27th October 2014. Prosecuting counsel was not attended by any representative of the Crown Prosecution Service ("CPS"). DC Uren was actively involved in assisting prosecuting counsel with a range of matters at court, including a number of matters which should have been dealt with by a representative of the CPS if one had been present.
9. On 30th October 2014, prosecuting counsel spoke to DC Uren about JH, who had not yet been called to give her evidence. A statement later made by prosecuting counsel indicates that during this conversation, DC Uren told him that he had altered the original statement by replacing "June" with "July". Counsel, quite rightly, told DC Uren that he should not have altered the original statement and should have taken a further statement from JH. Because the original statement had been altered, he suggested that DC Uren should himself make a statement, setting out what he had done. Prosecuting counsel, again quite rightly, informed defence counsel of this. Both counsel saw the original manuscript witness statement and saw that it had been amended by changing "June" to "July".
10. At about 11.30am that day, DC Uren made a manuscript statement in which he referred to his telephone conversation with JH. He stated that she had told him she had made a mistake, and that the correct dates were 2nd and 3rd July 2013. He said that he had "adjusted her statement" and resubmitted it to the CJU.
11. Later the same day, DC Uren made a further witness statement, this time in typescript, which he gave to prosecuting counsel. This statement was made of his own initiative, and not as a result of any suggestion made by counsel. DC Uren stated that in the telephone conversation, JH had told him that "the 02nd of July 2013 was wrong, the correct date was Thursday 04th July 2013" and that "the 03rd of June 2013 was an incorrect date, the correct date was Friday 05th July 2013. I adjusted the statement accordingly". He continued:
"On my statement provided at approximately 1130 hours on Thursday 30/10/14 I detailed that JH had stated the dates were 2nd 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)."
12. When giving that typed statement to prosecuting counsel, DC Uren also gave him the original manuscript witness statement of JH. This had now been further altered at the material points by striking through "2nd" and inserting "4th", and by striking through "03rd" and inserting "05th". Thus the manuscript statement which had originally shown the relevant dates as 2nd June and 3rd June 2013, now showed those dates as 4th July and 5th July 2013.
13. JH attended court to give her evidence on 3rd November 2014. It was then that she made the statement, to which we have referred, giving her account of her telephone conversation with DC Uren.
14. Both prosecution and defence counsel were understandably concerned about these events, and rightly raised them with the learned trial judge. The decision was taken that there should be a voir dire in which DC Uren would give evidence to the judge, in the absence of the jury, explaining the relevant events. DC Uren accordingly gave evidence on oath. He told the judge that he had only altered the manuscript witness statement of JH on one occasion, when he had altered the dates from 2nd and 3rd June to 4th and 5th July respectively, and believed that he would have sent a photocopy of the amended witness statement to the CJU for typing. He denied that there had been any intermediate stage at which the witness statement had been amended to show the dates of the 2nd and 3rd July 2013. He maintained that denial even when it was put to him, in cross examination, that both counsel had seen the statement in that form.
15. That evidence had the effect of placing both counsel in the position of witnesses of fact as to the precise sequence of events concerning the amendments to JH's statement. As a result, the trial (then in its fifth day) could not continue. The jury was discharged. The claimant was retried at a later date, and was convicted of the offences to which we have referred.
16. As a result of the collapse of the first trial, and of a report submitted by prosecuting counsel, the matter was referred to the Professional Standards Department of the Devon and Cornwall Constabulary on 7th November 2014. At about the same time, by a letter dated 6th November 2014, the claimant made a formal complaint about the conduct of DC Uren, alleging that he had tampered with evidence and committed perjury. The investigation carried out by the Professional Standards Department found no record that any amended version of JH's witness statement had been submitted by DC Uren to the CJU or to the CPS. However, the report compiled by the investigating officer noted that it was not uncommon for documents sent to the CJU not to be received by the CPS, and concluded that there was "no reliable way that it can be verified" whether DC Uren had submitted the amended witness statement to the CJU.
17. The report of the investigating officer recorded that DC Uren had sole responsibility for all aspects of the complex investigation into the claimant, which had generated a large amount of evidential material, and that he had undertaken extra work and responsibilities which contributed to his not being thorough in taking a further witness statement from JH when she informed him of the mistake as to dates. The investigating officer took the view that DC Uren's actions were mistakes rather than misconduct, and had been contributed to by the exceptional pressures he encountered during the enquiry and through the trial. The report, dated 1st December 2014, concluded with the following:
"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."
18. DC Uren was subsequently served with a formal notice of investigation in accordance with the 2012 Regulations. The Independent Police Complaints Commission ("IPCC") directed that a local investigation be carried out by the Devon and Cornwall Constabulary. In the course of that investigation, DC Uren submitted a written response to the allegations against him, in which he no longer maintained that he had only altered the manuscript witness statement of JH on one occasion, changing both the month and the dates at the same time: he said that, although that had previously been his honest belief, he now believed that he had erroneously only changed the month from June to July after JH's telephone call in March 2014, and had at that stage left the dates unaltered as the 2nd and 3rd. He therefore accepted that in this respect his evidence on the voir dire had been factually incorrect, though he emphasised that he had not intended to mislead the court. He accepted that he should not have amended the original statement in the way he did, and that he should have taken a further statement from JH. He added that he wished to make clear –
"… 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."
19. The investigating officer, in a report dated 5th November 2015, noted that DC Uren no longer disputed that he had made further alterations to JH's witness statement at court, but maintained he had no recollection of doing so. The investigating officer observed that the further alterations had been made following a conversation with prosecuting counsel, and therefore in the knowledge that the alteration previously made had not been correct procedure. The investigating officer concluded:
"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.
20. A misconduct hearing pursuant to the 2012 regulations was held in April 2016. The function of such proceedings is not primarily punitive, but to set standards for police service and to be open and transparent in doing so. In a report dated 13th April 2016 the panel recorded that DC Uren had always maintained that he altered the witness statement in order properly to reflect the evidence of JH, though he admitted he should have made the changes by another method. He said that he had made the "x" marks in the margin of the witness statement with a view to asking JH to sign the alterations. The panel found him to be a credible witness on that specific point, and generally. The panel went on to record that DC Uren had admitted to them that he altered the original witness statement on two separate occasions and admitted that he had made statements which were untrue, but denied that he had made them knowing them to be untrue. He admitted that he was guilty of misconduct, but denied the allegation of gross misconduct. The panel accepted that at the material times DC Uren was in a "highly challenging position" as a result of the busy and difficult time at court. The panel found that DC Uren had not made statements which he knew to be untrue and found that DC Uren had not been dishonest in giving evidence. It concluded that the appropriate disciplinary action was to impose management advice."
"75...The Reviewing Lawyer had found that there was sufficient evidence to charge DC Uren with perjury. She had also found sufficient evidence to charge him with misconduct in a public office, though it might be said that her principal reason for that decision was that there was evidence of perjury. She stated her view that lying on oath and/or failing to deal properly with witness statements "cannot ever be done with reasonable excuse or justification". She was therefore satisfied that it was more probable than not that, if prosecuted, DC Uren would be convicted of one or both of those offences...
77.With all respect to the Reviewing Lawyer, her decision-making was in our view flawed. Our reasons for taking that view are as follows. First, the Reviewing Lawyer was entitled to consider DC Uren's motivation, but she did so only in relation to his motivation for altering the witness statement, not for making (and repeating) a false statement about what he had done. She failed to address that important question despite her observations that the reference to professional embarrassment implied that DC Uren knew at the time what he was doing. The implication of that observation was that this was not a case of muddle and error: it was a case of a police officer telling a deliberate lie."
"82 As to the fourth ground, we agree with Mr Rule that the Reviewing Lawyer fell into error when she dismissed any possibility of a successful prosecution for the offence of doing acts tending and intended to pervert the course of justice. On such a charge, the prosecution must prove, amongst other things, that the accused did acts which tended, and were intended by him, to pervert the course of justice. The motive of the accused may of course shed light on his intention; but the offence may be committed even if the accused's motive was to achieve what he believed to be a just result. There is a distinction between the course of justice—which in this case undoubtedly was perverted, as the trial had to be stopped and the claimant retried at a later date—and the ends of justice—which DC Uren has said he did not intend to pervert. The Reviewing Lawyer appears not to have considered that distinction, and appears to have dismissed any thought of prosecution on such a charge despite the clear evidence that DC Uren had deliberately acted in a way which he knew to be contrary to proper procedure and which brought a Crown Court trial to an abrupt halt…
84 In the circumstances of this case, the Reviewing Lawyer in our view could not properly dismiss any prospect of a successful prosecution for such an offence as abruptly as she did. Having identified the adverse findings of fact which on the available evidence could be made against DC Uren, and having concluded that the evidential test was satisfied in respect of charges of perjury and misconduct in a public office, she fell into error of law in discounting a third charge solely on the basis that DC Uren acted as he did "in essence to avoid an injustice". She should have focused on the course of justice rather than the ends of justice, and should have undertaken a more careful analysis of the findings which a jury could properly make as to his motive and intention."
"86 We emphasise that we have been concerned with a review of the decision taken by the Reviewing Lawyer on the basis of the evidence before her. We have well in mind Mr Douglas-Jones' forceful submission that the further evidence which is now available, in particular the evidence given in the disciplinary hearing which post-dated the Reviewing Lawyer's decision, could lead to a different conclusion about the evidential stage of the Code. However, it is not for us to say what the fresh decision will be. That being so, we refrain from expressing any further view about the merits of the various factors (both for and against prosecution) which we have identified in our discussion.
88 We therefore quash the decision of the Reviewing Lawyer dated 11 September 2015 and direct that the question whether DC Uren should be charged with any, and if so what, offence or offences be referred to the Special Crime Unit so that a fresh decision can be made."
The Fresh decision
"Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
The finding that there is a realistic prospect of conviction is based on the prosecutor's objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty."
"I have conducted a full and careful review of all the evidence in this case and have concluded that there is insufficient evidence to provide a realistic prospect of convicting DC Uren of perjury, perverting the course of justice or misconduct in public office. Accordingly, no further action will be taken against DC Uren."
"…without conceding his status as a victim, it appeared to me now to be appropriate to set out in detail the basis of my colleague's decision not to authorise charges in this case. Whilst we remain of the view your client is ineligible for VRR as a "victim" as defined we recognise that at present you have not had the benefit of an explanation for the decision that has been reached. I would therefore propose to set out my colleague's reasoning in the paragraphs which follow. This will enable you to consider the decision on its merits, and to arrive at a view as to whether you would wish to continue to press your arguments as to the decision itself as a claim."
The Standard of review
"52…In summary, judicial review of a prosecutorial decision is available but is a highly exceptional remedy. The exercise of the court's power of judicial review is less rare in the case of a decision not to prosecute than a decision to prosecute (because a decision not to prosecute is final, subject to judicial review, whereas a decision to prosecute leaves the defendant free to challenge the prosecution's case in the usual way through the criminal court) but is still exceptional. The reason for this was stated by Lord Bingham C.J. in Manning at :
''In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting an effective remedy would be denied.''
53. There is an assumption underlying this passage (with its reference to the exercise of an informed judgment) that a prosecutor can ordinarily be expected to have properly informed himself (within the limits of what is reasonably practical) and asked himself the right questions before arriving at a decision whether or not to prosecute."
Ground 1- The legal ingredients
"If any person lawfully sworn as a witness…in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury…".
"The central question in this case is whether it could be proved that DC Uren wilfully made that statement in the voir dire, knowing it to be false or not believing it to be true. In other words, was he being deliberately dishonest when he told the court that he had made the alteration on only one occasion, or was his assertion on this point an honest mistake?"
"Although the statement in question does not actually have to be false for the offence to be made out, so long as it can be shown that the defendant did not believe it to be true, in this case it is clear that what DC Uren said in the voir dire was false; i.e. it is not in dispute that he did make an alteration to the witness statement of (JH) on more than one occasion. He accepted the point unequivocally in the disciplinary hearing. The only question therefore is whether he wilfully lied about this point in the hearing or made a mistake."
"The issue around (JH's) statement was one of a number of matters that he was grappling with at court on 30 October 2014, in the highly pressurised environment of a serious criminal trial in its opening stages and all the work that was required to enable the prosecution to proceed on schedule. There was no CPS caseworker or anyone else to assist him in the various tasks requiring urgent attention, the most immediately pressing of which, in DC Uren's mind, was looking after a visibly distressed child witness at court. He was aware that the issues around the taking of (JH's) statement needed addressing, and he made a complete mess of attempting to do so in the two witness statements he made that day."
"In order to convict DC Uren of perjury it would be necessary to prove beyond reasonable doubt that he lied at the voir dire. I am satisfied that no reasonable tribunal could be sure on the evidence available that he did so. I would expect a reasonable jury confronted with the full circumstances in which DC Uren's evidence was given, to find themselves in the position I find myself in after a full review of all the material in this case including all the audio recording of his evidence at the disciplinary hearing: unable to reach a clear confident conclusion as to whether he lied or simply made a mistake." (Emphasis added)
Perverting the course of justice
(i) acts or embarks upon a course of conduct,
(ii) which has a tendency to, and
(iii) is intended to pervert,
(iv) the course of public justice.
"7.42 To summarise these points, it seemed quite possible that DC Uren simply failed to register the gravity of the action that he took at this stage of the proceedings. The conversation he had with Mr Moorhouse about the changes made to (JH)' statement may well have felt far less significant to him than it was subsequently to become in the light of developments over the next few days. It is possible that his overriding aim of making sure that the statement correctly reflected (JH's) account outweighed any concerns, or any clear thought on his part, over the way that this was achieved. A combination of factors – a rushed attempt to resolve the issue quickly, a failure to appreciate the significance of what he had done and what he had been told by Mr Moorhouse, and the pressure that he was under as a result of all the other tasks requiring his attention at the time – all of these factors may have resulted in DC Uren doing something so foolish and inappropriate that it is tempting to regard his act in hindsight as motivated by something more sinister than simple incompetence.
7.43 However, it would be clear to any reasonable jury considering the point that the alteration made to (JH)'s statement by DC Uren on 30 October 2014 was not made out of dishonest intent for one very simple reason: the alteration that DC Uren made to (JH)' statement on 30 October accurately reflected the true position, i.e. that which (JH) had told him reflected her recollection of what really happened. DC Uren's act in altering the statement this second time is open to serious accusations of professional incompetence and impropriety, but the suggestion that he made this alteration with the intention of perverting the course of justice makes little sense in the light of the particular alteration made."
"7.44 For all these reasons Mr Arnold concluded that there was insufficient evidence to provide a realistic prospect of convicting DC Uren of perverting the course of justice. I have considered Mr Arnold's rationale and have concluded that his reasons and conclusions are correct."
"...If an allegation is made which is capable of being taken seriously by the police so as to institute a criminal investigation with the possible consequences to which we have referred with intent that it should be taken seriously by the police we consider that that is properly described as an act perverting the course of justice."
"…Whether or not [the offender's] 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…"
Ground 2 - Usurping the function of the jury
(i) DC Uren's testimony was given on the next sitting day of the trial;
(ii) The fact that no more than 4 days had passed between his having made a second alteration and his statement to the Court;
(iii) The clear evidence of prosecuting counsel that DC Uren was told he had acted wrongly and should not have made the first alteration, and a reasonable expectation that he would take note of that given its importance;
(iv) The expectation that any police officer who has received the appropriate training would understand that making an amendment to an original witness statement in this manner would be inappropriate, even without being warned; and
(v) The fact that DC Uren had had to go to the extent of making not just one but two formal witness statements about the first alteration.
Ground 3 - Undue reliance on DC Uren's audio-recorded account
Ground 4 - Failure to consider all relevant material
(i) The transcript or audio recording of the police interview conducted by DS James of DC Uren in relation to these matters;
(ii) The final report and conclusions of DS James in light of her investigation, hearing DC Uren's explanation, and her conclusions;
(iii) The witness statement of prosecuting counsel Mr Moorhouse;
(iv) Any Trial Report submitted by Mr Moorhouse;
(v) The full and complete disciplinary record of DC Uren;
(vi) The witness statement of defence counsel Ms Kelly Scrivener;
(vii) The potential motivations for the lying that result from an improper purpose rather than that DC Uren claims to have been motivated by;
(viii) The fact that there was not any step to reveal, disclose or admit the second alteration at the time of trial or in the voir dire itself.
Ground 5 - An irrational decision