England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/07/2013

Approved High Court Judgment Russell West & Gary Taylor-Duncan

Mr Justice Griffith Williams

Introduction

1. By a Part 8 Claim form issued on 2 May 2013, Russell West ("the Applicant") applied for permission to make a committal application pursuant to the provisions of CPR 81. Following a hearing on 24 June 2013, the court stated that the application was refused for reasons to be handed down later.

Background

2. On 16 October 2009, three officers of the Central Scotland Police (Gary Taylor-Duncan, Steven McMillan and Gordon Crossan) accompanied by two officers of the Essex Police attended at the applicant's home in Rochford to execute a search warrant issued by Alloa Sheriff Court which had been endorsed subsequently by a magistrate in Essex in accordance with the provisions of the Summary Jurisdiction (Process) Act 1881. The warrant was read to the applicant who was then handcuffed by the Scottish Officers in accordance with usual practice in Scotland. Once the search had been concluded, the applicant was detained in accordance with the provisions of section 14 of the Criminal Procedure (Scotland) Act 1995.^[1]
3. The applicant was taken to Stanstead Police Station where he was interviewed under caution and charged with various sexual offences contrary to Scots Law. The victim of some of the alleged offending was AH, an underage girl. He was then taken to Alloa Sheriff Court where he was remanded in custody. In due course he appeared before the High Court in Glasgow where he pleaded guilty to an offence of libidinous practices and communication – the victim was AH.^[2] He was sentenced to 30 months imprisonment with an extended licence period of 3 years. He was released on licence on 18 January 2011 but returned to prison in March 2011 following a breach of his licence conditions. His earliest date of release is in or about May 2015.
4. By a Particulars of Claim dated 26 July 2011 issued out of the Southend County Court [IUD17619] the applicant claimed damages from the Chief Constable of the Essex Police for a breach of his Article 5 (2) rights under the European Convention of Human Rights^[3] and for personal injuries. ^[4] The claim was dismissed by His Honour Judge Yelton sitting in the Norwich County Court in January 2012. No copy of the judgment has been provided.
5. In those proceedings, the Chief Constable of the Essex Police relied upon a witness statement made by Detective Constable Taylor-Duncan (the "defendant") following the execution of the search warrant, the arrest, the interviewing, the charging and the subsequent production of the appellant at the Alloa Sheriff Court on Monday 19 October 2009. The defendant exhibited a copy of that witness statement to an affidavit, adopting its contents (verified by a statement of truth) as his evidence.
6. It is a part of that witness statement, in which the defendant summarised a part of the interview of the applicant under caution, which forms the basis of this application. The defendant stated:

"The accused WEST further stated he liked to role-play and had a fetish for sexual violence towards females, both adults and children, in particular rape, however he stated that this was only a sexual preference and that the police were wrong to judge him for such interest".

The application

7. In these proceedings, issued on 2 May 2013, the applicant applies for permission to make a committal application against the defendant for contempt of court alleging:

"Between the 28/11/2011 and 20/01/2012 at Norwich Country Court, Bishopgate, Norfolk, England NR31UR the defendant Gary Taylor-Duncan wilfully made and furnished a signed statement with a declaration of truth for use in civil proceedings which he knew to contain false information in contempt of court."

8. While CPR 32.14 provides the proceedings for contempt of court may be brought against a person if he makes a false statement in a document verified by a statement of truth without an honest belief in its truth, it is CPR 81 and the relevant practice direction which provides the procedure for dealing with such applications.

"Application for permission (High Court, Divisional Court, or Administrative Court).

81.14 – (1) The application for permission to make a committal application must be made by a Part 8 Claim Form which must include or be accompanied by –

(a) a detailed statement of the applicant's grounds for bringing the committal application;, and

(b) an affidavit setting up the facts and exhibiting all documents relied upon.

(2) The claim form and the documents referred to in paragraph (1) must be served personally on the respondent unless the court otherwise directs…

Practice Direction 81

Committal application in relation to a false statement of truth…

5.2 Where the permission of the court is sought under rule… 81.18 (3) (a) so that rule 81.14 is applied by rule… 81.18 (4), the affidavit evidence in support of the application must –

(1) identify the statement said to be false;

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was

made; and

(3) explain why contempt proceedings would be appropriate in the

light of the overriding objective in Part 1.

9. The applicant must establish he has an arguable case that

i) The summary was false

ii) The defendant, when making it, had no honest belief in its truth, and

iii) The conduct alleged involved an interference with the due administration of justice.^[5]

The case for the applicant

10. The falsity of the statement is proved by reference to transcripts of the interviews under caution, selected extracts of which have been provided. These include the applicant's express denials of any interest in sexual activities with children and of fantasising about raping 14 year old girls. It is alleged the defendant who was conducting the interviews would have known the applicant had not made the admissions as summarised and so he deliberately lied when providing that summary. Such conduct, known as "verballing" would have had a detrimental and prejudicial effect and so interfered with the administration of justice.
11. The applicant submitted there is further support for the falsity of the statement and the defendant's knowledge of it provided by the decision in August 2012 of the Police Complaints Commissioner for Scotland. The Commissioner reported:

"… At no point during the interview did he say that he had a fetish for sexual violence towards children. Indeed, during the interview he specifically denied having a sexual interest in children. He also stated on numerous occasions during the interview that he would not knowingly engage children in sexualised chat. Accordingly, the commissioner does not consider there to be any basis for Central Scotland Police's comment that during his police interview the applicant stated he had a fetish for sexual violence towards children."

12. It is important to bear in mind the applicant's submission is that the making of the false summary is relevant to the issue of the defendant's credibility as a witness to what happened in the applicant's house, to the alleged breach of his article 5(2) rights and to the assault giving rise to personal injury.

The case for the defendant

13. On behalf of the defendant, Mr Murray submitted there has been non-compliance with:

i) the mandatory requirement of personal service of the Claim Form and supporting documents [CPR 81.14.2 above] – they were sent by post to the defendant at a police station in Stirling;

ii) the mandatory requirements of 32PD.5 because the jurat of the affidavit does not identify the person before whom the affidavit was sworn by name and qualification or include his address;

iii) the mandatory requirement in 81PD.6 (see above) of an explanation why committal proceedings would be appropriate in the light of the overriding objective.

14. I am not persuaded the non-compliance with the requirement for personal service is of any consequence. The defendant was served and so clearly had notice of the application and of the hearing – he was after all represented by counsel. I accordingly dispense with the requirement of personal service.
15. While there have been clear breaches of the mandatory requirements of PD.32.5, the applicant drew the court's attention to the cover of the affidavit which contains the name and address of the solicitors. Applying 32PD.25, I decline to refuse to admit the affidavit as evidence.
16. The falsity and the defendant's knowledge of the falsity of the summary is not admitted because the selected excerpts from a number of interviews would need to be considered in context. Similarly the findings of the commissioner (above) need to be considered in the context of his report read as a whole and not from redacted passages^[6]. Mr Murray relied upon the averment in paragraph 7 (xiv) of the Defence of the first to fourth defendants in Claim HQ12X03682 (see below):

"The claimant made a number of complaints on 8 September 2010 to the defendant and to the relevant ombudsman regarding various aspects of his treatment and the investigation of his crimes. After investigation none of these complaints were substantiated".

He submitted this averment was made after a consideration of the documents available to him and reflected his then understanding (as the pleader) of the evidence.

17. Mr Murray submitted that the evidence against the applicant was the evidence of what he said in interview and not a summary of a part of the interview. In any event, the applicant pleaded guilty to sexual offending, his guilty plea providing the best evidence of his criminality and culpability. He submitted that the summary, whether accurate or inaccurate, was in no way material to the decision of His Honour Yelton as to the alleged breach of the applicant's article 5 (2) rights or any claim he had for damages for personal injuries.
18. He submitted that this application has to be considered in the context of the history of 7 claims or applications made by the applicant since 2011, all arising out of the police investigations into the allegations of sexual offending. The first claim was the claim against the Chief Constable of Essex Police (IUD17619 - see paragraph 4 above) issued on 26 July 2011. This was followed by a claim against the Chief Constable of Central Scotland Police issued on 25 October [ISS00710] making allegations arising from the same facts but relying on the provisions of the Human Rights Act 1998. This claim was considered by His Honour Judge Yelton on 29 June 2012; the learned judge held the claim was time barred and that it was not appropriate to extend time. Subsequently, the Court of Appeal, Civil Division refused permission to appeal that decision both on paper and at an oral renewal hearing.
19. There was then a claim in the Norwich County Court [2YM78535] against the Chief Constable of the Sussex Police and the Chief Constable of the Central Scotland Police alleging breaches of the Data Protection 1998 and of Privacy Law. These claims were struck out in April 2013. The next claim in point of time was another claim in the Norwich County Court [2YM02293]; this claim was brought against the Chief Constable of the Central Scotland Police alleging the wrongful disclosure of the applicant's address to the Independent Safeguarding Authority. This claim was struck out on the court's own motion and subsequently the Court of Appeal Civil Division refused permission to appeal that decision. The applicant then instituted proceedings for Haebus Corpus, an application refused by Silber J, which was also the subject of an unsuccessful appeal to the Court of Appeal, Civil Division.
20. By a claim issued on 7 September 2012 [HQ12XO3682] the applicant claimed as against the defendant, Steven McMillan and Gorgon Crossan and the Chief Constable of Central Scotland damages for false imprisonment, battery, trespass to goods and malicious prosecution. The claim was struck out by Master Kay QC pursuant to CPR Parts 3 and 24 as "hopeless" and "wholly without merit". The seventh and final matter is this application [HQ13X02587] issued on 7 May 2013.
21. Mr Murray submitted that with the exception of 2YM78535 and the application for Haebus Corpus the proceedings, all arise out of the same facts and amount to an abuse of process.

Discussion

22. The court has been provided only with the redacted excerpts from the transcripts of the interviews under caution which support the applicant's criticisms of the summary although further support is provided seemingly by the conclusions of the Commissioner (see above). Without the opportunity to consider the transcripts and the Report in full, the court's approach is to assume for the purposes of this judgment that the summary was inaccurate.
23. As to the issue of its falsity, that is to say, the allegation that the summary is not only misleading but was made with no honest belief in its truth, there is no evidence other than the applicant's assertion that he was "verballed" by the defendant. The Commissioner made no such finding and I consider it improbable the defendant intended deliberately to mislead – the evidence in the criminal proceedings of the applicant's accounts in interview was the recording itself and the transcript made from that recording. The defendant would have known that any inconsistency would have been readily apparent.
24. Further, the applicant has not addressed the evidence of the defendant that when investigating the offending, he read the chat logs between AH and the applicant who was using an email address. That log was extremely sexualised and contained "references by the applicant to impregnating AH, to raping her, to causing her violence and to various sexual acts he wished to partake in with her".
25. I am not persuaded there is an arguable case that the summary was made with no honest belief in its truth and so its use cannot have amounted to an interference with the due administration of justice. I would add that the applicant has, in any event, adduced no evidence that the Chief Constable, the defendant in the proceedings [IUD17619] arguably knew of the falsity of that summary and with that knowledge deployed the evidence.
26. Had I been persuaded there is an arguable case that the summary was made with no honest belief in its truth, the applicant provided no explanation why committal proceedings would be appropriate in the light of the overriding objective of enabling the court to deal with cases justly and at proportionate cost (see paragraph 13 above) until prompted during the hearing when he said it is a serious matter to be "verballed". That would be an insufficient reason. Had the falsity of the summary been a relevant matter, it could have been investigated in the course of evidence. It was not and so the criteria in CPR1.1(2)(c) are not satisfied. I observe that Master Kay QC considered the evidence relating to the execution of the search warrant (see paragraph 20 above) and rejected the applicant's account.

Conclusion

27. The application is wholly without merit and is accordingly refused. In paragraph 14 of his judgment in HQ12X03682, handed down on 27 June 2013, Master Kay QC said it was his view necessary to refer the matter to a Judge with power to consider whether to make an Extended Civil Restraint Order and so he has referred the matter to a High Court judge. Had the Master not so ordered, I would have done so and I direct that a copy of this judgment is provided to the High Court judge who considers the making of such an order.

Note 1   This power of detention is authorised in this jurisdiction by the provisions of Section 137 of the Criminal Justice and Public Order Act 1994.    [Back]

Note 2   The applicant has not particularised the offence contrary to Scots Law. While there is a dispute as to the number of offences with which he was charged and to which he pleaded guilty, no purpose will be served by its resolution.    [Back]

Note 3   “Everyone who is arrested shall be informed promptly in a language which he understands of the reasons for his arrest and of any charge against him”.    [Back]

Note 4   It appears this claim is based on minor injuries allegedly sustained by the applicant when he was handcuffed (see paragraph 2 above).    [Back]

Note 5   See the commentary in CPR 32.14.1.    [Back]

Note 6   Although the applicant said, at the conclusion of the hearing that he would provide the Court with an unredacted copy of the Report, he has not done so.    [Back]