AB v Chief Constable of British Transport Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 07 November 2022 |
| Neutral Citation | [2022] EWHC 2749 (KB) |
| Docket Number | Case No: QA-2022-000003 |
| Court | King's Bench Division |
[2022] EWHC 2749 (KB)
Mr Justice Johnson
Case No: QA-2022-000003
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
ON APPEAL FROM THE COUNTY COURT (MANCHESTER)
HIS HONOUR JUDGE SEPHTON KC
Royal Courts of Justice
Strand, London, WC2A 2LL
Anne Studd KC (instructed by British Transport Police) for the Appellant
Louis Browne KC and Mark Ainsworth (instructed by MSB Solicitors) for the Respondent
Hearing date: 7 October 2022
Approved Judgment
This judgment was handed down by release to The National Archives on 7 November 2022 at 10.30am
The respondent, AB, is 31. He has Autistic Spectrum Disorder (“ASD”) of the Asperger's type. He suffers from high levels of anxiety as well as communication and processing difficulties. As a coping mechanism, he stims, rubbing fabric between his fingers.
In 2011 a woman complained to police that AB, who had been sitting next to her on a train, touched her inappropriately. In 2014, another woman made a similar complaint. On each occasion the matter was investigated by the appellant's officers. AB was not charged with any offence. The police retain information about the complaints. AB claims that the retention of the information is unlawful because:
(1) It is inaccurate, and retention is therefore in breach of data protection legislation.
(2) It is a disproportionate (and therefore unlawful) interference with his right to respect for private life under article 8 of the European Convention on Human Rights (“ECHR”).
In a careful and detailed reserved judgment following a 5-day trial, and supplementary written submissions, His Honour Judge Sephton KC (“the judge”) found as a fact that the details of the incidents recorded in police pocketbooks accurately reflected what the police had been told. But he found that they were not an accurate account of what had, in fact, happened. He found that the police crime reports in relation to the incidents were therefore inaccurate. He also found that AB had not posed any real risk to the complainants, and that his disability diminishes the risk that he poses generally. Having regard to the policing benefit in retaining the records, and the impact on AB of doing so, he concluded that the retention of the records amounts to a breach of article 8 ECHR. He made an order that the police delete the records. He awarded damages of £15,000 in respect of loss of earnings, a further award of £15,000 for distress, and a further £6,000 for aggravated damages.
The appellant appeals against that order. She says that the judge's whole approach to the case was wrong. In particular, she says the judge was wrong to make findings of fact about the underlying incidents, wrong to conclude that the records were inaccurate, and wrong in his approach to proportionality. She says that the judge erred in his assessment of damages. If, contrary to the appellant's case, the judge was entitled to make factual findings about the incidents then she does not challenge the findings that the judge made.
One of the issues raised by the appeal concerns the approach that a judge should take when deciding if police crime reports are accurate within the meaning of data protection legislation. Must the reports accurately describe what in fact occurred in the underlying incident; or should they instead accurately reflect the information provided to the police about the incident? Beyond that, the issues are whether the judge was wrong:
(1) to find that the police records are inaccurate,
(2) to find that that the retention of the records is a disproportionate interference with AB's article 8 rights,
(3) to award damages of £15,000 for distress, £15,000 for loss of earnings, and £6,000 for aggravated damages.
Factual background
The factual background is set out in detail in the judge's judgment. Because there is no challenge to the judge's factual findings, it is sufficient to give a shorter summary.
The 2011 incident
On 6 December 2011, a young female trainee solicitor was travelling by train. AB was sitting next to her. He touched her with his hand on her thigh. She informed the train guard, who informed the police. A police officer spoke to the complainant the same day and made a note of what she said in her pocketbook. She recorded that the complainant said that AB “put his hands between her legs and tried to push up her dress.”
An Occurrence Summary Report (“OSR”) was completed on the appellant's computer system. This contains the following summary, including the “modus operandi” or “MO” (I have corrected obvious typing errors in the extracts that follow, and inserted some punctuation):
“BRC Person Reporting: — BRC Offence: sexual assault on female over 13 years. CAFI BRC MO: female adult victim boarded at Bristol. Sat next to male suspect. He had his jacket on his lap which brushed against her left leg. Jacket moves up. His hand goes between her legs under her dress. She asks him to move. She then got up and found guard to inform him. She then sat in foyer area while guard reported it. Police waiting for train in Newport. Victim was then able to identify male suspect to officer.”
The complainant made a witness statement on 7 December 2011. In the statement the complainant did not say that AB had put his hands between her legs or that he had tried to push up her dress.
On 16 December 2011, AB agreed to accept a caution for an offence of sexual assault. Subsequently, when this was challenged, the police accepted that AB was a vulnerable adult and that an appropriate person should have been present. They agreed to expunge the caution. They made an entry on the file that they would take no further action because there was insufficient evidence.
In June 2016, the OSR for the 2011 incident was updated by adding an entry to the “remarks” field of the record. This meant that the entry appeared immediately beneath the OSR MO when viewed on the computer screen. The entry records:
“Following a review of all available evidence it is appropriate to update the MO in this record. The suspect sat next to the victim aboard a train. After a short while the victim noticed her dress hem moving up her thigh. The suspect had his left arm across his abdomen which disappeared inside the right hand side of his jacket. His jacket obscured where his hand actually was. Victim felt the top portion of his fingers against her thigh and could feel his fingers rubbing in a fashion to pull up her dress. Victim believed this was a deliberate act because he was touching her upper thigh and pulling up her dress. She believed it was sexual.”
A further addition to the record was made on 29 March 2018. This states:
“The accuracy of the above entry has been disputed by [AB], who specifically denies that he placed his hand between the victim's legs or that the touching was sexual. [AB] contends that he was “stimming”, that is fiddling with the material of the victim's clothing in order to deal with anxiety.
The above entry was made based on an initial account taken by PC Rouse from the victim (noted in her pocket notebook), but was not a verbatim account of the victim's allegations. Due to the passage of time since the incident, PC Rouse has no specific, independent recollection of the victim's first account.
It should be noted that the victim provided a statement on 7 December 2011. She did not mention that [AB] had his hand between her legs or under her dress. She did state that her dress hem was moving up and [AB] touched her thigh and that she believed the assault to have been sexual.
A train driver to whom the victim first reported the incident stated that the victim complained of being touched on her side underneath her coat but that the touching was not intimate. The incident did not result in a prosecution.”
The 2014 incident
On 9 April 2014, a young woman was travelling by train. AB sat next to her. He touched her leg. She reported the matter to the appellant's officer. The officer recorded the complainant's account in her pocketbook. In that account, the complainant said that AB “had placed his hand [over my clothes] on my vagina area hidden under his jacket.” The complainant signed the officer's pocketbook note of her account.
An OSR entry was created. This states:
“BRC Person Reporting: 4292 BRC Offence: sexual assault on a female aged 13 or over no penetration BRC MO: Offender sat on seat next to victim and during train journey put his hand on her knee and started to stroke her knee. Victim looked at him making him remove his hand. Minute later the offender touched the victim's vagina over her trousers shielding his hand from view using his coat on his lap.”
The complainant was subsequently interviewed in accordance with the “achieving best evidence” procedures. She said that AB touched her “just on my leg… across my leg but just on my leg. It didn't go between my legs.” She was asked, “did he actually touch the fly area of your jeans?” She replied, “I don't remember to be honest…”
AB was arrested. He was interviewed on 15 April and 8 May 2014. He said that he had ASD and provided medical evidence. He did not answer the questions that were put to him in interview. On 12 August 2014, the Crown Prosecution Service decided not to prosecute, having received counsel's advice that although there was sufficient material to prosecute, it was unlikely that a jury would convict in the light of evidence about AB's autism.
In June 2016, an entry was added to the OSR remarks field:
“Victim sat on train. Male suspect sat down next to her in aisle with rucksack on his lap. Victim saw suspect has his right hand on knee. He moved his hand onto her knee. She felt touching on her knee — a tickling sensation. Victim looked at suspect who...
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