Allen and Others v The Chief Constable of the Hampshire Constabulary

INTRODUCTION

The Appellants appeal from the order dated 24 ^th August, 2012 and judgment of HHJ Mitchell sitting at the Central London County Court dated 2 ^nd August, 2012 ("the judgment"), upholding the order and judgment dated 27 ^th January, 2012 of DJ Taylor, sitting at the same Court ("the DJ judgment"), striking out their claim against the Respondent.

There are two principal grounds of appeal, most conveniently addressed in the following order:

i) The Judge erred in law in striking out the Appellants' claim based upon vicarious liability ("Issue (I): Vicarious Liability").

ii) The Judge erred in law in striking out the Appellants' claim under s.6 of the Human Rights Act 1998 ("the HRA 1998"), read with Arts. 3 and/or 8 of the European Convention on Human Rights ("the ECHR") ("Issue (II): the ECHR claim");

In respect of each ground, the Appellants complain that the claim in question was fact sensitive and should have gone to trial; all the more so, it is submitted, in the absence of pre-action disclosure from the Respondent.

The First Appellant is the mother of the Second and Third Appellants, who were, at the material times, aged between 10–15 and 7–12 years respectively. The Second and Third Appellants are the First Appellant's children from a relationship previous to that with which this case is concerned. In the course of the hearing, we were told that there was a Consent Order relating to the Second Appellant's discontinuance. Although the Third Appellant remained a party to the appeal, the real focus throughout concerned the First Appellant ("the Appellant").

In very broad outline, in December 2003 the Appellant began a relationship with PC Luchesa, an officer of the Respondent. The Appellant and PC Luchesa married in June 2005 and separated in February 2006. As alleged in the Particulars of Claim, following the commencement of the Appellant's relationship with PC Luchesa, another serving police officer, (Woman) PC Ridgeway then began a campaign of harassment against the Appellants, including letters, telephone calls, interference with the Appellant's car, an assault on the Appellant and criminal damage. As further alleged in the Particulars of Claim, PC Ridgeway told the Appellant that she (i.e., PC Ridgeway) had been having a relationship with PC Luchesa for around five years. The Appellant's case is that the torts alleged in the Particulars of Claim were "carried out by officers under the …[Respondent's] …control, in the purported performance of their police functions". Accordingly, the Respondent is alleged to be vicariously liable for their acts and omissions by virtue of s.88 of the Police Act 1996 ("the Police Act 1996"). So far as concerns the ECHR claim, the Appellant's pleaded case is that the Respondent failed to comply with his investigative and protective obligations in respect of the Appellants' rights to freedom from inhuman and degrading treatment (Art. 3) and their rights to privacy and the like (Art. 8). However, the allegations as to the protective obligation effectively dropped out of the picture in the course of the hearing before us; they were either abandoned or were (rightly) accepted, on the facts of this case, to be wholly contingent on the investigative obligation. Very little more needs therefore to be said of the protective obligation.

The Particulars of Claim are, with respect, somewhat lengthy and discursive but, without in any way belittling them, the pleaded complaints can be distilled into the following categories:

i) Anonymous letters: These included observations such as "He is in love with me, not you". They subsequently became increasingly derogatory and abusive. The letters were typed and hand delivered to the Appellant's home. They contained a number of spelling errors (of which more below). These allegations span a period of time from 2004 to 2007.

ii) Telephone calls and face to face conversations: The calls included silence and giggling as well as calls made by PC Ridgeway; a police radio could on occasions (as I understood it) be heard in the background; at least one of the calls appeared to come from a police station. The conversations included PC Ridgeway suggesting to the Appellant that she should move out of the area. In a subsequent telephone call, PC Ridgeway asked the Appellant whether the house had yet been put on the market. These allegations largely concern 2004 to 2005.

iii) Arson and criminal damage: On the 27 ^th July, 2006, the Appellant received an anonymous letter saying ( inter alia) that she should not be surprised if she woke up one day to the "smell of burning flesh". On the 9 ^th October, 2006, there was an arson attack on the Appellant's home; the Appellant's front doormat had been set alight with accelerant. Subsequently, on the 15 ^th— 16 ^th December, 2006, an attempt was made to set fire to the Appellant's car; accelerant had been used. On the 8 ^th June, 2007, the Appellant's car was severely damaged; every panel had been scratched with something sharp.

iv) Burglary: On an occasion in the late summer or early autumn 2006, someone entered the Appellant's home without her permission. Items were out of place and her marriage certificate and a pink Versace watch were missing. The marriage certificate was subsequently anonymously posted, torn up, to a senior police officer.

v) Assault: This allegation concerned an anonymous letter in the post, received by the Appellant at her home on around the 14 ^th July, 2007. The letter contained a scalpel, which cut the Appellant's thumb deeply when she subsequently opened it on the 28 ^th July, 2007.

For completeness, it may be noted that the Appellant also complains of being subjected to "distressing, inappropriate and intimidating behaviour" by other officers of the Hampshire Constabulary, the suggestion being that they had joined with PC Ridgeway in the (alleged) campaign of harassment. Further, the Particulars of Claim alleged that there had been a "culture" at Yateley police station and "potentially more widely" in the Hampshire Constabulary, permitting extra-marital affairs to take place between police officers and failing to take appropriate disciplinary action against officers notwithstanding alleged or proven inappropriate behaviour or even criminal wrongdoing. As it was put in argument before us, such inaction had fostered a "culture of impunity".

The Appellant first complained to the Hampshire police on the 9 ^th October, 2006, following the first incident of arson.

On the 13 ^th December, 2006, PC Ridgeway was arrested (according to the Particulars of Claim) in connection with the letters and arson attacks. The Particulars of Claim continue as follows:

"She was interviewed and denied sending the letters. In interview she was asked to type words that were mis-spelled in the letters received by the First Claimant. She mis-spelled two words in the same way that they were mis-spelled in the letters: namely, ' cought' and 'mistermeaner'. Her fingerprints were found on the first two letters sent to the First Claimant."

The Particulars of Claim acknowledge that PC Ridgeway did offer an innocent explanation for the presence of her fingerprints.

The criminal investigation was referred to the Crown Prosecution Service ("CPS"). In the event, however, in March 2007, the CPS decided not to prosecute PC Ridgeway.

Separately, a disciplinary investigation had been referred to the Hampshire Constabulary's Professional Standards Department ("PSD"). On the 28 ^th March, 2007, the PSD decided not to proceed on the basis that there was no evidence to support any misconduct investigation. As subsequently explained to the Appellant (in a letter dated 17 ^th April, 2007), the test for proving misconduct was a balance of probabilities; the PSD was satisfied that "any tribunal would find that the conduct of the officer did not fall below the required standard and therefore that a misconduct tribunal or other disciplinary sanction would not be justified". The PSD stated in terms its satisfaction that a "proportionate and thorough investigation" had been conducted by the investigating officer.

Pausing here, in connection with the first instance of (alleged) arson, it may be noted that it was beyond dispute or sensible dispute that PC Ridgeway was in Reading on police business at the time of the fire.

In the course of 2008, the Appellant was informed that further disciplinary proceedings involving PC Ridgeway were underway. However, on the 9 ^th October, 2008, these proceedings were formally discontinued.

ISSUE (I): VICARIOUS LIABILITY

(A) The legal framework: I turn without further ado to the first principal issue, vicarious liability. The Respondent's potential liability is dealt with specifically by s.88 of the Police Act 1996, which provides as follows:

"(1) The chief officer of police for a police area shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their...