Christopher Bell v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill,Mrs Justice Hill DBE |
| Judgment Date | 21 February 2024 |
| Neutral Citation | [2024] EWHC 379 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-001156 |
Mrs Justice Hill DBE
Case No: QB-2021-001156
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Simblet KC and Stephen Clark (instructed by Bindmans LLP) for the Claimant
Adam Clemens (instructed by Directorate of Legal Services, Metropolitan Police) for the Defendant
Hearing dates: 20–23 November 2023
Further submissions: 1, 8 and 14 December 2023; 13, 14 and 16 February 2024
Approved Judgment
This judgment was handed down remotely at 2:00pm on 21 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By a claim issued on 30 March 2021, the Claimant brings proceedings under the Human Rights Act 1998 (“the HRA”), s.6 for a breach of his rights to respect for family life under Article 8 of the European Convention on Human Rights (“the ECHR”) and in negligence. His claims arise out of the abduction of his 3 year old son, ROC, by his former partner, ALK, on the afternoon of 26 September 2013. ALK took ROC to Brazil and has not returned with him since, such that the Claimant's relationship with his son has been irreparably damaged.
The Claimant contends that not only did the Defendant's officers fail to act, but they assisted and enabled ALK in carrying out the abduction. This was because, having initially secured ROC's passport from ALK, the officers returned it to her without good reason. Further, they did so without putting in place other protective measures such as a “port alert” and without telling him what they had done, so he could try and secure appropriate court orders to prevent the abduction.
The Defendant broadly accepts that the officers acted as alleged, but contends that they were justified in doing so, and that the Claimant's claims fail as a matter of law. The Defendant admits that he is vicariously liable for the acts of his officers under the Police Act 1996, s.88 and that he is a public authority for the purposes of the HRA, s.6. By virtue of a series of agreements between the parties, no limitation issues arise on the HRA claim.
The Defendant chose to call none of the officers to give evidence at the trial. The Claimant contended that there was no credible explanation for this, such that inferences should be drawn against the Defendant in accordance with the principles set out in Wisniewski v Central Manchester Health Authority [1998] EWCA Civ 596; [1998] PIQR 324 (“the Wisnieswki issue”).
A further preliminary issue was whether, as a matter of law, the police officers had any power to retain ROC's passport, once ALK had sought its return (“the passport retention issue”).
The Claimant's HRA claim sought just satisfaction in the form of (i) reimbursement of the legal fees and incidental expenses he has incurred in trying to secure more contact with ROC and his return to England; and (ii) non-pecuniary damages to reflect his extensive distress and anxiety. His negligence claim was advanced on a narrower basis, and only sought item (i) by way of special damages. I therefore considered the HRA claim first.
This judgment is structured as follows:
Section 2 : The evidence in overview: see [10]–[22] below;
Section 3 : The relevant procedures, guidance and court powers: [23]–[46];
Section 4 : The factual background: [47]–[122];
Section 5 : The Wisniewski issue: [123]–[143];
Section 6 : The passport retention issue: [144]–[179];
Section 7 : The HRA claim: [180]–[291];
Section 8 : The negligence claim: [294]–[346]; and
Section 9 : Conclusions: [347]–[354].
The parties agreed a list of issues with respect to the HRA and negligence claims, which are broadly reflected in the sub-headings within sections 7 and 8.
An order has been made granting anonymity to ROC given his age and the sensitive and personal nature of the subject-matter. I have withheld from this judgment details that would unnecessarily increase the risk of ROC otherwise being identified by jigsaw identification. This includes the name of his mother, hence her being referred to as ALK. As this case involves detailed consideration of issues that have been considered in the family law proceedings, I have followed the Practice Guidance issued by the President of the Family Division in December 2018 on the avoidance of the identification of children in judgments. The parties assisted in this task.
The evidence in overview
The Claimant was a clear and compelling witness. He set out the background to the breakdown of his relationship with ALK, his growing concerns that she would try and take ROC to Brazil without his consent and the detail of his actions over the key days in late September 2013. He described the significant psychological impact on him of not having seen ROC in person since 2013, other than one brief visit, and the extensive financial impact of the abduction on him, principally through the costs of lengthy legal proceedings in both England and Brazil.
The Claimant also relied on evidence from Alison Shalaby OBE, Chief Executive Officer of Reunite International Child Abduction Centre. Reunite is the leading UK charity dealing with the movement of children across borders. It has an international reach and is recognised overseas. It is funded by the Ministry of Justice and the Foreign and Commonwealth Office.
Ms Shalaby was an impressive witness. She set out in detail the assistance that Reunite had provided to the Claimant after he called them for help on 26 September 2013. She was highly critical of the officers with whom she dealt on the Claimant's behalf, saying that she was “shocked” at their attitudes. Her unchallenged evidence was that they did not understand the law properly and were dismissive of the advice she tried to give them. Officers from other police forces call the Reunite advice line to seek assistance and work constructively with Reunite. However her experience was that Metropolitan Police Service officers generally do not do so, but consider that “they know best”, “show no curiosity as to the issues” and “do not try to learn or rectify their knowledge”. She said that the Claimant's case remains in her mind “one of the worst experiences” she has had in her 30 years of working in the field of international child abduction.
The Claimant relied on expert evidence from Carolina Marin Pedreño, a solicitor and internationally recognised expert on the workings of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Ms Pedreño reviewed each stage of the relevant chronology. Her expert opinion was to the effect that the officers had failed to take the basic steps required to prevent that from happening. This was principally by failing to put in place a port alert or by supporting him in seeking his own legal redress through the civil courts.
In Part 35 questions to Ms Pedreño the Defendant had suggested that she had exceeded the scope of her instructions; and the role of an expert generally. No specific submissions to this effect were made at the trial by Mr Clemens. However, for the avoidance of doubt, I have made my own assessment of the evidence and none of the conclusions I have reached below are based solely on Ms Pedreño's evidence.
Both parties relied on the key contemporaneous documents, primarily the relevant entries on the Defendant's Computer Aided Dispatch (“CAD”) records, the Crime Report Information System (“CRIS”), the ‘MERLIN’ system and the Claimant's Custody Record. Reference was also made to material from the family proceedings and one contemporaneous email sent after ROC's passport had been returned to ALK.
These documents provided a relatively clear picture of what had happened but gave virtually no detail as to why it had. There were, crucially, no contemporaneous documents explaining why the decision to return ROC's passport was taken and why no other protective measures such as a port alert were put in place.
On 30 June 2014 the Claimant filed a police complaint about what happened. DI Brown investigated the complaint. He took accounts from seven officers who had been involved: PC Abery, PC Burroughs, DC Wiltshire, DS Johnson, DS Hassall, DS Taylor and DS Hicks. The last three of these were specialist Child Abuse Investigation Team (“CAIT”) officers. DI Brown provided his report on the investigation to the Claimant on 17 January 2017.
On 24 September 2018 the Claimant's solicitor sent the Defendant a letter of claim which specifically sought disclosure of the accounts the officers had given to the complaint investigation, among other things. Despite receipt of this letter, on or shortly after 6 January 2019 the Defendant deleted the officers' accounts that were held on DI Brown's email account. This deletion of documents was said to be justified because DI Brown was retiring, and it was usual practice to delete officers' email accounts at that point. The Defendant did not preserve the accounts in the complaint file on the borough server either (if they had ever been saved there, which was unclear). No attempt was made to explain to the court this apparent breach of the duty to preserve disclosable documents once litigation is contemplated: see, for example, Practice Direction 31B, paragraph 7, which requires preservation of electronic documents which would “otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business”.
DC Wiltshire had retired on 2 April 2018 and DS Johnson on 29 May 2018. Their email accounts, and any documentation relevant to this case contained therein, were also deleted on their retirement. In fairness, this was before the letter...
To continue reading
Request your trial
-
Christopher Bell v Commissioner of Police of the Metropolis
...and enabled ALK in carrying out the abduction 2 By a judgment handed down on 21 February 2024 with neutral citation reference [2024] EWHC 379 (KB) (“ Bell (No. 1)”), I upheld both the Claimant's claims and ordered that the Defendant pay him £137,999.49 in damages. This sum comprised (a) £2......