CJ v The Chief Constable of Wiltshire Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1661 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB2022001024 |
[2022] EWHC 1661 (QB)
Mr Justice Martin Spencer
Case No: QB2022001024
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Bowen QC and William Chapman (instructed by Irwin Mitchell LLP on behalf of HD, PD, CJ and PJ and Farleys solicitors LLP on behalf of OB) for the Claimant
Matthew Holdcraft and Cecily White (instructed by Wiltshire Police Legal Services) for the Defendant
Approved Judgment
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be 1 ST July 2022 at 10.30
Contents
| Introduction | 3 |
| History | 3 |
| The Laptop Examination and DS Ellerby's Investigation | 3 |
| MP's activities and criminal behaviour | 9 |
| The Offences against CJ and PJ | 9 |
| The offences against OB | 10 |
| The offences against HD and PD | 10 |
| The Investigation into, and Disciplinary Proceedings against, DS Ellerby | 13 |
| These Proceedings: Limitation | 15 |
| These Proceedings: Amendment of the Particulars of Claim | 20 |
| The Disclosure and Barring Service (“DBS”) | 23 |
| Findings of Fact | 25 |
| The Claims in Negligence | 26 |
| The Submissions on behalf of the Claimant | 28 |
| The Submissions on behalf of the Defendant | 31 |
| Discussion | 32 |
| The Claim under Article 3 ECHR | 37 |
| The Submissions on behalf of the Claimant | 41 |
| The Submissions on behalf of the Defendant | 46 |
| Discussion | 49 |
| Conclusion and Decision | 51 |
Introduction
In this judgment, some of the protagonists have been anonymised to protect the identities of children who have been the victims of sexual abuse and in respect of whom anonymity orders have been made. Although the protagonists are not themselves entitled to anonymity, to name them would risk the identities of the children becoming ascertainable by virtue of what is sometimes called the “jigsaw” effect.
On 18 March 2016, MP was sentenced to 10 years' imprisonment, having pleaded guilty to an indictment containing 40 counts, comprising 2 counts of rape of children, 13 counts of sexual assault on a child under 13 and 25 counts of making or possessing indecent images of children.
The Claimants in this action are the victims of MP's crimes of rape and sexual assault. They claim either damages for negligence against the Wiltshire Police or “just satisfaction” by way of compensation for breach of their rights under Article 3 and 8 ECHR. These claims raise issues relating to the liability of the police for the criminal actions of a third party.
There were originally three claims for each set of Claimants issued in the Bristol County Court. By Order of District Judge Taylor dated 26 May 2021, they were transferred to the High Court and ordered to be tried together, and they came before me for trial on liability (including causation), with quantification to abide the outcome on liability.
In relation to the negligence claim, it is accepted that the Third, Fourth and Fifth, Claimants cannot succeed on the basis of the law as it presently stands. However, their positions are reserved in case the legal position changes in the future as a result of any future decision of the Court of Appeal or the Supreme Court, whether in one of the cases that are pending before the Court of Appeal involving claims against Local Authorities or as a result of any appeal in the present case. The First and Second Claimants assert, however, that they are able to maintain an action in negligence and all five Claimants pursue their claims under Article 3.
History
The Laptop Examination and DS Ellerby's Investigation
The history of this matter starts with 21 December 2012 when MP's sister, CP, wanted to edit some photographs on a laptop computer which she had been given by her father. At that time, CP was studying to become a teacher, and was living at home with her boyfriend, her mother, her stepfather and her younger brother, MP. In her statement dated 13 December 2018, CP says that she used the search function on the laptop to see if she had a programme called “photoshop” and the results threw up some photographs which she didn't recognise. On closer inspection, it was apparent that these were pictures of naked children. CP informed her mother, DG, who agreed that this was worrying and said that the police should be informed. DG first called a meeting of all the male members of the household, namely her other daughter's boyfriend, MX, her son, MP, and CP's boyfriend who had been staying with them at the time. She demanded to know how the images had got onto the computer and said that if no-one owned up, she would be going to the police. No-one did own up, so she and CP visited the police station that day.
It is relevant to mention that the family already had something of a troubled history in that CP's older sister DJ (the mother and Litigation friend of the Second Claimant, PJ) had herself been the victim of offences of indecent assault and incest at the hands of her father, BP, over a two-year period ending in September 1997 when DJ was aged between 12 and 14. On 16 April 1998, the father was sent to prison for a term of 42 months. He and CP's mother, DG, divorced and DG had remarried, but BP had retained contact with his two younger children and had given CP the laptop in question. Inevitably, perhaps, initial suspicion for the indecent photos had fallen on the father.
A contemporaneous record of what CP and DG said at the police station is contained in a document called a “Storm Log”: this is likely to be more accurate than the recollections of witnesses many years later. It records as follows, referring to CP as “RP”:
“At approx. 1030 this morning whilst editing some pictures for her sister, she [CP] came across approx 10 photos which showed 6 yr old – 7 yr old boys naked in different poses. RP does not know the children, nor are they known to her family. The laptop she was using is a family computer located in the lounge of the home address. RP lives with her mum but states that her Dad is previous rape and incest [sic] towards her older sister. Dad was the one who gave RP the laptop but this was some time ago. … The images are still on the laptop at home. All family members have been asked about the pictures living at the RP's address but no-one can explain them. RP has stated she has recently downloaded Photoshop from the Internet through a free trial. When she went to edit the family pictures this morning, she typed Photoshop in a search on her computer and this is when the images popped up. She states they are actually saved to the laptop and not just pop-ups from the Internet. The boys in the pictures are around 6–7 years old and photos are of different boys. Most are either naked or without trousers and some have been edited using what appears to be effects from Photoshop such as one picture of a field in black and white, then a naked boy in colour in the middle. RP and family are very distressed about the photos. … Other photos look like they may have been taken at a home. … RP has given me a list of family names who have access to the computer and live at the home address: mum, stepfather, sister, sister's boyfriend, RP's boyfriend and MP brother.”
CP and DG were told that an officer would come out later that evening. They were visited by 2 police officers, Det Sgt Tom Ellerby and a female officer. DG's account of the visit in her witness statement of 10 May 2016 is as follows:
“At approximately 8pm that same day 2 officers, a male and female, attended my home address … The male officer sat and looked at the laptop, I could see what he looked at, I saw photos of 2 male children. I then saw the male officer jolt back and when I looked at the screen I could just see a zoomed picture of a bottom and an anus. The officer didn't say anything, just closed the laptop. … The officers asked [CP] if she wanted the laptop back once they had finished with it and CP said ‘no’, told them that they could destroy it.”
An Occurrence Log had been opened when CP and DG visited the police station, and Det Sgt Ellerby made the following entry:
“I attended [address] after [CP] reported that she had located indecent images of young boys on her laptop. CP stated she was given the laptop as a gift from her father, who had given [it] to her after purchasing from a friend. He told her he had cleaned the laptop of everything that was on it when he bought it [for] her. [The father] is a convicted sex offender and being monitored by PPU [Public Protection Unit].
The laptop is a HP PAVILION ZE4800 and looks very old. It is in constant use in a busy household by a normal family. [CP] located the folder when she had tried to reuse an old programme she had downloaded as a free trial not long ago called Photoshop. When she did this, she opened a document titled 24068996WuK.jpg dated 09/12/2012. I checked the properties on the file and it says it was created at 1931 hrs 09/12/2012. There is the property [sic, should be “possibility”) the document could be a malicious virus/download since the family did not have any anti-virus protection.
I seized the laptop as exhibit TE/1 at 2200 hrs 21/12/2012 but the family are happy that it is now destroyed. I intend to submit this for examination because should the creation of that folder/document pre-date the time when [CP] was handed the laptop (about a year ago) then I will have cause to speak with [the father].
As for the pictures themselves I have checked them briefly to...
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