COL v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove,Lord Justice Fulford VP |
| Judgment Date | 17 March 2022 |
| Neutral Citation | [2022] EWHC 601 (Admin) |
| Docket Number | Case No: CO/2953/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 601 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Fulford
Mr Justice Dove
Case No: CO/2953/2021
Benjamin Douglas-Jones QC and Chris Buttler QC and Katy Sheridan (instructed by Deighton Pierce Glynn) for the Claimant
John McGuinness QC and Andrew Johnson (instructed by CPS Appeals and Reviews Unit) for the Defendant
Hearing dates: 23 RD February 2022
Approved Judgment
Introduction
This claim is an application for judicial review of the decision made on behalf of the defendant not to prosecute two individuals in respect of allegations made by the claimant to the police in January 2014. The decision under consideration was made on 28 th May 2021. All references to the defendant hereafter should be treated as references to those representatives of the Crown Prosecution Service (“the CPS”) who have authority to reach delegated decisions in cases such as these.
Subject to any further order, the court directs that nothing shall be published in respect of this claim that might identify the claimant either directly or indirectly.
The claimant's case
The claimant is a national of the Philippines. In March 2012 she obtained employment via an employment agency with a Mr and Mrs Aljaberi in Abu Dhabi to undertake domestic and childcare work in their household, working from 7am until 10pm each day for US$400 per month (although in fact she was paid US$200). The salary of US$400 is recorded in a document from the Department of Labor and Employment in the Philippines. Detailed conditions relating to the claimant's employment by the employment agency, designed amongst other matters to safeguard the claimant from exploitation, were set out in an Employment Agreement which was officially verified.
Later in 2012 Mr Aljaberi obtained a diplomatic posting to the United Arab Emirates Embassy in London. As a result, he needed to move his household to London and wished for the claimant to move with them. The claimant contends that she was promised that if she moved to London with Mr and Mrs Aljaberi and their children, she would be required to work a 40-hour week and be paid £1000 per month. She agreed to these terms which appeared to her beneficial and was persuaded by the offer to relocate with the family to London. A Tier 5 visa was obtained for the claimant as an overseas domestic worker on the basis of a Certificate of Sponsorship (“the Certificate”) which reflected the promise as to terms and conditions which the claimant says were made to her and provided that she was to be paid a salary of £1000 per month. It was pointed out in the claimant's submissions that this figure was just over the operative minimum wage. The claimant's immigration status was, by virtue of the visa, tied to her employment with Mr and Mrs Aljaberi: if she left that employment, she would have no right to remain in the UK.
Mr Aljaberi moved to London and in due course his wife and children followed. On 1 st February 2013 the claimant arrived in the UK.
After her arrival in the UK, the claimant contends that the promise she was made as to working hours and remuneration by Mr Aljaberi and which was set out in the Certificate were not honoured. In addition, she states she was mistreated by Mr and Mrs Aljaberi. She claims that as matters played out in London she was required to work 14–15 hours each day and was only remunerated between £100–£200 per month. Her passport was taken from her. Her movement was sometimes restricted in that she was sometimes locked in the family home when Mr and Mrs Aljaberi were out, and other times she was prevented from leaving the family home without permission. She did not have access to medical care when sick.
Ultimately, she escaped her employers on 1 st May 2013 and was referred through the National Referral Mechanism to the Home Office for consideration of whether or not she was a victim of trafficking. On 20 th September 2013 a reasonable grounds decision was made by the Home Office as the competent authority, and on 19 th November 2014 the Home Office concluded on the balance of probabilities that the claimant had been a victim of trafficking. This decision was based on the conclusion that she had been recruited for the purpose of domestic servitude and deceived as to the salary that she would receive and the hours she would be required to work in the UK.
The history of the decision to prosecute
As set out above, in January 2014, alongside the consideration of her case by the Home Office, the claimant made a report to the police. The police investigated whether Mr and Mrs Aljaberi may have committed any offence in relation to their treatment of the claimant. The claimant was interviewed as part of that investigation.
Initially the police decided that they could take no further action in relation to the investigation because they considered Mr and Mrs Aljaberi had diplomatic immunity. That decision was in fact in error, and subsequent to the threat of judicial review proceedings on behalf of the claimant the police agreed to reopen the investigation. The claimant was interviewed again in early 2015, and on 8 th July 2015 the police decided to discontinue the investigation on the basis that the evidence was of insufficient weight to justify continuing with it. That decision was challenged by judicial review proceedings which were compromised by the police agreeing to reconsider the matter.
During the course of the police investigation, on 19 th September 2016, the Military Attaché's office in the UAE Embassy wrote to the Foreign and Commonwealth Office in response to being notified by the Foreign and Commonwealth Office of the investigation that the police were conducting. The letter contained a categorical denial of the allegations made by the claimant and contended that the claimant “was paid as agreed and she never raised any issue in relation to payment”. It was said that the claimant had nothing to complain about and never complained: it was therefore a surprise to Mr and Mrs Aljaberi when she left their home and disappeared.
On 27 th March 2017 the matter was referred by the police to the CPS, but on 21 st February 2018 they decided not to charge Mr and Mrs Aljaberi because they considered that diplomatic immunity applied and had not been waived. That decision was upheld on review on 4 th December 2018. The claimant requested a second, independent, review of that decision. A review was undertaken, and a further decision sent to the claimant on 20 th June 2019. It was now accepted that Mr and Mrs Aljaberi did not have the benefit of diplomatic immunity. However, the decision was made not to prosecute them on the basis that the evidence was insufficient. Following receipt of a letter before action in relation to the decision of the 20 th June 2019 the CPS made a further decision dated 13 th August 2019, again concluding that it was not appropriate to instigate a prosecution in this case.
That decision was the subject of a challenge by way of judicial review which succeeded before a Divisional Court of Hickinbottom LJ and Sweeney J: R (on the application of L) v DPP [2020] EWHC 1815 (Admin). At paragraphs 33–37 of the judgment of Hickinbottom LJ (with which Sweeney J agreed) he concluded that the decision of the 13 th August 2019 was “fundamentally flawed” as the decision maker had failed to consider the possibility that an offence may have been committed by Mr and Mrs Aljaberi under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, and in particular an offence under section 4(1) arising as a consequence of the relevant definition of exploitation under section 4(4)(c)(i). The full details of the judgment and this legislation are set out below.
Following the quashing of the defendant's decision by the Divisional Court in L, on 9 th July 2020, a further review occurred and, on 14 th August 2020, the defendant notified the claimant that a decision not to prosecute Mr and Mrs Aljaberi had been reached. The claimant made a further application for permission to judicially review this decision. This application was granted. Following the grant of permission to apply for judicial review that decision was withdrawn leading to another review by the defendant and the decision which is presently under challenge which was made on 28 th May 2021.
The decision
In considering whether or not Mr and Mrs Aljaberi should be prosecuted three particular offences were considered by the defendant as possible charges. Firstly, the defendant considered an offence contrary to section 71 of the Coroners and Justice Act 2009; secondly, an offence under section 4 of the 2004 Act was assessed; finally, the defendant examined an offence contrary to section 1 in breach of section 4 of the Fraud Act 2006.
At the outset of the review, having set out the scope of the decision and the criteria to be deployed, the defendant identified that the case relied almost exclusively upon the evidence of the claimant. Whilst making allowance for not expecting the accounts she gave to be entirely consistent about everything at all times, the defendant nonetheless formed the view that having considered all the evidence in the case there were such inconsistencies and contradictions in her accounts that any prosecution based upon it would not be likely to lead to a conviction.
Not all inconsistencies relied upon were listed in the decision but in summary those that were identified, and which are considered below, were as follows:
(a) Dealing with events in the UAE, the decision recorded an inconsistency in relation to the account the claimant gave in a statement of January 2015 as to...
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