Iain Torrance v Rebecca Bradberry
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 01 December 2020 |
| Neutral Citation | [2020] EWHC 3260 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-002067 |
| Date | 01 December 2020 |
[2020] EWHC 3260 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: QB-2019-002067
Nigel Edwards QC and Ayesha Smart (instructed by KB Legal) for the Claimant
Jeremy Carter-Manning QC and Ben Smiley (instructed by Mills & Reeve LLP) for the Defendant
Hearing dates: 4 th – 6 th, 9 th – 12 th, and 16 th – 17 th November 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. INTRODUCTION
At the heart of these proceedings for professional negligence lie criminal trials for sexual offences. The Sexual Offences (Amendment) Act 1992 applies and nothing may be published which might lead to the identification of the complainant in those proceedings. It follows that I will be using ciphers throughout this judgment where appropriate.
Miss Rebecca Bradberry (“the Defendant”), instructed by Gareth Webb & Co LLP (“the solicitors”), acted for Mr Iain Torrance (“the Claimant”) at his trial for rape at the Crown Court sitting at Dorchester in 2013. In fact, there were two trials because the first trial was adjourned on 30 th January 2013 owing to perceived difficulties with one strand of the bad character evidence relating to the Claimant's co-accused, ML, who was facing different charges of a sexual nature involving the same complainant, AB. Following a second trial which started on 9 th July 2013 the Claimant was found guilty by the jury on 22 nd July 2013 and sentenced to six years' imprisonment.
The Defendant gave negative advice as to the merits of an appeal against conviction. Eventually, different counsel was instructed by a different firm of solicitors, and she gave positive advice. On 27 th February 2015 the Court of Appeal, Criminal Division (“the CACD”) (Laws LJ, Jay and Edis JJ) allowed the appeals of both ML and the Claimant on the basis that this strand of bad character evidence should not have been admitted. Lest there be any surprise, I should state that my previous involvement in this case was not regarded by the parties as grounds for recusal, and nothing has occurred during this trial to cause me to doubt the wisdom of their assessment. At the retrial, which commenced on 30 th November and concluded on 11 th December 2015, the Claimant, as well as ML, was acquitted.
The Claimant now brings this action against the Defendant raising various complaints of breach of duty but alleging in essence that her handling of her client's case was woefully inadequate. It is contended that with competent representation the Claimant would either have been acquitted or have stood a better chance of acquittal.
The Claimant also sued the solicitors, but this claim was compromised in March 2020 on confidential terms which are the subject of a Tomlin Order.
The trial was conducted with the agreement of the parties across the medium of Microsoft Teams in circumstances which were sub-optimal. This has meant that the hearing took longer than perhaps it should have done, but from the outset I took the view that I would and should do nothing to speed things up. The sensitivities of this case were and are evident: a man eventually acquitted who passionately believes that he was let down by his lawyers; a barrister whose professional reputation is on the line. Although the parties may consider that they have been deprived the benefit of a trial within a proper court room, I hope that they feel that I have done my best to ensure that the process has operated as smoothly as possible.
B. THE PARTIES
The Claimant was born in Falkirk, Scotland in 1971. His father was Scottish and his mother, Mrs Mary Rutherford, who gave evidence in a measured and dignified manner, is of part Jamaican descent. I mention this only because it is relevant to the Claimant's defence at his second trial. The Claimant is a man effectively of good character with the one minor blot on his escutcheon being a caution for affray in October 2007. The Claimant married Ms Deborah Moody in August 2000 and had two children with her before separating in January 2006. In the summer of 2006 the Claimant began a relationship with Ms Sarah Welsh and she remains his partner. It is largely through her loyalty and unswerving endeavour that the Claimant was able to get his case before the CACD so that his conviction might be quashed.
The Defendant is a barrister currently practising at Western Barristers Chambers in Taunton, Somerset. She was called to the bar in October 1996 and has specialised in criminal law since 1998 or thereabouts until fairly recently. At the relevant time, the Defendant was practising at Octagon Chambers and was its head for a number of years after 2009. In June 2019 the Defendant was appointed a Recorder on the Western Circuit specialising in family law. This claim apart, she has not had a complaint made against her.
C. THE CRIMINAL PROCEEDINGS
What follows is a largely neutral summary of the criminal proceedings beginning with a summary of AB's allegations. This summary is derived primarily from the contemporaneous documents. Where there are disputes between the parties about relevant matters, I will to the extent necessary seek to identify what the conflicting evidence is rather than reach conclusions upon it. I will undertake that latter exercise at the relevant time. Given the quantity of evidence in this case, I have been selective, directing my focus to what I believe really matters. However, in my assessment of this case as a whole I have taken into account all the evidence and the parties' helpful submissions upon it, appreciative of the observation of Mr Nigel Edwards QC for the Claimant that criminal trials often turn on fine margins.
AB's Allegations
AB is the step-sister of ML. She was born on 21 st October 1986 and ML was born in 1973. The family relationships and dynamics in the criminal trial were not altogether straightforward but it would not be helpful to go into these, save to say that AB's mother DD was married to Mick L who was ML's father.
In early November 2011, a number of years after the events of which she complained, AB made numerous allegations of sexual offences against ML, one of these being the offence of rape. She also made an allegation of rape against someone described as ML's friend, Iain, whom she had apparently recognised on Facebook from photographs taken at a birthday party. The circumstances in which the Claimant was identified or recognised, and the manner in which other members of the family got to know about AB's various allegations, was the focus of much evidence in the criminal trial, but it is unnecessary to cover this.
Before AB was formally interviewed by the police, on 8 th November 2011 she told PC Arak-Newman that her rape by Iain occurred when she was 15 and had been left at home alone. AB added that “this was during a period when her stepfather and mother had split up for a short period”.
AB gave an ABE interview on 10 th November 2011. After telling the police officers what she claimed had happened with ML, AB said that there was an occasion when he brought a friend of his to her house, namely 7 Bath Orchard (which is in Bridport), and that she was 15 at the time. AB added that ML's girlfriend Lisa was then living at the house. This was a relationship that his wife, KL, knew about. AB could not be sure when this occurred, but she was clear that it happened after her dad died. The evidence at trial would be that Mick L died in August 2002. AB then said that the event she was about to describe may have taken place when she was 16. She could not be sure that it took place in 2002 rather than in 2003.
AB told the police officers that Iain, ML's friend, was about his age. He was white, of medium to large build, not fat, had really brown or black curly hair and spoke with an accent she could not identify beyond the fact that it was English. Finally, she said that the man whom she encountered was “like five 10/11, maybe even a bit taller” although she could not be 100% sure. In a somewhat garbled sequence of questions and answers in the ABE, AB said that ML, Iain, Lisa and herself were in the house, which other evidence in the case indicates was a relatively small “two up two down”. AB said that “we was downstairs” and that Lisa was upstairs. AB said that she then went upstairs. AB did not state in her interview, at least expressly, that she saw Iain with ML when “we was downstairs”, but that would certainly be one interpretation of her evidence. The ambiguity was not resolved, not least because the police officer asked a leading question at an inopportune moment.
AB's recorded interview continued:
“Um, I was in my bedroom and Michael opened my door and he said to Iain, who's stood right behind him, ‘You could, you could do whatever you want to her,’ and shut the door behind, behind it.”
The police officer asked whether AB had ever seen Iain before and the answer was no. AB added:
“I knew of his name … only because, like, I'd heard Karen and Michael speak about him … I hadn't seen him before.”
AB told the police officers that she could not believe what ML had said, and that Iain was drunk. She continued:
“Iain did, he pushed me onto the bed and he took my clothes off and I remember him being the strongest person. I said, ‘I don't want, I don't wanna do this’. He just, he just told me to shut up ( cri...
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Professional negligence + sexual assault conviction.
...between the law in England and Australia on advocates immunity, the decision in Torrance v Bradberry [2020] EWHC 3260 (QB), available on BAILII, is of interest. The claimant had been charged with sexual offences. The defendant barrister represented him. He was convicted. The barrister then ......