Mlia and Another v The Chief Constable of Hampshire Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 292 (QB) |
| Court | Queen's Bench Division |
| Date | 24 February 2017 |
| Docket Number | Case No: HQ15X00652 |
[2017] EWHC 292 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lavender
Case No: HQ15X00652
Alison Gerry (instructed by Hodge Jones & Allen LLP) for the Claimants
Dijen Basu QC and Mark Thomas (instructed by Weightmans LLP) for the Defendant
Hearing dates: 7, 8, 9, 10 and 13 February 2017
Index
| Para | |
| (1) Introduction | 1 |
| (2) Issues | 5 |
| (3) Witnesses | 8 |
| (3)(a) The First Claimant | 10 |
| (3)(b) The Second Claimant | 15 |
| (3)(c) The Defendant's Witnesses | 17 |
| (4) AB | 22 |
| (5) Applicable Policies | 26 |
| (5)(a) Home Office Circular No. 19/2000 | 28 |
| (5)(b) Home Office Circular No. 28/2001 | 30 |
| (5)(c) Home Office Circular No. 30/2005 | 32 |
| (5)(d) ACPO's Guidance on Investigating Domestic Violence | 34 |
| (5)(e) ACPO's Guidance on Identifying, Assessing and Managing Risk | 36 |
| (5)(f) The Force's Policy concerning Threats to Kill | 37 |
| (5)(g) The Force's Policy concerning Protection from Harassment | 38 |
| (5)(h) The Force's Procedure concerning Protection from Harassment | 39 |
| (5)(i) The Director's Guidance on Charging | 40 |
| (6) Relevant Events in 2005 | 41 |
| (6)(a) First Contacts with the Force | 42 |
| (6)(b) Saturday 30 July 2005 | 44 |
| (6)(c) Sunday 31 July 2005 | 50 |
| (6)(d) The First Claimant's First Witness Statement | 54 |
| (6)(e) The Second Claimant's First Witness Statement | 69 |
| (6)(f) Action taken on 31 July 2005 | 71 |
| (6)(g) 1 to 9 August 2005 | 76 |
| (6)(h) 10 August 2005: PS Franklin | 78 |
| (6)(i) 10 August 2005: AB's Arrest, Interview and Caution | 83 |
| (6)(j) 11 August to 30 September 2005 | 98 |
| (6)(k) October 2005 | 107 |
| (6)(l) 11 November 2005 | 113 |
| (6)(m) AB's Convictions and Imprisonment | 125 |
| (7) The Claimants' Complaints | 130 |
| (8) Relevant Events since 2005 | 133 |
| (9) Limitation | 153 |
| (9)(a) The Burden of Proof | 157 |
| (9)(b) The 12-month Limitation Period | 158 |
| (9)(c) The Length of the Delay | 161 |
| (9)(d) The Claimants | 162 |
| (9)(e) The Claimants' Knowledge | 163 |
| (9)(f) The Reasons for the Delay | 167 |
| (9)(g) The Steps Taken by the Claimants to seek Legal Advice | 173 |
| (9)(h) The Consequences of the Delay | 174 |
| (9)(i) The Force's Conduct | 178 |
| (9)(j) The Merits of the Claimants' Case | 180 |
| (9)(k) The Effect of the Limitation Defence | 181 |
| (9)(l) Limitation: Summary | 182 |
| (10) Articles 3 and 8 | 184 |
| (10)(a) The Nature and Duty Imposed by Articles 3 and 8 | 185 |
| (10)(b) Claims under section 7 of the Human Rights Act 1998 | 186 |
| (10)(c) Is this Case within the Scope of Article 3 and/or Article 8? | 190 |
| (10)(d) Was there a Breach of Article 3? | 95 |
| (10)(e) Alleged Breach of Article 3: Overview | 197 |
| (10)(f) Alleged Breach of Article 3: 31 July 2005 | 198 |
| (10)(g) Alleged Breach of Article 3: 10 August 2005 | 200 |
| (10)(h) Alleged Breach of Article 3: Conclusion | 208 |
| (11) Summary | 209 |
(1) Introduction
The First Claimant had a relationship with a man who has been referred to in this case as AB. He proved to be abusive, aggressive, violent and threatening. The relationship ended in July 2005. He then made many telephone calls to the Claimant and her mother, the Second Claimant. He left voice messages and sent text massages. In some of these calls and messages he made threats of violence, including threats to kill.
Starting in July 2005, the Claimants complained about AB to officers of the Hampshire Constabulary ("the Force"). However, they contend that between 31 July 2005 and at least 12 November 2005 the Force failed to investigate the matter adequately. As a result, the Claimants allege that the Force acted in a way which was incompatible with Articles 3, 8 and/or 14 of the European Convention on Human Rights ("the Convention").
The Defendant acknowledges that she would be liable for any unlawful conduct on the part of the officers involved in this case, on the basis that they acted under her predecessor's direction and control in the performance or purported performance of their functions. The Defendant is a "public authority" for the purposes of section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
On 30 January 2015 Senior Master Fontaine made an order that the identity of the Claimants must not be disclosed. That order remains in force. On 9 February 2016 Master McCloud directed that there should be a trial of liability only. In so doing, she rejected the Defendant's submission that the issue of limitation should be tried as a preliminary issue.
(2) Issues
The first issue for me to decide is the issue of limitation, i.e. whether this action was commenced within "such … period as the court … considers equitable having regard to all the circumstances": see section 7(5)(b) of the Human Rights Act 1998. If not, this action was brought out of time, the Claimants are not entitled to pursue it and the remaining issues do not arise for decision.
If the Claimants are successful on the first issue, then the principal remaining issues between the parties were whether Article 3 and/or 8 was engaged and, if so, whether the Force acted in a manner which was incompatible with the duty imposed thereby on the state, in particular by failing adequately: (a) to investigate the Claimants' allegations; and/or (b) to protect the Claimants.
The Claimants also alleged that they were the victims of discrimination, contrary to Article 14. However, it emerged at trial that there was only one issue in relation to Article 14. Ms. Gerry contended that in a case of domestic violence against a woman, if the state is in breach of the duty to investigate which arises under Article 3 and/or 8, then the state is automatically also in breach of Article 14. The basis for this submission is to be found in paragraphs 187 to 191 of the judgement of the European Court of Human Rights in the Opuz v. Turkey (2010) 50 E.H.R.R. 28. However, given my findings in relation to Articles 3 and 8, it is unnecessary for me to say anything about this contention.
(3) Witnesses
Both of the Claimants and six police officers gave evidence at trial. All of the witnesses gave evidence about events which happened over 11 years ago. This made it difficult for them to recall some events, or the details or sequence of events. A number of witnesses said that they had little independent recollection of events. They relied on contemporary documents, but not all of the documents which were created at the time were available at trial.
The Force's document retention policy provides for the routine destruction of documents after 7 years. The documents which were not available at trial included:
(1) PC Hollingsworth's notebook.
(2) PS Franklin's spreadsheet for recording and monitoring incidents of domestic abuse.
(3) The Force's Prisoner Management System and the custody records concerning AB's arrest and detention on 10 August 2005.
(4) The tape recording of AB's interview on 10 August 2005.
(5) The documents sent to, and generated by, the Crown Prosecution Service following AB's arrest on 16 November 2005.
(6) Documents sent by the Claimant to, for instance, the Prime Minister. The Claimant wrote to the then Prime Minister on 5 August 2007, enclosing a "a more detailed account of the events". This is no longer available.
(7) The application made by the First Claimant in 2008 to the Criminal Injuries Compensation Authority.
(3)(a) The First Claimant
When she first met AB, the First Claimant was a fitness instructor and a businesswoman with a growing business. She described herself as a strong woman. Today, as a result of his prolonged ill-treatment of her, both actual and threatened, the First Claimant and her mother live in fear of him at an undisclosed location.
The First Claimant was clearly doing her best to tell the truth in what were obviously distressing circumstances. For example, at one point in her cross-examination she explained the difficulty which she was having because she was emotionally deeply attached to the events she was being asked about. That was why, as she explained, the documents were confusing her.
The First Claimant acknowledged that there were matters which she could not remember. For example, in her several witness statements to the police, and on at least one subsequent occasion, she said that her relationship with AB began in September 2002. The Second Claimant's witness statement to the police and a letter dated 24 May 2006 from AB tended to support this date. But in her witness statement for this action the First Claimant said that the relationship began in 2003. She acknowledged that she could not explain why she had repeatedly given a different date. She said that the only way she could explain it was by reference to where she was in her life at the time, and the fear and stress that she was under. These are obviously factors which have to be borne in mind when assessing her evidence.
Another example concerned the First Claimant's evidence in her witness statement in this action that AB kept her captive in a flat "for 3 days or more" in the days before 9 July 2005. This evidence was inconsistent with a note in her medical records that she had attended her doctor's surgery on 7 July 2005 and been examined for an unrelated matter. At trial, she said that she did not recall going to see a doctor that day. She said that she didn't recall the length of time she was held captive, and that "It's like a black hole in my mind." Matters such as this reflect the understandable difficulties which a...
To continue reading
Request your trial
-
Jd and Ld v Vb
...be necessary to consider long and hard before extending that duty to Article 8. 66 ) In MLIA v CLEL v Chief Constable of Hampshire [2017] EWHC 292 (QB), it was agreed that the duty under Article 3 arose only in relation to the investigation of a ‘grave and serious crime’ and Lavender J dou......