R ABC v Chief Constable of Durham Constabulary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 04 October 2021 |
| Neutral Citation | [2021] EWHC 2655 (Admin) |
| Docket Number | Case No: CO/1861/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
As at The Courthouse
1 Oxford Row
Leeds
LS1 3BG
Mr Justice Julian Knowles
Case No: CO/1861/2020
Alison Gurden (instructed by Watson Woodhouse) for the Claimant
Robert Cohen (instructed by Evolve Legal Services) for the Defendant
Hearing date: 20 April 2021
Approved Judgment
Introduction
In this case an anonymity order under CPR r 39.2 is in place protecting the Claimant's identity. She will be referred to as ABC and her husband as XYZ. Her identity is also protected by s 1 of the Sexual Offences (Amendment) Act 1992. No matter relating to ABC shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the person against whom the sexual offences below are alleged to have been committed.
This is an application for judicial review with the permission of Goose J of the decision to administer a simple caution to the Claimant on 18 February 2020 for an offence of assault occasioning actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861 (OAPA 1861). The decisions were taken by officers or other staff for whom the Defendant is responsible.
The Claimant is represented by Ms Gurden and the Defendant by Mr Cohen. I am grateful to both of them for their written and oral submissions.
The Claimant seeks to have the caution quashed and to have it removed from her PNC record, and other relief. Mr Cohen accepted that if I quashed the caution then any other information relating to the Claimant held by the Defendant as a result of the caution (eg biometric data) would also be expunged.
The Claimant applies to rely on further evidence. I grant that application (without opposition from the Defendant).
I deal with one preliminary point. One of the decisions challenged in the Claimant's Statement of Facts and Grounds at [4] and in her Skeleton Argument at [16] onwards was a supposed decision by the Chief Constable to uphold the caution in May 2020 after a letter before action had been written by the Claimant's solicitors. That had been preceded by a letter seeking to have the caution expunged by the Chief Constable as part of an internal procedure. As I will explain later, that process is provided for by the Ministry of Justice's Guidance ‘Simple Cautions for Adult Offenders’ (the Caution Guidance). No response was received to that first letter seeking to have the caution expunged. What happened was that instead of pursuing the internal complaint, the Claimant began these proceedings, and in the course of pre-action correspondence, the Chief Constable's lawyers rejected the Claimant's complaints about the caution. There was not a re-taking of the decision by the Chief Constable or on her behalf.
Mr Cohen was therefore right to submit that the proper focus of this case is thus on the lawfulness of the decision to administer the caution on 18 February 2020, and that the question of some separate decision by the Chief Constable could be put to one side. He did not suggest that there was an alternative remedy to judicial review that the Claimant had not exhausted.
Background
The evidence is contained principally in a witness statement which ABC gave to the police on 2 January 2020; her statement for these proceedings of 10 November 2020; the statement of DC Catherine Eames of the Durham Constabulary (the officer in the case) for these proceedings dated 4 September 2020; the statement of PC Claire Bruce of 4 September 2020 (who attended on ABC with DC Eames); the statement of DI Steve Richards (who took the decision to caution ABC) of 4 September 2020; and the detention log from ABC's attendance at the police station on 31 January 2020 and 18 February 2020.
As I have said, ABC is married to XYZ. He is a serving police officer with a force in the North-East of England. He was previously employed as a Police Community Support Officer with a different force in the same general area.. On 18 February 2020, a caution was administered to ABC for an offence contrary to s 47 of the OAPA 1861 for throwing a glass candle at XYZ during a domestic incident on 1 January 2020 at their home. As I will explain, before a caution can be administered, the person concerned must make a clear admission that they committed the offence in question.
In her police witness statement, which was taken by DC Eames on 2 January 2020, ABC said that by New Year 2019/2020 her marriage to XYZ had run into difficulties and he had temporarily moved out of the family home to live with his mother nearby. On 31 December 2019 she discovered texts on his phone suggesting he was having an affair with a female colleague, W. On 1 January 2020 he came to the family home, where he and ABC ended up having sex. She said this was more forceful than usual. Whilst they were having sex XYZ made a comment which confirmed that he and W were indeed having an affair. ABC became upset and stopped having sex with him. She attempted to lock herself in the bathroom but could not do so because a pair of shoes were in the way. She said that XYZ then assaulted her by hitting her in the face several times with the shoes, injuring her nose, cheek and lip. He then went into the bedroom. ABC said she was angry by this point and tried to cut his face with a razor without success. (In her later police interview she said she had wanted to shave his beard off). He laughed at her, pushed her away and then ran downstairs. As he did so, she said that she picked up a Yankee Candle (a brand of scented candle contained in glass jar) from the window-sill on the landing and threw it at him. It hit him on the back of the head. She said she shocked herself by her actions and asked him if he was alright. He then left the house, and she locked the door and called the police to report the assault on her. She told the police that XYZ had been behaving weirdly, and she thought he had taken drugs.
ABC then called her sister, K, and asked her to come around. After this call ABC said she then tripped and fell down the stairs. When she came to, her sister, the police and paramedics were there. She told the police XYZ had pushed her down the stairs, but in her witness statement she admitted that this had not been true and that she had been too dazed to answer questions. The officers' body worn camera footage shows ABC was indeed in such a state. She was taken to hospital where she required stitches for her injuries and was released the following day.
XYZ was arrested later that day by officers on mobile patrol for drug driving and assault occasioning actual bodily harm to ABC. The arresting officers noticed an injury to his head, which he was touching, and that he had wet and dried blood on his hands. He was taken by the officers to hospital for treatment. He told officers that he thought his wife had spiked the drink she had made for him whilst he had been at the house. He also said that the injuries to her face had been self-inflicted by her with a soap dish.
An officer called Marshall attended on ABC on the evening of 1 January 2020 at a neighbour's house and took down her first account. This records ABC as saying, ‘We'd had consensual sex’ and that (sic):
“He came out bedroom laughing and started walking downstairs. I started screaming @ him. I picked up a candle and threw it @ him. It hit him on the back of his neck. Then he left.”
DC Eames then attended the Claimant's home address with PC Bruce on 2 January 2020. In her statement DC Eames for these proceedings described the Claimant as having been bruised and very upset. DC Eames then took a statement from ABC, as I have said.
In her statement of 10 November 2020, [24], ABC said that although she had told the police at the time the sex had been consensual:
“… which it was at first. I did tell the officers that he had started laughing and that I was scared. I now know that it was wrong for [XYZ] to pin me down and continue with the sex when I was screaming at him to stop.”
She went on to say that although she mentioned to the police that the sex had been rough and that XYZ had scared her, she had been too embarrassed to say anything more at the time. She said the police subsequently referred her to a sexual assault centre.
DC Eames subsequently received a call from XYZ's Police Federation representative stating that he wished to pursue a complaint of assault against ABC, as he had received a two-inch cut to the back of his head from the candle, which had needed treatment.
On 4 January 2020 DC Eames and PC Bruce visited ABC. They informed her that XYZ had made an allegation that she had caused her injuries to herself by hitting herself with a soap dish, had spiked his coffee with cocaine on 1 January 2020 and had hit him with the candle. She denied that she had spiked his coffee with cocaine, or that she had hit herself, but accepted that she had thrown the candle at him.
The Statement of Facts for these proceedings asserts the following at [7] (sic):
“The Applicant was asked by Police Constable Eames whether the sexual intercourse had been consensual, On 2 nd January 2020 the Applicant responded that it had been consensual. A couple of days later, the Applicant spoke to Police Constable Eames again and informed her that the sexual intercourse had not been consensual but that she had been too scared and embarrassed to say so when Police Constable Eames first asked her on 2 January 2020. Her statement from 2 nd January 2020 makes it clear that the Applicant felt that the sex was unusually forceful, and that the Applicant was crying, but [XVZ] was laughing. and pulled her up by...
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