R (Aso Mohammed) v Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 28 May 2010 |
| Neutral Citation | [2010] EWHC 1228 (Admin) |
| Docket Number | Case No: CO/3556/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 May 2010 |
[2010] EWHC 1228 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT BIRMINGHAM
Before: Mr Justice Wyn Williams
Case No: CO/3556/2010
Mr James Dixon (instructed by Tyndallwoods) for the Claimant
Mr James Quirke (instructed by The Force Solicitor) for the Defendant
Hearing date: 19 May 2010
Mr Justice Wyn Williams:
The Claimant is a young man aged 24. On 27 September 2009 he visited Longford Park in Coventry together with his girl friend (hereinafter referred to as E) a male friend and E's son M. M was then 5 years old. During the course of the visit M removed his clothing. The Claimant was observed by a member of the public taking photographs of M while he was naked. The member of the public was concerned about this activity and accordingly summoned the police.
Later that same day the Claimant, his friend and E were arrested upon suspicion of having been involved in the offence of making indecent photographs of a child. Each was taken to a police station.
After some hours at the police station the Claimant was interviewed under caution. He was accompanied by an accredited police station representative employed by a firm of solicitors known as Penmans. An interpreter was present because the Claimant's English is comparatively poor.
Some hours after the interview under caution had been completed the Claimant was released on bail subject to three conditions. He was required to report daily to a named police station; he was required to reside at a particular address and he was prohibited from having any unsupervised contact with any child under the age of sixteen years of age. E and the Claimant's friend were also released. However, by the time of the release of the Claimant and E, M had been taken into the care of the local authority.
Between the date of his release and 15 December 2009 the Claimant remained on bail. He was first bailed to return to the police station on 3 November 2009; on that date he was bailed again to return to the police station on 15 December 2009.
During this comparatively lengthy period the Claimant and E enjoyed regular contact to M. As I understand it these contact sessions were facilitated and supervised by the local authority into whose care M had been entrusted.
As I have said, the Claimant was assisted during his interview under caution by an accredited police station representative employed by Penmans. The Claimant must have continued to instruct that firm because on 14 December 2009 a legal secretary employed by the firm Mrs. Sarah Pritchard, telephoned the police to ascertain what action, if any. was likely to be taken against the Claimant when he answered to his bail on 15 December 2009. It is common ground that Mrs. Pritchard spoke to DC Stokes who informed her that the Claimant would be offered a caution when he attended at the police station on the following day. The officer also informed her that a consequence accepting a caution would be that the Claimant would be required to register as a sex offender.
The evidence served on behalf of the Claimant asserts that Mrs Pritchard asked DC Stokes if an interpreter would be present and that DC Stokes inquired what language the Claimant spoke and was told it was Kurdish. I have no reason to doubt that this exchange took place.
Almost immediately after her conversation with DC Stokes, Mrs Pritchard telephoned the Claimant on his mobile phone. He did not answer; she left a message on his mobile telephone which repeated the substance of her conversation with DC Stokes and informed the Claimant that she had mentioned to the police that he would likely need an interpreter.
On 15 December 2009 the Claimant answered to his bail. A caution was administered to him. No interpreter was present; the Claimant was not accompanied by a legal representative.
In his claim form in these proceedings (lodged on 15 March 2010) the Claimant seeks the following substantive relief:—
(1) An order quashing the caution together with all records/information relating to that caution and all orders/conditions which had been imposed following the caution.
(2) A declaration that his Article 6 and/or Article 8 rights were breached, and
(3) Damages pursuant to section 8 of the Human Rights Act 1998.
In his grounds the Claimant advances a number of bases upon which he claims to be entitled to the relief sought.
In due course the Defendant served summary grounds of opposition. His stance was that permission to apply for judicial review should be refused or, if granted, that the claim should be dismissed.
I considered the application for permission on the papers. I directed that there should be a “rolled up” hearing. I made my order on 19 April 2010.
On 5 May 2010 the Claimant purported to amend the grounds for judicial review. I say purported because he did not seek permission for the amendment. He added this paragraph to the grounds upon which he relies:—
“Fourthly, the Caution administered to the Claimant is fundamentally flawed as there was insufficient evidence to afford a realistic prospect of conviction. As regards simple cautions, paragraphs 9 and 10 of Home Office Circular 016/2008 make clear that there must be sufficient evidence to found a realistic prospect of conviction before a caution can be administered “
In the light of this proposed amendment the Defendant took the decision to concede that the Claimant was entitled to an order quashing the caution. As I understand it, that decision was communicated to the Claimant's solicitors on 13 May 2010. On that date the Defendant offered to consent to an order quashing the caution and directing that any claim for damages be remitted to the County Court. The Defendant proposed that there should be no order for costs between the parties.
The Claimant's advisers declined to accept this proposal. Their stance was that the Claimant was entitled to costs and that this court should determine the issue of damages.
When I first read these papers I was minded to direct that the issue of damages be remitted to the District Judge. That would have accorded with the practice normally adopted when an issue arises as to whether or not damages should be awarded under the Human Rights Act 1998 following the quashing of some unlawful decision by the Administrative Court- see Anufrijeva v Southwark LBC [2004] QB 1124 at page 1162D. Further, I was concerned that the information relevant to the issue of damages under the Act might be incomplete and that, accordingly, an injustice might occur if I determined the issue of damages. At an early stage of the hearing I expressed these views to the parties.
Notwithstanding my indications, Mr Dixon, for the Claimant, urged me to determine the issue of damages. He submitted that damages under the Act would be modest and, in those circumstances, the costs associated with a further hearing would be disproportionate. Mr Dixon also made various submissions to me about the difficulty which the Claimant might face in relation to public funding in the future given that the caution was being quashed.
Mr Quirke maintained the stance which he had adopted in his skeleton argument that the appropriate course was for me to consider whether or not it was appropriate to dismiss the damages claim but, if not, remit the same to be heard in the County Court.
I decided that I should hear and determine the claim for damages. The case had been listed before me for a day and court time was available for me to determine all the issues between the parties. I concluded that there would be a disproportionate escalation of costs if I were to remit the case for a hearing in another court. Another factor which influenced my decision to hear and determine the claim for damages was that the Claimant agreed to limit his claim for damages to £500. I should explain how this came about. During the course of Mr Dixon's submissions he emphasised that any award under the 1998 Act would be modest. I pointed out to him that while, in absolute terms, the award to his client, if made, would properly be categorised as modest there was still a substantial range open to the court. If, however, he was prepared to limit the claim to a figure which was, on any view, modest, my doubts about proceeding on the basis of information which might be incomplete would be assuaged.
After taking the Claimant's instruction, Mr Dixon limited the claim for damages for £500.
With this rather lengthy introduction I turn to the issues which fall for my determination.
Damages under the Human Rights Act 1998
Section 8 of the Human Rights Act 1998 is in the following terms:—
“8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful it may grant such relief or remedy, make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including –
a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to...
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