R (B) v The Chief Constable of Derbyshire Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice Beatson |
| Judgment Date | 16 September 2011 |
| Neutral Citation | [2011] EWHC 2362 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10208/2010 |
| Date | 16 September 2011 |
[2011] EWHC 2362 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SITTING AT NOTTINGHAM)
The Law Courts
60 Canal Street
Nottingham NG1 1BB
Lord Justice Munby
Mr Justice Beatson
Case No: CO/10208/2010
Mr Ramby de Mello (instructed by Turner Coulston) for the Claimant
Ms Anne Studd (instructed by the Force Solicitor) for the Defendant
Hearing dates: 27–28 June 2011
These are judicial review proceedings relating to an Enhanced Criminal Record Certificate (ECRC) issued on 11 May 2010 and incorporating information provided by the Chief Constable of Derbyshire Constabulary pursuant to section 113B of the Police Act 1997. The Certificate related to the claimant, Dr B, a consultant employed by a Mental Health Trust.
The statutory scheme of which section 113B forms part is so familiar that there is no need for me to set it out. It suffices to refer to section 113B(4):
"Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate."
The relevant part of the Certificate was in the following terms:
"Section 113B of the Police Act 1997 requires the Chief Officer of every relevant Police Force to provide any information that might be relevant and ought to be included in the certificate.
In accordance with this legislation the Chief Officer has considered the following information and has decided that it might be relevant for the purpose of this application and ought to be included in the certificate:-
On the 4th February 2010 Derbyshire Police received a report of an incident which was alleged to have occurred at Mr B's … home address. It was alleged that on the 26th December 2009 Mr B had stabbed a male who was known to him in the chest; however, as at the 4th February 2010 the male had no visible injuries to his chest.
It was later alleged on the 10th February 2010 that during the same incident the male's children [aged fourteen and sixteen] had nearly been stabbed by Mr B and that Mr B had damaged his own property with a Samari sword. It was reported that after consuming alcohol, Mr B had been trying to fight the sixteen year old child and had threatened to kill him. The sixteen year old child had then locked himself in the upstairs bathroom at which point Mr B had put a Samari knife through the bathroom door, close to the child's head. Mr B was subsequently arrested.
Following the arrest of Mr B, three premises were searched including Mr B's address and that of his parents. A number of firearms, ammunition and two Samurai swords were found. All the weapons were seized by police and retained. When interviewed by police, Mr B gave a no comment interview in relation to the alleged offence of affray. Police enquiries have confirmed that all weapons were legally owned by Mr B but that he was in breach of his licence to possess the firearms due to inadequate storage.
Advice from the Crown Prosecution Service was to take no further action. All seized weapons remain in the possession of the police who are considering the suitability of Mr B to hold a Firearms License. As at 22nd April, a final decision has not yet been made."
I shall refer to the two boys as, respectively, J and K.
The facts
It will be convenient first to summarise the history of the police investigations so far as they are material for present purposes and then to set out the process leading up to the issue of the Certificate.
The facts: the police investigations
Because of the issues relating to the firearms, the investigations by the police involved both an investigation of any criminal offences that the claimant might have committed and, as a separate matter though running in parallel, a consideration of whether any steps should be taken in relation to his firearms certificate.
The course of these investigations can be followed in very considerable detail through two running records or logs kept by the police: one, the 'Crime Report'; the other, the 'Incident' print. The former is essentially a factual summary of events occurring during the criminal investigation; the latter includes much analysis of events as they unfolded and illuminating explanations of police thinking, day-by-day and even hour-by-hour as the investigation proceeded. Relevant information is also contained in the pro-forma documents (in particular the 'Custody Record', the 'Risk Assessment', the 'Record of Rights' and the 'Detention Log') generated on each of the two occasions when the claimant was in custody at the police station: first, on 13 February 2010 following his arrest and then on 5 March 2010 when he surrendered to his bail. For the earlier occasion there is also the 'Police Station Record' compiled by his solicitor.
The first complaint was made by the boys' father on 4 February 2010. An account of how he presented and what he said on that occasion is given in a statement subsequently made on 17 March 2010 by the police officer who interviewed him. He provided more information and gave a written statement on 10 February 2010. Reviewing the case in the early hours of the next day, 11 February 2010, Inspector Cannon noted that "further enquiries are required before we consider the arrest of B." Later the same day, 11 February 2010, J went to the police station with his mother. Also on the same day his step-mother gave the police a written statement. A police constable who spent some time speaking with J recorded him as being "vulnerable" and having "some difficulty expressing himself." The officer expressed the view that for his evidence to be used in court a video interview would be necessary. Reviewing the case later the same evening, Inspector Frost noted his belief that it was "important to get the evidence from the boys, in the best form, to support any prosecution we consider and to provide a base for revoking the firearms certificate." He asked the police constable to arrange the video interviews. In the event there were no video interviews. A written statement was taken from J the next day, 12 February 2010.
At about the same time as that was happening, Detective Inspector Callum was reviewing the case. He noted that the father "is proving to be unreliable" and that the statements from the father and the step-mother "provide little evidence of any offences". By the next morning, 13 February 2010, J's statement was to hand and Inspector Frost, having discussed the case with Detective Inspector Callum, noted that "we now have enough evidence to take this forward." The claimant was arrested the same morning at his parents' house. Various firearms and ammunition were found both there and at the claimant's own house, which was searched later the same day.
On arrival at the police station the claimant was 'processed' in the usual way. The 'Risk Assessment' recorded him as not appearing to be under the influence of alcohol. The 'Record of Rights' identified the claimant's 'nominated person' as being Derbyshire Mental Health Services and set out the telephone number. In fact, as the 'Detention Log' shows, the claimant telephoned them himself "and spoke with them."
The claimant was interviewed at the police station on 13 February 2010. We have a transcript of the tape-recorded interview. In relation to the incident on 26 December 2009 his answers were largely 'no comment'.
It appears from the 'Crime Report' that over the next few days police officers spoke to the claimant's employers, in order, as it was put in a note dated 15 February 2010, "to update them re B arrest in the event they need to know re potential effects on his work etc." A note dated 17 February 2010 records an officer as having spoken to someone in the human resources department of the Mental Health Trust that employed the claimant: "I have given her sparse details – B has been arrested and bailed for a public order offence." A further note later the same day records the same officer as having spoken to the Medical Director of the Trust: "I have informed him of the circumstances of the allegation and he will consider action re suspension etc." None of this forms any part of the complaints which the claimant seeks to ventilate before us, and we have accordingly not heard any argument about it. In the circumstances I observe only that the actions of the police in communicating with the claimant's employer in this way, seemingly without any prior reference to him, might be thought to require justification: see R (H and L) v A City Council [2011] EWCA Civ 403, [2011] UKHRR 599, paras [62], [69]. Whether justification would be forthcoming is not something we have been asked to consider.
On 20 February 2010 the police took a statement from K.
On 5 March 2010 the claimant returned to the police station. The 'Risk Assessment' again recorded him as not appearing to be under the influence of alcohol. The claimant handed the police a written statement he had prepared, together with various attachments, in which he alleged that he was being blackmailed by the father. Again, we have a transcript of the interview. Following the interview, the claimant was again bailed.
On 11 March 2010 the police took a statement from the claimant's brother. He said that it was he who had damaged the door, in October 2009.
The police sought advice from the Crown Prosecution Service. The advice given, on 16 Mach 2010, indicated that further enquiries were required, commented that "Any prosecution will depend on the credibility of the witnesses", and said that "The...
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