R (oao TL) v The Chief Constable of Surrey Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lord Justice Lloyd Jones |
| Judgment Date | 31 January 2017 |
| Neutral Citation | [2017] EWHC 129 (Admin) |
| Docket Number | Case No: CO/4091/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2017 |
[2017] EWHC 129 (Admin)
Lord Justice Lloyd Jones
Mr Justice Jay
Case No: CO/4091/2016
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers QC (instructed by Stokoe Partnership) for the Claimant
Paul Stagg (instructed by Weightmans LLP) for the Defendant
Hearing date: 19 th January 2017
Introduction
On 23 rd May 2016 TL ("the Claimant"), whose identity we have anonymised, was arrested by DC Andreas of Surrey Police ("the Defendant") in relation to serious allegations of rape and sexual assault made by his former partner LM. She is entitled to anonymity under the Sexual Offences (Amendment) Act 1992, and nothing may be published which might lead to the identification of LM.
On 1 st August 2016 the Claimant filed judicial review proceedings claiming, in outline, that his arrest was unlawful because it was unnecessary and actuated by more than one collateral or improper purposes. McGowan J adjourned the Claimant's application for permission to be listed in this Court as a "rolled up" hearing on notice to the Defendant. She observed that "there may be an arguable point of general application in this case". Although permission has not yet been granted, we heard full argument on the Claimant's grounds, and are grateful to Counsel for the clarity and economy of their submissions.
Essential Factual Background
The Claimant is the former partner of LM with whom he has a child, VL, now aged 7. Their relationship ended in 2010. Since then the Police have been called to LM's home address on numerous occasions, with various allegations and counter-allegations made by both parties. It is unnecessary to delve into any of the detail, save to note that LM has never previously made an allegation of rape and sexual assault. Further, the Claimant has never been prosecuted or cautioned in relation to any allegation LM has made.
Following proceedings in the Family Division of the High Court, the Claimant was granted what his solicitor describes as "full custody" of VL. A copy of the Court Order is not available. It seems clear from the available evidence that LM was granted access to her daughter at weekends, with VL staying at her property. According to the written statement of the Claimant's solicitor Mr Amjid Jabbar, dated 1 st August 2016, the High Court made certain adverse findings as to her character and credibility.
On 27 th March LM complained to Hampshire Police that the Claimant regularly raped and sexually assaulted her during the currency of their relationship. This information was transmitted to the Defendant the following day.
On 28 th March DS Linaker of the Defendant gave a written risk assessment and proposed an investigation strategy. DS Linaker assessed the overall risk to be high, based on the Claimant's admitted attempts to track LM's movements using technological means. This was considered to be evidence of "controlling and coercive behaviour", although there was no suggestion that the Claimant had been physically abusive. DS Linaker further stated that any arrest of the Claimant should be deferred until LM had been interviewed.
On 1 st April 2016 the Claimant was informed by Surrey Children Services that the police wished to interview him. The Claimant contacted the Defendant and left a message for the officer dealing with the case, who was now DC Andreas, to telephone him. It is clear that even at this very early stage the Claimant must have known in general terms that LM was alleging that he had committed an offence, or offences, of a sexual nature. When he came to prepare a statement for the purposes of the interview under caution which took place on 23 rd May 2016, the Claimant said:
"Assuming that these allegations [of historic abuse] are of a sexual nature (based upon the police department that DC Andreas works for) …"
According to paragraph 28 of DC Andreas' witness statement, he telephoned the Claimant on 2 nd April to advise the latter that (a) he did not wish to discuss the allegations over the 'phone, and (b) the Claimant should not speak to LM about her complaint to the police. DC Andreas accepts that the Claimant gave an assurance in regards to (b) and stated that he was willing to be interviewed.
On the same day Mr Jabbar spoke to DC Andreas and reiterated his client's assurances. These were later confirmed by email. There is no indication that the Claimant later breached those assurances.
The timing of DC Andreas' conversation with the Claimant and then his solicitor is not altogether clear from the OE log. However, it is apparent from the entry timed at 17:15 on 2 nd April that DC Andreas had already decided to arrest the Claimant before he had taken the opportunity to speak to him or LM. It may well be, as has been submitted to us by Mr Mark Summers QC for the Claimant, that DC Andreas' mindset was, at least in part, determined by his interpretation of DS Linaker's risk assessment: namely, that the grounds did not exist for the immediate arrest of the Claimant. However, Mr Summers did not submit that DS Linaker directed any police officer to arrest the Claimant.
On 20 th April 2016 LM provided her account to investigating officers through the standard ABE procedure governing cases of this nature.
On 23 rd April 2016 LM emailed the police officer who had conducted her interview "to stress how frightened she was of [the Claimant's] family". These fears were reiterated to the same officer on 11 th May. LM was advised by that officer that "once [the Claimant] has been spoken to he will have bail conditions".
On 27 th April 2016 DC Andreas wrote the following entry in the OE log:
"The main priority when I return fully next week will be to arrest and interview the suspect after I have had a chance to review the victim's account."
DC Andreas' further OE entry for 10 th May reads:
"… I have discussed the investigation with DS Linaker and considered dealing with the suspect on a voluntary basis. The decision has been made to arrest the suspect in order to conduct a search of his home address for electronic equipment …".
DS Linaker's witness statement is on similar lines:
"… voluntary attendance at the police station … is in fact something I considered with DC Andreas on 10 th May 2016. On balance, given we wished to search the Claimant's home … I decided that voluntary attendance was not a reasonable or viable option in this particular case. I believed the risk of the Claimant tampering or destroying evidence was too high."
On the same day DS Andreas contacted Mr Jabbar to arrange an appointment for the Claimant to be interviewed at Guildford Police Station on 23 rd May 2016. The Claimant was not informed at that stage that he would be arrested; he must, therefore, have been under the impression that his attendance was voluntary. However, during the course of a further conversation on 19 th May, DC Andreas informed Mr Jabbar that the Claimant would be arrested. On DC Andreas' evidence, Mr Jabbar was informed that "part of our consideration in relation to arresting [the Claimant] was in order to prevent interference with the victim which may include consideration of bail conditions if we reached a point that [the Claimant] was to be bailed."
So it came about that when the Claimant attended to be interviewed on 23 rd May 2016 he was arrested outside Guildford Police Station by DC Andreas. Mr Swan, another solicitor in Mr Jabbar's firm, was in attendance. It is sufficient for these purposes to rely on DC Andreas' account. In the first instance he informed the Claimant that the arrest was to "effect a prompt investigation". Later, and as corroborated by DC Andreas' manuscript note, he told the Claimant that the grounds for believing that a prompt investigation required him to effect an arrest were:
"(1) to prevent interference with witness LM; (2) search of premises and seizure of evidence in relation [sic]; (3) obtain evidence by way of questioning." [timed at 11:15am]
The Claimant's detention was then authorised by the custody officer under section 37 of PACE 1984. It was disclosed to the Claimant that he was under investigation in relation to the rape allegation. He was interviewed under caution and provided two prepared statements. Later he was strip searched, finger-printed, photographed and provided samples for DNA profiling purposes. The Claimant was released without charge at approximately 4pm. His police bail was subject to the following conditions:
"Not to contact LM directly or indirectly or via any third party other than via solicitors in relation to child care and access arrangements."
"Not to go to [LM's home address] at any time."
The Claimant was also required to surrender to his bail on 22 nd August 2016.
The Claimant's premises were searched by three police officers whilst he was at Guildford Police Station. The search, purportedly carried out under section 18 of PACE, took 28 minutes and was concluded before 2pm that afternoon. The Claimant's father, a retired police officer, was present. There was some evidence that a computer had recently been moved from a desk.
Thereafter, the police investigation continued. It is unnecessary to set out any of the detail. The Claimant surrendered to his bail on 22 nd August and was re-bailed to attend on 21 st September. On 19 th September 2016 the Claimant was informed that the Defendant proposed to take no further action in relation to LM's allegation. It appears from the internal documentation that the Defendant had come to appreciate the complex history between the Claimant and LM, and considered that the available evidence was insufficient to take the matter further.
The Claimant has...
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