R (on the application of T) v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] EWHC 1115 (Admin) |
| Docket Number | Case No: CO/13202/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2012 |
[2012] EWHC 1115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: CO/13202/2010
Case No: CO/414/2011
Paul Bowen QC (instructed by Bindmans LLP) for T
Stephen Cragg (instructed by Christian Khan) for R
Jeremy Johnson QC (instructed by Metropolitan Police Legal Services) for the Defendant
Approved Judgment
Hearing dates: 21 & 22 March 2012
Introduction
In these conjoined applications for judicial review, for which permission was granted by Collins J, the common issue arising is police practice in relation to warnings given to those have been accused of harassment or stalking by means of what is known as a Prevention of Harassment Letter or a Police Information Notice. It is suggested by the Claimants that in certain respects the current practice may not accord with data protection principles and/or the right to respect for a private and family life enshrined in Article 8 of the European Convention on Human Rights and Fundamental Freedoms and/or common law requirements of procedural fairness.
I need briefly to refer to the factual background in each of the cases.
The facts relating to Ms T
In the case of T, she lives in a block of flats in which she is a close neighbour of a man whom I shall refer to as Mr B. In the summer of 2009, T had complained to the anti-social behaviour team attached to the housing association which manages the block. She claimed to have suffered from excessive noise emanating from Mr B's flat over a number of weeks. She felt vulnerable because, after the complaint, the noise appeared to increase. Again she complained to the anti-social behaviour team.
An incident seems to have occurred on 20 July 2010, when T was leaving her flat. She saw Mr S, a friend of Mr B, on the balcony outside his flat and he said something to her which she interpreted as "black bitch". On her account of the matter, she "tutted" her disapproval and Mr S "tutted" back. T thought his behaviour insulting and on 21 July 2010 reported the matter to the anti-social behaviour team. At that point she was informed that Mr S had also reported the incident and made a complaint against her. He had even reported the matter to the police.
According to the evidence of a detective sergeant in the Community Safety Unit, a complaint was made at 8.00 a.m. on 20 July 2010 to the effect that T came out of her front door and blew him a kiss with the comment "you faggot". This appeared to cause Mr S some distress. Mr B had also stated that he had experienced insulting remarks on earlier occasions from T, relating to his sexuality, but had never troubled to report it before. The police crime report recorded that "this is a homophobic crime and he is extremely distressed by it". It also recorded that police officers had apparently attended T's home address but had failed to make contact.
According to the officer, various steps were taken on 21 July 2010 which included liaising with the Safer Neighbourhood Team regarding a "FIHW" (i.e. a first instance harassment warning) being issued at T's home address. Also there was to be "victim contact, support and referral to voluntary agencies if required".
On 6 August 2010, the detective sergeant requested the investigating officer to attend T's address and issue the warning. No contact had been made with T in the meantime. It appears that there was some delay and it was finally delivered by PC Paly Vera, still without having spoken to her at any time, on 7 October 2010. This is the document which is the subject of T's current application. It gave her name, address and date of birth and described the allegation that had been made against her as follows:
"On the 20/07/2010 you went outside Flat 5 and told a visitor who was making a phone call 'YOU FAGGOT'."
It was pointed out that harassment is a criminal offence and that any such acts on T's part could result in her arrest and prosecution. It was added:
"A copy of this letter … will be retained by police but will not be disclosed now to the victim. However a copy could be disclosed in any subsequent criminal proceedings against you as proof that police have spoken to you about this allegation. This does not in any way constitute a criminal record and will only be referred to should further allegations of harassment be received."
I should record that T denies the allegation made against her completely and says that any such behaviour on her part would have been completely out of character.
The letter was undated and gave no contact details and T was very upset by it; in particular, she was concerned that she had been given no opportunity to respond to or to refute the allegation in question (despite the claim in the notice that she had been "spoken to"). She would have liked to explain the background of the complaint she had made about Mr B and the surrounding circumstances. She commented in one of her witness statements that she felt as though she had been branded a criminal from the outset.
It does not seem that the police were entirely neutral in the matter, since the detective sergeant said in evidence that:
"It was my assessment of this report that previous homophobic comments had been made towards the complainant and/or the complainant's friend by the same female occupant and that on 20/07/2010 the same occupant had 'kissed her teeth' at the complainant and called him a 'faggot'. Clearly this use of words is homophobic … "
It is hardly surprising that T is of the view that the police had made up their minds against her. She is especially concerned that she had no opportunity to refute the allegation before the warning notice was issued.
It is also said that such a warning notice has potentially serious implications. It seems that one of the functions of such warnings is to lay the ground, in the event of later complaints of harassment, for establishing a "course of conduct" within the meaning of the Prevention of Harassment Act 1997. They may also be relied upon to refute any evidence from a person charged with harassment that he or she had been unaware that the conduct in question was causing offence.
Because of the dispute between T and Mr B, she was concerned that there might be further unfounded allegations made by him against her to similar effect and that the warning notice would at that stage be produced as evidence establishing a course of conduct against her. It is something that could easily be taken into account by the CPS when determining whether to bring a prosecution against her. Furthermore, in accordance with standard police practice, the warning notice would be retained for a period of at least seven years. There is also concern that, at any time during that period, there would be a risk of the warning, and the underlying allegations by Mr B, being referred to as part of an Enhanced Criminal Record Certificate ("ECRC"): see s.113B(4) of the Police Act 1997. If this were to happen, it could jeopardise, for example, a future job application by T or the opportunity to do voluntary work. According to the Defendant's evidence (that of Mr Graham Morris, Head of Operational Informational Services), such notices can be disclosed when providing an ECRC, although only where, in the chief officer's opinion, the allegation might be relevant and ought to be included in the ECRC. The relevance test itself may be sub-divided into two stages. The officer concerned would have to be satisfied both that the allegation might be true and that it was sufficiently relevant: see the observations of Lord Hope in R (L) v Metropolitan Police Commissioner [2010] 1 AC 410 at [39]. This obviously leaves a good deal of scope for individual judgment. Accordingly, the concern would be likely to remain at the back of T's mind throughout the period of retention and the two stage test would, so far as it goes, offer little in the way of reassurance.
After the hearing had concluded, I was provided with further evidence from T's solicitor. This referred to question 55 on the form which has to be completed by anyone seeking a criminal records certificate. This seeks to elicit information from applicants as to any warnings received. It is suggested that this would in itself be an inhibiting factor for anyone who has received one of these warning notices. There is force in this argument. By reason of the very lack of clarity in the status of warning notices, many people are likely to come to the conclusion that they would have to be disclosed. It seems that this is not the intention (see below at [50]), but there needs to be clarity.
According to the detective sergeant, it is clear that Mr S was told that the warning notice had been sent, although it was not the local practice to provide a copy to "the victim". It is obvious that in circumstances of this kind there would be scope for a victim to pass the word around, so that it could become common knowledge that the person concerned had received a warning.
Harassment warnings are addressed in Practice Guidance which was issued in 2009 by the National Policing Improvement Agency ("NPIA"), which is a body established by the Police and Justice Act 2006, on behalf of the Association of Chief Police Officers ("ACPO"). It is called "Investigating Stalking and Harassment" and its purpose is to assist policing in the United Kingdom generally by offering "practice advice". It is not of statutory force and the extent to which it is followed seems to vary somewhat according to the discretion of the chief...
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