TH v Chapter of Worcester Cathedral and Another Worcestershire County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 17 May 2016 |
| Neutral Citation | [2016] EWHC 1117 (Admin) |
| Docket Number | Case No: CO/4710/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 May 2016 |
[2016] EWHC 1117 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham, B4 6DS.
The Hon Mr Justice Coulson
Case No: CO/4710/2015
and
and
James Dixon and James Fraczyk (instructed by Rutherfords LLP) for the Claimant
Sarah Hannett (instructed by SME Solicitors) for the Defendants
Hearing dates: 4 and 5 May 2016
INTRODUCTION
The claimant is in his late thirties. He is a talented and enthusiastic bell ringer who, with the permission of the first defendant, rang the bells in Worcester Cathedral ("the Cathedral") as a member of the Guild of Bell Ringers of Worcester Cathedral ("the Guild"). These proceedings arise out of the circumstances in which, on 4 February 2015, the first defendant revoked the claimant's permission to be a member of the Guild and to ring the bells at the Cathedral ("the first decision"); and the second defendant's invitation to the claimant, dated 28 July 2015, to sign an agreement that placed conditions on him ringing bells in all other churches within the Worcester Diocese ("the second decision").
Both the first and the second decisions arose out of findings that the claimant had behaved inappropriately with children and young people. There was, and remains, no question of any criminal conduct. The original concerns were investigated by the first defendant, and advice was taken from Worcestershire County Council's safeguarding officer, known as the Local Authority Designated Officer ("the LADO"). Both the first and second decisions followed the LADO's advice.
The claimant commenced judicial review proceedings on 23 September 2015. He complains that the decisions were irrational and unjustified and in breach of his Article 8 rights. He also complains that the investigation was biased and/or that the decision-making process was unfair because the outcome was predetermined and/or that he was not provided with sufficient disclosure in order to be able to answer it effectively. In response, both defendants say that the decisions are essentially private in nature and are not therefore caught by Article 8 or amenable to judicial review. They say that the claim in respect of the first decision is significantly out of time. In any event, they say that, as a matter of substance, there is no merit in the allegations of irrationality, bias or non-disclosure.
Both before and during the two day hearing, the disputes between the parties were extensive. There were preliminary debates about anonymity, late evidence and disclosure. There were factual disputes which, in the context of a claim for judicial review, was unfortunate. In two instances, detailed at paragraphs 149–158 and 160–162 below, I was urged to make findings of fact on behalf of the claimant which were wholly contrary to the evidence and which I consider were improperly raised.
The structure of this Judgment is as follows. In Section 2, I deal with the preliminary debates. At Section 3, I set out the substantial issues between the parties. In Section 4, I set out a summary of the factual background, doing my best to concentrate on those matters which do not appear to be disputed. Thereafter, in Sections 5, 6, 7, 8 and 9 below, I deal with the substantive issues between the parties. There is a short summary of my conclusions in Section 10 below.
PRELIMINARY DEBATES
Anonymity
The defendants sought an order anonymising the names of:
(a) Each of the children interviewed as part of the first defendant's investigation;
(b) Each of the parents of the children interviewed as part of the first defendant's investigation, on the grounds that identification of the parent may lead indirectly to the identification of the children.
In his second witness statement, the claimant opposed the orders sought by the defendants, arguing that "in seeking to draw a veil of confidentiality over this case the defendants are more interested in concealing their own embarrassing shortcomings". In his late third statement (which is itself the subject of debate which I address in Section 2.2 below), the claimant maintained this stance, although he said that he was willing "to offer that the identities of those persons currently under 18 years of age who were closely connected with the enquiry, in practical terms this means B and I, may have their identities redacted." That remained Mr Dixon's stance at the hearing. He had embarked on an exercise which was designed to put some of the birth dates of the children in issue when, in the interests of efficiency, I cut him short.
I was in no doubt that anyone involved in the investigation, who was under the age of 18 at the time of the events themselves, or the investigation into those events, was entitled to anonymity. I ruled that they would be referred to in the hearing by a designated letter. I adopt the same designation in this Judgment.
I was not persuaded that it was necessary to extend that anonymity to the children's parents. A designation of a letter to the child, and care in the preparation of this Judgment, will make it impossible to link that child with any of the adults involved in the investigation. I am confident that there is nothing in the Judgment set out below which could lead anyone to make that link. I therefore declined to make the second part of the anonymity order sought.
The defendants offered the claimant anonymity. The claimant resolutely declined the offer. Although I have not been asked to reconsider that position, I have, on my own initiative, concluded that the claimant's name should also be anonymised.
Late Evidence
By an application dated 27 April 2016, the claimant sought to rely on two further statements: the third statement of the claimant and the statement of A, a child under the age of 18 whose name is therefore anonymised, despite his stated wish to the contrary. The statements were received by the court on 3 May 2016, the day before the two-day hearing which had been fixed for some months. The application to adduce this late evidence was not opposed by the defendants.
The application was not made in accordance with the CPR. There was no explanation as to why this material was so late. On the face of it, most or even all of it could and should have been put into evidence at the time that the original statements were prepared. It was not responsive in any meaningful way to any subsequent evidence filed by the defendants. Mr Dixon did not dissent from either of those propositions.
I was also concerned about the accuracy of these late statements. They seemed to be designed to put yet more facts in issue. Thus, merely by way of example:
(a) At paragraph 11(a) of his third statement, the claimant says that an allegation that he dead-legged a child on an earlier occasion at Buckfast Abbey was not disclosed to him during the first defendant's investigation. That is wrong: the allegation was put to him squarely at the meeting on 10 November 2014, referred to below. The claimant repeatedly refused to comment on the allegation.
(b) A says at paragraph 6 of his statement that he blocked the claimant on Facebook because he had been "manipulated" by others into doing so. That is directly contrary to what he said during the investigation, which was: "I was in Facebook contact with TH which related to bell ringing. He made annoying comments so I blocked him, but have since removed that block."
Accordingly, when this matter was debated at the outset of the hearing, I indicated that, in general terms, I was reluctant to have regard to evidence which was unjustifiably late. However, I made it clear to Mr Dixon that if there was something particular on which he needed to rely, within either the third statement of the claimant or the statement of A, then he was expressly to identify it during the course of his submissions and I would take it into account. In fact, other than one passage in the third statement of the claimant (dealt with at paragraph 139 below), there was no such indication.
Specific Disclosure
At the start of the trial, unheralded in his skeleton argument, Mr Dixon made an application for specific disclosure. This related to two documents:
(a) The manuscript notes of Mr West's report, a typed document referred to in greater detail at paragraphs 42–45 below;
(b) The "contemporaneous notes" referred to in the LADO report referred to in greater detail at paragraphs 47–49 below.
There was nothing to indicate that there were any manuscript notes from which Mr West prepared his typed report. However, because the report was an important record of the decision-making process, I ordered that Mr West was to say whether or not there were any such manuscript notes. If there were, he was to disclose them. If there were not, he was to explain why not. In response to the order, Mr West subsequently confirmed in writing that there were no manuscript notes and that, as is apparent from the face of the document, it was a 'rolling report', kept on his computer and updated at various stages in January/early February 2015.
In relation to the LADO notes, it seemed to me at first blush that the obvious answer to the claimant's application was that these notes were the property of Worcestershire County Council, the LADO's employers, and were therefore not within the possession custody or control of the defendants. Subsequently I noted that this was indeed the answer given by the defendants' solicitors to the original request for those notes on 18 April 2016. It was also Ms Hannett's answer to this part of the application at the hearing. In my...
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R Cornerstone (North East) Adoption and Fostering Service Ltd v The Office for Standards in Education, Children's Services and Skills
...95, [90], but I do not think these passages are controversial. 237 The relevant cases are R (TH) v. Chapter of Worcester Cathedral [2016] EWHC 1117 (Admin), [64], summarising the principles in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546; YL......