DE v The Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 27 January 2023 |
| Neutral Citation | [2023] EWHC 146 (KB) |
| Docket Number | Case No: QA-2022-BHM-000004 |
| Court | King's Bench Division |
[2023] EWHC 146 (KB)
Mrs Justice Hill
Case No: QA-2022-BHM-000004
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
ON APPEAL FROM HIS HONOUR JUDGE BOORA
BIRMINGHAM COUNTY COURT
Case No: F20YM029
Birmingham Civil Justice Centre
33 Bull Street
Birmingham
B4 6DS
Sarah Hemingway (instructed by DPP Law) for the Appellant
Charlotte Ventham (instructed by West Midlands Police Legal Services) for the Respondent
Hearing date: 19 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 27/01/23 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal against the order of HHJ Boora sitting at the Birmingham County Court dated 1 February 2022, by which he dismissed the Appellant's claim for false imprisonment arising from his arrest and detention on 12 September 2013. The trial of the claim had taken place before the judge, sitting without a jury, from 14–16 December 2021. The Appellant appeals with permission granted by Mr Justice Martin Spencer on 11 October 2022.
The Appellant advances four grounds of appeal. He asserts that the judge erred in finding that (1) the officer's belief in the necessity of the arrest under the Police and Criminal Evidence Act 1984 (“PACE”), section 24 was objectively reasonable; (2) purely speculative grounds for believing that bail conditions might be necessary was sufficient to meet the necessity criteria under section 24(5)(e); (3) a two hour delay in releasing the Appellant from custody following conclusion of his police interview was reasonable in the circumstances; and (4) the Appellant had committed the criminal offence of harassment.
The facts
Events leading to the 7 April 2013 harassment warning and the decision to “no crime” the allegations against the Appellant
The Appellant is a man of good character. In June 2012 his son (“C”) had attended a school camping trip in Wales. Two boys (“A” and “B”) subsequently made allegations of sexual misconduct against C, with whom they had shared a tent. All of the boys were around 12 years old at the time. On or around 3 September 2012 the investigation by Dyfed Powys Police was discontinued in light of A and B not wishing to pursue the matter.
The Appellant was very concerned that his son had been falsely accused of sexual misconduct and was being bullied at school as a result. He was also concerned about the school's handling of the matter. He communicated regularly with the school to express his concerns, which were discussed at a lengthy meeting on 18 October 2012. The meeting notes reflect a difficult meeting in which the Appellant was asked to refrain from shouting. They record the Appellant saying he considered that he was being forced to take legal action against A and B given their false allegations against C. He mentioned that the children were above the age of legal responsibility and that he had the time and money to pursue legal action. The notes record him saying he felt he had to “turn the screws” on the children and “this absolutely was a revenge vendetta”.
On 19 December 2012, the Appellant wrote a four page letter to A's mother. He said in the letter that A had to choose between formalising his allegations to the police and being interviewed; accepting that they were false; or doing nothing. He made clear that if A chose the latter option, he would commence legal proceedings against A. Reference was made to a private prosecution, with the accompanying risk of A incurring a criminal record. The Appellant also wrote “As a mother, you should be aware of the type of son you have”. He made various assertions about A's behaviour including saying that he would be asked questions about whether he slept naked and suggesting that A had said he wanted to be a male prostitute.
Having received no response to this letter, on 15 February 2013, the Appellant wrote to A himself. The Appellant said that he was writing to A directly because he was above the age of criminal responsibility and because his parents had failed to respond to the earlier letter (a copy of which was enclosed). He said that A's untrue allegations constituted defamation which had damaged C's reputation and that A's actions had caused C to be harassed by other children. He wrote that High Court proceedings would be brought against A unless he admitted in writing that his allegations were fabricated, issued a written formal retraction of them, wrote an apology to C and provided the Appellant with a copy of the statement he had made to the school. The Appellant suggested in the letter that A seek legal advice.
On 26 February 2013 A's mother provided a witness statement to Leicestershire Police setting out how “totally distraught and upset” the first letter had made her feel. She explained that she had attended a meeting at the school about it and decided to ignore it. She described seeing the second letter arriving by Recorded Delivery and how “angry and upset” she was that the Appellant had sent this “very threatening” letter to her young son. She explained how A had been so distressed and troubled by the letters that he had asked if he could sleep with his parents which was very much out of character for him. She described other behavioural changes that she had seen in A since the events in June 2012 and said “I want this harassment to stop”.
A's father provided a statement in similar terms.
A himself provided a statement reiterating his allegations of a sexual nature against C, confirming how upset the letters from the Appellant had made him and saying “I want [the Appellant's] letters and threats to stop towards me and my family”.
At 11.30 am on 7 April 2013, PC Condron and PS Farr of West Midlands Police (“WMP”) met with the Appellant. As agreed with the Appellant in advance, the meeting occurred at his mother's address. The officers verbally issued the Appellant with a harassment warning in relation to his contact with A and his family.
At 2.34 pm that day the police investigation log was updated by Detective Inspector Mason as follows:
“This was a single letter sent to a 12 year old surrounding a complaint made by that 12 year old around 1 year ago about the offender's son. The threats are around legal action rather than any physical threats. This single action is likely to caused h/a/d [harassment, alarm or distress] as this was to a 12 year old. However, single action and no course of conduct. No offence and therefore this needs to be no-crimed and filed. The offender has been advised”.
On 18 May 2013 the Appellant made a complaint to WMP about the harassment warning as he did not consider that it was justified. He stated that all he had done was send two letters before action under the CPR pre-action protocols, having taken legal advice, and this could not properly be considered harassment.
Events leading to the re-opening of the investigation into the Appellant on 3 September 2013
Although the Appellant did not accept that the harassment warning was valid, he had no further contact with A or his family after the warning was given.
However on 24 May 2013, the Appellant wrote a letter in similar terms to B's mother. He referred to the possibility of High Court proceedings against B. He said that he had taken legal advice from prominent barristers who specialise in harassment and associated allegations. He referred to the high costs of such litigation and set out how much the legal advice that he had obtained had cost. The Appellant said that in order to resolve the matter, B was required to sign a written retraction of the allegations and provide a copy of the statement he had given to the school. Draft letters for B to sign were enclosed.
The Appellant continued to communicate with WMP, principally Chief Inspector Metcalfe, in respect of his complaint about the harassment warning. On 10 June 2013 he was told that the view of WMP's internal lawyer was that the letters he had sent to the A family did constitute harassment, notwithstanding the Appellant's assertion that they were nothing more than letters before action.
On 18 June 2013 Patel & Company solicitors, instructed by B's mother, wrote to the Appellant. The letter explained that B's allegations had been referred to the police by the school, not B; and that while B maintained his account of what had happened on the camping trip, he did not at this stage intend to take matters further. It stated that any High Court proceedings would be strenuously defended.
On 19 June 2013 the Appellant replied to Patel & Company stating that he was well able to cover the costs of litigation (estimated at £100,000 to trial) and would seek to recover his costs from B's family or B, and if necessary would initiate bankruptcy proceedings against B when he reached the age of 18. The letter also made reference to bringing up unpleasant issues in court regarding B's mother's partner.
At 9.37 pm on 20 June 2013 B's mother telephoned the Appellant. At 10.46 pm the Appellant emailed Chief Inspector Metcalfe to inform him of the call. He stated that in the call B's mother had said that (i) B had admitted that one of the allegations he had made against C was fabricated and that A had asked B to “back him up” with regard to it; (ii) B had accepted that another of the alleged instances of indecent touching could have been accidental; and (iii) she would inform the school and the police the following morning that B would retract his statements. The Appellant's email concluded by saying that it was now clear that A had lied and that his parents had been complicit in the lies, such that a full investigation and the arrests of members of the A family...
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