R v The Ministry of Defence

This is an appeal by the claimant against an order made by HHJ Bryant in the Middlesex County Court on 2 March 2007, in which he dismissed her claim against the Ministry of Defence, “the MOD”, which was the first defendant in an action for damages. In the action the claimant sought damages against the second defendant, Derek Johnston for allegedly raping her in the early hours of 1 April 2001. The claimant was then aged 20. The second defendant denied rape but the judge found the rape proven and awarded damages against the second defendant in the agreed amount of £200,000 for trespass to the person, but the second defendant has not sought to appeal, nor as I understand it has he paid the £200,000. The claim against the MOD was put in negligence, either on the basis of systemic negligence or on the basis of vicarious responsibility for the negligence of a Miss Fiona Graham, or both. The judge refused the claimant’s application for permission to appeal but permission was subsequently granted by Sir Henry Brooke on the ground that an appeal has a real prospect of success.

The judge found these facts. Both the claimant and the second defendant were serving members of the RAF, stationed at RAF Cranwell. The claimant had been there for some months whereas the second defendant was attending a course which ran for a few weeks. They did not know each other. On the evening of 31 March 2001 they each independently went to Sleaford for an evening out. The claimant was in an all female group which included Fiona Graham and Carla Tilley. The defendant was with one other man. In due course they all ended up at a night club called Flicks. While they were there the second defendant’s attention was largely directed at Fiona Graham but the claimant has complained that she received unwanted attention from him which she regarded as amounting to harassment. As a result she sought assistance from an RAF policeman whom she knew. By the end of the evening the claimant was extremely drunk. Fiona Graham had had considerably more to drink than the claimant but was less affected. The second defendant had also drunk a great deal. He and Fiona Graham took part in a drinking competition which, according to her, involved the consumption of about nine vodkas. By the end of the evening the second defendant must have been very drunk. Even if he was steadier on his feet than the claimant he must have been subject to the disinhibiting effects of alcohol. They all returned to Cranwell. The second defendant was asked back to the accommodation block by some of the women, in particular by Fiona Graham. The claimant was not a party to that invitation. However she and Fiona Graham lived in the same block. When they arrived on the block the claimant was helped to her room by Fiona Graham, the second defendant and others. She was probably in a state in which she could have reached the room unassisted but she might well have fallen over, as she had in fact done in a fast food restaurant before leaving Sleaford.

When they reached the claimant’s room, the claimant was taken into it by Fiona Graham and Carla Tilley, who undressed her, put her into her nightdress and left a glass of water by her bed. The second defendant and another man stayed in the corridor. When Fiona Graham and Carla Tilley left the claimant’s room they closed the door and left the key in the lock on the inside of the door. Fiona Graham, Carla Tilley, the second defendant and another man called Colin went to the party room on the floor above the claimant’s bedroom which was on the ground floor. When they left the corridor where the claimant’s bedroom was, they left the door, either open, or more likely closed but unlocked. They then went to the party room where they remained for something over about an hour, but it appears that they did not drink any or any significant amounts of further alcohol while they were there.

Fiona Graham then decided to go to her room which was on the same floor as the party room and thus on the floor above the claimant’s room, but on the other side of the common parts of the building. The second defendant expressed a desire to go with Fiona Graham to her room but she said “no”. The second defendant, who according to Fiona Graham by this time had sobered up considerably, left her wing. She saw him out of her wing or corridor but did not see him out of the building. I will return to the layout of the block in a moment. She returned to her room and, contrary to her usual practice, locked her door. She did so not because of any concern about the second defendant but because she did not want to be disturbed in the morning.

The second defendant went to the claimant’s room and got into her bed. In his judgment the judge described the claimant’s evidence as to what then happened in some detail. In short she described his raping her. She gave a very similar account to that which she had given at the second defendant’s two criminal trials.

The judge then set out the evidence given by the second defendant. His evidence was to the effect that the claimant had consented to sexual intercourse. The judge then described the criminal proceedings against the defendant and analysed the evidence of a lady whom I shall call NH, none of which is relevant to the issues in this appeal. I merely note in passing that the second defendant was tried for rape but the jury did not agree. He was subsequently convicted at a second trial but that conviction was set aside by the Court of Appeal Criminal Division, which ordered a retrial. It did so on the basis of what was said to be new evidence from NH.

However, when the matter came on for trial for a third time the CPS elected to offer no evidence against the second defendant, and he was accordingly acquitted. The judge analysed the law of trespass to the person in some detail but that too is irrelevant to the issues in this appeal.

The judge then, at paragraph 34 and paragraph 35, set out his conclusions on the facts. He held that the claimant did not consent to sexual intercourse. He considered that question both on the basis that the burden of proof on the issue of consent was on the second defendant and on the basis that it was on the claimant and reached the same conclusion on either footing. He accepted the claimant’s evidence and, as I indicated a moment ago, held that the second defendant was liable to the claimant for damages for trespass to the person.

The claimant’s case against the MOD before the judge may be summarised shortly in this way:

The judge held that the MOD owed the claimant a duty of care but rejected her case on systemic failure on the ground that the claimant had not established any failure to provide proper locks or instructions and was not in breach of any duty owed to her by the MOD and that she had not in any event established that any such failure or breach of duty was causative of the rape of the claimant by the second defendant. As to vicarious liability, the judge held that Fiona Graham owed the claimant no duty of care and that if she did she was not in breach of it. The claimant’s claim against the MOD accordingly failed. The judge further said that he would have rejected the MOD’s case that the claimant was guilty of contributory negligence.

The claimant says that the judge was wrong to reject her case on both systemic failure and vicarious liability and should have found the MOD liable to the claimant. The MOD asserts by way of respondent’s notice that the judge was wrong to hold that the MOD owed a relevant duty of care to the claimant to guard against the criminal acts of the second defendant. The MOD further asserts that the claimant was guilty of contributory negligence. I shall consider first systemic failure and then vicarious liability.

The claimant’s case is essentially the same now as at the trial. It centres round the system of locks in the accommodation block and the instructions given to those on the block. As I understand the system of locks, it was broadly as follows. Each room had a mortise lock. It could be locked by a key either from the inside or the outside, but there was not room to push the key under the door, so that it was not possible to lock the door outside when a person was inside without locking that person in. On the night in question, as I said earlier, the claimant was left in bed with the key inside and the door unlocked. No other lock such as a rim lock, which is like a Yale lock, was fitted to the room doors. It is the claimant’s case that such a lock ought to have been fitted in addition to the mortise lock. Much of the argument in the appeal has centred round the method of locking the doors at the end of the corridors. There were combination locks both at the external door or doors of the building and at the end of each corridor, where the corridor leads into the common parts. There are two floors in the block. The top floor contains two corridors, one with rooms for men off it and the other with rooms for women off it. I will call each corridor either a “corridor” or a “wing” as appropriate.

Between the two wings on the first floor there is a party room, which is the room to which I referred earlier. It is not clear from the plan whether the party room opens on to one or other of the wings or onto the common landing. There are stairs down from that landing to the ground floor and to a hallway leading to the external doors. On either side there are two wings which accommodate women. At the relevant time each corridor had a combination lock on the door at the end. The combination number was the same on all four corridor doors, including that to the men’s wing. The claimant’s room was number 53 in the wing under the men’s wing and Fiona Graham’s room was number 13 on the first floor on the other side of the common parts.

The combination locks could be clicked or slid or latched open rather in the same way that a Yale lock can be clicked open. If the lock was not clicked or slid open the door would automatically lock when it was closed. The number of the combination lock on the external doors was different from the number on the four corridor doors. The combination numbers on the corridor doors were changed from time to time. There was evidence that, while many people knew the combination number of the external doors, many less people knew the numbers of the combination locks at the end of the corridors.

The claimant’s case is that the MOD should have fitted different locks to the corridors. It should in particular have done so in the light of these facts: first because one of the women, namely NH, had allegedly been raped a few weeks earlier in about February 2001, and secondly because the claimant herself had expressed concerns both at a block meeting in the week beginning 5 March 2001, over three weeks before the incident, and thereafter to airforce personnel. It is said that one of the purposes of the locks was to protect women against attacks of the kind that occurred on 1 April 2001 and that the combination locks were inadequate.

Mr Ronald Walker QC submits on behalf of the claimant that electronic locks with key fobs should have been fitted. These would have had the advantage that they could not be clicked or slid so as to leave the doors unlocked, thus the doors would always be locked when they were closed. He relies upon the fact that the locks were changed to fob locks very soon after the incident and submits that they could and should have been changed earlier in the light of the alleged rape of NH in February and of the concerns subsequently expressed by some of the women, including the claimant.

Before the judge it was known that the locks had been changed but very little information was available. Just a very short time before this appeal began the MOD disclosed a document which should have been disclosed before the trial. It is a letter dated 4 April 2001, thus just three days after the incident. It was written by Carillion, who are described as “establishment works consultants” to OCSSS at RAF Cranwell. It reads in part:

The letter then sets out the cost, namely £4,800, inclusive of VAT, and of the provision of 50 tokens or fobs. An attached document shows that the work was to be completed as soon as possible. The evidence shows that the fob locks replaced the combination locks on the three female wings very soon after that. Mr Walker submits that the fobs could and should have been fitted before the incident of 1 April, in which event the second defendant would not have been able to get into the claimant’s corridor and she would not have been raped.

To my mind this is by far the strongest point taken on behalf of the claimant in this appeal. It is certainly arguable, although like any such allegation it must be put into its context as follows. The system of security in the accommodation block relied upon a number of considerations which the judge had in mind. Being an RAF facility, the external security was good. It was only possible to enter the Cranwell site with an RAF pass so that everyone on the site was there lawfully. There were no complaints about the external locks on the external doors to the block. Although there were no orders to this effect, breach of which would involve disciplinary action, it was the rule that anyone who brought a male visitor into the block (which was permitted) was responsible for seeing him out of the building. The position was evidenced in a document dated 26 March 2001 which was entitled, “Arrival Brief and Memorandum of Understanding for Occupants of Barrack Block 327 West (BB327W)”:

The document then referred to block meetings and said this under the heading “Room Inventory”:

Although that document is dated March 2001 it evidences the position understood by those living in the block as it had existed for some time. For example, when Fiona Graham was asked whether it was her duty to escort male visitors throughout the time they were on the premises she said “within reason, yes”. Carla Tilley agreed that they often came in from the clubs at 3.00 in the morning and when asked whether men were brought back from the clubs at all hours of the night she said “It happened, yes”. There was a good deal of evidence that men were brought back to the block after a night out and it is clear that both women and men had often had a good deal to drink.

In these circumstances it is said with force that it was incumbent on the MOD to have in place a reasonable security system to guard against the risk of sexual attack by males who had had too much to drink. Mr Walker submits that only a fob locking system would ensure that such men could not get into the corridors from the outside and that it was self evident that such a system was safer than the combination system. I have already referred to his submission that the fob system should have been put in place earlier than it was because of the problem highlighted by the alleged rape of NH and by the concerns of the claimant.

I think it is relevant to note that there was no evidence that the cause of the alleged rape or other attack was the result of leaving the corridor doors open. Nevertheless, although the precise nature of the incident involving NH is far from clear, it is reasonably clear that most people knew from early March that it was an alleged rape, and there is no doubt that the claimant expressed her concerns. She expressed them at a block meeting in the week beginning 5 March, attended by all the female residents in the block, the block NCO, Julie Westgate; Corporal Telfer of the RAF Police, who had been invited specially, Squadron Leader Alison Simmonds and Flight Lieutenant Helen Ratcliffe. Julie Westgate and Alison Simmonds gave evidence but Helen Ratcliffe did not.

The claimant said this in her statement in paragraphs 20 and 21, amongst other things, in a passage relating to the meeting:

Her statement also said that parties took place including one with six to eight men on her corridor. She said in paragraph 26 that she did not feel safe on her corridor. She spoke to her superior, Corporal Boulton, about it. Then in paragraph 27 she said this:

As can be seen from that paragraph, one of the claimant’s concerns was that corridors were, as she put it, “still being left on the latch”. There was indeed other evidence to that effect. There is undoubted force in the submission that in the light of these concerns the MOD should have taken proper steps to allay them.

As I have said, it is submitted that fob locks should have been fitted to the corridor doors, although it is fair to say that no such express suggestion is made in the claimant’s statement. Squadron Leader Simmonds gave evidence as to a number of topics, including the Memorandum of Understanding, or the “MOU”. She stressed the importance of the women having a sense of responsibility. They considered introducing more draconian measures but concluded that the MOU constituted sufficient guidance on how the residents should behave. As she put it in her statement, the guidelines concerning the escorting of visitors should be convivial codes of behaviour rather than disciplinary offences. Her view was that the residents had to take responsibility for their actions. In cross examination about that Miss Saunders said this:

In paragraph 51 of his judgment, which I set out below, the judge accepted that approach as entirely sensible, and so would I. As to fobs or perhaps other electronic devices, Miss Simmonds said this in paragraph 16 of her statement:

Then a little later still she was asked why fobs were introduced immediately after the alleged rape of the claimant and she said that she did not know because she was no longer OIC of the block. It appears that she was replaced by Helen Ratcliffe sometime before the end of March; so it is unclear why the locks were replaced by fobs.

It is to my mind unfortunate that this matter was not further investigated. There were I think a number of causes of this. First, neither the points of claim nor the amended points of claim specifically alleged that fobs should have been introduced. The relevant part of the amended Particulars of Claim contained these particulars in breach of duty:

Paragraph iii a) was added shortly before the trial and, as can be seen, relates only to the room doors. So the claimant did not specifically allege failure to fit fob locks as the key point, and moreover, did not seek to deploy expert evidence or evidence of practice on that topic. In these circumstances, although the MOD called Squadron Leader Simmonds to give evidence, they did not call her successor, Flight Lieutenant Ratcliffe. The result is that we do not know why the locks were replaced or indeed when the decision to replace them was made. However, given the evidence of Squadron Leader Simmonds, it rather looks as if the decision to change the locks was not made until after the rape of the claimant and because of it.

The judge rejected this part of the claimant’s case on the basis that the claimant had not established her case by reference to any objective evidence as to the comparative merits and demerits of fobs on the one hand and combination locks on the other. Mr Walker responds that expert evidence was not necessary because it was a matter of common sense that fobs are safer. However, Miss Simmonds considered the comparison and took advice about it and concluded that it had not been shown that fobs were obviously safer. She gave her reasons, which may have been good or bad, but to my mind they cannot be rejected as obviously bad. I simply do not know how easy it might be to replicate the fobs.

I agree with the judge that if the claimant or her advisers wished to establish that the fob system was so much better than the combination system that it was unreasonable to persist with the latter as long as they did, evidence was required, either expert evidence or at least evidence of practice in other similar situations such as other military establishments or universities or the like. I do not mean to say that expert evidence is required in every case. On the contrary, it is often possible to proceed without it. But it is very difficult for a court to say that a security system in operation is unreasonable in the absence of some evidence of practice elsewhere. I will return to this aspect of the case in a moment.

Mr Johnson correctly submits that one should not look at one aspect of the security system in isolation, but should look at the whole of it. As he points out, the question for the judge was whether it was unreasonable for the MOD to rely upon the system it had and not to install fobs before it did. He submits that the most important defence for the women was their room keys and the locks on their doors, if only because the evidence shows that men were often in the corridors, so that in their case, at any rate, while they were on a particular wing the nature of the locking system at the end of the corridors was not relevant.

Mr Johnson correctly submits that the logic of the case that fobs should be fitted to the corridor doors is that they should also be fitted to the room doors. The value of the fobs is that the doors cannot be snibbed so that they are closed but unlocked. They were thus there in order to ensure that the residents cannot leave the doors unlocked. The system in operation was to rely upon the residents to heed the instructions to keep the corridor doors and indeed the doors to their rooms locked. The residents could thus protect themselves by locking their own doors and, if they did not lock their own doors, by keeping the corridor doors locked.

It was suggested that Yale type locks should have been fitted to the room doors in addition to the mortise lock. This would have the advantage that the door would lock itself, unless, of course, the Yale was left on the latch. No case for Yale locks seems to have been made at the time and it does not seem to have occurred to the pleader of the defence until a comparatively late stage.

The judge expressed his conclusion on this part of the case in this way, at paragraph 50 of his judgment as follows:

I entirely agree with the judge. For my part I am not persuaded that it has been shown that it was unreasonable not to fit room locks as well as mortise locks to the room doors. In any event, there is no evidence that the claimant or anyone else would have locked the door using the Yale rim lock if there had been one. As to the combination locks, the system relied upon the residents not putting them on the latch and on the principle that female residents would escort male guests off the premises. As to this, the claimant’s case is that there ought to have been a strict rule, breach of which would be a disciplinary offence, that residents would escort male guests off the premises. The judge expresses a view on this question in paragraph 51 of his judgment as follows:

As I indicated earlier, I agree with the judge. In any event, even if there had been a stricter rule, the evidence does not, in my opinion, support the conclusion that Fiona Graham would have done more than she did in escorting the second defendant off the premises. She simply had no reason to fear that there was any risk that the second defendant might do what he did.

In these circumstances I return to the critical question, namely whether the MOD should have installed fobs on the corridor doors before 1 April 2001. They decided not to do so for the reasons given by Squadron Leader Simmonds, to which I have referred. After the meeting in the week beginning 5 March, which was attended by a representative of the police, they underlined the importance of keeping the doors locked and decided that the advantages of fobs had not been demonstrated or sufficiently demonstrated. As I indicated earlier, the question is whether that decision was unreasonable.

The judge set out his conclusions on this topic in paragraph 49 of his judgment, as follows, referring first to the first three paragraphs of the Particulars of Claim, to which I have referred:

For my part I am not persuaded that those conclusions were wrong. I can well understand that after the claimant was raped it was decided to fit fobs in the hope that they would improve matters, but I am not persuaded that it was unreasonable for the RAF to continue to rely upon the exhortations to the residents to keep the doors locked, upon the instructions to escort male visitors off the premises and upon the existence of locks in the corridors.

However, I should just add this: In paragraph 60 the judge set out his conclusion that the claimant had not established her case under this head, with which I agree, but he added some criticisms of the RAF and the MOD in paragraph 61, to which I should refer as follows:

Mr Walker relies upon those conclusions. However they do not seem to me to help him to establish that the system in operation was unreasonable in all the circumstances. The judge considered each of the claimant’s allegations with care. There is considerable force in the judge’s comments in paragraph 61, subject only to this. His comments are not perhaps entirely fair to Squadron Leader Simmonds, whose evidence I referred to earlier. She did give consideration to the question of whether fobs or swipe cards should be introduced, she took advice from the security section and from other RAF bases that had introduced electronic swipe cards, and she formed the view on the basis of that information, rightly or wrongly, that they could be replicated and had not been shown overall to be preferable to combination locks. As I said earlier, she might have been right or wrong about that. The judge did not express a view one way or the other but took the view that in the absence of some expert evidence or, I would add, evidence of practice from other places, he was not persuaded that the present system was unreasonable. It is a pity that there was not some evidence to that end. However that may be, he was, in my judgment, entitled to reach the conclusion he did, both as to the fob locks and as to the other allegations of systemic negligence. I would therefore dismiss the appeal under this head.

This was very much a secondary limb of the appeal and I am not absolutely sure whether it is persisted in. In any event, the appeal cannot, in my judgment, succeed on this basis. The argument is that given the fact that the responsibility to escort males off the premises was delegated to female residents who invited them into the block, each such female resident owed a duty of care to all the other residents to ensure that the male concerned left the block. It is said that in particular Fiona Graham owed the claimant a duty to escort the second defendant off the premises, especially since she knew that the claimant was asleep in her unlocked room, that the corridor was unlocked and that the claimant’s door might well still be unlocked. It is further said that Fiona Graham was in breach of that duty because she only ensured that the second defendant left her wing and not that he left the premises.

I agree with the judge that this case fails at more or less every stage. Even if it were a disciplinary offence not to escort the second defendant off the premises, I am unable to accept that Fiona Graham owed the claimant a duty to take reasonable care to do so. In order to find such a duty it would be necessary to hold that she assumed such responsibility to the claimant. There is simply no basis for such a conclusion.

Further, as I said earlier, Fiona Graham had no reason to think that the second defendant might go and try to find the claimant, let alone assault or rape her. He had not behaved badly to her (that is Fiona Graham), he was much more sober than he had been earlier and there was no reason for her to think that there was any risk that he would not leave the premises. For these reasons I would dismiss the appeal on this ground.

It follows that while I have every sympathy for the claimant, she has not shown that her rape by the second defendant was the legal responsibility of the first defendant, the MOD. Its sole cause was the criminal act of the second defendant. This conclusion means that it is not necessary to consider the discreet questions raised by the MOD’s respondent’s notice, in which it is sought to argue, firstly that the MOD did not owe a duty of care to the claimant to take reasonable steps to avoid her being raped by the second defendant and, secondly, that the claimant was guilty of contributory negligence. I shall therefore say nothing about that, save that I am certainly not saying that the judge was wrong on either point.

I agree with both judgments.