D v The Commissioner of Police of the Metropolis

On 9 February 2012, I heard an appeal from an order of Master Leslie dated 3 November 2011, whereby he declined to exercise the court’s discretion in the Claimant’s favour by extending the period within which she might make a claim under s.6 of the Human Rights Act 1998 against the Commissioner of Police of the Metropolis (“the Commissioner”). The Master himself gave permission to appeal on the basis that he had not found the issue an easy one to resolve.

Permission was obtained from Master Fontaine for the Claimant to be anonymised throughout the proceedings and on all court documents. She is, therefore, known as “D”. The claim she wished to bring was in respect of failure by the police properly to investigate a complaint of rape made by her on 18 February 2005. It is said that the failings actually constituted an infringement of Article 3 of the European Convention on Human Rights and Fundamental Freedoms. The argument is primarily based on Strasbourg jurisprudence in support of the proposition that each member state has an obligation to carry out effective inquiries into allegations of inhuman or degrading treatment.

This is not a case where it is alleged that there was a failure to trace the alleged rapist or to bring criminal proceedings. The man accused by the Claimant was tried before a jury between 2 and 12 May 2006 and was in due course acquitted. The defence put forward on his behalf was that intercourse had been consensual, although he chose not to give evidence himself. It would thus appear that the jury concluded (by a majority of 10 to 2) that the Crown’s case, based on lack of consent, had not been established beyond reasonable doubt.

Criticisms were made by the trial judge, His Honour Judge van der Werff, of certain failings in evidence gathering. In particular, the opportunity appears not to have been taken to obtain corroboration of the Claimant’s case by way of DNA or mobile phone records. Moreover, the Claimant’s mother was complaining of these omissions as long ago as 5 July 2006, when she met her Member of Parliament. She also sent a detailed letter of complaint dated 4 December of that year. On the same day, a full apology was proffered by the Chief Superintendent at Southwark, who had been in overall charge of the investigation. The essential complaint is that the Sapphire Unit, charged with the responsibility of investigating rape and other serious sexual offences, was at the material time under-resourced and inadequately staffed. The trainee detective constable in charge of the investigation into the Claimant’s complaint was inexperienced, untrained and overworked. There seems to be little doubt that this complaint was well founded, to a greater or lesser extent, as was confirmed by a report from the Independent Police Complaints Commission promulgated on 3 March 2009.

For a claim to be brought under the Human Rights Act, it is usually appropriate for proceedings to be commenced within a year of the acts or omissions complained of: see s.7(5)(a). In this instance, proceedings were only launched five years later on 24 February 2010. Thus it was that the Master was eventually called upon to exercise the court’s discretion under s.7(5)(b). This grants the power to permit proceedings to be commenced after the expiry of the initial 12 month period if it is thought “equitable” to do so, having regard to all the circumstances. This is a quite separate jurisdiction from that deriving from the Limitation Act 1980, as amended, which is obviously more familiar to practitioners. The statutory discretion is a broad one and in Dunn v Parole Board [2009] 1 WLR 728, CA, Thomas LJ declined, at [30]-[31], an invitation to proffer guidance as to the factors to be taken into account or to identify any which should be accorded greater weight than others. It was noted that Parliament required the courts to consider “all the circumstances” in determining whether it would be equitable to allow a longer period to elapse, and it was therefore thought inappropriate to list such factors or to attempt to give guidance which might have the effect of narrowing the breadth of the discretion intended.

The Master took note of the Court of Appeal’s decision in Dunn and, while acknowledging the untrammelled nature of the discretion, identified some of the factors which he took into account. I have already recorded that he granted permission to appeal on the basis that he had not found the exercise an easy one to carry out. I can well understand that. He recognised that his decision not to permit the claim to go forward, on limitation grounds, would undoubtedly give rise to greater prejudice to the Claimant than would a converse decision for the Commissioner. It so happens that on the same occasion he was invited by the Commissioner to strike the claim out on alternative grounds; namely, on the basis that the claim was bound to fail. Having considered the authorities, that application was rejected.

I remind myself that the general rule nowadays, following the introduction of the Civil Procedure Rules in April 1999, is that an appeal from a master will take the form of a review rather than a re-hearing. There are limited circumstances in which the court can decide to approach the matter by way of re-hearing, but I have not been invited to treat this case as being an exception to the general rule.

I must also bear in mind, since the appeal is against the Master’s exercise of the wide discretion afforded under s.7(5)(b), that it is only in limited circumstances that an appellate tribunal should intervene. It hardly needs to be said that I could not overturn the Master’s order merely on the ground that, if I had been invited to exercise the discretion at first instance, I would have come to a different conclusion. I must be satisfied that the Master’s conclusion was “wrong”. Did he, for example, misdirect himself in law? Or did he take into account factors which were irrelevant to the issue or ignore others that were relevant? It is no doubt helpful to have in mind, where discretion is concerned, what Lord Fraser called “the generous ambit within which a reasonable disagreement is possible”: G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652. Did the Master step outside that territory? Or did he merely prefer an imperfect solution which is different from an alternative imperfect solution which would have been available?

As I have already observed, this statutory jurisdiction differs considerably from that operated under the Limitation Act 1980. In particular, there is no reference to the date on which a relevant claimant acquires knowledge of the acts or omissions complained of, although there can be little doubt that this is likely to be deemed a relevant factor in a significant number of cases. Here, the Master proceeded on the assumption, favourable to the Claimant, that she and her advisers became aware of a potential Human Rights Act claim in March 2009. It can be said that it was at about this time that two categories of information converged in coming to their attention.

First, there was the detailed IPCC report, which contained a great deal of information both as to systemic deficiencies and individual failings. As I have mentioned, there were some criticisms which were made at or shortly after the trial in 2006, but this report plainly provided a good deal more in the way of support.

Secondly, it is fair to say that an informed observer of developing Strasbourg jurisprudence would have begun by early 2009 to have understood much more about the scope and limits of a cause of action such as that on which D now founds her claim: see e.g. Secic v Croatia (2009) 49 EHRR 18. It was becoming apparent at this time that jurisprudence was being developed in such a way as to afford a remedy, including in our jurisdiction under the Human Rights Act, in respect of alleged breaches of Article 3: see also R (B) v DPP [2009] 1 WLR 2072. The principles emerged more clearly, however, in OOO v Commissioner of Police of the Metropolis [2011] UKHRR 767.

Until shortly before the hearing on 3 November of last year, the focus of the Commissioner’s complaint was upon the long term delay in bringing proceedings, covering the period from the trial in May 2006 (if not before) to the issue of the claim form on 24 February 2010. It became apparent, however, or so the Claimant’s advisers contend, only from the point when the skeleton argument for the Commissioner was (belatedly) presented that the focus became narrowed to concentrate on delay in the period from March 2009 to February 2010. It was undoubtedly on that period that the Master too focused his attention. Because of this development, which Ms Kaufmann QC for the Claimant characterises as a late “change of stance” on the Commissioner’s part, she felt at something of a disadvantage in doing full justice to her client’s case before the Master. In particular, there had been no opportunity for her to investigate and produce evidence concerning the reasons for such delay as took place over that 11 month period. It is true, of course, that witness statements could have been produced (specifically from D, from her mother and from her solicitor) detailing what was going on during the relevant period, but this had not been done simply because D’s legal team had not appreciated that this was to be the gravamen of the Commissioner’s criticism.

Notwithstanding this disadvantage, Ms Kaufmann improvised before the Master by giving him orally, on instructions, an account of what such evidence would have contained had there been an opportunity to produce witness statements. There was, in the course of the hearing before me, a slightly sterile debate as to whether that constituted the giving of evidence, in itself, or whether the account which Ms Kaufmann gave to the Master should be regarded as “new evidence” when put before me in the form of witness statements (thus requiring to be justified in accordance with the well known principles canvassed in Ladd v Marshall [1954] 1 WLR 1489). The material was in fact before the Master, despite the lack of formality, and he expressly referred to it in his ex tempore judgment. It seems to me, in those circumstances, that it would be realistic to proceed on the basis that the evidence had indeed been before the court on that occasion.

There is, however, one further piece of evidence which Ms Kaufmann wished to introduce on the appeal. I was told that the only reason it had not been presented to the Master was that, being taken by surprise (or so she claims), the Claimant’s solicitor had not sufficiently had her wits about her to call it to mind on that occasion. I found that explanation persuasive. Nevertheless, Mr Basu, for the Commissioner, has submitted that this new evidence could and should only be admitted before me on the hypothesis that I have already concluded that the Master’s exercise of discretion was “wrong”. In other words, he accepts that I could take it into account, but only if I come exercise the court’s discretion de novo. Ms Kaufmann, on the other hand, argues that I should be able to pay heed to it even at stage 1; that is to say, when I am deciding whether the Master’s decision was in fact “wrong”. That is because, on her case, it would have been material to the issues that seemed to him to be significant in reaching his conclusion and could well have made a difference to the outcome.

After this lengthy introduction, I should explain that the “new” material on which Ms Kaufmann seeks to rely in explaining the Claimant’s delay relates to her need for anonymity. She would not have proceeded unless she could be assured of anonymity. I have already explained that an application was made to Master Fontaine, in February 2010, for the Claimant to be anonymised in the course of these proceedings. For that purpose, she needed legal representation, so it is said, and thus it was reasonable for her to hold back from the issue of proceedings until she knew the outcome of her application for legal assistance, which had been made to the Legal Services Commission (“LSC”) on 6 October 2009. The delay from that point onwards was attributable, as I understand it, entirely to the LSC by reason of the time taken to determine it.

How would the proposed introduction of the solicitor’s evidence in this respect fare under the Ladd v Marshall test? First, could it have been obtained prior to the hearing before the Master? Undoubtedly, but as I have already indicated, the framework of the application had somewhat changed shape on receipt of Mr Basu’s skeleton. It was simply that Ms Dasgupta, the solicitor in question, having already canvassed the need for anonymity before Master Fontaine, had not appreciated that it was going to be necessary to refer to the matter again before Master Leslie. She (and Ms Kaufmann) had been concentrating on refuting a different argument, namely that D should have been fixed with knowledge of her potential claim from a date much earlier than March 2009. In the particular circumstances of this case, therefore, I think it fair to say that it was not possible, in practice, to obtain the witness statement in time for the hearing on 3 November.

Secondly, would the introduction of this material on anonymity have played an important role in the Master’s deliberations? That requires a consideration of not only the arguments advanced before him but also of the reasoning set out in his judgment (of which I have been supplied with a transcript). It was a characteristically clear ruling, in which Master Leslie identified his “sole reason” for declining to exercise his discretion in the Claimant’s favour. It turned upon the contention that she could have been sent down to the court office, without the need of legal representation, in early October 2009 and got the proceedings under way with the benefit of a fee exemption certificate. She need not, according to the Master, have waited until her application for legal assistance was determined the following February. On the other hand, I think it fair to conclude, as Ms Kaufmann invites me to do, that it would not have been so easy for D to have applied for anonymity at a hearing before Master Fontaine or one of her colleagues. If not difficult, at least it would be a rather more sophisticated exercise than merely issuing a claim form.

Since the Master’s decision turned “solely” on the decision to wait for the outcome of the application before the LSC, I think it reasonable to characterise the additional evidence of Ms Dasgupta, on the anonymity issue, as “important” for the purposes of Ladd v Marshall.

Thirdly, of course, I have to consider whether the account now given of the significance of this issue and the role it played in the delay, can be characterised as “credible”. I have no sufficient basis for concluding that the evidence of Ms Dasgupta, a solicitor, should be disbelieved on this issue. It seems to me, therefore, to qualify under the third of the Ladd v Marshall requirements.

Some cold water was poured on the anonymity argument by Mr Basu. He suggested, for example, that D had already been content to complain to her MP and the IPCC without being accorded anonymity. But those communications did not take place in public. He also referred to the Sexual Offences (Amendment) Act 1992, which would have meant that reports could not identify her. So far as this litigation is concerned, however, she wanted to ensure so far as possible that her name would be protected from the outset and, in particular, from those inspecting the court file.

It is fair to say, at this point, that one of the matters investigated on the issue of delay was the apparent misunderstanding on Ms Dasgupta’s part as to the limitation regime applying to claims under s.7 of the Human Rights Act. It seems clear that she and her colleagues were labouring under the impression that there was a year within which to bring the claim, starting with the provision of the IPCC report in March 2009. This would be on the basis of an analogy with the quite different scheme operated under the Limitation Act 1980. That there was such a misapprehension seems to emerge clearly from Ms Dasgupta’s witness statement of 24 February 2010, prepared for submission to Master Fontaine on the anonymity issue, when she referred to the fact (as she believed it to be) that the relevant 12 month period was about to expire. This does not, however, seem to me to be a “knock down” answer to any other explanation that may be offered for the period of delay. There could, of course, be a multiplicity of factors which contributed, and Ms Dasgupta has identified a significant number in her evidence. I should make it clear that I do not see any reason to conclude that the delay can simply be explained on the basis that Ms Dasgupta was luxuriating in her mistaken belief about the limitation period and doing nothing for that reason. To be fair to Mr Basu, I do not believe that he was suggesting this.

I shall need to consider the other factors shortly, when I come to consider the substantive challenge to the Master’s reasoning. For the moment, however, suffice to say that I do not believe that Ms Dasgupta’s misapprehension undermines her latest witness statement so as to render it other than “credible”.

My conclusion, therefore, on the “new evidence” point is that I should allow Ms Dasgupta to introduce the anonymity by way of explaining, at least in part, the delay between March 2009 and February 2010. What is more, I conclude that I can take it into account, for what it is worth, on the primary issue of whether or not the Master’s exercise of discretion should be set aside.

There is no doubt, as Mr Basu has submitted, that the Master did consider a range of factors when addressing the background circumstances. He did not confine himself to what happened, or did not happen, following March 2009, but took into account the whole chronology. Nevertheless, as I noted earlier, he expressly stated that his final conclusion was based on one factor alone. In fairness to the Master, I think it right to set out the concluding passages from his judgment which make that clear. Having made reference to some of the factors mentioned by Ms Kaufmann in the course of her submissions, and in particular as to the serious problems which the Claimant had been encountering in 2009, the Master rounded things off in this way:

“30

… I am not surprised that she had a stressful time with her mother at home. I rather suspect that her mother was trying to put her back on the rails and she was not terribly keen to go back on the rails.

31.

The question is this: is the description of her condition from that little vignette or history, sufficient to explain the delay from March 2009 to February 2010 and the inability of the Claimant to put in an application to the Legal Services Commission before October 2009 and the delay at waiting for the Legal Services Commission to consider that application and pledge its support? That is the critical point that I have to decide and I do not find it at all easy. On the one hand one can only have sympathy for this young woman, who, at the start of her life, has had such a rotten time. On the other hand, I cannot allow my judicial discretion to be influenced by mere sympathy. Is the explanation offered rational and reasonable?

32.

What tips this case the wrong way from the Claimant’s point of view is the fact that the claim form was not issued until February 2010. It could easily have been issued in October 2009 or even earlier than that, but after March. It should have been. It did not have to be served for four months. I am afraid it just comes down to that. It was started too late. Against a background of one year’s limitation period, a party has waited four years (in other words, three years over time) until the facts become sufficiently clear to warrant starting proceedings that party must act very speedily. To wait further is courting disaster. That is what has happened here. In those circumstances and for that sole reason I decline to exercise my discretion in favour of the Claimant, who, but this will be no comfort to her at all, has my sympathy. The case must be struck out.”

Although the Master observed that the proceedings could have been issued “… even earlier than that, but after March”, the nub of his criticism seems to have been that the Claimant waited beyond October 2009. I take his point that, in the context of this Human Rights Act regime, the party must act “very speedily” for public policy reasons. That is clearly what Parliament intended. Nevertheless, the Master having come to the conclusion that a particularly important landmark, on the facts of this particular case, was the delivery of the IPCC report in March 2009, it is reasonable to focus on what took place thereafter.

I understand that he was of the view that the Claimant did not need to wait for a determination by the LSC because, as he had observed in the course of argument, it is a relatively simple matter to issue a claim form. On the other hand, I think it is reasonable to wait to have legal representation before making an application for anonymity. But it is not only that. Ms Dasgupta has pointed out that she wished to avoid committing her client to any liability for costs in the interim (i.e. while awaiting the decision on legal assistance). Her client would be exposed if the Defendant was required to take any steps before she had the protection of a favourable decision from the LSC. If the only step she was expected to take between October and March was the issue of a claim form, it does not seem to me quite rational to stifle her claim altogether solely because of that omission. No substantive progress could be made in the action until financial support was available.

Although the Master appeared to be giving some weight to the period between March and October 2009 (viz. “even earlier than that”), it does not seem to have been the factor which underlay his ultimate conclusion. Nevertheless, I should reflect on the evidence relating to this period. It is partly factual evidence, deriving from D herself, her mother and her solicitor, and partly expert evidence to be found in the medical report of Dr Stuart Turner (which the Master described as “long, careful and very full”).

The circumstances of the Claimant during the period in question were most unusual. She had problems with depression, drug taking and what might reasonably be described as domestic violence. There were also attempts, or apparent attempts, at committing suicide (one in September and another in November). Not surprisingly, against this background, there was a lack of communication at times between the Claimant and her mother, on the one hand, and the Claimant and her solicitors on the other.

In fact, the period under scrutiny can be narrowed considerably. Until June 2009, Ms Dasgupta was still establishing further details with the IPCC and addressing what still seemed to her the novel possibility of a civil claim against the Commissioner. From the submission of the funding application on 6 October, matters were out of her hands. Thus the important months for assessing the reasons for delay were July, August and September.

Although he was somewhat taken by surprise by the reliance on the medical background, as advanced in her submissions by Ms Kaufmann, Mr Basu had managed in the course of the hearing to cobble together submissions in an attempt to refute the picture being presented about the Claimant’s health during the summer of 2009. He drew attention to what appeared to be signs of improvement in the GP’s records. Ms Kaufmann has invited me to pay attention to the broader picture as portrayed in Dr Stuart Turner’s report. She contends that, in so far as the Claimant was presenting a less troubled picture to her general practitioner, this was, or may well have been, explicable on the basis that she was not facing up to reality herself and was in fact hiding the true position from him.

Moreover, I should not lose sight of the fact that some at least of the Claimant’s health and social problems in 2009 may have been attributable to what she undoubtedly suffered in 2005 and 2006. It would thus be unfortunate if the Commissioner were able to take advantage of her plight between March and October 2009 if (and I must emphasise that word) it may transpire that it was partly explicable by reference to the shortcomings disclosed in the IPCC report.

In the end, however, I return to the point I made earlier in relation to the delay between October 2009 and February 2010. With great respect, I have come to the conclusion that the Master was wrong to decide that the Claimant should be penalised in respect of her solicitor’s decision to wait for the decision on funding (whatever may have been her misapprehension as to the statutory limitation regime). It follows that I am free to exercise the court’s discretion de novo.

There undoubtedly has been a very long delay in this case. In the most unusual circumstances, however, I think it fair to discount the delay between (say) the trial judge’s observations about the investigatory process in May 2006 and the delivery of the IPCC report in March 2009 (coupled with the gradual emergence of the Strasbourg jurisprudence on a member state’s duty to conduct investigations).

Taking into account all the background circumstances, as s.7 of the Human Rights Act requires me to do, I have come to the conclusion that it would be equitable to extend the period within which the Claimant was entitled to proceed to the date when the proceedings were launched in February 2010. The serious shortcomings in the investigation process and their impact upon D should be properly explored.

Ms Kaufmann has urged upon me the argument that it is in the public interest that the claim should be allowed to go forward in order for the legal position to be established, in the interests of wider society and/or other potential claimants. It is indeed the case that the IPCC report disclosed failures extending beyond the particular circumstances of D, but I prefer to focus on the respective interests of the parties in this litigation. I think it fair and “equitable” that the Claimant should have an opportunity to test her claim against the Commissioner in the light of the powerful ammunition available to her in the report of March 2009. Furthermore, I do not consider that her solicitor’s misapprehension as to the limitation position, or her decision to wait for the outcome of the application for funding, would render it unfair for the issues to be determined in due course, albeit six or seven years after the events in question, or to give rise to any significant additional prejudice to the Defendant. As the Master readily acknowledged, the balance of potential prejudice lies in the Claimant’s favour. There is always the risk of memories fading, of course, but, as the Master pointed out, much of the contemporaneous evidence as to the alleged failures or omissions on the part of the Commissioner has been “frozen”, in the sense that there are documentary records available to compensate for any disadvantages of memory loss.

I will accordingly allow the appeal, extend the Claimant’s time for bringing the proceedings and give any necessary consequential directions.