Mlia & Anor v Chief Constable of Hampshire Police

Introduction

The First Claimant had a relationship with a man who has been referred to in this case as AB. He proved to be abusive, aggressive, violent and threatening. The relationship ended in July 2005. He then made many telephone calls to the Claimant and her mother, the Second Claimant. He left voice messages and sent text massages. In some of these calls and messages he made threats of violence, including threats to kill.

Starting in July 2005, the Claimants complained about AB to officers of the Hampshire Constabulary (“the Force”). However, they contend that between 31 July 2005 and at least 12 November 2005 the Force failed to investigate the matter adequately. As a result, the Claimants allege that the Force acted in a way which was incompatible with Articles 3, 8 and/or 14 of the European Convention on Human Rights (“the Convention”).

The Defendant acknowledges that she would be liable for any unlawful conduct on the part of the officers involved in this case, on the basis that they acted under her predecessor’s direction and control in the performance or purported performance of their functions. The Defendant is a “public authority” for the purposes of section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

On 30 January 2015 Senior Master Fontaine made an order that the identity of the Claimants must not be disclosed. That order remains in force. On 9 February 2016 Master McCloud directed that there should be a trial of liability only. In so doing, she rejected the Defendant’s submission that the issue of limitation should be tried as a preliminary issue.

The first issue for me to decide is the issue of limitation, i.e. whether this action was commenced within “such … period as the court … considers equitable having regard to all the circumstances”: see section 7(5)(b) of the Human Rights Act 1998. If not, this action was brought out of time, the Claimants are not entitled to pursue it and the remaining issues do not arise for decision.

If the Claimants are successful on the first issue, then the principal remaining issues between the parties were whether Article 3 and/or 8 was engaged and, if so, whether the Force acted in a manner which was incompatible with the duty imposed thereby on the state, in particular by failing adequately: (a) to investigate the Claimants’ allegations; and/or (b) to protect the Claimants.

The Claimants also alleged that they were the victims of discrimination, contrary to Article 14. However, it emerged at trial that there was only one issue in relation to Article 14. Ms. Gerry contended that in a case of domestic violence against a woman, if the state is in breach of the duty to investigate which arises under Article 3 and/or 8, then the state is automatically also in breach of Article 14. The basis for this submission is to be found in paragraphs 187 to 191 of the judgement of the European Court of Human Rights in the Opuz v. Turkey (2010) 50 E.H.R.R. 28. However, given my findings in relation to Articles 3 and 8, it is unnecessary for me to say anything about this contention.

Both of the Claimants and six police officers gave evidence at trial. All of the witnesses gave evidence about events which happened over 11 years ago. This made it difficult for them to recall some events, or the details or sequence of events. A number of witnesses said that they had little independent recollection of events. They relied on contemporary documents, but not all of the documents which were created at the time were available at trial.

The Force’s document retention policy provides for the routine destruction of documents after 7 years. The documents which were not available at trial included:

When she first met AB, the First Claimant was a fitness instructor and a businesswoman with a growing business. She described herself as a strong woman. Today, as a result of his prolonged ill-treatment of her, both actual and threatened, the First Claimant and her mother live in fear of him at an undisclosed location.

The First Claimant was clearly doing her best to tell the truth in what were obviously distressing circumstances. For example, at one point in her cross-examination she explained the difficulty which she was having because she was emotionally deeply attached to the events she was being asked about. That was why, as she explained, the documents were confusing her.

The First Claimant acknowledged that there were matters which she could not remember. For example, in her several witness statements to the police, and on at least one subsequent occasion, she said that her relationship with AB began in September 2002. The Second Claimant’s witness statement to the police and a letter dated 24 May 2006 from AB tended to support this date. But in her witness statement for this action the First Claimant said that the relationship began in 2003. She acknowledged that she could not explain why she had repeatedly given a different date. She said that the only way she could explain it was by reference to where she was in her life at the time, and the fear and stress that she was under. These are obviously factors which have to be borne in mind when assessing her evidence.

Another example concerned the First Claimant’s evidence in her witness statement in this action that AB kept her captive in a flat “for 3 days or more” in the days before 9 July 2005. This evidence was inconsistent with a note in her medical records that she had attended her doctor’s surgery on 7 July 2005 and been examined for an unrelated matter. At trial, she said that she did not recall going to see a doctor that day. She said that she didn’t recall the length of time she was held captive, and that “It’s like a black hole in my mind.” Matters such as this reflect the understandable difficulties which a witness can have in remembering the detail of events, and particularly distressing events, over 11 years later.

The First Claimant acknowledged that she was inaccurate in her witness statement when she said that she called the police very regularly, dialling 999, and that often no officer came out at all. She said that she must have called the 0845 number of the Force’s helpline.

The Second Claimant was also clearly doing her best to tell the truth in distressing circumstances, but faced similar difficulties to her daughter. For instance, when asked whether she could remember a particular matter from 2005, she replied that at that time they had been so traumatised that they were just surviving

The Second Claimant had said in her witness statement to the police that she had met AB in November 2002. In her witness statement for this action, she said that this was incorrect, as the relationship did not begin until 2003. At trial, her explanation for this mistake was that they had been up most of the night before she made her statement dealing with AB’s threats.

For the sake of convenience, I will refer to the Defendant’s witnesses by their rank (and, where relevant, maiden name) in the second half of 2005. They were:

These witnesses were also doing their best to tell the truth, in circumstances where they were being asked about events which took place over 11 years ago. They confirmed the accuracy of their contemporary notes. It was often difficult for them to recall matters which were not set out in those notes.

The principal contemporary records to which reference was made at trial consisted of working sheets from the Force’s Records Management System (“RMS”). Entries made in these working sheets were timed and, once made, could not be changed. Three occurrence logs were created in the RMS in relation to this matter in the period from 30 July to 10 November 2015. One concerned harassment, one threats to kill and one criminal damage.

Somewhat inconsistently, Ms. Gerry submitted that this was both too many and too few occurrence logs, on the basis that: a single log would have ensured that all working sheets were visible in one place; but a separate log for the First Claimant’s allegations of assault might have ensured that they received greater attention. PC Jelliff’s evidence was that logs were created in accordance with standard procedure.

The officers said that they understood the importance of making accurate records. Indeed, in some respects the Claimants themselves relied on the accuracy and completeness of these records. For example: (a) the Claimants served a hearsay notice in respect of PC Andrea Heywood’s statement as to the accuracy of the RMS logs insofar as they concerned her; and (b) Ms. Gerry submitted that, if the CPS had been consulted on 10 August 2005, that would have been recorded in the RMS.

AB was born in Zimbabwe. He was 8 years younger than the First Claimant. He had spent about 18 months in the British army. He was, unknown to her, in the United Kingdom unlawfully. He said that he was a martial arts specialist. The Claimant described him as like a cage fighter.

On 14 April 2002 AB was arrested on suspicion of raping his wife. He was released on bail the following day. That allegation did not result in a prosecution.

On 12 March 2003 AB was convicted of driving a motor vehicle with excess alcohol. He was fined £220, ordered to pay costs of £42 and disqualified from driving for 2 years.

On the evening of 10/11 September 2004 police officers attended an incident in a public place. According to their notes, AB, who was drunk, complained that he had been assaulted. A woman, who had also been drinking, told the officers that she was the sister of AB’s ex-girlfriend. She said that she had confronted him about continued abuse of her sister, particularly offensive text messages. This incident did not result in any charges.

In 2005 there were a number of documents which contained guidance on the investigation of allegations such as those made in the present case. These included Home Office Circulars, guidance published by the Association of Chief Police Officers (“ACPO”) and policies adopted by the Force.

Policies and procedures have been updated since 2005. Some of the witnesses, and DI Chudley in his responses in 2014 to the Claimants’ complaints, acknowledged that some things might have been done differently if this case had arisen today. However, there was no allegation that the policies in force in 2005 were inadequate.

Home Office Circular No. 19/2000 concerned domestic violence. It stated, inter alia, as follows:

“Ministers recognise and frequently pay tribute to the progress which many police forces have made in addressing domestic violence effectively, reducing repeat victimisation and providing an appropriate service to survivors. It is important to maintain and develop this work. They commend this Circular for careful study by both operational officers and their managers, with a view to further improvement through increased awareness, knowledge and understanding and through the implementation of its recommendations. …”

“1.

Nature & Extent of Problem

The dynamics of abusive relationships are complex. Generally, one individual tries to assert domination over other individuals. Domestic violence is an abuse of power and control, and the process of repeated intimidation, violence and abuse results in vulnerability. This is particularly pertinent where people who are physically and mentally ill, or are elderly, are concerned.”

“5.

Force Policy

Force Policy on domestic violence should be issued. This should give guidance to officers on how the force prioritises the issue, what standards of investigation are expected and procedures that must be followed. Force policy is integral to the setting of standards and influencing the attitudes and behaviour of officers.”

“7.

Action after the incident

Many victims of domestic violence have stated that they did not wish to feel responsible for taking their assailant to court. However, they do not want to be the subject of further violence. The police must remain impartial and uphold the law. If the evidence is present, whether or not including evidence from the victim, then a charge or summons should be preferred, unless there are exceptional reasons. Such reasons should be recorded. The decision on prosecution is for the CPS, who will act in line with their published policy statement, taking account of the realistic possibility of a conviction and of the public interest. If there are exceptional reasons why a prosecution does not take place, again these must be recorded. Officers must bear in mind too that a victim may decide to provide a statement and give evidence at a later stage. In all cases a victim is entitled to a sympathetic response and proper support.”

“16.

Conclusion

The police service has significantly improved its response to domestic incidents in the last decade. There will be increasing reports of such offences as victims become more confident in how they are treated by the police. It is imperative that the police deal effectively with domestic violence from the beginning. Not only will this provide a better standard of service to the victim but also change attitudes so that domestic violence is no longer regarded as acceptable.”

I was not shown a Force policy on domestic violence dating from 2005. I was told that this did not necessarily mean that the Force had not issued one, and that it may simply have been impossible to find it given the passage of time. Ms. Gerry accepted that it was likely that the Force had issued a policy which was in accordance with the Home Office Circular.

Home Office Circular No. 28/2001 concerned harassment. It provided, inter alia, as follows:

“D Guidance to the police including an Investigator’s Guide

30.

As part of our response to the findings of the Research Study this Circular offers guidance specifically for the police, which has been drawn up with the help of the Association of Chief Police Officers. Apart from the high-level guidance immediately below, we also attach more detailed guidance in the Annexes to this Circular. We are grateful to the Association of Chief Police officers for their work on this and commend it to you.”

Annex A provided, inter alia, as follows:

“20.

A formal caution is not recommended in a case of harassment. Because the Act requires at least two acts of harassment to form an offence, a formal caution could not be given until at least two such acts had been alleged. A formal caution in such circumstances would draw a line under the acts so dealt with, and would mean that no action could then be taken in respect of a further act of harassment, as the suspect would need to carry out at least two more such acts before a prosecution could be considered.

21.

Some victims of harassment may feel that they do not want to ‘criminalise’ the offender. In such a case it can be pointed out that there is a civil remedy under section 3 of the Act. However, it is important not to stop police action if the victim is in any physical danger. The views of the victim on this must be sought, and the victim should also be provided with details of support networks, since a wish not to take the matter further with the police may be due to a feeling that he or she is unable to cope with such a course. Both the victim and the officer will need to bear in mind that taking no further police action may encourage further harassment.”

Home Office Circular No. 30/2005 concerned the cautioning of adult offenders. Its implementation date was 15 June 2001. It identified, inter alia, the aims of the caution and the benefits of a caution. It dealt with the cautioning process, referring, inter alia, to the need to have regard to the public interest and to the importance of trying to establish the views of the victim before giving a caution.

The Circular dealt specifically with offences of domestic violence in paragraphs 46 and 47, which stated as follows:

“ACPO Guidance on Investigating Domestic Violence was published in 2004 by the National Centre for Policing Excellence and should form the basis for investigation of these offences. The recently revised CPS Policy on Prosecuting Cases of Domestic Violence should also be considered. Both of these documents advocate positive action in cases of domestic violence to ensure the safety and protection of victims and children while allowing the Criminal Justice System to hold the offender to account. The ACPO Guidance stresses that an effective and proactive investigation should be completed in all cases where a domestic violence incident is reported. The CPS Policy also stresses the need for a proactive approach to the prosecution of cases of domestic violence. The drive is for consistency from investigation through to charge.

46.

Taking forward a prosecution does not depend solely on the victim’s wishes. The evidential and public interest tests need to be considered and it may be that although the victim does not support the prosecution, it can still go ahead. Where police forces are operating this positive action policy on domestic violence, in some circumstances officers have experienced difficulty in securing a charge/summons when the victim does not want to proceed with a prosecution. Forces need to have a system in place to ensure that Simple Cautions are considered in preference to an NFA decision, as a potential disposal in the absence of a charge/summons, to gain the benefits details in paragraph 36.”

ACPO’s Guidance on Investigating Domestic Violence was published in 2004. Section 3.12 was entitled “Risk Identification.” It listed a number of established risk factors. These included:

Section 5.3 dealt with charging. It stated, inter alia, as follows:

“5.3.1

CHARGING STANDARDS

Cautions are rarely appropriate in domestic violence cases. This is because they are not usually the first offence and because the nature of such offences tends to constitute a breach of trust. Supervisors should monitor the administering of cautions in domestic violence cases.

Officers should ensure that the charges in domestic violence cases reflect the seriousness and persistence of the suspect’s behaviour, the provable intent and the severity of the injury and harm suffered by the victim. Officers should enable the court to impose a suitable sentence and should help the CPS to present the case clearly and simply.”

“5.3.2

CHARGING

Police officers should take account of the Code for Crown Prosecutors when they are consulting with the CPS. Officers should note that all domestic violence cases will fall within the pre-charge advice scheme even when a guilty plea is likely.”

“5.3.3

RISK IDENTIFICATION AND POLICE BAIL

Officers should use the established risk factors, listed in 3.12 Risk identification, to inform their decisions relating to police bail. The primary consideration of an officer making bail conditions should be the safety and protection of the victim, children and the suspect.”

ACPO’s Guidance on Identifying, Assessing and Managing Risk in the context of Policing Domestic Violence was published in 2005. Paragraph 2 stated that:

“The core aims of identifying, assessing and managing risk in the context of policing domestic violence are:

1.

To reduce the likelihood of future harm including the effects of further violence, serious injury and homicide on adult and child victims, future victims and the public.

2.

To facilitate the effective use of police powers in protecting the public, investigating crime, narrowing the justice gap and in contributing to the Criminal Justice System function of holding offenders accountable.”

The Force’s policy document concerning threats to kill stated as follows:

“Where a threat is made against an individual, there is a legal obligation on the police to act expeditiously, asses the threat to the victim, and take appropriate steps to avoid the risk. The following steps must NOW be taken by the officer in the case:”

“3/ Conduct the following risk assessment (a statement from the victim WILL be required):

•

The effectiveness of the police response depends on the accuracy of enquiries into four basic knowledge factors. The following must be recorded:

i.

Victim identity: background, vulnerability, fear level.

ii.

Suspect identity: background, previous convictions, intelligence, intentions, weapons, special population group issues (e.g. mental health, drugs or alcohol misuse, language or communication barriers).

iii.

Likely location of any attack.

iv.

Time and date of the proposed attack.

4/ Record the Risk Assessment on a Working Sheet, answering as fully as possible the above questions at point 3.

5/ Put in place appropriate risk avoidance measures for the victim (alarms, address flagging, fire survey, temporary alternative residence, etc).

If the risk assessment confirms the potential use of a firearm or other lethal weapon / threat, then make referral to Firearms Cadre for firearms threat assessment.

6/ Reduce the threat by seeking to arrest the offender at an early stage. Enquiries should be completed whilst the offender is in custody, and a further risk assessment should take place prior to their release.”

The Force’s policy document 12900 Policy - Protection from Harassment included, in paragraph 2.3, the following statement, which was derived from Home Office Circular No. 20/2001:

“Harassment encompasses a wide range of behaviour that often has devastating effects on victims. Personal harassment or the fear of violence can have an effect on the health and well being of a victim that far exceeds that caused by an isolated assault. The fear of harm being inflicted can erode self-confidence, cause paranoia and lead to a complete change of lifestyle.”

The Force’s policy document 12901 Procedure - Protection from Harassment included, in paragraph 3.1, the following:

“In those cases where there is evidence to substantiate any other criminal charge, i.e. assault or damage, consideration should be given to prosecuting for the offence of harassment in addition to the substantive offence providing there is evidence to show that there has been a series of events sufficient to meet the necessary criteria to prosecute for that offence’ this allows the Criminal Court to impose a restraining order on the offender thus affording the victim protection after sentence. Care should be taken by Prosecutors in accepting pleas to other offences, to ensure that the protection under this Act by imposing Restraining Orders is not lost.”

In January 2005 the Director of Public Prosecutions issued the second edition of The Director’s Guidance on Charging. It came into effect in Hampshire in April 2005. Its stated purpose was to enable custody officers to decide how a person should be dealt with when the custody officer determined that there was sufficient evidence (in accordance with the threshold test) to charge a person with an offence. “Offences classified as Domestic Violence” were amongst the offences listed in Annex A as “Offences or circumstances, which must always be referred to a crown prosecutor for early consultation and charging decision – whether admitted or not.”

I do not propose in this judgment to rehearse the whole of the First Claimant’s account of her ill-treatment by AB. Given the nature of this action, I will focus instead on the information which was passed to the Force and the steps which they took in relation thereto. It is relevant to note, however, that her witness statement for this action and her evidence at trial included information about AB’s treatment of her which is not recorded as having been given to the Force in 2005. For instance, she said in her witness statement in this action that:

The first contact with the Force arising out of the First Claimant’s relationship with AB came on 28 August 2004. On that date, AB telephoned to report a “verbal argument” between the First Claimant and another woman. In her witness statement in this action, the First Claimant said that she had seen another woman go to the door of AB’s home. The First Claimant punched AB in the face when he opened the door. She spoke to a police officer, but did not tell him about AB’s abuse.

The First Claimant first made contact with the Force about AB on 10 July 2005. This was the day after she said that she had escaped from being kept captive for 3 days or more. The Force’s record of that call is that the First Claimant said that: she had been having problems with her ex, AB; he had rung saying that he had taken some tablets; he was in a certain car park; she could not go near as he could be violent to her; and she wanted an officer to check on him. Officers spoke to AB and he was taken to hospital. He discharged himself, collected his car and left.

At about 11.30 pm on 30 July 2005 the First Claimant called the police. The call centre’s note reads as follows:

“Caller reporting she is being harassed by her ex boyfriend. [AB] …

This is still ongoing and caller belies he could be on his way to her h/a – she is there with her mother – who is also receiving hassle from [AB] She states he has flipped again and threatened to smash his car up unless she goes and sees him

Caller is crying and very distressed”

Two officers, PC Hollingsworth and PC Alison Smith (a more experienced officer), visited the Second Claimant’s home, where the First Claimant was staying. PC Hollingsworth’s record of this visit states as follows:

“[The First Claimant] states that her ex partner [AB] has been ringing her constantly on her mobile as he wants to talk to her about things that happened in his childhood. As this is her mothers house and he knows she stays there sometimes he has also been ringing the house phone and sometimes been verbally aggressive towards her mum.

She and another male called [CD] who lives in Southampton (a businessman) have been trying to help [AB] get help for his problems. [AB] was with [CD] in Southampton this evening & [First Claimant] was worried he would come to the house but [CD] advised her whilst we were there that [AB] was quite calm and he would not be going to her house.

As mum is sometimes at home alone have advised that if [AB] does turn up at property to contact us straightaway and not to enter into any conversation with him. Also advised to keep a list of any phonecalls rec’d.”

The First Claimant accepted that this was broadly the account which she gave to PC Hollingsworth. She also accepted that AB would have known that she had called the police. She accepted that she did not tell the officers that AB had kept her captive. She said that she would have told the officers that AB had threatened her. PC Hollingsworth said that the First Claimant did not report any threats, and that she would have made a note if they had done so. I accept this evidence.

When asked whether she took one of these female officers aside and told them about the sexual violence to which she refers in this action, the First Claimant initially said that this was not something which she would have been able to speak about at the time. It was suggested to her that she meant that she would not have been able to explain these matters to a police officer, whether male or female. Her response was that, if someone had asked her if there was more, she would not have been able to hold back.

It may have been on this occasion that the Claimants were given the 0845 telephone number for the Force’s helpline. The First Claimant accepted that they were told to use this number to contact the police if the matter was not an emergency, but to call 999 if they ever saw AB.

The final paragraph of PC Hollingsworth’s note records the advice which she gave the Claimants. She said, and I accept, that this was based on a “dynamic” (i.e. informal) risk assessment. The officers did not carry out a formal risk assessment. They did not refer the matter to the Force’s safeguarding team.

AB continued to call and text the First Claimant. She called the Force three times in the morning of 31 July 2005. The record of her call at 9.23 am reads as follows:

“Inf adv that she had recd approx 50 calls in the last 12 hours and is fearful of the male coming around.

Whilst on the phone the male has called again and is demanding that he wants to speak to her and won’t take no for an answer

Inf wants to know that if he comes around the house that she can call 999 as she does fear for her and her mother’s safety

Assured the aggd that if he does attend we will deploy asap”

The record of her call at 10.40 am reads as follows:

“An officer attended to inft’s address last night because inft has been receiving threats from an ex partner.

Inft states this has continues this am and it is getting worse, since 0800hrs he has not stopped calling, texting etc.

Inft states because they are ignoring as advised and he is getting very frustrated.

The last couple of msg’s are “If you do not see me I will f??k you” and “If you do not see me, I will hurt you and yes show this one to the law”. He also stated “I suggest you leave the house now.”

The male is [AB]

Inft stated the last call came from his work number [number] – he works at [address]. Inft thinks he is there now.

Inft is very frightened and is having difficulty ignoring the number of calls being received as it is constant.

The fear is that the behaviour may get out of hand.

Not regarded as per force policy.”

There is also a record of a call at 11.03 am, which reads:

“At 10:58 (as she was on the phone to me) she received another text message which reads:-

“Because your mother is getting in the way, I am happy to spend my life inside for taking her life.”

He then rang the land line again. [The First Claimant] sounded at the end of her tether and says that she and her mother are in the house alone and she can’t have her mother threatened in this way.

The male is supposedly calling from [location] – where he works.”

PC Churcher-Brown and PC Jelliff went to the Second Claimant’s home, arriving shortly after 11 am. They listened to some of AB’s voicemail messages. They invited the Claimants to the local police station. The Claimants each made witness statements.

The First Claimant was interviewed by PC Churcher-Brown. He accepted that he did not carry out any intelligence checks on AB before the interview.

The First Claimant made a witness statement which was 20 pages long. The following summary of the contents of that statement was made by the Claimants and admitted by the Defendant:

AB’s texts included one which read, “The threat is this. If you won’t see me I’ll hurt you and yes show this one to the law.”

At the end of her statement the First Claimant said:

“I have repeatedly tried to tell AB that I want no further contact from him and he has continued to ignore this. I initially tried to ignore his incessant calls in the hope that he may accept that our relationship has ended. It is my belief that he needs help for his problems. However it is clear that he will do nothing but continue to harass me without my taking action. The level of distress that this is now beginning to cause me has begun to affect my health and this together with the fact that AB has now begun to involve my mother in his harassing and threatening behaviour means that I now have to pursue this matter formally.

[AB]’s behaviour has reached the point where we are fearing for both our safety, and bearing in mind his erratic mood swings and obsessive behaviour, I believe that there is a possibility that AB could carry out his threats towards my mother.

I cannot allow this to continue and I am willing to support a court prosecution if required.”

As I have said, the First Claimant’s witness statement did not include what she now says are some of the most serious things which AB did to her. There was an issue as to why this was.

The First Claimant accepted that, when making her statement, she was articulate. She said that she was also distressed. In evidence, she repeatedly stated that her concern was that, by making a statement, she was putting her mother’s life at risk. I accept that this was a concern to her. It meant, as she said, that she needed to say certain things and to get them across and to put them over as best she could.

The First Claimant accepted that PC Churcher-Brown took her statement methodically and that they had a good rapport. She accepted that there was not anything which she told him which he did not include in her statement. She accepted that he told her that it was her statement and that she needed to be happy with its contents. He printed the statement out. They went through it together. She signed every page.

In particular, she signed the first page. This contained a number of questions, including the following:

“Does the person making this statement need additional support as a vulnerable or intimidated witness? If ‘Yes’, please enter details on Form MG2.”

In answer to this question, the “no” box was ticked. The First Claimant’s evidence was that she did not appreciate that this question was addressed to her. However, I find that the answer either was discussed between them or at least represented a good faith assessment by PC Churcher-Brown of how the First Claimant presented to him.

The process of taking the statement started at about 12.40 pm and went on until after 3.45 pm. PC Churcher-Brown had to leave for about half an hour to attend to another matter. When asked whether PC Churcher-Brown rushed her, the First Claimant said, “No”. But she did say that he was looking at his watch and commenting that this was a long statement and that he was going off shift soon. PC Churcher-Brown said that his shift was rostered to finish at 5 pm, but that he stayed until 6.30 pm. He had no important reason to leave at the end of his shift. He was paid overtime at an enhanced rate if he worked beyond 5 pm. I find that he did not rush the First Claimant.

She said that an important thing in her mind when making her statement was that she knew that she had twice been strangled by AB, who was trying to kill her. But she did not tell PC Churcher-Brown that. When asked why not, she said that this was because she could not talk about it at the time. She did not, in answer to this question, repeat the statement in her witness statement that she felt too embarrassed while alone in a room with a male officer to talk about the more demeaning aspects of the sexualised violence she suffered from AB.

There is an issue whether it was appropriate for the First Claimant to be interviewed by a male officer. On the one hand, she did not ask to be interviewed by a female officer. On the other hand, it was not suggested to her or offered as an option. She was not offered the opportunity to speak with a female officer, nor was she referred at his stage to the Force’s specialist domestic violence team. PC Churcher-Brown’s evidence, which I accept, was that she did not appear uncomfortable providing a statement to him and that, if she had, of if he had sensed that she was holding anything back, he would have explored that and considered whether to request that another officer become involved or take over.

The First Claimant said that she told him what she felt she was able to. But she also said that she wanted PC Churcher-Brown to ask her “Can you tell me a bit more about that?” He said that he would have encouraged her to provide as much information as possible. I accept his evidence to that effect.

She confirmed that, if he had asked her whether there were any eye-witnesses to AB’s abuse, or if she had had any visible injuries or had sought any treatment, she would have said that there were not, and she had not. If asked about witnesses, however, she would have mentioned CD, who was aware of AB’s aggression and had on occasion helped her to get away from it.

Taking all of these matters into account, I find that PC Churcher-Brown was not at fault in the way in which he conducted the interview. Insofar as the First Claimant did not tell him things that AB had done, that was not his fault.

The Second Claimant was interviewed by PC Jelliff. In her statement, she referred, in particular, to the many phone calls made by AB on 30 and 31 July 2005. In particular, she gave details of:

At the end of her statement the Second Claimant said:

“I am terrified for my own safety in regards to the threats that have been made towards me and [the First Claimant] as I believe [AB] could easily carry them out.”

A report by PC Churcher-Brown timed at 6.01 pm on 31 July 2005 states as follows:

“Further call received from aggrieved today regarding the incessant phone calls continuing. There is a clear course of conduct here and this matter needs to be dealt with. CRB have been updated with suspect details accordingly.

Aggrieved agreed to attend Waterlooville station this afternoon, and some time was spent taking a rather lengthy statement which disclosed a history of domestic abuse, harassment, assaults, criminal damage and threats to kill against the aggrieved’s mother (see related RMS occurrence 44050606553). Statement of aggrieved and aggrieved’s mother have been faxed and are currently located in PC 23972 Jelliff’s worktray.

Have discussed this matter with shift sergeant and address has been flagged with TWUN in case suspect does attend address of aggrieved and her mother as they both expressed fear that he may turn up at the address and possibly carry out threats. Lates sergeant has also been advised of this.

Aggrieved does not wish to change her mobile phone number due to this being a business number, and so she has been advised regarding contacting her service provider of both mobile and landline with a view to barring calls from the suspect.”

This indicates that:

PC Jelliff said, and I accept, that they decided that AB should be arrested, but that he need not be arrested that day as there was no immediate risk. To that extent, they assessed the risk to the Claimants. However, neither PC Churcher-Brown nor PC Jelliff nor anyone else carried out a formal risk assessment. They did not record the results of their assessment in a working sheet, as required by the Force’s Policy on Threats to Kill. No arrangements were made to interview CD. The Claimants were not advised not to return to the Second Claimant’s home. PC Churcher-Brown and PC Jelliff said that these would have been decisions for the sergeant. Both PC Jelliff and PC Churcher-Brown then went off duty.

CD called the Force twice in the evening of 31 July 2005 to report that AB was sitting in his car at a certain location (which was about 20 miles away). In the second call, CD reported that he had AB’s car keys, so that AB could not drive anywhere.

The First Claimant returned to the police station in the evening of 31 July 2005 with information on AB’s whereabouts. PC Griffiths made a note, timed at 10.10 pm and addressed to PCs Churcher-Brown and Jelliff, which reads:

“The [First Claimant] returned to the police station at 19:35 hrs stating that they had been told by their friend that he knew where [AB] was, in Southampton, & to notify us so we could get him. As you weren’t on duty any more I checked the RMS & read your update which did not imply any urgency & was told by the skipper that you had notified him of the aggd address should there be any problems tonight.

I advised them that the case was in your hands & that if the male did turn up then they should call 999 which they confirmed you had already informed them.

[The First Claimant] appeared bemused that now, after finally deciding to deal with this herself, we were not immediately rushing out to arrest this male. I explained the complexities (arranging another div to arrest etc.), but that if the male turned up in this area at her house it would be dealt with at the time.

She stated that you had asked her to come back & notify us of any change in the circs, & was saying that [CD] had told her that he had been talking to [AB] all day & was concerned about ‘where he was at’. She did admit that it was [CD]’s concerns yesterday that had prompted her to report it in the first place. She had not had any more incidents from [AB] just [CD]’s concern.

I pointed out that as this was no different from yesterday that it did not heighten the situation & to follow your previous instructions/advice.

She asked that this be recorded & I notify you of her attendance at the station which I stated I would do anyway. I have informed her that you are back on tomorrow if she needs to speak to you & that if there is anything urgent to contact us by phone.”

As I have said, no steps were taken on 31 July 2005 to arrest AB immediately. Instead:

Meanwhile, on 1 August 2005 AB telephoned the Second Claimant. He was crying and said that he was at the doctor’s and must get help. However, I find that, during the period from 1 to 10 August 2005, the Claimants had no further problems with AB. That is what the First Claimant told PS Franklin, as I will explain.

On 10 August 2005 PS Franklin telephoned the First Claimant. She said that, before doing so, she would have reviewed the records on the RMS system and carried out a “dynamic” risk assessment. I accept this evidence, which was not challenged. She made the following note (timed at 11.26 am):

“T/C to aggrieved whilst offender in custody to offer belated support advice. Aggrieved aware suspect in custody and has requested OIC update her on mobile as per RMS as to how things progressed. She has requested messages are not left on land line as her mother receives them and gets upset.

Aggrieved requested that she does not need any active support at present but did appreciate call. I have advised her I will post her my contact details and a Dom Abuse Pack. There have been no further problems since the last recorded incident and she appeared resolute that she would not be involved in any relationship with him.”

The First Claimant accepted that this was a fair and accurate note of her conversation. PS Franklin’s unchallenged evidence was as follows:

The First Claimant was asked why she did not ask for support. She said that this was because she knew that AB was in custody. Whatever her reasons for refusing support, the fact is that the First Claimant was contacted and offered support by an experienced officer who specialised in domestic violence cases.

PS Franklin said that at about this time she maintained a spreadsheet at the time of domestic abuse cases. This is one of the documents which is no longer available. PS Franklin could not recall whether she included the Claimants in it.

The First Claimant said that she didn’t recall receiving a domestic abuse pack. She did not tell the police that it had not arrived. She said that she had never been in such a situation, and that she needed someone to give her the pack face to face. The Second Claimant said that she might have received a leaflet or something, but that she could not remember. I find that PS Franklin did send the Claimants information for victims of domestic abuse. The precise content of this information cannot be determined after this length of time.

AB attended the police station at about 8.40 am on 10 August 2005 and was arrested for making threats to kill towards the Second Claimant, for harassing both Claimants and for causing criminal damage to the First Claimant’s car.

PC Jelliff conducted checks into AB’s background. He discovered that AB had been arrested in 2002 on suspicion of rape. He spoke to the officer involved in that case. PC Jelliff also discovered that AB was not shown as wanted anywhere. He did not discover the record of the arrest on 10 September 2004. He said that this may have been because of a change in the Force’s computer systems

PC Jelliff interviewed AB between 10.29 and 11.03 am. As I have said, the recording of this interview is no longer available. PC Jelliff’s subsequent note, to which I will refer, stated that AB admitted all offences.

PC Jelliff made an entry in his notebook timed at 12.10, which stated:

“[AB] given adult caution for criminal damage no further action other offences as both aggrieved had been in contact with him so harassment not appropriate”

PC Jelliff later made a note (in two parts, timed at 4.50 and 4.52 pm) in which he said, inter alia, as follows:

“… [AB] is in a relationship with [the First Claimant] and has been in a relationship with her for over 3 years, the relationship seems to have been volatile in nature and the couple regularly argue. [AB] blames [the Second Claimant] for the arguments, …

On 10/07/05 [AB] and [the First Claimant] had an argument during which [AB] lost his temper. He then went outside and scratched a swastika into the bonnet of [the First Claimant’s] car. The couple then went their separate ways and [the First Claimant] went on holiday with [the Second Claimant].

[AB] voluntarily attended JW station at 08:30 hours on 10/08/05 and was arrested on suspicion of harassment, criminal damage and making threats to kill. He was interviewed and admitted all offences in interview. However he also stated that both [the Second Claimant] and [the First Claimant] had made contact with him since the initial allegation was made and that all parties were on much better terms, this was corroborated by both [the Second Claimant] and [the First Claimant] in telephone conversations after the conclusion of the interview. [AB] stated in interview that he had suffered some kind of breakdown and was now receiving treatment for this.

Taking the above information into account it was decided by PS ORD that the harassment complaints were not appropriate as both aggrieved had made contact with [AB] and taken steps to maintain this contact. It was also agreed that [the Second Claimant] was clearly not in fear of [AB] and did not believe he would carry out the threats against her and so it was not appropriate to continue with the threats to kill allegation.

[AB] completely admitted the offence of criminal damage to the car of [the First Claimant] and bearing in mind his previous good conduct was considered appropriate for an adult caution.

Both aggrieved were updated with the action that had been taken and stated that they were very pleased with the outcome.”

The Claimants contended that the first paragraph of this note understated, and reflected a failure to appreciate, the seriousness of the conduct complained of by the First Claimant in her statement. PC Jelliff and PS Ord both gave evidence that PC Jelliff would have consulted with PS Ord as to the disposal of the case. As the senior officer, it was PS Ord who took the decision. PS Ord said that he would have directed that the Claimants’ views were established before he made a decision.

The third paragraph of PC Jelliff’s note suggests that the Claimants were contacted on 10 August 2005 before a decision was made. PC Jelliff and PS Ord could not recall which of them spoke to the Claimants, but a subsequent note by PC Jelliff (to which I will refer shortly) suggests that it was him. I find that PC Jelliff spoke to the Claimants by telephone on 10 August 2005 before a decision was made.

PC Jelliff’s evidence was that his note was accurate. The Claimants denied that they made the statements attributed to them in the third paragraph of this note. As to that, it is relevant to note that:

Faced with a conflict of evidence about what was or was not said in a telephone conversation over 11 years ago, I prefer the contemporary records as the best evidence. I find that the Claimants did say to PC Jelliff words to the effect that:

The evidence of PS Franklin, who had experience of acting as a custody sergeant, was that where a victim admits to ongoing contact in cases of harassment there are very clearly going to be evidential issues with securing a conviction. She said that the same was true in cases of threats to kill where the custody sergeant’s assessment is that the victim is not in fear, or where it does not appear that the victim is going to support a prosecution. PS Ord also had experience of the evidential issues that often arise in cases of domestic abuse.

PS Ord’s evidence was that he had no personal recollection of his involvement in this case because of the passage of time. He said that at the time he considered the disposal decision to be the appropriate one. There was no challenge to his good faith. PC Jelliff’s note summarises the reasons for the decision. In relation to the offences of harassment and threats to kill, PS Ord’s evidence was that in his assessment there was insufficient evidence to provide a realistic prospect of conviction, given the acknowledged contact between the parties. PS Ord also said, and I accept, that if the Claimants had expressed concern for their safety, this would have been likely to lead him to take a different view about disposal, for instance by charging AB and granting him conditional bail.

There is no existing record which specifically refers to the decision taken in respect of the First Claimant’s allegations of assault or the reasons for it. PS Ord said that the custody record would contain entries relating to disposal. He could not say whether these expressly addressed the assault allegations.

As for the final paragraph of PC Jelliff’s note of 10 August 2005:

It is consistent with this finding that the First Claimant did not make contact with PS Franklin on or after 10 August 2005 to say that she did want support after all. Given her evidence as to her reaction to AB’s release, the Claimant was asked why she did not ask for support at that stage. She said that hers was like a blank feeling. She said she would have been more likely to ask for help for her mother, but that it was psychologically and emotionally impossible for her to ask for help. She also said that was afraid of discussing personal matters over the telephone. I find that she did not request support because she did not consider that she needed it.

PC Jelliff said, and I accept, that he did not feel that the Claimants were at risk when they left the police station. Again, he and PS Ord had to this extent assessed the risk, but there was no formal risk assessment and no record.

The First Claimant said that there was an occasion on 27 August 2005 when AB called her and told her that he was in a truck outside the flat where when was staying. The date was corroborated by an entry in the Second Defendant’s diary. She said that she saw the truck, but not AB, and that he threatened her.

Although she did not actually see him, he was apparently outside her flat and was threatening her. This was the nearest he had been to her since July 2015. The police officers had told her to call 999 if she saw him again. She did not do so. She did not claim in her witness statement that she reported this incident to the police.

The first recorded contact between the Claimants and the Force after 10 August 2005 was on 28 September 2005. However, this followed what was said to be an unrecorded contact. The First Claimant said that on Sunday 25 September 2005 she and her mother attended the police station. According to the First Claimant, they asked the officer at the desk for someone to escort them home, as they were fearful of AB. The officer sniggered and said, “It’s not “The Bill” you know, love.” When asked what he had said, he said, “It’s not “The Bill” you know; bit dramatic isn’t it?” No contemporary note of this has been disclosed, but there is a note her complaining about this a few days later.

That was on 28 September 2005, when the First Claimant told a call handler that AB was continuing to harass her and that she wanted to make a further statement. The call handler made a note, in the following terms:

“I have received a telephone call from [First Claimant], regarding the on going situation that has been going on with the harassment. The aggrieved states that she has regular contact with the [AB], via text message & telephone calls, sometime there can be as many as 50 text messages, this is only if the suspect has money to pay for the phone.

The aggrieved would like to make another statement to log the content of the text messages. The aggrieved states that she is unable at present able to bar his mobile phone number from hers. The reason for this is because it would make this person more angry and aggressive if he cannot maintain contact with her. The aggrieved is well aware that is making the situation harder, but at the moment this is her only way of handling this.

It was also mentioned during our lengthy telephone call (45mins) that she is worried that the same thing could happen to her that happened to the young lady [in] London in Harvey Nichols. The aggrieved said that she has ready that the young lady in London did all the rights things that was asked of her, but she was still tragically killed.

The aggrieved states that she still holds his passport and his personal papers. She has tried to get a friend to drop off the papers to [AB], but he keeps getting angry and saying that he will only take the documentation from [First Claimant] and none else.

[First Claimant] also mentioned that on Sunday she attended the Waterlooville Police Station on Sunday, and the staff member who helped her said “that it was not The Bill”. [First Claimant] is unhappy about this comment because she said that PC Jelliff 23972 has been so helpful on the occasions that she has seen him.

Would it be possible for an officer to call to arrange a suitable time for [First Claimant] to attend the station to make a report about the text messages. But take no further action at this time.”

I note that the stated purpose of the First Claimant’s call was that she wanted to make another statement to log the content of AB’s text messages. The First Claimant did not recall that she said that the police were to “take no further action at this time”. However, I find that this is what she said.

When asked about the comment that PC Jelliff was “so helpful”, the Claimant said that she was comparing him to the unhelpful officer she had spoken to on 25 September 2005. I accept that the Claimants did call at the police station on 25 September 2005, asked for an escort home and were told that they would not be escorted home.

However, I do not accept the First Claimant’s claim that there were many instances in this period of her making calls to the police which were unrecorded and resulted in no action. As I have already said, she claimed in her statement that she called 999 on these occasions. She accepted in evidence that she might have been mistaken about this and said that that she must have called the Force’s 0845 number instead. Given, however, that she did not even call the police when AB was apparently outside her flat on 27 August 2005, I am not satisfied that she made a large number of telephone calls which went unrecorded at this time. I find that the Claimants did not contact the Force between 10 August and 25 September 2005.

On 29 September 2005 the First Claimant conducted the hearing of her claim against her former employer before an Employment Tribunal. She had briefly sought advice from a solicitor about this claim earlier in the year. She also obtained advice from ACAS and from a Citizens’ Advice Bureau. She pursued the claim herself.

Also on 29 September 2005, Inspector Reddin authorised the discontinuance of the charges of harassment and making threats to kill as “D7” (sufficient evidence to charge but the police decide that no useful purpose would be served by proceeding with the charge).

On 6 October 2005 the Claimants called the Force to report that they had received 50 threats in the last fortnight. The officer’s note states:

“These include threats to kill, “look in the mirror [the First Claimant] you won’t look like that for long” and a threat to gang rape [the First Claimant] by a person with AIDS”

The First Claimant said that this latter threat was made in a telephone call which she answered because she mistakenly thought that her mother was calling. She said that she drove straight to the police station to report it, but was simply told not to come back the next day. There was no record of her making such a report at the police station. She also said that she reported it the following morning. The note which I have quoted is the only reference to it in the disclosed documents.

PC Jelliff telephoned the First Claimant on 9 and 10 October 2005 and spoke to her on the latter occasion. His note states as follows:

“I have telephoned the aggrieved in relation to the recent calls that have been made. She has been advised that this is a separate incident and she stated that she is giving it her consideration whether or not to report the incidents to the police. She stated she will attend JW station in the next few days to make a complaint if she decides this is what she wanted to do. She also confirmed though that she has actively sought to contact [AB] to speak with him in recent days and I believe it is possible that he makes threats against her when the dialogue breaks down.

At this stage I cannot say whether or not there are in fact new crimes that have taken place and this will only come to light when and if an official complaint is made.”

The First Claimant did not accept the accuracy of this note of her conversation with PC Jelliff. I find that she did say what she is recorded as having said, i.e. that:

On 11 October the First Claimant called the police again. She asked to speak to PC Jelliff, reporting that her mother had had some vile messages from AB. PC Jelliff contacted the First Claimant and advised her that if she wished to disclose other offences then she needed to report them at the soonest opportunity. His note states that

“[The First Claimant] stated that she would give this matter thought and would telephone the force enquiry centre to report these possible incidents in due course.”

I find that the First Claimant did tell PC Jelliff that she would give the matter some thought. Thereafter, the First Claimant did not attend the police station in order to make a witness statement. Indeed, there is no record of the Claimants contacting the Force again before the incident on 11 November 2005, and I find that they did not do so. I also find that, in accordance with what the First Claimant said to PC Jelliff, she did not attend the police station after 10 October 2005 because she decided that she did not want to do so.

On 11 November 2005 AB attended the First Claimant’s place of work. That was at about 12.30 pm. This was the first time the First Claimant had seen AB since July 2005. It was also the last time the First Claimant ever saw AB. The Second Claimant did not see AB at all in 2005 and has not seen him since.

The First Claimant was in her business premises with her employee. The door was locked. AB was outside. The First Claimant did not call 999, although that is what the police officers had advised her to do if she saw AB. Instead, she went outside to talk to AB, begging him to leave her alone. When he became abusive, her employee pulled her back inside and locked the door. AB drove off.

The First Claimant said that she then called the police immediately. But there is no record of this. There are records of the manager of the business centre calling the police and reporting this incident. The First Claimant said that she did not speak to the centre manager, but left straight away with her employee to go to a safe location. In her statement, the First Claimant complained that the police did not attend her business premises on 11 November 2005, but at trial she confirmed that she left straight away and did not tell the police where she was going.

The note of the centre manager’s call is timed at 2.28 pm. It reads:

“Call from [name] Enterprise Centre Manager to state that suspect was on site at 1230hrs – male attended aggds place of work but aggd had another colleague on site with her.

Male suspect then left but told aggd he will return – not known when –

Aggd has apparently recd further threatening text messages – caller advised that could either aggd attend station after work to report latest incidents or contact us direct so appt can be made

Centre Manager advised that if male returns to site police must be contacted at time.”

There is a second note, timed at 2.56 pm. It reads:

“Inf is the centre manager she is reporting on behalf of [first claimant] who has previously reported case of harassment – 44050606113 refers. Inf states that [agg’d] has received further threatening text messages and inf has been advised that male suspect turned up at [aggd’s] work premises at lunchtime today – luckily, [aggd] was not alone so suspect left but advised that he would be back – unknown when inf has been advised that if / when male returns police are to be contacted immediately inf would like police to attend Monday at midday if possible to officer can speak to [aggd], take a statement and look at the text messages. Inf would also like police to speak to her also. ***Result*** officer to make contact Monday as per log please speak to inft and agg’d ref harassment and nuisance text messages. Advice given ref. threats by alleged offender.”

It seems from these notes that, contrary to the First Claimant’s evidence, she must have spoken to the centre manager before he called the police. Otherwise, the centre manager would not have known of the threatening calls which were mentioned. I find that the Claimant did not call the police on 11 November 2005. Instead, she asked the centre manager to call on her behalf.

On 12 November 2005 DS Symes became involved. He was the duty detective sergeant that day. He said that he regarded AB’s actions on the previous day as “suggestive of potential escalation” and as giving rise to “a heightened risk that needed to be evaluated and addressed.” He decided that CID input was necessary. His unchallenged evidence was that, having reviewed the case, “no alarm bells rang about how the previous reported incidents had been handled by uniformed colleagues.”

He called the First Claimant. He noted that he was “extremely concerned” over AB’s behaviour. The First Claimant said “I can’t tell you how grateful I was that he called me and said he was concerned about me.” He assigned DC Ian Borsley to the case and PC Andrea Heywood, a domestic abuse coordinator, also became involved. The Claimants pleaded that “for the first time appropriate steps started to be taken to safeguard the Claimants and to prosecute AB.”

On 13 November 2005 the First Claimant attended the police station and spoke to DC Ian Borsley. The First Claimant had not asked to be seen by a female officer. DC Borsley made the following note:

“I have today taken numerous pages of notes from [First Claimant] who tells a story of constant bombardment of text messages / phone calls to her mobile and to her mothers landline. The nature of which are sometimes threatening. However the sheer volume is harassing. A statement is in the process of being obtained as is the gathering of other information. Both addresses have been flagged with FIMU as [AB] the offender appears somewhat obsessive although she has had no contact from him for 24 Hrs. This has been ongoing for sometime – since end July / beginning August.

Further enq’s to be made.

[AB] is an ex partner of [First Claimant] who has not “let go” since they split up.”

However, the First Claimant did not tell DS Symes or DC Borsley:

The First Claimant made her second witness statement. This was 9 pages long. It dealt mainly with the messages which the Claimants had received from AB since his arrest. Towards the end, the First Claimant said:

“I am concerned about my safety and that of my mothers. I do not want any contact with [AB] and I want him to leave me alone. I am also concerned as [AB] is a loner type and has very few friends. He is ex army and has abused drugs and alcohol in the past. He has been violent towards me in the past and has hit me on a couple of occasions. When we were together he would lose it in an instant and would claim it was due to voices in his head.”

The First Claimant accepted that she had no reasons to downplay in this statement the extent of AB’s violence to her. She was asked why she appeared to do so in the 5^th sentence of the paragraph which I have quoted. Her explanation was that she had explained things on 31 July 2005 to the best of her ability, but no-one heard her. It had taken strength to get these words out, and when no-one listened these things “went deeper”.

On 16 November 2005 AB was arrested. He was interviewed and admitted in interview both harassing the First Claimant and assaulting her before they separated. Following consultation with the Crown Prosecution Service, he was charged with harassment of the First Claimant. As I have mentioned, the documents which were sent to, and generated by, the CPS are no longer available. It is not known, therefore, why the CPS considered it appropriate that that AB should be charged with harassment and nothing else. Ms. Gerry invited me to speculate as to their reasons for doing so. I decline to speculate.

AB was refused police bail. He appeared before the Magistrates’ Court on 17 November 2005, when he was granted bail. It was a condition of his bail that he was not to contact the First Claimant. He did contact her, and consequently he was arrested on 6 December 2005.

On 14 December 2005 AB pleaded guilty to harassment of the First Claimant. The Magistrates’ Court sentenced him to a community order and imposed a two year Restraining Order. However, AB continued to contact the First Claimant. He was arrested again on 22 December 2005. He appeared in Court on 23 December 2005 and was given bail.

On 15 January 2006 AB telephoned the First Claimant. This was the last time AB spoke to either of the Claimants. He was arrested again on 3 February 2006 for breaching the Restraining Order. He admitted these offences and was subsequently sentenced to 51 weeks’ imprisonment.

On 25 May 2006 AB sent a letter to the First Claimant. This was the last time AB contacted either of the Claimants. As a result, AB was arrested and on 26 June 2006 he was sentenced to a further 26 weeks’ imprisonment for breach of the restraining order. In the event, he remained in custody until 10 January 2007 while efforts were made to deport him.

The Claimants allege that the Force failed adequately either to investigate AB’s conduct or to protect them from AB. The Claimants’ pleaded case is that the investigation was inadequate in 14 respects, in that the relevant officers:

“(i)

Failed to treat the reports made by the First and Second Claimants on 31 July 2005 with the requisite seriousness required, including by failing to treat the First Claimant as a vulnerable victim, failing to undertake a risk assessment and failing to take any immediate steps to investigate the serious allegations made;

(ii)

Failed on 31 July 2005 to refer the First Claimant to a specialist domestic violence team and/or to an officer with experience of domestic violence;

(iii)

Failed to direct that a female officer interview the First Claimant, which is more likely to have led to the First Claimant disclosing the sexual offences committed against her by AB (which she has subsequently disclosed and which have never been investigated);

(iv)

Failed when taking the First Claimant’s statement on 31 July to ask sufficient follow up questions, which would have been likely to have led to the First Claimant disclosing more about the serious nature of the abuse, including that it was sometimes sexual in nature, and that she had in effect been imprisoned by AB for a couple of days;

(v)

Failed to conduct an ABE interview with the First Claimant

(vi)

Failed to allocate a liaison officer to the Claimants;

(vii)

Failed to refer the Claimants to victim support;

(viii)

Failed to take a more detailed statement from the Second Claimant about the effect of AB’s behaviour on the First Claimant;

(ix)

Failed to contact other possible witnesses, including in particular the mutual friend CD who the officers were aware had information regarding AB and the history of AB and the First Claimant’s relationship;

(x)

Determined that all that was required following the reports made by the Claimants on 31 July was to advise the Claimants to contact them or call 999 if AB was in contact;

(xi)

Characterised the relationship between the First Claimant and AB as merely volatile and involving arguments despite the First Claimant having informed officers of AB being very abusive within the relationship and reporting a history of domestic violence. This led to the failure of officers to treat the allegations made with the necessary importance and seriousness required;

(xii)

Accepting too readily AB’s version of events; in particular PC Jeliff on 10 August 2005 accepting AB’s assertions blaming the Second Claimant for the arguments with the First Claimant and describing the ‘couple as going their separate ways’ following an argument, with the First and Second Claimants going on holiday together. In light of the very detailed statement and account of events leading up to the Claimants leaving to get away from AB on 11 July given by the First Claimant on 31 July the officers failed to effectively and critically assess and challenge what they were told by AB;

(xiii)

Failed on 10 August 2005 when AB attended Waterlooville police station to charge AB with assault and/or harassment, and/or threats to kill, instead only issuing a caution for criminal damage – despite clear and serious allegations made by the First Claimant of assault and harassment and allegations by the Second Claimant of threats to kill and harassment;

(xiv)

No timely risk assessment, or no effective risk assessment, was completed concerning the risk that the First and Second Claimants were facing; this was not done until 2007, and then only at the First Claimant’s request.”

The Claimants also rely on these alleged failings in the investigation as instances of the Force failing to protect them. In addition, the Claimants allege that the Force failed to protect them in that:

It will be noted that the Claimants’ pleaded complaints against the Force focus on the events of 31 July and 10 August 2005, i.e. the day on which they first made their statements, and the day on which AB was cautioned. The Claimants were also unhappy with the fact that AB was only charged with harassment following his arrest on 16 November 2005, but the CPS were involved at that stage and the decision as to what charges to prefer would have been for them.

The Claimants remained in fear of AB. This led to the Second Claimant moving out of her home in 2007 and selling it. That remains “heavy on her heart”. The effects on the First Claimant were such that she was diagnosed in 2007 with post-traumatic stress disorder (“PTSD”), or at least PTSD-type symptoms.

While AB was in prison, the Claimant started to campaign for his deportation. In her letter of 27 November 2006 to the then Prime Minister, she described herself as having campaigned tirelessly for his deportation and having been extremely proactive in her case. In that letter, she also stated as follows:

“I am making application to The European Court of Human Rights as I consider our basic human requirements, and basis of the Convention, to live our life in peace and without fear threatened considerably. This issue has been taken to the court of appeal and I have been relentless in asking for help in this matter in the highest possible places with still no satisfactory outcome. I am aware I fulfil the criteria to take this matter further.”

In late 2006 and early 2007 the Claimant she was interviewed by local and national newspapers and appeared on television and radio, talking about her experiences. She continued to campaign for AB’s deportation and also for the establishment of a Family Justice Centre in Hampshire. For example, she involved her local MP and he asked a number of parliamentary questions. Another MP wrote to the Force’s Divisional Commander about her case. She spoke at a conference on Family Justice Centres in 2008. Her efforts to ensure that others benefited from her experiences were commendable.

The First Claimant wrote many letters and emails. The focus of these letters was on her claim should AB should be deported and on her other campaigning purposes. However, these and other letters contained references to the First Claimant’s views of the conduct of the Force and of the charges which AB faced. For example:

The First Claimant’s letters also contained references to her taking legal advice or considering legal action:

These letters did not directly concern a threat to bring an action such as the present, but they did show that the First Claimant was active in both considering the legal position and possible actions which she might take in relation to her various concerns. She acknowledges in her witness statement that “I have done a huge amount of research into law and policy over the years …”

In 2008 the First Claimant made a request of the Force under the Data Protection Act 1998 for copies of any records of risk assessments carried out in her case. The response, dated 28 March 2008, enclosed copies of working sheets from the RMS system. It explained that there were no risk assessment forms in use in 2005.

As a result, the First Claimant sent an email on 3 April 2008 to the then Chief Constable, in which she complained that no risk assessment had been carried out in her case. She set out her view that AB “was convicted of a crime to the Crown not really for what he did to me”. She also said:

“I do intend to take this matter further as my Human Rights (2&3) to live my life without fear and to be protected to be in serious breach. I feel I have just cause to make an official complaint which I intend to do.”

The response, dated 7 April 2008, was that her email would not be treated as a complaint under section 12 of the Police Reform Act, but as a direction and control matter. The reason given for this was that the matters raised referred to general policies and procedures and not an allegation about the conduct of any particular officer.

On 16 June 2008 the Force provided a chronology to the First Claimant. On 21 June 2008 the First Claimant sent an email to Peter Shand of the Force in response to the chronology. She said that it “puts in writing some of the issues I consider to be an invasion of my human rights.”

In 2008, the First Claimant made an application to the Criminal Injuries Compensation Authority. She was awarded £4,400. She appealed. The award was increased and in 2010 she received £13,500.

The First Claimant contacted Chief Inspector Alison Heydari of the Force in 2011. They spoke on a number of occasions, and the First Claimant found this helpful. However, Ms. Gerry did not identify any specific information which was provided to the First Claimant by Chief Inspector Heydari.

The Second Claimant suggested to her daughter that it might help to write down her experiences in a book. On 28 June 2013 the First Claimant met Chief Inspector Alison Heydari and gave her a document entitled “Info re first statement, from my book.” This included a number of matters relied on in this action:

“The police officer at one point looking at his wrist watch, he said it was a long statement and he was due to go off shift soon.”

“Reading through these examples written and told to the Police within this statement wonder how they missed it. How did they not see he was a potential murderer, anyone reading this can see that?”

“Why did they not ask me if there was more or to send me to specialists in this area for me to be interviewed with expertise?”

“Why did you not identify the other crimes committed against me and charge him for those too, I told you he hurt me, locked me in and threatened me, why didn’t you ask me about those times and why I was so afraid of him and for my life? Why did he walk free that day and not sentenced for any crimes against me or my body, am I that worthless?”

In an email dated 30 June 2013 the First Claimant listed a number of questions to which she wanted answers. Following further discussions and correspondence with CI Heydari, a complaint was lodged with the Force’s Professional Standards Department on 8 November 2013. The First Claimant was treated as making 6 complaints, of which the first four were:

“1.

Neglect of duty by the Police in not investigating serious allegations of offences. This complaint is not against a specific officer but relates to an Organisational failure to prosecute serious cases of domestic violence. This failure meant minor offences were investigated and other more serious allegations such as false imprisonment and psychological abuse were ignored.

2.

Neglect of duty in not affording victim support and protection, which relates to further Organisational failure in that adequate risk assessments covering serious incidents of domestic violence were not mandatory. This resulted in you feeling un-supported, scared and alone.

3.

Neglect of duty in not assessing Immigration Status correctly. This complaint is of further Organisational failure in not assessing domestic violence investigations thoroughly. This meant that additional Immigration Law Offences were not identified.

4.

Neglect of duty in relation to being asked not to report matters to the Police unless tangible offences were evidence which was a failure by the Organisation to recognise the potential for on-going harassment in domestic violence cases.”

I was not provided with any details of the investigation into these complaints, save that PC Jelliff said that no-one spoke to him about them. The response to the complaint was set out in a letter dated 7 March 2014 from DI Chudley. All of the Claimant’s complaints were upheld. In relation to the first 4 complaints, DI Chudley said:

“The first 4 complaints all relate the standard of the investigation into your allegations. The initial statement that you provided gave details of numerous offences and it is apparent that without a full risk assessment being conducted the potential to indentify the risk of on-going offences was not highlighted sufficiently. This lack of a full risk assessment lead to an inappropriate decision to NFA the allegation of Threats to Kill and Harassment and issue a caution for criminal damage. These decisions had a knock-on effect for future investigations of continuing harassment against you which meant that any sentence at court was restricted to breaches of court orders rather than more substantive offences.”

DI Chudley apologised to the Claimant on behalf of the Force. In an email to DI Chudley dated 27 March 2014 the First Claimant said that she was unsure if she now had to progress things with a human rights lawyer. In the event, the Claimants instructed their present solicitors shortly thereafter.

On 31 March 2014 the First Claimant met John Montagu, the head of CPS Wessex. He told her that it appeared that the case had not been referred to the CPS before AB was cautioned on 10 August 2005.

The First Claimant sought compensation from the Force. The Force Solicitor wrote to her on 21 May 2014, suggesting that she obtain independent legal advice.

Meanwhile, on 19 May 2014 the First Claimant appealed against certain aspects of the decision on her complaint. The response to her appeal came in a letter dated 2 July 2014 from DI Chudley.

On 25 July 2014 the Claimants’ solicitors sent a letter before action to the Defendant. In a letter dated 1 August 2014, as clarified on 18 August 2014, the Office of the Force Solicitor stated that the Force would not seek to rely on any further delay until 3 months after their substantive response to the letter before action. That period was subsequently extended. The Claim Form in this action was issued on 12 May 2015, before the expiry of that period, as extended.

Subsections 7(1)(a) and (5) of the Human Rights Act 1998 provide as follows:

“(1)

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, ….”

“(5)

Proceedings under subsection (1)(a) must be brought before the end of—

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances,”

In this case, the acts complained of took place on or before 12 November 2005. The primary limitation period imposed by section 7(5)(a) expired on 12 November 2006. This action as commenced 8½ years later. The question for me is whether I consider the period to 12 May 2015 as equitable having regard to all the circumstances.

The words of the Act confer a broad discretion. Lord Justice Thomas said as follows in Dunn v. Parole Board [2009] 1 WLR 728, at paragraphs 30-32:

“30.

It was common ground in the submissions to us that a court should not add to or qualify or put any gloss upon the words “equitable having regard to all the circumstances” when considering the exercise of the discretion under section 7(5)(b) of the Human Rights Act 1998 (which I have set out at para 9 above). The words of the subsection meant exactly what they said and the court should not attempt to rewrite it.

31.

I accept the submissions made. Parliament gave the court a wide discretion; I do not think it would be helpful to list the factors to be taken into account or to state which should have greater weight or lesser weight. The statute requires the court to consider all the circumstances in deciding whether it is equitable to allow a longer period within which to bring the claim. It is useful, I think, to refer to the observations of Earl Loreburn LC in the House of Lords in Hyman v Rose [1912] AC 623 in relation to the exercise of a very wide statutory discretion, even though given in the very different context of relief against forfeiture. He disagreed with the approach of the Court of Appeal which had thought it helpful to lay down some general principles according to which the discretion should be exercised. Earl Loreburn LC made it clear, at p 631, that where the court was given a wide discretion and directed to consider all the circumstances, it was not desirable to fetter that discretion by rules.

32.

In my view, it is desirable to follow a similar approach in relation to the Human Rights Act 1998 and not to list the factors or to indicate which factor may be more important than another. It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”

Smith LJ agreed at paragraph 43 and Lloyd LJ at paragraph 48. See also paragraph 75 of the judgment of Lord Dyson in Rabone v Pennine Care NHS Trust [2012] 2 AC 72. I have followed the approach proposed by Thomas LJ. I comment below on some of the factors which are relevant in this case. (I note that, although Thomas LJ said that it was not appropriate to list the factors which may be relevant, it has been held that it would not be inappropriate to consider the factors listed in section 33(3) of the Limitation Act 1980: see paragraph 25 of Rix LJ’s judgment in M v. Ministry of Justice [2009] EWCA Civ 419.)

The burden of proof is on the Claimants, but it has been said that this is not an issue which lends itself to a ready resolution by the application of the burden of proof: see A v. Essex County Council [2011] 1 AC 280, at paragraph 167, per Lord Kerr. As Rix LJ said in M (a minor) v. Ministry of Justice [2009] EWCA Civ 419, CA, at paragraph 23:

“The burden is that of the ordinary civil burden of proof where matters of fact are in issue and otherwise it is a burden of persuasion.”

It is a relevant factor that the limitation period provided for in section 7(1)(a) is one year. As Rix LJ said in M (a minor) v. Ministry of Justice [2009] EWCA Civ 419, CA, at paragraph 30:

“The clear inference is that, in the case of such claims against public authorities, perhaps somewhat reflecting the tight three-month time limit for the purposes of judicial review proceedings, it was considered right that there should be really quite tight limitation periods. The judge made little of that factor but in my judgment could well have made more.”

As Jay J said in Bedford v Bedfordshire County Council [2013] EWHC 1717 QB at [76]:

“… it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are, by definition, brought against public authorities, and there is no public interest in these being burdened by expensive, time-consuming and tardy claims brought years after the event.”

This policy is a factor to be considered in the present case.

As I have said, this action was commenced more than 8½ years after the expiry of the primary limitation period. Having regard, however, to the letters written by the Office of the Force’s Solicitor in August 2014, the relevant period of delay is that from November 2006 to July 2014, a period of 7½ years. That is a substantial period of delay in the context of a one year primary limitation period.

The Claimants are adults. On the one hand, they have suffered throughout this period from the effects of AB’s conduct, which in the First Claimant’s case has been diagnosed as PTSD or similar. On the other hand, the First Claimant has been active throughout this period in pursuing many of the issues arising from or relating to their experience. The First Claimant has shown herself to be capable of pursuing various legal procedures, including: her claim before the Employment Tribunal; her application under the Data Protection Act; and her application to the Criminal Injuries Compensation Authority.

The Claimants knew from an early stage that they were unsatisfied with various aspects of the handling of their case. They knew of many of the grievances which they have raised as complaints in this action. For example:

I was struck by the First Claimant’s statement in the witness box that “It’s hard to live every day with the fact that he never got anything for what he did to my body.” This is clearly a matter which is of great significance to the First Claimant. But it is a matter which had been known to her, and had been the subject of complaint by her, for at least 6 years before the letter before action was sent. It may be that she did not realise until 31 March 2014 that the CPS had not been involved in the decision taken on 10 August 2008. However, she knew from an early stage that she considered that the wrong decisions had been made in relation to AB’s prosecution.

The Claimants also knew that they believed that their human rights had been violated: see, for example, the First Claimant’s letters to the Prime Minister and Harriet Harman QC MP and her emails to the Chief Constable and Peter Shand.

The Claimants thus had sufficient knowledge to be able to seek advice on a potential claim against the Force (and/or the CPS) many years ago.

The First Claimant did not directly address the question why she did not either bring a claim, or seek advice about bringing a claim, against the Force (or the CPS, if she believed that they were responsible for the decision as to the charges to be brought against AB) a long time ago, for instance in 2006, 2007 or 2008 when she was making the complaints to which I have referred and alleging that her human rights had been violated.

Instead, the First Claimant said that it was only after she received the letter of 2 July 2014 that:

“For the first time I understood that it all came down to what the police had done at the very start, when I first made my report in 2005 and that everything I had been chasing round in circles came back to that point in time.”

Whilst I accept that an individual’s understanding of a matter such as this may improve as time goes on and different things come to light, I have already found that the Claimants had sufficient knowledge to be able to seek advice on a potential claim against the Force (and/or the CPS) many years ago. There was no evidence of any obstacle to their doing so. Indeed, in 2008 the First Claimant was actively taking steps to find out more about what the Force had done in her case. Hence her application under the Data Protection Act.

I accept that the First Claimant was dealing with a number of matters in the years after 2005. There were issues about her and her mother’s current safety. There were issues about her health. There were her campaigns about AB’s deportation and about improving the lot of victims of domestic violence. But there were also her grievances about the Force and about the perceived breach of her human rights.

In my judgment, it is relevant that the First Claimant took no steps to pursue her grievances with the CPS. It would be a consideration in her favour if the reason for her delay in commencing this action had been that she had been actively pursuing a defendant whom she reasonably, but mistakenly, thought was the appropriate defendant. But that is not what happened. There is no evidence of her contacting anyone from the CPS until 2014. When she did so, it did not take long for Mr. Montagu to explain that the CPS were not involved in the decision taken on 10 August 2008. (It is also relevant to note that, if she had taken things up with the CPS sooner, then this Court might have been better informed about the decisions taken by the CPS on and after 16 November 2005. I will return to that point.)

Ms. Gerry suggested that one of the reasons why the Claimants did not bring this claim sooner may have been that the general understanding as to the effect of the Convention in such situations was different before 2009. (The alleged significance of this date derives from Green J’s statement, in paragraph 186 of his judgment in DSD, that by 2009 the law was being treated as settled.) However, there was no evidence to support this suggestion. The Claimants did not say that before 2009 they received advice, or reached an understanding from their own researches, that the effect of the Convention was such as discourage them from bringing this claim.

I have already dealt with the fact that the Claimants did not take any steps to obtain legal advice in relation to this claim until 2014. The First Claimant was certainly someone who was capable of seeking legal advice when she chose to do so.

I have already referred to the fact that the delay has made it more difficult for the witnesses to recall relevant events and to the fact that documents which would have been available earlier are no longer available.

It is appropriate to consider the extent to which these matters have prejudiced either party or the ability of the Court to do justice between the parties. Unusually, I am making that assessment after there has been a trial of liability. On the whole, given my findings on disputed issues of fact, it could perhaps be said that the delay has, if anything, prejudiced the Claimants. However, there remain a number of gaps in the documentary evidence. Ms. Gerry was right to say that one should not exaggerate the size of those gaps, especially in a police case, where there are established procedures for keeping records, and especially in a case where one has what appears to be a full set of the records from the RMS

Equally, however, one cannot speculate as to what was in the documents which are known to be missing. Two important dates in this case are 10 August 2005, when AB was interviewed and cautioned, and 16 November 2005, when AB was interviewed and his case referred to the CPS. On neither of those occasions was he charged with uttering threats to kill or assaulting the First Claimant. It is unsatisfactory that this action was commenced at a time when relevant documents generated on those dates are no longer available. One cannot say for certain that these documents would have helped or hindered either party’s case, because that would involve speculating as to what they contained. What is certain is that this is the sort of situation which limitation periods are intended to avoid.

Another unusual feature of this case is that the Force felt able to investigate the Claimants’ complaints, to uphold them and to apologise to the Claimants, even though the complaints were made in November 2013, 8 years after the matters complained of. However, the investigation was not one which led to the production of any witness statements or other evidence. Ms. Gerry accepted that the letters of 7 March and 2 July 2014 have no legal effect so far as this action is concerned.

It was not suggested that the Force was responsible for the delay in bringing this action. The Claimants continued to have some issues with the Force after AB’s release in respect of their ongoing protection. The First Claimant’s complaint in 2013 was partly concerned with the conduct of an individual officer.

On the other hand, a number of the Force’s officers tried to help the Claimants after 12 November 2005. The First Claimant praised DS Symes and DC Borsley. The Force responded to her request under the Data Protection Act. The First Claimant appreciated her discussions with Chief Inspector Heydari. The Force investigated her complaint, upheld it and apologised to her.

The fact that the Force upheld the First Claimant’s complaints and apologised to her demonstrates that there was substance to her complaints. That is not to say, however, to say that the Force’s conduct was such as to be incompatible with Articles 3, 8 or 14. I will set out my views on that issue shortly. In summary, I do not consider that the Claimants have established that there was a strong case under the Human Rights Act. I am not satisfied that there was a breach of any of these Articles in the present case.

The effect of upholding a successful limitation defence is that the Claimants’ claim is defeated. Often this happens before a trial, and so there is no adjudication on the merits of that claim. In the present case there has been trial. It was clear that one of the benefits for the Claimants in the present case of having a trial, quite apart from the hope that that their claims would succeed, was that it meant that they felt that their voices had been heard. The First Claimant told me that she felt that this was the first time that her voice had been heard in the legal environment.

Looking at the matter broadly, and attaching such weight as is appropriate to each of these factors in the present case, it would not in my judgment be equitable having regard to all the circumstances to extend the limitation period to the extent sought by the Claimants. I will therefore dismiss this action.

Nevertheless, I will go on to consider the merits of the Claimants’ claims, both because that is relevant to the limitation issue and in case I am wrong the limitation issue.

Articles 3 and 8 of the European Convention on Human Rights provide as follows:

“Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“Article 8

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

These articles each impose a duty on the state. Moreover:

In this action, the Claimants contend that the Force acted in a way which was incompatible with Article 3 and/or 8. Counsel on both sides were at pains to remind me that this is not a negligence action. The policy reasons why the police do not owe a common law duty of care in such circumstances are well-known. The differences between negligence actions and actions such as the present were addressed by Laws LJ in D, at paragraph 65 to 69. In particular, Laws L.J. said as follows:

“66.

The process by which a human rights claim is adjudicated is quite different. The starting point is not the relationship between the claimant and the (state) defendant. It is to ascertain whether the case is within the scope of any of the rights or freedoms which the Convention requires the state to secure; and then, if it is, to decide whether the state has or has not violated the article or articles in question. …”

“67.

… Because the focus of the human rights claim is not on loss to the individual, but on the maintenance of a proper standard of protection, the court is in principle concerned with the state's overall approach to the relevant Convention obligation. …”

“68.

… the inquiry into compliance with the article 3 duty is first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the state. This circumstance, moreover, is consonant with the fact that Strasbourg accords a margin of appreciation to the state as to the means of compliance with article 3. As I have said, the margin widens at the bottom of the scale but narrows at the top. While the doctrine of the margin of appreciation has its origin in the international character of the court, which inevitably stands at some distance from the differing exigencies of the individual states parties, I have no doubt that we should accord a like margin (more often described on the domestic front as a margin of discretion) in the adjudication of claims under the 1998 Act.”

Since one is concerned with the overall nature of the state’s conduct, it is appropriate to have regard to other relevant features of the legal system, in addition to the investigation by the police. That includes, as Gross L.J. said paragraph 51 of his judgment in Allen, the possibility of commencing civil proceedings against a man such as AB, including applying for an injunction under the Protection from Harassment Act 1997.

In paragraph 52 of his judgment in Allen Gross LJ described the content of the investigative duty imposed by Article 3 as a “fact sensitive sliding scale”: see also paragraph 43. This was developed by Laws L.J. in paragraph 45 of his judgment in D, as follows:

“There is perhaps a sliding scale: from deliberate torture by state officials to the consequences of negligence by non-state agents. The energy required of the state to combat or redress these ills is no doubt variable, but the same protective principle is always at the root of it. The margin of appreciation enjoyed by the state as to the means of compliance with article 3 widens at the bottom of the scale but narrows at the top. At what may, without belittling the victim, be called the lower end of the scale where injury happens through the negligence of non-state agents, the state's provision of a judicial system of civil remedies will often suffice: the individual state's legal traditions will govern the means of compliance in the particular case. Serious violent crime by non-state agents is of a different order: higher up the scale. …”

Ms. Gerry accepted that a case which fell within the scope of Article 8 could also be seen as part of the same sliding scale, and that a case which fell within the scope of Article 8 but not Article 3 would fall further down the scale than a case which fell within the scope of Article 3.

Mr. Basu’s position was as follows:

Ms. Gerry submitted that the case fell within the scope of both Articles 3 and 8 or, in the alternative, Article 8 alone and, in either case, that the relevant Article(s) imposed a duty to investigate if there was “a credible allegation of a grave or serious crime.”

Thus, although they arrived at this position by different routes, both parties were agreed that the Convention did not impose a duty to investigate unless there was a credible allegation of a grave or serious crime. In the present case, the allegations made to the Force were of:

I doubt whether these allegations reached the necessary minimum level of seriousness for the purposes of the Convention. That is not to belittle the situation which the Claimants found themselves in, which was clearly distressing. Nor, of course, is it to suggest that it was not the police’s responsibility to take the Claimants’ allegations seriously and to investigate them. I am addressing simply the question whether this is a case in which the obligations imposed by the Convention are engaged. Were it necessary for me to decide that point, I would hold that they were not.

I go on, however, to consider the case on the alternative hypothesis that that this case falls within the scope of Article 3.

Green J helpfully set out a number of relevant considerations in paragraphs 216 to 226 of his judgment in DSD. I will not repeat what he said there, but I bear it in mind. In particular, he explained various features of the requirement, as stated by the European Court of Human Rights, that the police must investigate “in an efficient and reasonable manner which is capable of leading to the identification of the perpetrator.”

I have taken account of all of the Claimants’ complaints about the Force (including, for example, their complaint that an officer was rude to them on 25 September 2005 when they requested an escort home). However, as I have said, the Claimants’ pleaded complaints focused on the events on 31 July and 10 August 2005, and that is how I will address them.

Before I turn to consider the individual alleged failings in the Force’s investigation, it is appropriate to step back and to look at the matter in the round:

The first ten of the Claimants’ 14 pleaded alleged failings focus on the events of 31 July 2005. I make a number of observations about the evidence relating to those alleged failings.

(i)

Failed to treat the reports made by the First and Second Claimants on 31 July 2005 with the requisite seriousness required, including by failing to treat the First Claimant as a vulnerable victim, failing to undertake a risk assessment and failing to take any immediate steps to investigate the serious allegations made;

I have found that PC Jelliff made a good faith assessment that the First Claimant did not present to him as a vulnerable witness. It is the case that no record was made of a risk assessment. This was contrary to the Force’s Policy on Threats to Kill. However, I accept the officers’ evidence that they did carry out informal risk assessments. The only potential witness identified by the Claimants was CD. He contacted the Force on 31 July 2005 and informed them that he had taken AB’s car keys. PC Jelliff contacted AB and interviewed him on 10 August 2005. The Claimants told PS Franklin that they had had no further problems with AB between 31 July and 10 August 2005.

(ii)

Failed on 31 July 2005 to refer the First Claimant to a specialist domestic violence team and/or to an officer with experience of domestic violence;

PS Franklin was such an officer. She contacted the Claimants on 10 August 2005.

(iii)

Failed to direct that a female officer interview the First Claimant, which is more likely to have led to the First Claimant disclosing the sexual offences committed against her by AB (which she has subsequently disclosed and which have never been investigated);

The First Claimant did not request this, nor did her behaviour indicate to PC Churcher-Brown that she needed it. PC Hollingsworth was a woman, but the First Claimant did not tell her any more than she told PC Churcher-Brown. DC Borsley was a man, but the First Claimant did not object to him taking her second statement. Although PC Churcher-Brown was a man, the First Claimant’s evidence was that she would have told him everything if he had asked the right questions.

(iv)

Failed when taking the First Claimant’s statement on 31 July to ask sufficient follow up questions, which would have been likely to have led to the First Claimant disclosing more about the serious nature of the abuse, including that it was sometimes sexual in nature, and that she had in effect been imprisoned y AB for a couple of days;

I have found that PC Churcher-Brown encouraged the First Claimant to provide as much information as possible and that he was not at fault in the way in which he conducted the interview.

(v)

Failed to conduct an ABE interview with the First Claimant;

Ms. Gerry did not pursue this allegation in her closing submissions.

(vi)

Failed to allocate a liaison officer to the Claimants;

PS Franklin contacted the Claimants on 10 August 2005.

(vii)

Failed to refer the Claimants to victim support;

The Claimants were given the telephone number for victim support. PS Franklin called them on 10 August 2005 and offered them support.

(viii)

Failed to take a more detailed statement from the Second Claimant about the effect of AB’s behaviour on the First Claimant;

What I have said in relation to allegation (iv) applies equally here.

(ix)

Failed to contact other possible witnesses, including in particular the mutual friend CD who the officers were aware had information regarding AB and the history of AB and the First Claimant’s relationship;

The only potential witness was CD. He was not an eye witness to the alleged assaults. He contacted the Force on 31 July 2005. It was not unreasonable for PC Jelliff to decide to speak to AB before contacting CD.

(x)

Determined that all that was required following the reports made by the Claimants on 31 July was to advise the Claimants to contact them or call 999 if AB was in contact;

AB never carried out his threats. The Second Claimant never saw him again after 31 July 2005. The First Claimant saw his truck outside her flat on 27 August 2005, but did not contact the police. The only other time when she saw AB was on 11 November 2005. This led to his arrest on 16 November 2005.

What I have said in relation to the first and tenth of these allegations is also relevant to the Claimants’ fourteenth pleaded allegation, i.e. that the Force did not conduct a risk assessment at all.

The remaining pleaded alleged failings in the investigation concern 10 August 2005 and, in particular, the decision that AB should only be cautioned, and only be cautioned for criminal damage. I bear in mind that DI Chudley’s response to the First Claimant’s complaint characterised this decision as “inappropriate”.

Before such a decision could be taken, it was appropriate to ascertain the Claimants’ views. I have found that there were at least three telephone conversations with the Claimants on 10 August 2005:

These conversations were all relevant to the decision taken by PS Ord on 10 August 2005. It is at least arguable that, despite the views expressed by the Claimants in those conversations, that decision was contrary to one or more of the relevant policies, including:

I do not find it necessary or appropriate to decide whether there was a breach of policy. It is not necessary because it would not be determinative of the issues which I have to decide under the Convention. It is not appropriate because a number of potentially important documents are missing, i.e.:

In the absence of these documents, both parties invited me to speculate as to their contents. Mr. Basu suggested that the custody record (or perhaps another, unidentified document) might record a discussion with the CPS on 10 August 2005. Ms. Gerry suggested that the missing CPS documents might show that they decided in November 2005 that the steps taken on 10 August 2005 would have made it an abuse of process to prosecute AB for assault or for other matters predating 10 August 2005. As I have said, I decline to speculate.

However, even assuming that there was a breach of policy, and that the decision was, as DI Chudley said, “inappropriate”, I would not regard this as meaning that the investigation, viewed as a whole, fell short of the standards required by Article 3.

The Claimants pointed to the fact that the decision taken on 10 August 2005 meant that AB could not be remanded in custody and could not be granted bail on condition that he not contact the Claimants. Because he was not charged with harassment, no restraining order could be sought on that occasion. Against that, administering a caution to AB on 10 August 2005 had a number of benefits, as was recognised in paragraph 36 of Home Office Circular 30/2005, on which Ms. Gerry relied:

The state had a margin of appreciation in deciding how to conduct the investigation into the matters reported by the Claimants. In a case such as this, that margin of appreciation was a wide one. It might be said that the decision taken on 10 August 2005 was a factor which tended towards the lower rather than the upper limit of that margin of appreciation. But in my judgment the investigation as a whole was well within it.

Having regard to all the circumstances, I am satisfied that the investigation conducted by the Force in 2005 met the standard required by Article 3 (and, a fortiori, Article 8, if applicable).

For the reasons which I have given, I dismiss this action because it was brought out of time. If I were wrong to do that, I would in any event have dismissed this action on the basis that: