Farrell v The Chief Constable of West Midlands Police [2007] EWHC 3187 (Admin)

Case No CO/4866/2007[2007] EWHC 3187 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 18th December 2007
Strand
London WC2A 2LL
B e f o r e:
MRJUSTICE MAURICE KAY
MR JUSTICE BURTON
Between
SIOBHAN FARRELLClaimantv
Between
THE CHIEF CONSTABLE OF WEST MIDLANDS POLICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss M Sikand (instructed by MJP Solicitors) appeared for ClaimantMs S Leek (instructed by West Midlands Police) appeared for Defendant
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]I will ask Burton J to give the first judgment.[2]MR JUSTICE BURTON: On 14th March 2007 a then 20-year-old student, Miss Farrell, ran into trouble at her university by falling out with a number of fellow students, in the course of which dispute it was she who first used violence. It seems to be common ground that there had been for some time some interchange of remarks between her and another female student, and she concedes, in circumstances to which I shall refer, that she began the violence by - and this is all she admits - pushing the victim when she was sitting on a chair. The evidence of the victim and of a number of other fellow students, who supported her evidence, was that the claimant did not stop at that, but pushed her off the chair and then became involved in other violent acts; but at all times she, the claimant, has denied any further violence, and said that she could not understand how injuries could have been caused to the victim such as the victim and the other witnesses were alleging. Very sensibly the police force investigating the matter appreciated that what she was in fact admitting in her police interview amounted to a common assault by battery, and that there was likely to be a heavy dispute about whether there was any other further involvement such as the other witnesses alleged, and that this young girl had no previous record and that it was going to be quite sufficient to protect the community to take advantage of the system of caution based upon what she had admitted, and not based upon the more serious allegations which were part of the case against her.[3]The caution is governed by the Home office Circular 30/2005 called "Cautioning of Adult Offenders" and as part of the circular, under the heading "Simple cautioning process", there is a paragraph 7, headed up "Criteria for a Simple Caution" which reads as follows:
"In considering whether a Simple Caution is appropriate, a police officer must consider the following facts: •Is there sufficient evidence of the suspect's guilt to meet the Threshold Test (as outlined in the Director's Guidance)? •Is the offence indictable only (and the available evidence meets the Threshold Test)? If the answer is 'yes', this disposal option must be referred to a Crown Prosecutor. •Has the suspect made a clear and reliable admission of the offence (either verbally or in writing)? An admission of the offence, corroborated by some other material and significant evidential fact will be sufficient evidence to provide a realistic prospect of conviction. This corroboration could be obtained from information in the crime report or obtained during the course of the investigation. A Simple Caution will not be appropriate where a person has not made a clear and reliable admission of the offence (for example if intent is denied or there are doubts about their mental health or intellectual capacity, or where a statutory defence is offered). •Is it in the public interest to use a Simple Caution as an appropriate means of disposal? Officers should take into account the public interest principles set out in the Code for Crown Prosecutors, which is a public document and is available on the CPS website... •Is the suspect 18 years or over? Where the suspect is under 18, a reprimand or final warning would be the equivalent disposal. If all the above requirements are met, the officer must consider whether the seriousness of the offence makes it appropriate for disposal by a Simple Caution."
[4]We have had referred to us particularly two recent authorities which give guidance in relation to the operation of that caution process--R v Commissioner of Police of the Metropolis ex p Thompson [1997] 1 WLR 1519, per Schiemann LJ, and R (W) v the Chief Constable of Hampshire [2006] EWHC 1904 (Admin) per Silber J -- but the facts in this case are now entirely clear in the light of the fact that counsel for the claimant has accepted that, insofar as there are any differences between two versions of the transcript of interview that we have had before us, the defendant's version is the accurate one and Ms Sikand of counsel has indicated that she had not previously had sight of the grounds of defence put forward by the defendant, which revealed the inaccuracy of the claimant’s version.[5]Her case, on paper, before she came to court, concentrated on seeking to establish that there was not, in the tape recorded interview, a sufficiently (to use the words of the circular), "clear and reliable admission of the offence", and she drew our attention in her skeleton to passages of the interview in which the claimant was, as I have described, denying the degree of violence and the existence of injuries; but it is wholly clear that there is a sufficiently clear admission in the interview, and it is that which prompted the very sensible application of this process.[6]At page 14 of the bundle in the interview, as is now accepted to be correctly transcribed by the defendant, the claimant is recorded as saying about the victim that she[7]“… said something like, ‘Get out of my face’, ‘Fuck off, get out of the room", something like that, so she was sitting down in this chair so I went over and pushed her on the chair."[8]Then in a central passage of the interview, she said this:[9]"[Claimant]: As far as I'm aware I pushed her - well, not as far as I'm aware, I'm 100 per cent sure I pushed her, and then someone grabbed me...[10]PC Quinney: What was your reason for pushing her?[11][Claimant]: She told me to fuck off out of the room which for real you don't want to be told to fuck off out of the room."[12]And then, in a further passage, PC Quinney says:[13]"OK. Do you understand that whether or not you cause any injury if you then push someone it is what's called a common assault? A very basic assault?[14][Claimant]: Yeah, yeah.[15]PC Quinney: OK, whether they get any injury or not?" [Claimant]: OK.[16]PC Quinney: The fact is you've done that[17][Claimant]: Yeah."[18]The interview concluded at page 23 of the bundle:[19]“PC Quinney: But it's, you know, you, you know, you have admitted to pushing her.[20][Claimant]: Yeah[21]PC Collins: OK, fair enough[22][Claimant]: I am sorry."[23]It was in those circumstances that the caution process was adopted. There is no doubt whatever that the police were entitled to take the view that that amounted to a “clear and reliable admission of the offence”, which then led them to take the sensible course of a caution rather than taking her to court so as to enable her, if she wished to do so, to challenge the entirety of the evidence, when what she had admitted was a sufficient offence.[24]At a time when her Counsel did not appreciate the fact that there was a dispute about the accuracy of the claimant’s interview record, and thus did not appreciate the now conceded clear picture set out above, a case of some kind was put forward on the claimant's behalf by her counsel that there was something in the interview which might have suggested that anything that happened afterwards could have been justified by self-defence; but that is an entire irrelevance in the light of her admissions as to what started the incident. In any event, what was suggested is wholly insufficient, in my judgment, to have amounted to any kind of assertion of self-defence so as to override the clear and reliable admission.[25]Of course, this is the most minor kind of assault by battery on the basis of what she admitted; but it is an offence and it is that offence which alone was dealt with by a caution. In those circumstances, quite apart from the fact that Schiemann LJ has indicated that not every breach of procedure in this caution system would lead to a successful challenge before the courts, in any event this challenge must fail and is wholly groundless. The appeal is therefore dismissed.

LORD JUSTICE MAURICE KAY: The claimant admitted to, and therefore the basis of the caution was, a single push in response to being told to "Fuck off out of the room". The caution does not connote acceptance of any further details contained in the accounts of others. The admission amounted to an admission of common assault by battery, albeit at the lower end of the scale for such an offence. I agree that the application for judicial review fails.

[27]MS LEEK: My Lord, I do not seek the defendant's costs on the basis that we were under the mistaken misapprehension that my learned friend had been served with detailed grounds and had been served with the transcript of the interview before last week. So the appropriate order may well be no order for costs.

LORD JUSTICE MAURICE KAY: Ms Sikand, are you publicly funded?

[29]MS SIKAND: I am.

LORD JUSTICE MAURICE KAY: Yes, well, you can have an assessment.