SABRINA JAN (R on the application of) v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2022] EWHC 446 (Admin)

“On Tuesday 18th September 2018 I visited Subject at their home address. I visited Subject a year ago when they first moved in and a Merlin report was put on after this due to the subject suffering from anxiety and this anxiety is to do with a male at a nearby address. Subject believes that the male is out to get them. I visited this time due to the same worries. The context of the worry by the subject has no real substance. The male has walked past them a few times and it feels like the subject believes the male has it out for them. Subject has seemed more stressed on this occasion and broke down in tears on multiple occasions. Subject has described how they were in a car accident a few years ago and see a Pain killing unit at Kings College Hospital. Due to this constant pain and not being able to work is causing severe depression and anxiety (both are Diagnosed conditions). Subject is linked to Dr Rubital & Dr Lambcracus at The Gordon Hospital. Officer has spoken to the South Locality Team and they have discharged the Subject back to the GP at The Victoria Medical Centre. Officer is awaiting a call back from GP at this time to liaise with in terms of going forward with the Subject. The house was clean and tidy and the two cats appeared to be well looked after. There is no worries there. It is the mental state of the subject deteriorating that is the worry and the mental health services will need to monitor this closely due to their being a minor in the house as well. I will revisit this premises to try and visit and review how the Daughter is doing.”” [29]. It can be seen from those reports precisely how PCM was approaching the complaints of harassment made by the Claimant. There is no mention of a racial element to the concerns. He noted that the Claimant had disclosed diagnoses of severe depression and anxiety and that she would “rant” at times. From this date the Claimant knew the contents of these reports. [30]. PCA then set out the Protection from Harassment Act 1997 and the Home Office Guidelines on reporting and recording reports of potential crimes in full so that the Claimant would be informed of them: The Act “Sections 1 and 2 of the Protection from Harassment Act 1997 make harassment an offence and specify the defences and penalties. 1(1) A person must not pursue a course of conduct- (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. 1(1A) A person must not pursue a course of conduct- (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above)- (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do. … 2(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.”

“A crime should be recorded as soon as the reporting officer is satisfied that it is more likely than not that a crime has been committed, this is a balance of probability test. An incident will be recorded as a crime: For offences against an identified victim if, on the balance of probability: •. The circumstances as reported amount to a crime defined by law (the police will determine this, based on their knowledge of the law and counting rules), and •. There is no credible evidence to the contrary. Because the rules place an obligation on the police to accept what the victim says unless there is “credible evidence to the contrary”, the following reasons are insufficient to justify not recording a crime: •. The victim declines to provide personal details. •. The victim does not want to take the matter further •. The allegation cannot be proven”

“Summary of crime report (CRIS) 6556528/18 created by PS Corsini on 05/11/2018: “…This report has been created as result of a complaint logged by VIW1, Sabrina, which I am investigating against PC 1573CW Karl Malone - Other neglect failure of duty Previous attempts to make allegations to PC Malone were resulted in Merlin Reports, initially resulted as a neighbour dispute, however as more incidents have occurred Sabrina has raised her concerns with City West Homes who advised to report to police. On the 25/09/2017 Sabrina moved into her address. In her complaint she describes severe and persistent harassment on her, her family and friends, by SUS the late Mr Catchpole cornering them in the lift and warning against watching TV and smoking on the balcony. This continued by Mr Catchpole peering through her kitchen window for prolonged periods of time watching her, her family and friends. That day she logged a complaint against Mr Catchpole with City West Homes who advised to report to police. Sabrina attended Belgravia Police Station that day and PC Malone, the DWO, listened to her concerns and created a Merlin Report. PC Malone visited Mr Catchpole in the coming days. Sabrina also advised PC Malone of her panic and anxiety issues. After the initial police intervention Sabrina done her best to avoid Mr Catchpole. Things continued to happen but Sabrina has not elaborated on them at this time. In January 2018 Sabrina’s daughter was spoken to in the lift by a female friend of Mr Catchpole in the lift enquiring why her mother called police on Mr Catchpole. This re occurred a few weeks later. This was reported to City West Homes who wouldn’t take any action without a CAD number. This was not reported to police and there was no CAD number. City West Homes discontinued their ASB case as Sabrina had no CAD numbers. Sabrina attended Belgravia Police Station to retrieve reference numbers but at this time Belgravia Front Office had been permanently closed. Sabrina called 101 but no reference numbers could be traced. In April 2018 the female who approached her daughter in the lift knocked on her door at 8pm asking where Mr Catchpole was as he wasn’t answering his phone. A complaint was logged with City West Homes. Sabrina applied for a housing transfer after this, but this was rejected as no police report was made. On the 18th September 2018 PC Malone attended Sabrinas address, Sabrina reported Mr Catchpole being drunk at the bottom of the lift holding the doors open for her, which she found intimidating. PC Malone was advised not to approach Mr Catchpole. PC Malone had created Merlin reports for Sabrina and social services referrals, Sabrina is unhappy with this as she believes the facts have been mis-represented. Social services have agreed to help her move. Other support organisations have been in touch with Sabrina offering help and support, which she queried with social services. After speaking to Sabrina over the telephone she believed she was targeted by Mr Catchpole because of her race (Pakistani) although no direct reference have ever been made to her…” ” [32]. PCA reached various conclusions on the merits. He recorded the dispute between the Claimant and PCM over whether PCM was told the alleged harassment was racial by the Claimant on 25th September 2017 or 18th September 2018. He did not choose to decide which he believed. He decided that he did not believe that there was credible evidence that a crime had been committed based on the Claimant’s reports at the time however he also considered that PCM should have made out a crime report as a “crime related incident”

“… no collection of evidence or communication with myself for evidence or collection of CCTV footage of the day when I went to Belgravia police station on the 25th of September 2017 for verification purposes.” [35]. Despite by this time having seen the summary of the contents of the Merlin reports the Claimant continued to maintain that PCM had failed to record her complaints anywhere on 25.9.2017 and 18.9.2018. In the light of the Merlin reports she had read that was an unsustainable assertion. In any event PCA had already made a finding that he had failed to make crime related reports and upheld her complaint on that. [36]. In paragraphs 1 - 6 of the undated letter/witness statement the Claimant repeated her factual assertions about the 25.9.2017. It is noteworthy that there is no allegation of any words or actions from BC to the Claimant of any racial nature. Nor does the Claimant assert that she told PCM that BC was being racially abusive. The first mention of racial concerns in this witness statement is when the Claimant seeks a housing transfer in 2018 and then it is made to Citywest, not the police. The Claimant asserts that her housing transfer was rejected because of the absence of CAD reports. However I note that PCM asserted that Citywest rejected her requested move because they were not themselves satisfied that the allegations of ASB (antisocial behaviour) were made out. The decision the subject of the review [37]. On 23.9.2020 SGS made his decision on the appeal from the second local resolution decision. He dismissed the appeal. [38]. He set out the short history at length. He stated that the appeal was a review of the investigation not a re-investigation. He stated that his appeal was governed by para 25 of Sched. 3 of the Police Reform Act 2002. He went through the matters he was required to consider set out in The Police Reform Act 2002 Sched. 30 Reg 25 and the Home Office Guidance. He considered the findings made by PCA and the decisions of Superintendent Adderley were appropriate and proportionate to the complaint. He considered that the proposed actions were adequate. He found that the Claimant had now been given adequate information following the second local investigation by PCA. SGS decided that the findings of PCA on grounds 2 and 3 were reasonable. [39]. Procedurally SGS admitted that he had not opened the Appendices to the Claimant’s undated and unsigned letter/witness statement and stated that they “do not assist my deliberations”

“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

“Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured. Lord Templeman in Preston referred (866 - 867) to ‘conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations’.”

“53. The correct position appears to me to be as follows: i) An express promise, representation or assurance needs to be “clear, unambiguous and devoid of relevant qualification” to give rise to any legitimate expectation, whether substantive or procedural; ii) A practice must be tantamount to such a promise if it is to found any legitimate expectation. It may be, as Sedley LJ said in BAPIO, that a practice does not have to be entirely unbroken, but it does have to be so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future.” [46]. There was no express promise or clear unambiguous representation made by SGS or the AU in this appeal or in the IPPC (now the IOPC) Guidance that SGS had to read every appendix or document which the Claimant sent in and which the Claimant had singularly failed to provide for the two previous investigations. Scope of appeal inquiry [47]. On a judicial review of the sufficiency of a decision-maker’s inquiry the threshold is a high one. In R v Royal Borough of Kensington and Chelsea ex p. Bayani [1990] 22 H.L.R 406, in the Court of Appeal, Neill LJ considered the authority's duty of inquiry in a homelessness case. The authority was required by the Statute to make “such inquiries as are necessary to satisfy itself etc.”

“(3) In deciding how a reasonable authority would have acted and what inquiries they would have made in the circumstances, the court must have regard to the speech of Lord Brightman in R. v. Hillingdon L.B.C., ex parte Puhlhofer [1986] A.C. 484 where he said at p. 518: “ ... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case .... Where the existence or nonexistence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public”.”

“21. A number of authorities on the above legislative framework have been drawn to my attention: R (Dennis) v IPCC EWHC [2008] 1158, R (Crosby) v IPCC [2009] EWHC 2515 (Admin) (in particular §§5, 39-42) , Muldoon v IPCC [2009] EWHC 3633 (Admin) (in particular at §§18, 19, 24 and 40) and R (Erenbilge) v IPCC [2013] EWHC 1397 (Admin), from which the following principles can be stated in summary form: (1) The question for the police investigation is whether the allegations made in the complaints have been established on the balance of probabilities, taking account of proportionality: Muldoon §18 and Crosby (cited in Muldoon) at §41. (2) The IPCC's appeal procedure is by way of review; in considering the question under paragraph 25(5)(b) of Schedule 3, the IPCC's task is to ensure that, following a proportionate investigation, an appropriate conclusion has been reached by the police investigation: Muldoon §§18, 24. Was the conclusion in the police investigation one which was fair and reasonable? (3) An IPCC appeal decision is not expected to be "tightly argued" - nevertheless the conclusion should be clear and the reasons readily understandable: Dennis §20. (4) The function of the Court on an application for judicial review of an IPCC appeal decision is confined to the question whether the IPCC has reached a decision which was fairly and reasonably open to it, even if the court might have reached a different conclusion. IPCC decisions involve matters of judgment and the court will allow the IPCC a discretionary area of judgment: Muldoon §§19, 40. (5) Where the IPCC upholds the decision of the police investigation, the question for the Court involves an element of "double rationality": was the decision of the IPCC that the decision of the police investigation was fair and reasonable itself fair and reasonable? The question is not whether the Court would necessarily have reached the same conclusion as the police or the IPCC, nor whether it can be seen with hindsight that an error may have been made (Muldoon §§24, 34).”

“The IPCC may request any information which it considers necessary to deal with an appeal from any person. Any information requested by the IPCC for this purpose must be supplied. Regulation 11, Police (Complaints and Misconduct) Regulations 2012” [64]. I consider that SGS did this. He had before him all the evidence which Corsini and PCA had gathered including PCA’s long report. He admitted the Claimant’s representations in her complaints letters and her new, undated, letter/witness statement, which was written after she had seen all the PCM evidence and his Merlin reports. [65]. Under the heading “consideration of appeals” clauses 13.63-65 state: “13.63 When deciding whether the outcome is a proper one, the focus should be on whether the outcome is appropriate to the complaint, not simply on the process followed to reach that outcome. The decision should be made on the basis of the evidence available. 64 In making a decision about the appeal, the relevant appeal body should take the following into consideration: • any representations the complainant has provided as part of his or her appeal about why the outcome is not a proper outcome • whether an action plan was drawn up and agreed with the complainant setting out the steps to be taken when locally resolving his or her complaint. The outcome of the local resolution should be a clear consequence of the actions agreed • whether both the complainant and the person complained against had the opportunity to comment on the complaint during the local resolution process • whether any explanation given was sufficiently clear and comprehensive to address the complainant’s concerns • if no apology has been given as part of the outcome, whether an apology would be appropriate, taking into account the substance of the complaint; and • whether there is any learning from the complaint and whether this has been identified and communicated to the complainant. 65 If the person dealing with the appeal finds that the outcome of the complaints not a proper outcome, the appeal must be upheld.” [66]. The Guidance on “assessing the findings of the local resolution” by the AU is as follows: “Considering the findings of the investigation 89 The findings of the investigation include the eventual conclusions. In their clearest form this will be a set of allegations that are either upheld or not. The findings of the investigation also include the reasons for the conclusions, the evidence that has been gathered to support the conclusions, and a critical analysis of the evidence. 90 Guidance on findings and outcomes is contained within sections 11 and 12 of this guidance. These sections provide information on explanations of the outcome of an investigation, the giving of apologies where appropriate, and the making of decisions about whether a complaint should be upheld or not. 91When determining an appeal against the findings of an investigation, the person dealing with the appeal should consider the investigation findings, taking into account the evidence gathered, and decide whether the investigation’s findings need tobe reconsidered. The person dealing with the appeal must develop his or her ownassessment of the case, not base it on the assessment that the investigator has made. 92 When communicating a decision about whether an appeal is upheld in relation to the findings, the rationale for the decision should be provided to the complainant with reference to the relevant evidence. 93 The following questions should be considered to reach a decision on the findings: Are the conclusions reached reasonable in light of the evidence? 94 The appropriate authority should have looked at every allegation that the complainant has made, for example, in a statement or letter of complaint. If the investigation has not answered the allegations that have been made, the person dealing with the appeal should consider whether this was an appropriate and proportionate approach, taking into account the substance and circumstances of the case. If not, it may be appropriate to uphold the appeal on this ground. The person dealing with the appeal should continue to assess the findings in relation to those allegations that have been dealt with. 95The person dealing with the appeal must consider whether the conclusions of the investigation are supported by the evidence available, and ensure that a clearrationale is being made to link the evidence to the conclusions. Has the investigation been carried out in a proportionate manner and has sufficient evidence been gathered? 96 The factors listed at paragraph 9.15 of this guidance should be used to inform what approach was proportionate for an investigator to have taken to investigate a complaint. As an investigation has progressed, the proportionality of the response required may have changed and this should be taken into account when considering any appeal. Proportionality is a particular consideration when it appears that lines of enquiry may have been missed or consciously not pursued by an investigator. However, it is not sufficient to conclude that an investigation has been proportionate without further explanation. When considering the ‘proportionality’ of following particular lines of enquiry a judgement is being made about the likelihood and difficulty of obtaining fruitful evidence weighed against the seriousness of the allegations. When considering the ‘proportionality’ of the investigation as a whole, a judgement is being made about the scope and robustness of the investigation weighed against the seriousness of the allegations. Where appropriate it should be made clear to the complainant why the person dealing with the appeal has deemed a particular approach to be disproportionate.” (My underlining) Clause 9.15 states: “9.15 Investigators should take the following factors into account when determining the scope of an investigation and the methods to be used: • the need to establish the facts in all cases; • the seriousness of the allegation; • whether Articles 2 or 3 of the European Convention on Human Rights are engaged; • any more general cause of a complainant’s dissatisfaction; • whether the facts are in dispute; • how long ago the incident took place and whether evidence is still likely to be available; • the learning the investigation might yield for local or national policing and individual learning for persons serving with the police; and • actual or potential public knowledge of, and concern about, the case.”

“History: Carl Malone from police station called again is concerned about her MH - he went out to see her today, and reports she "broke down" 6 times in front of him is aware that she was under the Gordon Hospital o/p psych in the past, but not under active f/u - he called MHT today to clarify this. however he has referred her to mh team he believes she is paranoid about neighbour - "looking at her weird" - however on direct questioning, all that happened was that this person nodded at her in the lift is aware she has appt here next week - asked to follow up with him afterwards, as he will try to expedite mh f/u as appropriate also offered to come to a GP appt with her Plan: no confidential info relayed from myself. agree that I will f/u with him If she consents at next appt (02073216961) and arrange mh f/u as appropriate”