Hargreaves & Anor v Greater Manchester Police & Ors [2013] EWHC 2478 (QB)

Case No HQ10X00859

[2013] EWHC 2478 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 August 2013

Before

His Honour Judge Anthony Thornton QC

Sitting as a deputy judge of the High Court

Between

Mr Colin Michael HargreavesClaimants

Mrs Rie Hargreaves ClaimantsClaimants

Between

Chief Constable Greater Manchester Police

Chief Constable Humberside Police

East Riding of Yorkshire County Council Defendants

Mr Hargreaves represented himself and, with the leave of the court and the consent of Mrs Hargreaves, he also represented the second Claimant

for The Defendants were not represented since the claim was not been served on them

The applications were made in telephone hearings on 17 March 2011 and 17 February 2012 and in a series of written submissions served subsequently

JUDGMENT

HH Judge Anthony Thornton QC:

[1]Introduction This judgment is concerned with the claimants’ appeal against the order of Master Eyre dated 4 August 2010 that is brought with the permission of Dobbs J in an order dated 19 January 2011. The Master’s order struck out the claim form and dismissed the action which had, by virtue of his order dated 4 March 2010, been issued by the Royal Courts of Justice Registry on 4 March 2010 but had not been served on any of the three defendants. In consequence, the appeal and the claimants’ applications that I have been concerned with have been dealt with without formal notice to the prospective defendants who have in consequence taken no part in these proceedings. The defendants did however jointly instruct counsel to attend the first telephone hearing and he submitted a written skeleton argument and made brief submissions. The defendants’ representatives have not played any part in the subsequent exchanges between the claimants and the court but they will be served with a copy of this judgment and the resulting order.

[2]The claimants, Mr and Mrs Hargreaves (respectively “CH” and “RH”) were married in 2002 and are now permanently resident in Japan with their two young children having emigrated there in 2008. All exchanges in this protracted appeal between the court and the claimants, who are representing themselves, have been by email or telephone conference. RH is Japanese and their two children are a boy who was 2 years, 11 months and a girl who was 9 months on 8 January 2007 when the critical triggering events at Greater Manchester Airport occurred. In particular, these events allegedly included a serious incident of domestic violence by way of an assault by CH on RH. This was followed over the ensuing twelve months, as the claimants allege, by CH’s subsequent unlawful arrest following his being unlawfully assaulted by the arresting officer, his being unlawfully charged with ABH and then vindicated by way of a court-directed acquittal and the unlawful interference with their family life by child protection social workers and the police whilst unlawfully exercising child protection powers.

[3]CH and RH are now seeking to bring complex proceedings against three separate defendants based on their allegations that CH was unlawfully arrested, unlawful assaulted when he was handcuffed as part of the arresting process and was maliciously prosecuted. The claimants also allege that they were unlawfully targeted and their family life unlawfully interfered with by social services and the police. These acts allegedly arose from the misfeasance in public office, negligence and other torts committed by various police officers and social workers and by the resulting breaches of their human rights. The principal events leading to CH’s arrest occurred at Greater Manchester Airport on 8 January 2007 prior to the family’s departure for a holiday in Japan and the subsequent unlawful intrusion into their family life allegedly occurred during 2007 in their family home in Bridlington in the East Riding of Yorkshire whilst they and their children were still resident there. CH and RH contend that these actions caused the family to emigrate permanently to Japan and have further caused them loss and damage for which they claim damages and compound interest from the defendants that, in total, is well in excess of £1m.

[4]The first defendant, Greater Manchester Police (“GMP”), is the police force involved in the arrest and charging of CH following his alleged assault of RH whilst parking their car at Greater Manchester Airport en route with their two children to Japan. GMP is sued in the conventional manner by the proceedings being issued against its chief constable being sued in a representative capacity.

[5]The second defendant, Humberside Police (“HP”), is the police force of the claimants’ then home area of Bridlington whose chief constable is similarly sued in a representative capacity.

[6]The third defendant, East Riding of Yorkshire Council (“ERYC”) ERYC is sued in the name of “Allison Waller, (Director of Children, Family & Adult Services) ERYC Bridlington Social Services”. This description provides a satisfactory reference to the third defendant but the claim form and particulars of claim, if issued, should be issued against “East Riding of Yorkshire Council”. , is the children’s services local authority having statutory responsibility for the provision of children’s services and for the welfare of children in the East Riding of Yorkshire area which includes Bridlington. These services were performed by ERYC through the Child Care section of its Children, Family & Adult Services Department. The actions of individual social workers within the Child Care section and the collective action of that section were, therefore, the actions of ERYC who was and remains liable directly and vicariously for any actionable liability arising from the provision or performance of such services.

[7]The alleged domestic violence was reported to ERYC by HP who had in turn had it reported to it by GMC. The report had originally been made since the assault that CH was suspected of having committed had involved a serious incident of domestic violence that had occurred in the presence of both children and the two police officers who arrested CH’s were concerned about both RH’s and the two children’s safety, possible harm and welfare. ERYC investigated the family, placed the two children on the child protection or at risk register, referred them to a child protection conference, undertook core assessments of them and subsequently removed their names from the at risk register. These actions were undertaken pursuant to ERYC’s statutory role of safeguarding the health and well-being of children living in its area. The claimants allege that its actions were undertaken in an unlawful, malicious and harassing manner.

[8]In this appeal, CH and RH are applying for an order reinstating both the dismissed action and the struck out clam form and for the following further orders:(1) The stay of the action imposed by paragraph 4 of the order dated 4 March 2010 should be lifted.

(2) CH and RH should be permitted to amend their claim form that was struck out by the order dated 4 August 2010 by substituting it with the draft amended claim form that the claimants filed with the court on 24 February 2012.

(3) The amended claim form should be sealed and issued by the court.

(4) CH and RH should be permitted to withdraw the draft particulars of claim that they filed with the court on 7 April 2010 pursuant to paragraph 2 of the order dated 4 March 2010 and replace them with the draft amended particulars of claim that were filed with the court on 24 February 2012 pursuant to paragraphs 1(1) and (2) of my order dated 7 November 2011.

(5) CH and RH should, pursuant to paragraph 1 of the order dated 4 March 2010 and paragraph 2 of the order dated 7 November 2011, be permitted to serve on each of the three defendants their statement of case filed with the court on 24 February 2012 comprising their amended draft claim form, their amended draft particulars of claim and their respective detailed witness statements with and the two files of supporting documents that were served with them

(6) The court should make copies of CH and RH’s entire statement of case and then serve one copy on each defendant.

(7) Directions should be given for the further conduct of the action pursuant to paragraph 5 of the order dated 4 March 2010 and CH and RH’s application notice dated 19 November 2010 that should include the following: (a) CH should be permitted to represent himself and RH at all hearings in the action including the present appeal, all subsequent pre-trial hearings and the trial; (b) CH and RH should be permitted to attend all hearings in the action and the trial via a Skype, video or telephone link to the court from Japan; (c) The court should provide and pay for any expenses involved in the provision of any Skype, video or telephone link that is required; (d) Each defendant and/or the court should make an interim payment in an unspecified amount to enable the claimants to pursue the action to trial and to a verdict or judgment; and (d) Any further appropriate consequential case management directions.

[9]The only formal application issued by the claimants is their notice of appeal sealed on 19 November 2010 seeking permission to appeal the order of the Master dated 4 August 2010 that ordered that the claim form should be struck out and the claim should be dismissed because the claimants had failed to comply with his earlier order sealed on 5 March 2010. However, if the striking out order is set aside and the claim is reinstated, the remaining applications must then be dealt with in turn. These further applications have not been spelt out in the notice of appeal but they have been intimated in the claimants’ documentation and, in any event, they must necessarily be addressed if and when the action is reinstated.

[10]I have dealt with the appeal and the claimants’ applications in two parts. I have already dealt with the first part of the appeal that sought to set aside the Master’s striking out order. That part of the appeal was dealt with by written submissions supplemented by CH’s brief oral submissions that were made at a telephone hearing that he participated in from Japan. I handed down and arranged to be sent out to the claimants a judgment dated 17 August 2011 that was served on the claimants on 9 September 2011. This explained why that part of the appeal should be allowed. At the same time, I issued and arranged to be served on the claimants directions setting out what the claimants had to provide to the court to enable me to determine whether they should be permitted to serve their claim in its final form on each of the three proposed defendants.

[11]Thus, in summary, the judgment and orders served on 9 September 2011 as supplemented by an order issued and served on 7 November 2011 allowed the appeal and provided detailed directions for the service on the court of draft amended claim forms, draft amended particulars of claim, witness statements setting out CH and RH’s evidence and the supporting documents that they relied on to enable me to decide whether the claimants should be permitted to serve the final version of their statement of case on each of the defendants.

[12]With remarkable industry and considerable effort, the claimants have now provided all the material ordered to be provided and that material, supplemented by lengthy written submissions, has been considered by me in deciding which, if any, of the outstanding applications should be granted. This judgment sets out my reasons for reaching the decision that the claimants are refused permission to amend their statement of case in the form set out in the documents filed with the court on 7 February 2012 and to serve that statement of case on any of the defendants with the consequence that the claim is struck out pursuant to CPR 3.4. 2. Factual background

[13]CH and RH’s claims, the causes of action that they rely on and the statement of case setting those claims out and particularising those causes of action have been transformed during the course of this appeal. In compliance with my directions, the claimants served on the court a proposed amended claim form and particulars of claim drafted by CH, each claimant has served a very lengthy witness statement that each has drafted and they have also served two files of documents containing over 600 pages of heavily annotated documents and several very lengthy submissions drafted by CH. I have decided that all these documents should be regarded as comprising their statement of case and should be taken into account in deciding this appeal.

[14]The relevant factual background has to be considered in nine discrete stages. The first six of these stages are concerned with the primary facts that the claimants allege occurred in the period between 8 January 2007 and 18 January 2008 and the remaining three stages are concerned with the consequent investigations into the claimants’ complaints about the conduct of GMP and ERYC and the resulting reports and with the claimants’ emigration to Japan and the damages that they are claiming.

[15]These nine stages are:(1) CH’s unlawful act of domestic violence by way of an assault of RH on 8 January 2007 as alleged by GMP but as denied by the claimants and CH’s consequent arrest;

(2) GMP’s multi-agency report that it sent to ERYC on 9 January 2007 that was concerned with the potential risk of harm to RH and to CH’s and RH’s two young children;

(3) the charging of CH on 1 March 2007;

(4) CH’s pre-trial preparations for his Crown Court trial on 18 December 2007 and the dismissal of the charge of ABH at the outset of the trial;

(5) ERYC’s child protection actions and assessments;

(6) HP’s multi-agency involvement with ERYC’s child protection conference;

(7) subsequent investigations into and reports about CH’s and RH’s complaints against GMP and ERYC;

(8) the emigration of the Hargreaves family for a new family life in Japan and

(9) the damages that are now claimed. (1) Stage 1 – The alleged domestic violence and CH’s subsequent arrest

[16]Summary. CH’s alleged assault of RH and his alleged public order offence committed against a further victim occurred at about 8.00am on 8 January 2007 outside Terminal 1 at Greater Manchester Airport. CH denies that the assault took place or that he made any physical contact with RH. He also alleges that he was unlawfully arrested and, whilst being arrested, was unlawfully assaulted by one of the two GMP police officers who interrogated both him and RH in the check-in area of Terminal 1. The assault, or trespass to the person, allegedly occurred as a result of CH being handcuffed with undue force. He was then allegedly unlawfully detained for about 6½ hours in the Greater Manchester Airport custody suite located within the airport confines before being released on police bail.

[17]Events prior to 8 January 2007. When CH and RH first came into contact with each other, CH was living in York and had been working in the building trade for some years and RH, who is Japanese, was living in Japan. CH had RH started to correspond by email. RH only spoke rudimentary English and drafted her emails to and read those from CH with the assistance of Japanese-English dictionaries and the translation facilities available on the internet. She moved to England in about 2001 and CH and RH married in York in 2002. RH attended English language lessons in the early days of their marriage but it is clear that, in January 2007, her spoken and written English and her comprehension of spoken English remained poor. However, it is clear from the evidence that by then RH spoke and understood English better than CH and RH now suggest in their witness statements that she did.

[18]Initially, following their marriage, CH and RH lived in a flat and then a house in York, both of which they renovated. CH’s mother lived, and still lives, in her own property in York. In 2003, they bought a run-down Victorian house in Bridlington which is on the coast in the East Riding of Yorkshire. Having moved, they started an extensive three-year renovation programme of their home which they undertook around their life together and CH’s working life. They had two children, a daughter born in 2004 and a son born in 2006. CH ceased employed working in 2004 because his work kept him away from home during the week and he and RH decided that he should remain at home with his family. He therefore started his own company undertaking home improvements in the Bridlington area. He worked on the necessary paperwork at home and carried out the work himself with the assistance of self-employed contractors. The claimants kept themselves to themselves and spent any spare time together working on their extensive home renovation programme and looking after and bringing up their infant children.

[19]In late 2006, CH and RH decided to take a 3-week holiday in Japan in January 2007. They planned to take their children to stay with RH’s parents who had not yet met their grandchildren and they pre-booked their two-legged flights to Japan. The flight for the first leg left Greater Manchester Airport at about 11.00am on 8 January 2007 with check-in opening at 8.30am. CH and RH’s plan was to leave home very early on the morning of the flight, drive over from Bridlington to Manchester in RH’s Ford Focus 1.8l car, park the car in a pre-booked space in one of the long-stay car parks and collect it and drive home on their return from Japan.

[20]The family’s arrival at the first long-stay car park. On arrival at Greater Manchester Airport at the long-stay car park where they had pre-booked a space to park their car, CH with RH, their two young children and their luggage parked the car, unloaded their luggage and moved towards the bus stop to take the shuttle bus to their check-in point in Terminal 1. However, they discovered from a car park attendant who was in a cabin located near the car park entrance that there was no shuttle bus service running that would take them to Terminal 1. He therefore redirected them to a different car park. As a result, CH went back to the car on his own and returned with it to the spot near the car park attendant’s cabin where RH, the two children and their luggage were waiting for him. CH and RH’s statements stated that CH and the car park attendant then reloaded the luggage. Whilst they were doing this, RH stated that she went to the boot in order to get a bag that she needed that had been inadvertently placed in the boot. Whilst removing the bag from the boot, she stated that she accidently bumped her head on the car boot door. The bump was a small one but it caused a hair clip in her hair to scratch her scalp or forehead which caused a small amount of blood to surface onto her forehead and which she subsequently noticed felt a bit of sweat on her face. CH stated that he first saw the blood whilst driving to the second car park and he recollected it as a thin line of dried blood running from RH’s hairline to her chin along the left side of her nose.

[21]The car park attendant made a statement to the GMP arresting officer the following day which agreed with CH’s statement that the two of them reloaded the luggage into the boot of the car. He had no recollection of RH reaching into the boot whilst it was being loaded.

[22]The car park attendant stated that CH had been abrupt with him when the family had first arrived at the car park and that CH had banged on the window of his cabin numerous times with his fist and with his face contorted with rage whilst screaming a demand for “the bus”. In his statement, CH explained that he was suffering from an infected leg which was causing him considerable and continuous pain which might have made him seem “tetchy”.

[23]The car park attendant’s witness statement also stated that RH went alone to the car park to fetch their parked car and continued in these terms:

“… the male ran back to the car in the car park leaving the female and children. I observed the female for approximately 3-4 minutes outside the cabin from a distance of approximately 5ft away and the older child was approximately 3ft away. During this time the female was facing towards me and I did not notice any visible injuries on her or the children. At no point did the female or children speak to me.”

When CH returned with the car, RH: “… stood with the passenger door open away from the boot of the vehicle”.

[24]There was an obvious and highly material difference between the statements of CH and RH on the one hand and the car park attendant on the other. CH and RH stated in their respective statements that RH had received a minor cut or abrasion which drew a small amount of blood when she had banged a hair grip in her hair on the car boot door when retrieving a bag from the boot. However, the car park attendant contradicted those statements and instead stated in his statement that RH had not gone to the boot whilst it was being reloaded by CH and had shown no signs of any injury or blood to her head or face immediately before and after the boot had been repacked or immediately before the family drove off to park the car elsewhere. He stated that he had been well placed to observe that there was no blood on RH’s face and forehead when the family drove off since he had been standing close to RH and had been facing her from the time that CH went off to retrieve the car to the time that the family got into the car just before CH drove them off to another car park.

[25]Reported domestic violence outside the Terminal 1 building. CH then drove the family to the car park that the family had been redirected to but he had difficulty finding the one that they were heading for. On arrival outside Terminal 1, the relevant events are reported to have taken place over a period of no more than about 10 minutes that started at about 8.00am. Since the family did not have to check in until 8.30am at the earliest, they were under no time pressure.

[26]CH’s evidence. CH’s witness statement contains this salient passage:

“… we looked for a sign for the “long-stay Car Park”

. We saw no sign. Ahead we say three Police cars parked to our left outside the Terminal 1 check-in desk doors area. In the central line of the dual road within the large multi-story building, further ahead we also saw two people very close together separated by a concrete pillar. It was around 7.35am This timing does not fit in with the other timings in the evidence which appear to be reliable and internally consistent with each other and which placed the time of the incident about 25 – 30 minutes later than this. or so. … We stopped our car by these people who were on the central path on our left. On the left of the 2 was a woman who appeared to be a 35-y/o jet-lagged stewardess leaning against the pillar (it turns out she was a 21-y/o); on the right of her was a parking attendant, a middle-aged man in a bright yellow coat who we believe may have been waiting for our vehicle (Police still keep his name secret). Behind them was at least one recording CCTV camera in plain sight. The female was nearer to our vehicle (a Ms Louise O’Brien). She looked like she had been there a thousand times. I looked around and saw further (recording) CCTV cameras aimed where I was stopped. I part wound down the electric passenger window and tried to get her attention. At first my wife also tried to draw her attention slightly but realised this woman might not understand her English. Then I leaned across and tried to speak; I saw she noticed me also and looked away. I called over to her very politely initially ‘If she knew the car parks around here’ She looked bored, in a world of her own. … I asked again louder but still very polite, and got no response. Then, I got out of the car and stood at my driver’s door and called across my car politely, words to the effect of:

‘Do you know about the ruddy car parks around here?’

She appeared to be in a world of her own, but appeared to be Airport staff. So, finally, I walked over to her and said clearly:

‘Excuse me, do you know where Terminal 1, Level-5 Long-Stay Car Park is?’

She appeared to ignore me again, appeared to be in some kind of mood, somewhat exhausted, and then she looked away to the Check-in desk area. I was dumbfounded at her apparent ignorance. In bafflement I looked behind me over to my wife and shrugged and then visually noticed she had a thin line of what looked to be dry blood to the left side of her nose from her scalp to her chin so I went across to her and asked if she was OK, but again my wife said she was OK, she said she was fine. I pointed out she had a line of blood and “should I get a tissue from the boot?”; but again my wife said she was OK 2 and she asked me to “ask there” for directions (the check-in area). I noticed that there was no bleeding and only a single thin line of seemingly dry blood, and no visible injury … . … I returned to near the car and then asked the middle-aged man in the yellow coat next to Louise O’Brien if he knew where the car terminal 1, Level-5 parks were but he only wanted to know if we were dropping off our car for him to park separately from the airport. … So I returned to the car and made a ‘freedom of expression comment’ to nobody in particular about ‘some people from Manchester being unhelpful’. This was misheard by my wife who thought I had used a phrase something along the lines of:

‘Some Manchester people are cloth ignorant’. … That comment to nobody in particular may or may not have been slightly inappropriate (after some Manchester people repeatedly appeared to be ignorant/dismissive to me/us) but not criminal, especially as the comment was not aimed at anyone in particular as it was just a legal “freedom of expression (of speech)” that was said too quiet for any more people to hear than those few adults nearby. It is believed that this is the commenting which may have angered Louise O’

Brien sufficient enough for her to contact the Police and not the single thin line of dry blood on my wife; although this may also have got her seemingly tired and angry mind conjuring; subsequently assisted/managed and inaccurately reported by the arresting officer, who by then (when drafting her statement later) seemingly knew that he had made a false arrest. Also it is not known for certain if this person actually signed such a statement or agrees with the contents of the statement attributed to the name Louise O’Brien. Louise O’Brien dodged her warrant to attend the Crown Court with an altered sick note.” ‘If she knew the car parks around here’ ‘Do you know about the ruddy car parks around here?’ ‘Excuse me, do you know where Terminal 1, Level-5 Long-Stay Car Park is?’ ‘Some Manchester people are cloth ignorant’. … That comment to nobody in particular may or may not have been slightly inappropriate (after some Manchester people repeatedly appeared to be ignorant/dismissive to me/us) but not criminal, especially as the comment was not aimed at anyone in particular as it was just a legal “freedom of expression (of speech)” that was said too quiet for any more people to hear than those few adults nearby. It is believed that this is the commenting which may have angered Louise O’Brien sufficient enough for her to contact the Police and not the single thin line of dry blood on my wife; although this may also have got her seemingly tired and angry mind conjuring; subsequently assisted/managed and inaccurately reported by the arresting officer, who by then (when drafting her statement later) seemingly knew that he had made a false arrest. Also it is not known for certain if this person actually signed such a statement or agrees with the contents of the statement attributed to the name Louise O’Brien. Louise O’Brien dodged her warrant to attend the Crown Court with an altered sick note.”

[27]RH’s evidence. RH has also made a long witness statement which had been prepared in the manner that she was directed to prepare it in the procedural directions I gave in August and September 2011. In those directions, RH was directed to prepare her own statement in her own words and, in that statement, she should explain how she prepared her statement and how she was able to verify that it accurately reflected her own words. RH explained in her statement that she had compiled her statement herself using a Japanese-English dictionary, an internet translation programme and her own knowledge of the case documents. The result is an acceptable statement written in intelligible but ungrammatical English.

[28]The relevant part of it reads as follows:

“We drive Shuttle park 10 minutes maybe a bit more? To Manchester Airport terminal 1. CCtv by level 5 road near Check in entrance. I am here on CCtv with line of blood on my face left side my nose to my chin. Its dry. This is Airport building at check in desk place so is recording. Airport staff said ‘is recording’ later [when] we asked. We stop near police cars. Also try to ask directions from someone bored and tired. 2 people nearby, 1 man 1 woman. Asking the woman. First please see our photo evidence again. CCtv everywhere. Now I know the woman claimed is Miss O’Brien. I can see. She miserable, doesn’t help. My husband sees me and asks if I am OK. I say I’m fine. We can tidy up myself later. Check for Level 5 car park. We didn’t know we are already in correct place. So my husband in pain by infected leg then ask near police car Entrance 2 in Airport for direction. Next ask yellow coat man near O’Brien woman. He is upset may be waiting for our car a long time. Not sure if him or dirretent (sic) person. Nobody tells us his name near O’Brien. It Monday morning, people not helps for directions. My husband return. Said something about some people about Manchester. I don’t understand English comment always. We look for sign up and down. We decide this car park, driver’s side behind wall, is OK. It’s maybe just past 8 or something, we drive to car park from there. I saw same woman I now know police say is Louise O’Brien. It seems she is whispering to yellow coat man next to her. We see car park entrance. I am happy for it. We are tired. … … I checked in with my baby son my flight to Japan by Frankfurt. Airline staff saw I was fine. Lufthansa staff saw no blood to notice, later police claimed. But no cuts, no lump, no assault injury for me. I already checked in with my baby son also. CCtv saw I was fine I know. Everyone know CCtv recording in airport. Nobody said you have blood you have cut. I’m fine. My hairclip bump is no concern.”

[29]LO’s evidence. Louise O’Brien (“LO”) was a desk passenger service agent who worked the night shift on an airline check-in desk who had just come off a night shift and who was waiting for a pre-arranged lift home. She made a statement to the police later that day concerning what she said she saw. The salient part of that statement reads as follows:

“I went outside the departure building and stood waiting for my boyfriend to pick me up outside the Thomas Cook section of the terminal where there is a pick up point. I must have been stood waiting approximately 10 minutes on the public footpath … when my attention was drawn to a Ford Focus, light blue in colour ‘03’ registered, which the manner the car pulled up in I immediately stood back away from the edge of the footpath but continued to watch the car. I then saw a man get out of the driver’s seat and also noticed a female front seat passenger who was holding the young baby, I would say approximately 1 years old and a further older child sat in the back of the car. I am unable to describe this person any further as I wasn’t taking much notice of him as I encounter similar aggressive and angry approaches from customers I deal with at work. The male I heard shouting ‘You know about this car park system …’ … This passage is at the bottom of a page and this gap is made up of a few words which have been cut off in the photocopying of this page. words to himself, the male appeared agitated and worried and kept looking around for people as I told him I didn’t know anything about the car parking system. He then ran over the road outside the departure building … I then turned back to look at the female passenger in the Ford Focus and noticed she appeared to be Chinese and the children also. I was approximately 4 feet away from the front of the car. The female in my opinion appeared distressed she was holding the baby away from her body and my concerns then became for the welfare of the baby. I thought that something was wrong with the baby, as it didn’t appear to be moving and the female continued to hold her away from her body. Approximately a minute later I looked across the road and saw the male running back over after consulting with a car parking attendant. He ran from behind me and stopped in front of the car being very aggressive towards me and abusive. I heard him say ‘You fucking go (sic) no one knows a fucking thing round here’ and mumbled the words Level 5 and at this point while he was saying that he lunged himself at me with both his arms out. I immediately fearing for my safety quickly took several steps back to avoid the male taking hold of me. He then momentarily stopped and looked at me still angry turned and approached the front passenger window which was approximately ¾ of the way down at all times. I saw him grab hold of the female through the window by her hair with both his hands and aggressively hit her side of the head into the open window, which was open through for her to impact her head on, he carried out this action for approximately 4 times before hitting the side of the head into the seat belt pillar. The attack I would say lasted for approximately less than a minute and his aggressive and deliberate actions were very quick. I also noticed that during the assault the female did not struggle and did not make a sound and was holding onto the baby at all times during the assault. After this the male walked back to the driver’s door and said to me ‘Tell me where I can park. I then pointed to the car park that was behind me and told him to park on that car park. The male then got into the driver’s seat and aggressively reversed backwards with intentions of contravening the one-way system to get into the car park but was unable to due to cars behind him. He then drove forwards and when the car was almost past me I saw the female passenger was bleeding heavily around her head and face and was very distressed crying. The older child who was on the back seat saw the assault take place in front of him his age I would say was approximately between 4 and 6 years. The car past by me and went round a bend and I lost sight of it. I would describe the male’s actions as deliberate and intentional.”

The male I heard shouting ‘You know about this car park system …’ … I would describe the male’s actions as deliberate and intentional.”

The male I heard shouting ‘You know about this car park system …’ …

[30]PC Mitchell’s evidence. Immediately after CH drove RH and their two children away from the spot adjacent to the entrance to Terminal 1 where he had temporarily parked the car, PC Mitchell of the GMP, who was on uniformed mobile control, passed LO in his car and parked and came across to her because she had beckoned to him to come and speak to her. As soon as he came over to her, she introduced herself and informed him of what she claimed to have just seen and experienced and he immediately radioed a report which was logged on the Police National Computer at 08.12 as follows: “Message - driving incident – poss. assault - driver of Ford Focus Blue ‘03’ Plat E had driving incident this location - believe female may have been assaulted by driver - checking car parks I have added punctuation to this quotation to facilitate its reading. ”.

[31]He subsequently drafted his witness statement using the contents of his note book which he had made up later that day. The relevant part of his statement reads as follows:

“[She] stated that a male driving an ‘03’ registered Ford Focus had verbally abused her on the pavement and then leant into his own vehicle and attacked the female passenger who was with him causing an injury to her face that was bleeding. I then took Ms O’Brien’s mobile phone number and in company with other officers conducted an area search for the offender. I located a male person I now know to be [CH] ... at the check in desk in Terminal 1 Departures who was in company with a female named [RHG] and a 9-month old female named … and a 2-year old child named … . As a result of information received at 0835hrs, I arrested [CH] under suspicion of a section 47 assault and section 5 Public Order Act and cautioned him to which he made no comment. I informed [CH] that the reason for arrest were to obtain evidence by questioning and to prevent injury to another person. Due to [CH’s] aggressive attitude and general demeanour, I handcuffed him to the rear, searched him and placed him into the rear of a police van where he was transported to the Airport Police Station by PC Mahmood where he was booked into custody at approximately 0900 hrs. At 1355hrs I conducted taped interview … with [CH] which concluded at 14.37 hrs.”

At 1355hrs I conducted taped interview … with [CH] which concluded at 14.37 hrs.”

[32]Evidence of arrest. CH and RH were at the check-in desk in the departure hall when they were approached by PC Mitchell and PC Naden. These two officers and CH and RH are the only witnesses of what occurred in the approximately 20 minutes that elapsed between the two officers approaching CH and RH and CH being arrested, handcuffed and escorted away for interview in the nearby police custody suite that is located within the airport confines. CH and RH’s evidence of what occurred and what was visible of RH’s injuries is set out at length in their witness statements and it is at marked variance with the other available evidence of what occurred.

[33]The police evidence consists of the witness statements of the two officers supplemented by a summary of their evidence that is contained in the GMP investigation report into CH’s and RH’s complaints about their and other GMP officers’ behaviour. This report took account of the notebooks and statements of all officers involved in CH’s arrest, handcuffing, removal to and arrival at the custody suite, all subsequent interviews and investigations and the investigating officer’s interviews of all relevant officers. The report was signed off on 17 February 2009 and it dismissed all of CH’s complaints. CH subsequently appealed against its conclusions and the Independent Police Complaints Commission (“IPCC”) dismissed his appeal on all grounds. There is no available CCTV evidence of what occurred in the period when CH’s car was parked outside the Terminal 1 building nor of the 20-minute period whilst CH and RH were being talked to by the two police officers in the check-in area and there is no evidence from any check-in staff member of RH’s physical appearance or demeanour when checking-in. I will do no more than summarise briefly the conflicting accounts of the claimants’ and the GMP officers’ evidence.

[34]Police evidence. The police evidence was that CH was arrested because the police had sufficient evidence that he had committed a serious assault on RH involving domestic violence against her. This assault had placed her two infant children at risk since the assault of some violence had occurred whilst the younger of the two infants was being held by RH and the slightly older child was close by. PC Michell stated that he had already received an eye witness report from an independent witness who had told him only a few minutes after the incident had occurred that she had seen CH smash his wife’s head four times against the car door having grabbed her by her hair and whilst she was holding an infant in her arms with another infant in the back seat. He also stated that the timing of the arrest and the use of handcuffs in the rear position were dictated by CH’s aggressive manner. The arresting officer particularly recalled CH as being sufficiently aggressive and hostile that he felt it necessary to handcuff him to the rear because of his concern for the safety of others in the vicinity to CH.

[35]PC Naden, who also attended the check-in area, noted that RH had visible facial injuries. He recorded and recollected that RH had a half inch cut to her central forehead area which was located just in her hairline and a raised bump of approximately one and a quarter inches to her right temple. He also noticed dried blood in RH’s hair, on her nose and lips and on the collar of her clothing. The nine-month old infant she was carrying had dried blood in its hair and clothing. He said that RH appeared frightened and would not assist in any way, particularly by not permitting herself to be photographed and by not accounting for her injuries. She appeared to understand what was being said to her and responded to it. She signed that officer’s notebook to show that she did not want to support police action against CH. After CH had been arrested and taken away, that officer accompanied RH and her two children to a nearby store to buy some items to enable her to tidy and clean herself up and he saw them through the departure gate en route to their boarding their Lufthansa flight on the first leg of their two-legged journey to Japan.

[36]CH and RH’s evidence. CH and RH gave a very different account of this critical period of about 20 minutes prior to CH’s arrest. CH contends that he was questioned for about 20 minutes. CH stated that he was helpful and was at no time aggressive or hostile. The police officers, particularly PC Naden, in their notebook entries and statements had invented much of what they had recorded as having been said to and by both CH and RH including the recorded suggestion that the police had two witnesses to the assault that they kept wrongly asserting that CH had committed on RH. One of the officers unlawfully picked up their elder child. CH also stated that one of the officers had produced a forged signature allegedly made by RH in that officer’s notebook to confirm her apparent wish that CH should not be charged. This particular suggestion is refuted by RH who accepted in her statement that she had signed the notebook but alleged that she didn’t understand what she was signing her agreement to. CH also stated that he had been very insistent that the officers should track down the CCTV evidence of what had happened both outside and within the terminal building since this would prove that he was innocent.

[37]RH stated that she was spoken to by one of the police officers but that she had had little understanding of what was being said. However, she did insist that CH had not assaulted her. She did sign the policeman’s notebook but without any understanding of what he had written which was “No Court, No Charge”. The officer had stated that this meant that RH was insisting that CH had not assaulted her and should not be taken to court. She contended that she had no visible injuries and provided a photograph of herself taken in Japan about 48 hours after CH’s arrest which also appeared to show that she had no injuries. However, the quality of this evidence was poor and was disputed by the police given the lengthy delay before they were taken, the superficial nature of RH’s injuries despite the reported serious nature of her assault and her opportunity to clean herself up before the photographs were taken.

[38]CH’s arrest. PC Mitchell decided that he had sufficient evidence to give rise to a reasonable belief that CH had assaulted RH in the presence of their two infants and that he should be arrested and taken to the GMP custody suite nearby for questioning in custody and under caution. He also decided that it was necessary to handcuff CH using the back-to-back handcuffing technique before he was taken into custody. His evidence was that he back-to-back handcuffed CH because of his concern for the safety of those around CH including RH, his children and the two officers who were interrogating him. This method of arresting someone is a Home Office approved technique for use when the person being arrested is acting in an aggressive and threatening manner as CH was. PC Mitchell first placed the handcuffs in position. He then put his finger between the handcuffs and CH’s skin after he had placed them on CH’s wrists to ensure that they were not too tight and he finally double locked the handcuffs.

[39]When the handcuffs were removed in the custody suite, there were normal signs of reddening on CH’s wrists but no signs of any injuries. The GMP investigating officer noted in his report when commenting on CH’s complaint that he had been caused serious injuries by the handcuffing that CH had not complained about his wrists whilst in the custody suite. He also quoted from evidence that he had received from CH’s doctor who examined CH on 6 February 2007 when CH went to see him nearly a month after he had been handcuffed. The doctor had not found anything significantly wrong with CH’s wrists or fingers. The investigating officer also quoted the views of another doctor who had seen CH on 26 April 2006. The second doctor diagnosed that CH was possibly suffering from mild right carpel tunnel syndrome. This diagnosis was shown to the first doctor who considered that, even if the diagnosis was correct, the syndrome it described was unlikely to have been caused by the handcuffing that had occurred but, instead, was more likely to have been caused by disease or occupational activities.

[40]CH contended that the handcuffs had been applied so tightly that he was in acute pain whilst they were in place and that they had caused significant nerve damage to his hands. He provided evidence that his right hand had been operated on under local anaesthetic in November 2007 and he contended that this had been necessitated by the need to alleviate the symptoms of right carpal tunnel syndrome that he was suffering from that had been caused by the unduly severe handcuffing that he had been subjected to when he was arrested on 8 January 2007. However, he did not produce any contemporaneous medical reports and photographs that described his injuries and which discussed whether they had been caused by disease, occupational factors or the handcuffs, their effect on the mobility of his wrists, hands and fingers, the treatment that it had been necessary to apply and the long-term prognosis for his recovery.

[41]In the custody suite. About four hours after his arrival at the custody suite, CH was interviewed under caution starting at about 13.30pm and this interview was recorded. At CH’s request, the police had arranged for a duty solicitor to be present during this interview. The interview lasted for about 30 minutes. CH explained in this interview that RH’s injuries had been inflicted when the car boot had hit her head whilst she was loading bags into the boot of their vehicle at the shuttle park on first arrival at the airport. Neither he nor RH had made any mention when questioned in the check-in area that the blood that the officers had observed on RH’s face had been drawn by an accidental knock that had occurred at a different location before she had arrived outside Terminal I. CH also stated that the witness who had said that she had seen the assault was mistaken. He was then released on bail. Subsequently, the police obtained a statement from the car park attendant who had observed RH outside the first car park. As already described, he had had a good view of RH and had observed that she had not herself loaded bags into the boot of the car and that she had no observable facial injuries or blood stains when she left the car park after the boot had been loaded and its lid had been closed.

[42]Following this interview, CH was released on police bail and was instructed to return for a further interview on 13 February 2007. He had been in police custody for about 6½ hours when he was released.

[43]On 13 February 2007, CH alleged that he was unlawfully interviewed under caution for the second time when he re-attended Greater Manchester Airport custody suite as required by his bail conditions. He was accompanied by the same solicitor who had accompanied him at his first interview under caution on 8 January 2007. As is often the case in such interviews, CH produced a prepared statement at the beginning of this interview which he read out and gave to PC Mitchell. The statement consisted principally of an emphatic denial of the allegation that he had assaulted RH. It referred to and agreed with the contents of a written statement that RH had sent to the police a few days before this interview. RH accepted that she had sent this statement to the police in her witness statement. Her statement denied that CH had assaulted her and asserted that she had been scratched by her hair clip when she banged her head against the car boot lid when removing a bag from it. CH did not assist his case by then giving a “no comment” interview which meant that he did not answer any of the questions the interviewing police officers put to him. He was then again granted police bail.

[44]No CCTV evidence. One of CH’s and RH’s principal complaints against GMP is that no CCTV footage was ever recovered or produced despite both the area outside Terminal 1 where the assault is alleged to have occurred and the check-in area inside Terminal 1 being fully covered by CCTV cameras. Moreover, according to CH, there was a security alert in place at Greater Manchester Airport on the day in question. CH and RH rely heavily on this omission as indicating the false and unsatisfactory nature of the allegations of assault. Indeed, they contend that the absence of CCTV footage, which they contend must have existed and which would have demonstrated CH’s innocence, was due to the GMP officers concerned deliberately suppressing vital evidence in order to harm CH and secure his unjust conviction for a crime he had not committed. According to CH’s statement, the failure of the prosecuting authorities to produce any CCTV footage led to the judge conducting the pre-trial review hearings making adverse comments about the prosecution’s inadequate disclosure.

[45]The lack of any disclosed CCTV material was investigated in detail by the GMP investigating officer whose report on this topic reads as follows: “[The investigating officer] has reviewed all of the enquiries conducted by PC Mitchell. There is evidence in the prosecution file that PC Mitchell had spoken to various agencies at the Airport to clarify this position. [The investigating officer] has been supplied with a copy of a report that PC Mitchell made in relation to the CCTV enquiries. [The investigating officer] is satisfied the officer exhausted all possible enquiries and conducted all necessary requests that the CPS requested of him. There is no CCTV footage of the incident. As stated [earlier in the report], the issue was the subject of 2 Public Interest Immunity Applications made by the Crown. See paragraph 64 below for an explanation of how this report came to be prepared and written. ” (2) Stage 2 - GMP’s multi-agency report to ERYC (2) Stage 2 - GMP’s multi-agency report to ERYC

[46]Summary. The assault which had been reported to the police on 8 January 2007 was immediately seen by the arresting officer to be a potentially serious incident of domestic violence which had occurred in the presence of, and to the possible extreme fright and endangerment of, both of RH’s very young children.

[47]GMP’s domestic violence policy, protocol and Service Level Agreement with the CPS. In recent years, all those involved in the criminal justice system and in child protection work have become well-trained in how any report or suspicion of domestic violence should be dealt with. Furthermore, extensive multi-agency arrangements that include the establishment and maintenance of child risk registers and social services child protection conferences (“CPC”) have been put in place in order to protect victims of domestic violence and children who at risk of harm. GMP had, the evidence suggests, well-developed detailed arrangements to deal with suspected domestic violence and any perceived on-going risk to the safety and well-being of adult and child victims of such violence. In January 2007, these arrangements included the following:(1) Officers who might come into contact with victims of domestic violence had received training in how to deal sensitively and effectively with the victims and perpetrators of such violence. This included training in how to interview and assess the credibility of potential victims of domestic violence and abuse since it is well-known that many such victims are so frightened of the perpetrator that they will adamantly deny that they have suffered from such behaviour.

(2) GMP had put into place a policy entitled “Tackling Domestic Abuse”. This committed all police officers to protect the lives and well-being of both adult and child victims and potential victims of such abuse. The report about CH’s assault of RH that PC Mitchell had received on 8 January 2007 provided clear evidence that RH and her children were potential victims of domestic abuse that GMP was committed by its domestic abuse policy to protect. PCs Mitchell and Naden were therefore well aware that there was an urgent need to investigate whether RH and her two children were at risk of future domestic violence and to take all reasonable steps to protect them from that risk.

(3) The policy also committed GMP to notify all other agencies about any potential child victim of domestic abuse that it had become aware of. GMP had, in furtherance of its domestic abuse policy, put in place a protocol setting out the steps it would take in order to work within a multi-agency framework with other agencies in such cases. These steps committed GMP urgently to notify a child’s Local Authority child protection team of any risk to that child from domestic abuse and violence that it become aware of.

(4) GMP also had a Service Level Agreement with the CPS relating to the handling of domestic violence cases. This provided that both services would deal with domestic violence cases speedily, would apply the joint CPS/Police charging standards to such cases and would fully support victims of such violence through positive action to ensure all domestic violence offenders were brought to justice.

[48]GMP’s report to HP and ERYC. The domestic violence incident involving CH’s assault of RH that LO reported to GMP was clearly covered by GMP’s domestic abuse policy. It had to be investigated speedily and sensitively and in a way that ensured that RH and the two children received full support. The reported domestic violence was also covered by GMP’s multi-agency domestic violence protocol that required it to report the arresting officers’ concerns about RH and her two young children to their local authority child protection team. For RH’s children, ERYC was the relevant local authority. Under the terms of the protocol, that report had first to be passed onto RH’s and the children’s local police force for investigation and for onward transmission to the relevant local authority team involved in multi-agency working with suspected domestic violence and children at risk.

[49]It was for these reasons that, on 9 January 2007, GMP sent a report to HP that two of its officers had arrested CH after a female member of the public had provided a contemporaneous report that she had witnessed CH seriously assaulting his wife in public at a time when RH was cradling their toddler with their slightly elder child looking on. This assault had seemingly left RH and her children terrified. Furthermore, the perpetrator of this domestic violence appeared both hostile and aggressive when the police officers investigating this incident had questioned him whilst his wife and children were looking on. GMP’s report indicated that although CH and RH denied that he had assaulted her, the independent eye witness account of that assault was corroborated by RH’s denial of the assault despite the blood that was observed on her face, by her frightened demeanour, by her refusal to be photographed and by CH’s hostile and threatening manner when the two officers questioned him about the reported assault. HP immediately started to investigate whether RH and the children were at risk of domestic violence or abuse and it also notified ERYC of the concerns about them that were identified in GMP’s report. (3) Stage 3 – CH is charged

[50]Summary. CH alleges that he was unlawfully charged on 1 March 2007 with the assault of RH occasioning her actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 and with using threatening, abusive or insulting words or behaviour within the sight of LO so that she was likely to be caused harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. The first charge was of an indictable offence which was, on 30 April 2007, committed by the Magistrates’ Court for trial at the Crown Court in Manchester. The second matter was a summary offence which proceeded by way of an information laid in the Trafford Magistrates’ Court. CH was re-arrested on being charged and was released on police bail about 70 minutes later.

[51]The charging process. The decision to charge CH came about in this way. Following CH’s second interview on 13 February 2007, PC Mitchell put together a file of all the evidence and statements concerned with the alleged assault that he had obtained and submitted it to the CPS on 28 February 2007 for the CPS to decide whether CH should be charged with any offence and, if so, what offence or offences he should be charged with. The Service Level Agreement required a senior CPS prosecutor to take the decision whether or not to charge a suspect with a domestic violence offence. After reviewing the evidence in the file that PC Mitchell had submitted, the Senior Crown Prosecutor to whom the file had been referred made the decision CH should be charged with ABH as well as being proceeded against under section 5 of the Public Order Act in the Magistrates’ Court.

[52]The evidence obtained by CH showed how the Senior Crown Prosecutor had reached her decision that CH should be charged. Her reasons were noted on the CPS file concerning CH. They were that the evidence that CH had committed a violent domestic crime was sufficiently strong that he should be charged with ABH even though he denied that any violence had occurred and a letter had been received from his victim which supported CH’s version of events. The SCP noted that it was likely that CH had written, or had at least settled the contents of, this letter so that it had little credibility. Moreover, she did not believe CH’s account of how RH had come by her injury that he had given when he was interviewed. She observed that there was no CCTV evidence in this case but she did not make any adverse comments about the lack of that evidence or any shortcomings by police officers in relation to its absence. She considered that the case was sufficiently strong without such evidence that its absence did not matter. In reaching that conclusion, she noted that there were two very good civilian witnesses whose statements implicating CH were corroborated by RH’s injuries that PC Naden had observed which both CH and RH had unconvincingly attempted to attribute to accidental causes. She further noted that there were sufficient aggravating factors to justify a charge of ABH and she concluded that the evidential test and the public interest test relating to the charging of a suspect had both been met despite the reluctance of RH to implicate CH.

[53]As a result of the SCP’s decision, CH was charged by GMP with ABH when he returned to the custody suite on 1 March 2007. He is reported by the police officer who then granted him conditional bail to have become aggressively angry when informed that he was being bailed with a condition that he was not to have any contact with RH or his two children whilst he remained subject to police bail. (4) Stage 4 – CH’s pre-trial preparations and Crown Court trial

[54]Summary. CH was required to spend the first five nights following his being charged living with his mother since his conditions of bail prevented him from living at home. On 5 March 2007, his conditions of bail were varied by the Magistrates’ Court and he then moved back to live at home with his family. He was initially represented by the duty solicitor who had first acted for him during his interview immediately following his arrest on 8 January 2008 but he dismissed that solicitor on 28 June 2008 and represented himself thereafter. On the first day of his trial on 18 December 2008, the judge directed that a not guilty verdict should be entered.

[55]The events in more detail. CH’s then solicitors submitted a written request to the CPS dated 12 March 2007 that it should serve on them any relevant CCTV footage showing the events occurring at the scene and time of the alleged assault. This request went unanswered and it was not followed up by the solicitors

[56]There then followed two further Magistrates’ Court hearings on 30 April and 14 May 2007, at the second of which the ABH charge was committed to the Crown Court in Manchester for trial and the public order summons was retained in the Magistrates’ Court but was adjourned generally to await the result of the ABH trial. CH dismissed his solicitor after this court appearance and from then on he represented himself.

[57]In June 2007, a WPC colleague of PC Mitchell’s telephoned RH at PC Mitchell’s request in order to ascertain whether RH was alright and to elicit further details from her of what had happened to her on 8 January 2007 at Greater Manchester Airport. The WPC was not prepared to speak to CH who was present during the telephone conversation but her evidence was that he attempted to take over the conversation and appeared to be controlling and overbearing in his manner. RH was reluctant to speak with the WPC and her evidence was that she could barely understand what the WPC was asking her. The WPC learnt nothing from RH but was left with the impression that RH remained frightened of CH, was unwilling to discuss his behaviour, was able to speak and understand English sufficiently to know why she had telephoned but was reluctant speak to her in CH’s presence and that CH was controlling and wanted to prevent RH from speaking to her. CH and RH, on the other hand, considered that this phone call was a further example of GMP harassment of each of them and had been made in order to attempt to trap RH into saying something adverse about CH that would assist GMP in its attempt to secure his unjust conviction.

[58]There were 3 further pre-trial procedural hearings in the Crown Court on 28 June, 27 July and 28 November 2007. These were the only three further hearings that CH specifically referred to in his witness statement but he also referred generally to “a series of hearings” concerned with his application for witness summonses directed to obtain evidence about the system of CCTV cameras and CCTV recorded footage in operation at relevant locations at Greater Manchester Airport at the time of the alleged assault. However, there does not appear to have been any other hearings than the three that I have referred to. The Crown Court judge conducting the pre-trial review on 27 July 2007 dismissed CH’s disclosure application for the CCTV footage previously asked for in correspondence. The judge’s ruling was based on his acceptance of the evidence provided by the CPS that there was no relevant CCTV footage and, hence, there was no footage to disclose. Finally, at the end of the series of hearings concerned with CH’s applications for witness summonses relating to what he maintained was withheld CCTV evidence, the trial judge ruled that Greater Manchester Airport employees should not be required to give evidence at the trial since their evidence about the workings of the CCTV system in operation at the time of the alleged assault was subject to Crown immunity for security reasons.

[59]At the outset of the 3-day trial on Tuesday 18 December 2007, LO did not attend despite having been served with a witness summons on Friday 14 December 2007. She had on the evening immediately preceding the trial faxed a sick note to the court dated 17 December 2007 which stated that she was unfit for work for 3 days due to a viral infection. She was the Crown’s principal witness and the trial judge was not prepared to adjourn the trial to enable her to be brought to court to give evidence. The judge was considerably influenced in reaching this decision by the fact that both CH and RH had flown back to England at their own expense for the trial and that the CPS had not made better arrangements to ensure the attendance of its principal witness. As a result, the Crown offered no evidence and the judge ruled that a not guilty verdict should be entered in favour of CH and that the Crown should pay his reasonable costs in an amount that should be assessed by the court. (5) Stage 5 – ERYC’s child protection actions and assessments

[60]Summary. On about 9 January 2007, ERYC received GMP’s report of its concerns that RH and her two children were at risk of domestic violence and associated abuse in the light of events that had led to CH being charged with ABH. The subsequent actions taken or initiated by HP and ERYC led to 12 months of, for the Hargreaves family, intrusive attention by ERYC and, to a limited extend, by HP. This attention resulted in CH and RH’s two children being placed on the at risk register, in their case being reported to a CPC, in a Family Court assessment order being made, in core assessments being undertaken by ERYC with the assistance of CAFCAS and in the subsequent decision being taken by the CPC to remove the children’s names from the at risk register.

[61]The events in more detail. CH and RH both bitterly resented what they regarded as the wholly objectionable and unacceptable intrusion of ERYC into their lives and never accepted or appreciated that ERYC had a statutory duty to undertake inquiries about their two children pursuant to their statutory duty to safeguard and protect them once it had received GMP’s report about the possible risk of harm that they were exposed to. Those inquiries were undoubtedly significantly prolonged by CH’s reluctance to engage with ERYC and by what was subsequently found to be his obstructive and unhelpful liaison with the social workers that the family was involved with.

[62]The family’s interaction with ERYC and HP went through four distinct phases. These were:(1) Phase 1: 9 January 2007- 4 June 2007. This period lasted from the receipt of GMP’s report about its concerns as to the safety of the children until ERYC placed them on the so-called at risk register More formally: the child protection register under the categories of physical and emotional abuse. This registration was decided upon at a child protection case conference held on 4 June 2007. . SRYC first visited the family at their home on 16 February. Throughout March there were a number of further visits from the social workers assigned to the case as well as occasional visits by HP. On 12 March, whilst CH was attending the Magistrates’ Court in Manchester in connection with his case, an HP officer made a home visit to RH in order to obtain a statement from her. RH stated that she could not understand what he was saying to her and did not make a statement and she considered this visit to amount to harassment and a gross intrusion.

(2) On 27 March, the two principle social workers involved with the family, Ms Jenkinson and Ms Tweedale, made a home visit to the family accompanied by a police sergeant from HP. They wished to interview the family in order to obtain information to enable a decision to be taken by ERYC as to whether the children should be placed on the at risk register and provided with a core assessment and other statutory child protection measures. This visit was not a successful one since CH and Ms Jenkinson had a serious of heated disagreements. CH considered that Ms Jenkinson was attempting to set him up as a domestic abuser and Ms Jenkinson considered that CH’s manner and attitude provided further evidence of the risk of harm that the two children were subject to in that particular family environment. A further visit, not acknowledged as having taken place by CH, took place on 28 March. A child protection conference decided on 4 June 2007 to place the two children’s names on the at risk register. This decision was taken in the light of the contents of the GMP report about the incidents that had occurred on 8 January 2007 and of the reports provided by ERYC about CH’s aggressive and obstructive attitude and the social workers’ perceived difficulty in obtaining satisfactory access to the family in order to fully assess whether the two children were at risk.

(3) Phase 2: 4 June 2007 – 20 September 2007. ERYC attempted to work with the family to prepare a child protection plan. Following the placing of the two children’s names on the at risk register, social workers made a home visit on 6 and 7 June and the police visited on 11 and 12 July, the first of these visits, according to CH and RH, taking the form of banging on the front door between 10 and 11pm. A further police visit took place on 29 July. On 17 August, a child protection conference took place and this was followed by a visit by Ms Jenkinson on 20 August and by CAFCAS in early September. Ms Jenkinson and the CAFCAS professional were unable, as they saw the situation, to obtain sufficient information to enable them to complete the required core assessment of the two children. This assessment formed a necessary foundation for the child protection plan which ERYC was required to prepare following their being placed on the at risk register and being made subject to the attentions of a child protection conference. This phase ended with a hearing on 20 September in the Bridlington Family court. The hearing had been arranged by ERYC so that it could obtain an assessment order which would require CH and RH to co-operate with ERYC in its preparation of a core assessment of the two children. The application had been made because Ms Jenkinson and Ms Tweedale considered that their efforts to prepare this necessary assessment had been unduly hampered by what they considered to be the obstructive behaviour of CH and RH.

(4) A detailed witness statement prepared by Ms Jenkinson was placed before the Magistrates and, at the hearing at which CH and RH were present but unrepresented since they wished to represent themselves, they consented to an assessment order being made and assured the magistrates that they would co-operate with the assessment process. The magistrates made an order which required the assessment to be undertaken within a very short time with the co-operation of CH and RH which both had consented to provide. The magistrates apparently commented that the professional relationship between CH and Ms Jenkinson was evidently strained and they recommended, without making a formal order, that it might be better if a different social worker took over from Ms Jenkinson the role of lead social worker engaging with the family.

(5) Phase 3: 20 September 2007 – 8 November 2007. Following the granting of the consent assessment order by Bridlington Magistrates’ Court on 20 September 2007, ERYC obtained the necessary access to the children and a core assessment was prepared during the course of four visits by social workers to the family home. The final version of the assessment was discussed at a core group meeting which neither CH nor RH attended although both had been informed that the meeting was to take place and that they were welcome to attend. On 22 October, CH telephoned ERYC and became very angry on the telephone with the wording of the core assessment and this intervention led to minor changes being made to that wording. Soon afterwards, RH and the two children emigrated to Japan. On 26 October and 8 November, Ms Tweedale and Ms Cree made further home visits to the family home and spoke to CH. One purpose of these visits was because they wanted to ensure that RH and her children had genuinely emigrated to Japan and that that move was voluntary and had not been made as a frightened response to RH’s behaviour. Ms Jenkinson had previously stood down from further involvement following the magistrates’ advice given at the hearing on 20 September. It would appear that these visits were also made in order to enable the core assessment to be completed and signed off since ERYC had not previously been informed that RH and the children had left the country for good by emigrating.

(6) Phase 4: 8 November 2007 – 8 January 2008. The core assessment was signed off at the home visit that took place on 8 November 2007. A further home visit took place to see the two children on 7 January 2008. RH and the two children had returned to England for CH’s trial and were still staying in Bridlington following CH’s directed acquittal. This home visit was followed by a CPC review hearing on 8 January 2008 which considered the core assessment, the acquittal of CH at his trial on 19 December 2007 and social services, health and police reports. The conference resolved at a subsequent hearing on 18 January 2008 to remove the children’s names from the child protection register and to terminate its involvement with the family.

[63]There then followed a three-stage consideration of CH’s and RH’s complaints about the social work team involved with the family. This lasted from January 2008 until its conclusion with the Independent Review Panel Report into those complaints that confirmed earlier reports at a meeting on 30 July 2008 That decision was accepted by the Director of Children, Family and Adult Services whose decision was notified to CH and Rh in a letter dated 8 August 2008. The overall conclusion of the complaints process was that their complaints were not upheld save in two minor respects that resulted in an offer of a small sum of financial recompense which CH contemptuously refused and in apologises on specific matters by the Director and by one of the social workers involved. (6) Stage 6 – HP’s multi-agency involvement with ERYC’s Child Protection Conference

[64]Summary. HP passed onto ERYC a second report dated 14 January 2008 from GMP which reported that CH’s case had been dismissed by the Crown Court trial judge but that GMP still had concerns about the safety of CH’s two children. This report was presented by HP to the child protection conference which was held on 18 January 2008. That meeting took account of the report but nonetheless removed the children’s names from the at risk child protection register.

[65]HP, as a multi-agency partner, assisted ERYC in its enquiries and other child protection measures concerned with investigating whether the two children were at risk of physical harm. It also sent an officer to interview and to take a statement from RH at the family home at GMP’s request to assist GMP in responding to the CPS’s preparations for CH’s Crown Court trial. CH contends that HP should not have passed on any report to the ERYC and that all other steps that it undertook were carried out unlawfully and in an unduly harassing manner. (7) Stage 7 – Subsequent investigations

[66]Summary. CH and RH made a complaint about four GMP officers, being the four officers most closely involved in CH’s arrest and in the subsequent investigations into his alleged criminal behaviour and in the interviews he took part in. This complaint related to a series of alleged acts of misconduct. The formal investigation was undertaken by a Chief Superintendent of GMP’s Professional Standards Branch and it took over a year to be completed. The report, dated 17 February 2009 and running to 23 pages, carried out what appears to have been a full investigation and it dismissed all CH’s complaints. CH and RH appealed to the IPCC on 10 March 2009 and, on 22 June 2009, the IPCC decided not to uphold their appeal.

[67]CH and RH also made a series of complaints about the ERYC social workers involved with the family in 2007. These complaints went through the three-stage procedure that ERYC had provided for such complaints. The first-stage report was dated 5 February 2008, the second-stage report was dated 8 May 2008 and the third-stage report was provided to CH and RH sometime later in 2008 This report was not provided with the papers submitted by CH. .

[68]CH filed two judicial review claims seeking orders quashing the decisions of the IPCC and the ERYC tribunal. The applications for permission were refused on paper and at renewed oral applications made by telephone from Japan. In both claims, the refusals were on the two-fold grounds that the claims had been filed well outside the 3-month period starting with the dated of the decision within which a judicial review claim must be filed and because no arguable grounds for judicial review were made out. A judicial review of a decision of a public authority such as the IPCC and the ERYC complaints tribunal will only be quashed if it can be shown to have been unlawful or to have been Wednesbury unreasonable. These grounds will only be made out if the decision in question was based on an error of law or on irrelevant considerations or had failed to take account of relevant considerations. No such arguable grounds were put forward. (8) Stage 8 – Emigration for a new family life in Japan

[69]Summary. RH and the two children emigrated to Japan in October 2007. CH sold the family home in Bridlington in early 2008 and joined RH and the two children in Japan. Since then, the family have lived in Japan. They have no continuing contact with the UK save with CH’s elderly mother who has continued to live in York and whose address CH and RH are using as a forwarding address in these proceedings. They are acting in person and are, on their own admission, of limited means.

[70]Emigration to Japan. CH and RH’s claims are based on their being forced to emigrate because they could no longer reasonably be expected to remain in England given the way that each had been treated by the police officers and social workers that they had been involved with. That treatment had started on 8 January 2007 and the relevant treatment had persisted until sometime before RH and the two children moved to Japan in October 2007 leaving CH to settle up in England before joining them in the early part of 2008. The background to this decision was the fact that RH was Japanese and had been born and brought up in Japan and had come to England in about 2001 speaking little English and, so far as is shown by her statement, never having lived or possibly even travelled outside Japan previously. It seems that she first met CH when she arrived in England. They had met by correspondence or by the internet and had carried out a lengthy correspondence and it would seem that RH had travelled to England with the intention of forming a long-term relationship with CH. Their relationship rapidly developed and they were married in 2002.

[71]Their evidence is that the way that RH was treated principally by the ERYC social workers and also by the various police officers from both GMP and HP that she encountered was so intrusive that she was traumatised and felt unable any longer to live safely and at peace in England. She was particularly fearful that she would have her children taken away from her or that her family life would be unacceptably disrupted and interfered with but she also felt that her personal dignity had been unacceptably affronted. For these reasons, she was not willing to continue to bring her children up in England and was insistent that she would move back to her family in Japan with them. It would seem that she gave CH an ultimatum that she would return to Japan with the children whether or not he came to and, in effect, implemented that ultimatum by leaving England in October 2007 prior to CH’s trial albeit that she returned with the children for a visit that coincided with his trial and the subsequent removal of the children’s names from ERYC’s at risk register.

[72]CH’s evidence was that since his wife was adamant that she and the children had to emigrate to Japan, he had no alternative but to go with them since he was determined to maintain his married life with RH and the children. That decision was obviously a hard one for him since he would be severing all ties with England including those with his elderly widowed mother and giving up his livelihood of restoring houses which he had only recently established. He spoke no Japanese, had very limited resources and no obvious means of obtaining employment or starting a business. RH likewise had only very limited resources. Nonetheless, he resolved to move to Japan with his family and start a new life there.

[73]It seems that CH and RH still struggle financially having now been living in Japan for five years. CH has provided only limited details of their present life but is adamant that they cannot afford legal representation, can only proceed with their claim by telephone or Skype since they cannot afford to travel to England. He claims an interim payment from the defendants out of their prospective damages in order to finance his and RH’s expenses that they will inevitably incur in continuing with their claims. RH’s English, as shown by her statement, is still not good and any live evidence that she gives to a court will have to be given through an interpreter and her witness statements would also have to be formally and fully translated. (9) Stage 9 – The damages claimed

[74]Summary. The financial claim that CH and RH bring against the three defendants totals in excess of £1m. It is broken down into a number of heads and an attempt has been made to identify which heads are claimed from all the defendants and which heads are only claimed from an individual defendant.

[75]The damages claimed. The claims brought by CH and RH are as follows, CH’s claims are in normal type, RH’s claims are in italics:(1) Claims against GMP. (i) General and punitive damages for CH’s unlawful and malicious arrest: £50,000. (ii) Unlawful detention: £10,000. (iii) Ruined holiday as a result of the arrest: £6,000. (iv) Cost of replacement flight to Japan following CH’s release on 8 January 2007: £1,200. (v) Cost of additional equipment used to prepare the claim documents: £1,400. (vi) Personal injury claim, being general damages for pain and suffering (£20,000), inconvenience and loss of earnings (£10,000) and punitive damages (£50,000) totalling: £80,000. (vii) Cost of CH’s time in preparing the claim documents for CH and for RH: 80% of total cost of £10,000 per annum for CH and an additional claim for RH for 5 years from 2008 until 2012 (80% x 5 x £10,000): £40,000 for CH and an additional £40,000 for RH. (viii) Loss of business earnings over 4 years 2009 – 2012. This is calculated by taking the average profits earned in the 3 years 2005 – 2008 in renovating properties and claiming that average figure of £65,958 over each of the following 4 years. The claim against GMP is for 40% of this loss (40% x 4 x £65,958): £105,532.80. (ix) General damages for the malicious and unlawful actions of the GMP represented by a claim for 60% of the total general damages claim of £200,000: £120,000 and 30% of a total general damages claim of £100,000 for RH: £30,000. (x) Damages representing an unspecified proportion of the loss arising from the need to buy or build a new home in Japan calculated as the net cost of £772,080 less the net proceeds of sale of the Bridlington House less the damages recovered in this action. (xi) Repayment of unspecified proportion of all debts incurred since 2007 estimated at: £50,000. (xii) RH’s claim for general damages for public humiliation in departure area of Terminal 1: £5,000. (xiii) Breaches of the HRA: £1,000. (xiv) Ruined holiday: £6,000.

(2) Claims against HP. (i) Cost of CH’s time in preparing the claim documents for the claim against HP and for RH against HP: 10% of total cost of £10,000 per annum for 5 years from 2008 until 2012 (10% x 5 x £10,000): £5,000 for CH and £5,000 for RH. (ii) Loss of business earnings over 4 years 2009 – 2012. This is calculated by taking the average profits earned in the 3 years 2005 – 2008 in renovating properties and claiming that average figure of £65,958 over each of the following 4 years. The claim against HP is for 10% of this loss (20% x 4 x £65,958): £52,766.40. (iii) General damages for the malicious and unlawful actions of the GMP represented by a claim for 10% of the total general damages claim of £200,000: £20,000 and 10% of general damages claim of £100,000 for RH: £10,000. (iv) Damages representing an unspecified proportion of the loss arising from the need to buy or build a new home in Japan calculated as the net cost of £772,080 less the net proceeds of sale of the Bridlington House less the damages recovered in this action. (v) Repayment of unspecified proportion of all debts incurred since 2007 estimated at: £50,000.

(3) Claims against ERYC. (i) Cost of CH’s time in preparing the claim documents: 10% of total cost of £10,000 per annum for 5 years from 2008 until 2012 (10% x 5 x £10,000): £5,000 and £5,000 for RH. (ii) Loss of business earnings over 4 years 2009 – 2012. This is calculated by taking the average profits earned in the 3 years 2005 – 2008 in renovating properties and claiming that average figure of £65,958 over each of the following 4 years. The claim against HP is for 20% of this loss (20% x 4 x £65,958): £52,766.40. (iii) General damages for the malicious and unlawful actions of the GMP represented by a claim for 10% of the total general damages claim of £200,000: £20,000 and 60% of total general damages claim of £100,000 for RH: £60,000. (iv) Damages representing an unspecified proportion of the loss arising from the need to buy or build a new home in Japan calculated as the net cost of £772,080 less the net proceeds of sale of the Bridlington House less the damages recovered in this action. (v) Repayment of unspecified proportion of all debts incurred since 2007 estimated at: £50,000.

(4) Further claims. CH and RH each claim a further award of general damages for the calamitous nature of the events of 2007 including their inability to have a third child in 2007 in England as planned, compound interest at 8% since 2007 and costs. 3. Summary of Relevant Law

[76]Introduction. CH and RH wish to bring claims against two police forces and a local authority children’s social services department for what they consider to be the unlawful and harmful actions of, respectively, police officers and social workers. They contend that CH did not assault RH, that there was no domestic violence, that their two children were not and never had been at risk of being harmed or psychologically damaged by CH’s aggressive and controlling behaviour and that CH had never behaved in that way. They further contend that CH should never have been accused of assault, arrested, handcuffed in a way that amounted to an assault, questioned under caution, charged or tried and RH should never have been questioned, harassed and disbelieved by the police. Furthermore, GMP should not have reported to HP and HP to ERYC that CH had been arrested on suspicion of assaulting RH and ERYC should not have acted on the basis of that report in taking child protection measures, particularly since their actions amounted to the unlawful harassment of the entire family.

[77]In summary, the claimants contend that all the relevant actions of all three public authorities were unlawful and amounted to a serious and significant infringement of the human rights of each of them.

[78]CH and RH’s contentions. In advancing these contentions, CH and RH make a series of very serious allegations about the conduct and behaviour of, in particular, the two police officers who questioned them and arrested CH in the departure area of Terminal 1 at Greater Manchester Airport on 8 January 2007, the behaviour of LO and the car park attendant in reporting CH to the police and in making statements which implicated him, the behaviour of the police officer in HP who passed on groundless allegations about CH to ERYC and of the HP police officers who harassed the Hargreaves family throughout 2007 and the behaviour of the two ERYC child social workers who were responsible for what they contend was repeated, persistent and unlawful harassment.

[79]The claimants’ contentions are grounded in the following allegations about PCs Mitchell and Naden’s conduct which, if made out, was both criminal and malicious:(1) They were aware as soon as they arrived at the check-in area of Terminal 1, or from soon after their arrival there, that LO had fabricated a false complaint and that no assault had occurred but nonetheless persisted in arresting and arranging for the prosecution and trial of CH knowing that he was innocent;

(2) In order to cover up their embarrassment at trying to arrest an obviously innocent person, these officers ensured that the available relevant CCTV evidence was destroyed or otherwise deliberately withheld since it would have shown that CH was innocent;

(3) Both LO and the car park attendant gave knowingly false witness statements that were procured by PC Mitchell and that he deliberately failed to take a statement from an unidentified man standing near LO outside Terminal 1 who would have provided evidence supporting CH’s denial of any criminality. Moreover, he kept the identity and whereabouts of that potential witness hidden from CH in order to hamper his preparations for his trial, to strengthen the prosecution’s case and to weaken his own defence;

(4) Those officers or others ensured that LO failed to attend the trial despite being served with a witness summons;

(5) PC Mitchell was not entitled to “tip off” HP and, through HP, ERYC and he only did so in order to harm CH and RH;

(6) HP joined with GMP in maliciously “tipping off” ERYC; and

(7) All of the actions of HP police officers and ERYC’s social workers that were taken in relation to CH and RH and their children were maliciously motivated and had no lawful justification. The officers and social workers involved carried out those actions with the intention of harming both CH and RH and all of them were wholly unwarranted.

[80]Inadequacies in the proposed amended particulars of claim. CH’s proposed amended pleadings do not identify the causes of action that are relied on. This is not surprising since CH has not had, or been able to obtain, legal advice in relation to the technically difficult claims being advanced. The pleadings are, moreover very lengthy, verbose, argumentative, repetitive and lacking in sufficient particulars of the serious allegations of misconduct that are alleged. It is possible to identify the only causes of action that could be relied on if the claimants are able to establish their factual allegations. These are negligence, misfeasance in public office, assault, wrongful arrest, false imprisonment, malicious prosecution and breaches of the Human Rights Act (“HRA”). CH’s pleaded case does not refer to these various causes of action but, since he has pleaded the claim at considerable albeit unduly verbose length, it is possible to ascertain what the possible causes of action are and whether any of them has any prospects of succeeding at trial. I will therefore summarise the relevant legal basis for each of these possible causes of action and then consider whether the claim based on each of them has any prospects of success.

[81]Claims against the police and social workers in negligence. English law provides both police officers and social workers with an extensive immunity from liability for negligent actions. This has been achieved by the courts narrowing the class of claimant to whom police officers and social workers owe a duty of care and by widening the defence available to them that it would be unfair, unjust and unreasonable to hold them liable for negligent actions performed whilst carrying out their essential work of crime prevention and child protection. It is therefore only in extreme and exceptional situations that police officers and social workers can be held liable for negligent actions if the actions complained of were not performed maliciously and with the intention of harming the affected party or parties.

[82]Police officers who are investigating and preventing the commission of criminal acts do not owe a duty of care to the public, whether or not the individual affected was being investigated as a possible criminal, a victim of crime or as a member of the public caught up in the police activities in issue.

[83]Social workers involved in child protection work owe no duty of care towards the parents of children that they are working with taking any action in the course of their duties as social workers that is intended to protect children who were at risk of harm from their parents or other adults. The only duties of care that they owe are to the children whose welfare they are concerned to protect. They can only be held liable in negligence to those children for physical harm caused by the negligent discharge of their duties. A social worker is permitted a wide margin of discretion as to how to act or as to when not to act so that it is only in very rare circumstances that a social worker can be held liable to children that they are concerned to protect. CH and RH’s children would only have a possible claim if it could be shown that the social workers working with them had carried out their child protection duties with such recklessness that the children or either of them had suffered direct and foreseeable physical harm. However, no such claims are advanced in this case.

[84]In this case, the claimants do not allege that the circumstances are so exceptional that the defendants can be liable for conduct that is negligent but not intentional or malicious. It follows that the defendants in this case can only be vicariously liable for the acts of the relevant police officers and social workers if the activities of the individuals concerned can be brought within the ambit of one of the intentional torts that are dealt with below or can be shown to contravene the HRA.

[85]Misfeasance in public office. This head of claim is only available against those who are employed in a public office. Such individuals include police officers and child social workers. This type of claim is rarely brought and, if brought, is rarely successful. To succeed in a claim for misfeasance in public office in this case, CH or RH must prove that the officers or social workers that they complain about caused him or her harm by conduct which was specifically intended to injure him or her. Negligent or grossly negligent acts are not sufficient for this purpose. CH or RH must prove that the actions complained about were specifically taken to harm them and that their predominant purpose was to inflict that harm. The actions must, therefore, amount to what is called “targeted malice”. They must also have been unlawful so that an officer who arrests someone because he hates that person and wants to harm him would have a defence if it turns out that the officer could have lawfully arrested the victim because he was in the course of committing an arrestable offence. A social worker who consciously and maliciously exceeds her powers in connection with children with the predominant purpose of harming the children or parents concerned may, similarly, be liable for misfeasance in public office.

[86]Wrongful arrest and false imprisonment. CH would have a claim for wrongful arrest and false imprisonment if he can show that the arresting and detaining officers had no lawful authority to take those actions. However, a police officer has extensive powers when it comes to arresting and detaining a suspect. He may arrest and detain someone whom he reasonably believes may have committed an arrestable offence even if, subsequently, it can be demonstrated that no offence has been committed by the individual who was arrested. The arresting and detaining officers must, of course, comply with all legal requirements relating to the length of detention without charge and similar matters so that a lawful arrest and initial detention may become an unlawful detention if the relevant time limits are not complied with or if the custody officer becomes aware that detention can no longer be justified.

[87]Malicious prosecution. CH would have a claim for malicious prosecution if he could establish that he was charged by the police in circumstances where there was no reasonable and probable cause for the prosecution and where the charge had been malicious. A charge would only be malicious of he was only being charged in order to cause CH harm and the charge was administered in the knowledge that it was unjustified. It is also necessary that the resulting prosecution has been determined in CH’s favour. A claim against the police for malicious prosecution is very rare because, as with this case, the prosecuting decision is nowadays invariably taken by the CPS. In such cases, there remains little scope for the police to be held liable for malicious prosecution save possibly where it can be shown that the police manipulated a decision by the CPS to prosecute by deliberately manufacturing false evidence which the Crown Prosecutor had no reasonable basis for concluding was false and which can be shown to have made the difference between the claimant being prosecuted and not being prosecuted.

[88]Assault and trespass to the person. A police officer may be liable for assault or trespass to the person where he causes a claimant harm without lawful authority. Since a police officer is entitled to use reasonable force to arrest and detain someone who is reasonably suspected of having committed a criminal offence, no claim will arise unless it can be shown that the force that was used was unreasonable. This will usually be difficult to establish since a police officer is given a wide margin of discretion in the methods that he may use to effect an arrest and to keep an arrested person detained. In deciding whether the arrest and detention was reasonable, the arresting officer may take into account and seek to neutralise any perceived risk to others whose safety is at risk from the violent or aggressive tendencies of the person being arrested or detained.

[89]HRA claims. The only possible claims that CH and RH could have for breaches of the HRA would be for interference with their family life and, in CH’s case, for detention without charge. However, only actions which interfere with family life which are unlawful, unjustified and disproportionate will give rise to the possibility of a claim under this head.

[90]Causation and foreseeability. For all the possible heads of claim save for negligence and HRA claims, the defendants can be held liable for all direct losses caused by the breach concerned. It is only in very rare circumstances that such losses can extend to loss of profits or general damages but, at least in principal, exemplary and punitive damages may also be claimed. For claims in negligence, only those losses that are foreseeable may be recovered. Financial loss is usually considered to be unforeseeable in circumstances were financial advice is not involved but it may be recovered if it is associated with a claim for personal injuries or other physical damage. The claim for breaches of the HRA is limited to recovery on the basis of just satisfaction for the proved breaches and is, where recoverable, modest in amount and limited in extent.

[91]Limitation. Section 7(5) of the HRA provides that a claim under the HRA may only be brought if the claim is brought within one year of the date on which the act complained of took place or such longer period as the court considers equitable having regard to all the circumstances. Similarly, a claim based on the negligent imposition of personal injuries must be brought within 3 years of the accrual of the cause of action save where the claimant had no knowledge of the facts giving rise to the claim. In such circumstances, the 3-year period starts to run from the moment the claimant could reasonably have known that he or she had a claim. This period of limitation applies to CH’s claim in negligence but not to his claim for assault where the normal 6-year period is applicable.

[92]It follows that CH and RH’s HRA and personal injury negligence claims are several years out of time since the claim form was originally issued on 5 March 2010 more than 2 years after the last act giving rise to a possible HRA claim occurred and more than 3 years after the alleged negligent infliction of injuries occurred. These periods of limitation may, however, be set aside if it is equitable and fair to do so. They do not apply to intentional torts which I have already indicated provide the principle basis for the claimants’ claims.

[93]Evidence. I have identified the five relevant reports that relate to these claims. The reports arose from investigations into CH’s and RH’s complaints about the behaviour of the relevant police officers and social workers. The relevant reports are those of the GMP’s Professional Standards Branch and the IPCC and of the 3 stages of ERYC’s complaints procedure. The contents of those reports would be admissible in evidence at the trial and could be relied on by each defendant. CH and RH would be permitted to adduce evidence to contradict the findings of those reports but, unless that contrary evidence was accepted by the court, the findings contained in those reports would stand and would be accepted by the court at the trial of these claims. Given the nature of the findings, if they were accepted, the claimants’ claims would inevitably fail and be dismissed. 4. Discussion – Reasonable Prospects of Success (1) Overview

[94]CH and RH’s case - summary. CH and RH’s case is clear although it is put forward at excessive and repetitive length in the proposed amended particulars of claim and in CH’s and RH’s supporting witness statement. In summary, they contend that CH never assaulted RH and that she had bloodstains on her face as a result of an improbable accident that had occurred when she had previously bumped her forehead on the boot lid of the family car. Their case involves them alleging that:(1) LO, who had never previously met CH, informed PC Mitchell within seconds of CH driving away from her that CH had assaulted RH when she knew that no assault had occurred and without knowing that RH was coincidentally already bleeding as a result of a previous unrelated accident but in a way that appeared to corroborate her account of the assault;

(2) PC Mitchell knew that there were no grounds for arresting CH but nonetheless he maliciously arrested him;

(3) PC Mitchell and other GMP officers collaborated to ensure that vital CCTV footage should be destroyed or withheld from CH so that it would not be available for the CPS and CH to see that he had not assaulted RH;

(4) PC Mitchell procured fabricated statements from LO and the car park attendant containing perjured evidence implicating CH so that he would be wrongly charged with assaulting RH; and

(5) PC Mitchell prepared a prosecution file so that it contained fabricated evidence that he had procured which was intended to show that CH had assaulted RH when he knew that this was untrue. This file was prepared for the purpose of being presented to the CPS to mislead the Crown Prosecutor who would take the prosecuting decision into believing that CH should be charged with assault even though the officer knew that CH had not assaulted RH.

[95]What CH and RH must establish in this application. I do not need to, and I must not, decide whether CH assaulted RH. I merely have to decide whether their case has sufficient prospects of success that it should not be stopped in its tracks at this very early stage and before the defendants have pleaded their respective responses. Both have, however, a difficult task in establishing that their case should be allowed to proceed.

[96]CH and RH must firstly establish a reasonable case for contending that PC Mitchell had no reasonable grounds for suspecting that CH had assaulted RH when he arrested him and that the subsequent decisions to charge him and to continue with the prosecution to trial were unreasonable. They must also establish a reasonable case for contending that it was unreasonable of GMC to report concerns about RH and the children’s safety and risk of further domestic violence to HP and for HP to report those concerns to ERYC and for ERYC social workers to investigate those concerns and take relevant protective and preventative action.

[97]In relation to their principal claim against each defendant based on misfeasance in public office and against GMP for malicious prosecution, CH and RH must go further and establish a reasonable case for contending that the actions of the relevant officers and social workers of GMP, HP and ERYC were deliberately and maliciously targeted at each of them in order to harm them and their two children.

[98]Essential shortcomings in CH and RH’s case. CH and RH do not appear to appreciate the distinction between proving that the defendants’ belief that CH had committed a crime was unreasonable and proving that CH did not assault RH. In other words, they do not appear to have appreciated that it is possible for CH to be innocent but for the actions of the police officers and social workers to have been lawful and reasonable. The draft particulars of claim and both witness statements in essence only contain repetitive allegations that CH did not assault RH, they do not attempt to refute the inevitable defence that the relevant actions were reasonably undertaken with good reason. Furthermore, these documents do not attempt to answer or address any of the adverse findings contained in the GMP and IPCC investigation reports. Equally, they make no attempt to show that PCs Mitchell and Naden had no belief that CH had assaulted RH or that they conspired to fabricate and withhold evidence in order to secure his being charged with and convicted of a crime that they realised he had not committed. Similarly, these documents have not addressed the findings of the ERYC investigation reports that the relevant ERYC social workers had, save in two minor respects, acted reasonably and professionally.

[99]Inherent improbability of CH and RH’s case. The inevitable starting point in considering these claims is the stark reality that it is inherently unlikely that PCs Mitchell and Naden behaved in the ways that CH and RH suggest. It is clear that both officers were trained to deal with and were experienced in dealing with cases of alleged domestic violence and that they used that training and experience in dealing with all four members of the Hargreaves family. PC Mitchell’s initial involvement occurred when he received a coherent and detailed account of the alleged assault from LO within seconds of it having occurred. Minutes afterwards, he came across the alleged perpetrator and the reported victim. He and his colleague PC Naden decided during their questioning of both CH and RH on apparently reasonable grounds that there was visible corroborative evidence of the assault that they were investigating. This corroboration was provided by CH’s and LH’s respective demeanours in the form of CH’s belligerent aggression and RH’s frightened denials as well as her unwillingness to account for her blood stained face and her refusal to be photographed. Soon afterwards, PC Mitchell obtained a witness statement from LO confirming her initial report and on the following day a corroborative witness statement from the car park attendant. These two independent and unconnected witnesses fully implicated CH and unless both statements contained dishonest and knowingly untruthful statements, their contents appeared to destroy CH’s and RH’s inadequate denials of CH’s alleged domestic violence and their seemingly contrived alternative explanation for the cause of RH’s bloody face.

[100]Moreover, it was inherently improbable that two experienced police officers would spontaneously embark on the course of action that CH and RH suggest that they had pursued. This would have involved PC Mitchell in:(1) arresting CH for committing a crime that he knew or suspected CH had not committed;

(2) suppressing highly relevant CCTV evidence that would show that he had not committed that crime;

(3) procuring a witness statement from the director of security at Greater Manchester Airport which dishonestly and erroneously asserted that that relevant CCTV evidence had never existed;

(4) suborning two independent witnesses to provide dishonest witness statements implicating CH in the commission of a crime that he had not committed; and

(5) presenting a prosecuting file containing false evidence to a CPS Crown Prosecutor with the intention of procuring the charging CH with a crime that he knew that CH had not committed. Clearly, had this course of action occurred, PC Mitchell and several other officers would have committed a series of serious and significant offences and breaches of police discipline without any apparent motive other than to harm a family that they had never previously met.

[101]I must take these considerations into account when assessing whether any of the claims and causes of action now advanced by CH and RH have any realistic prospects of success. (2) Liability

[102]CH’s and RH’s interrogation in the departure area of Terminal 1. The circumstances leading up to PCs Mitchell’s and Naden’s arrival in the departure area of Terminal 1were their belief that CH had very recently assaulted RH by pulling her by her hair and banging her head four times against the side of the car door of the car she was sitting in. In consequence, they believed that it was reasonably necessary to question both him and RH about that possible assault. There can be no reasonable doubt that those officers were acting reasonably and with a reasonable belief that a crime had been committed which it was their duty to investigate. The only possible alternative explanation for the report that LO had provided was that she was acting maliciously in providing it despite her never having previously met the perpetrator or the victim and notwithstanding her report being provided within seconds of the alleged assault having occurred. CH and RH can have no complaints about their being interrogated by the two police officers or in the manner and content of their questioning.

[103]CH’s handcuffing and arrest. CH’s aggressive behaviour and RH’s blood stained face, frightened demeanour, refusal to be photographed and apparent inability and unwillingness to explain away her blood stains despite an apparent ability to understand the simple questions she was being asked clearly supported the reasonable decision to arrest CH there and then and to effect that arrest using a rear handcuffing method of restraint. At that stage, neither CH nor RH provided the alternative, innocent but unbelievable explanation for RH’s facial blood stains. It follows that the officers’ belief that they were concerned with a possible serious and publicly perpetrated domestic violence incident was self-evidently reasonable. The evidence shows that it was reasonable to arrest CH when he was arrested and for the reasons provided by PC Mitchell and it is also clear that PC Mitchell did not use unreasonable force in using handcuffs or in the way that these were administered. The evidence also suggests that he checked that the handcuffs were not unduly tightly fitted around CH’s wrists before they were double-locked and CH was driven away. CH can have no complaints about his arrest.

[104]Interviews under caution. CH was interviewed under caution on both occasions with his legal representative being present. The interview records show that his interviews were fairly conducted and in compliance with appropriate and relevant PACE guidelines. CH failed to help himself in the first interview by giving a “no comment” interview in circumstances when, if he felt it possible to avoid being charged with ABH, it was to be expected that he would provide a full, balanced and credible series of answers to all questions that he was asked. It is no answer for him to say that he gave the “no comment” interview on the advice of his legal representative since the evidence shows that it was his decision to adopt this approach to the interview notwithstanding the warning he was given that his failure to answer any question could be used as evidence against him in the future. CH can have no complaints about these interviews.

[105]CH’s being charged. It is necessary to take account of the procedure used to charge and prosecute those suspected of having committed an offence that is to be tried on indictment in the Crown Court. The decision to charge a suspect is exclusively the decision of a senior CPS Crown Prosecutor and not a decision taken by the police. This was particularly so where the suspected offence was, like this one, a serious domestic violence offence that was covered by the GMP/CPS Domestic Violence Service Level Agreement. The GMP submitted to the CPS what the evidence suggests was a properly prepared prosecuting file containing evidence from a number of witnesses some of whom were police officers and two of whom were independent lay witnesses and other evidence collected by PC Mitchell. This file was considered by a senior Crown Prosecutor who decided that there was sufficiently cogent evidence for CH to be charged despite RH’s evidence that she had not been assaulted. The Crown Prosecutor provided her reasons on the prosecuting file for taking this decision. These were that she considered, on the basis of the evidence presented to her, that CH had prepared RH’s evidence for her to present to the police so that her denial that she had been assaulted was neither reliable nor credible. This belief was supported by RH’s evident fear when interrogated by PC Naden. It is clear therefore that GMP did not take the decision to charge CH, that decision was taken by and was the responsibility of the CPS. In any event, the charging decision was a reasonable one about which CH can have no complaints.

[106]CH’s bail conditions. The charge was, in accordance with normal practice, administered by the police who administered it because the Crown Prosecutor within the CPS had instructed the police to administer it. GMP charged CH and granted him bail subject to a condition that he did not reside with RH and his children. That was a reasonable condition to impose given GMP’s overriding concern for the safety and welfare of RH and the two children. CH’s angry and irrational outburst when informed of his bail conditions provides further support for the reasonableness of GMP’s concerns that he had committed an act of domestic violence and that his family would be at risk if he returned home following his release.

[107]CH’s detention. CH had been detained for about 6½ hours on being arrested on 8 January 2007 and for a further 1 hour when being charged on 1 March 2007. Since the evidence suggests that he had been properly and lawfully arrested on the first occasion and properly and lawfully charged on the second occasion, there can be no complaint about those relatively short and apparently lawful periods of custody.

[108]Preparations for trial. I take account of the fact that the CPS and not the police are responsible for preparing the prosecution’s case for trial and for arranging for the disclosure to a defendant awaiting trial of all relevant materials including CCTV footage. These arrangements are usually undertaken by the police working for and at the direction of the CPS. I also take account of the fact that CH, perhaps ill-advisedly in the light of his subsequent difficulties in seeking disclosure of CCTV evidence and the service of witness summonses on witnesses concerned with the CCTV arrangements at Greater Manchester Airport, dismissed his solicitor during the pre-trial preparations and thereafter conducted his own defence. CH has no legitimate complaint about the preparatory stages leading up to his trial. Evidence was produced by the prosecution which was credible and reliable to the effect that no relevant CCTV remained in existence and the GMP investigation concluded that no reasonable complaint could be made about PC Mitchell’s attempts to obtain this evidence. Indeed, he had apparently left no stone unturned in his unsuccessful attempts to track such evidence down.

[109]The non-appearance of LO at the trial. The CPS did not seek to obtain a witness summons to obtain the attendance of LO at the trial until one or two days before the trial was listed to start. This was, with hindsight, unsatisfactory lack of trial planning by the CPS. However, that poor preparatory work is not evidence of malice or abuse of power, particularly by GMP who could only seek to enforce a witness summons if and when the CPS obtained one. LO was served but did not respond and the judge then caused the charge of ABH to be dismissed. Thus, the non-attendance of LO and the collapse of the trial was not in any way the responsibility of GMP but instead resulted from poor planning by the CPS and the decision of the judge. CH has no complaint against GMP for any mishap or defect in the pre-trial preparations of the CPS or of the decision that his trial should not take place.

[110]The collapse of the trial. It is not clear whether the judge directed an acquittal, ordered the charge to be dismissed or the Crown offered no evidence. Whichever formula was used, no trial took place and there was no finding that CH was innocent. The only significance of that is that it is open to the defendants in this case, if it goes to trial, to contend that CH did in fact assault RH and, if the case reached that far, each defendant would undoubtedly argue that that was so. On the basis of the evidence presently available, the defendants would have a reasonable prospect of establishing that CH did indeed assault RH.

[111]GMP’s report to HP and HP’s report to ERYC. Given the terms of GMP’s protocol concerned with domestic violence and the multi-agency arrangements that were in place across England and Wales which GMP was required to comply with, GMP had no option but to pass on a report to HP and ERYC that informed those authorities of the fact of CH’s arrest, the nature and details of the allegations made about him, the concerns about the safety of RH and the children and the lack of credibility of RH’s denial that she had been assaulted, her obvious fear when spoken to and her lack of a credible account of how she received her apparent injuries. It follows that CH and RH can have no complaints about the fact that this information was passed onto ERYC via HP.

[112]The actions of ERYC’s social workers. ERYC’s child protection team was required by law to investigate whether RH was a victim of domestic violence and whether the two children were at risk of harm once GMP’s concerns were brought to their attention. The law provides a detailed procedure that must be observed by a child protection team when it is made aware of concerns about the welfare and risk of harm that is reported from any source about any child in their area. The family must be visited in the home environment, the adults and children in the family must be interviewed and spoken to separately and enquiries must be made by the social workers and local police. This must lead to a decision whether the children are at risk and should be placed on the at risk register, whether appropriate child protection plans should be prepared and a child protection conference engaged, whether core assessments should be undertaken and, if so, whether the Family Court should be asked to make an assessment order to facilitate their preparation.

[113]In this case, the two social workers initially assigned to the family found that there were concerns about the children’s safety and welfare. The nature of the report received by GMP coupled with the hostile, belligerent and uncooperative manner of, particularly, CH fed those concerns. There can be no reasonable complaint about the various steps that were taken. These included the home visits, the placing of the children on the at risk register, their referral to a child protection conference, the decisions to prepare child protection plans and core assessments and obtain assessment orders and the subsequent decision to remove the children from the at risk register soon after CH’s acquittal occurred and the home visits made by the social workers and the police. Each of these actions appears to have been reasonable and reasonably carried out.

[114]The only complaints that were upheld by the complaints process had arisen because one of the social workers and CH rapidly developed a somewhat fractious relationship and the Family court recommended that that social worker should be replaced by another who could start afresh with CH. That fractious relationship led to two of CH’s complaints about that social worker’s manner being upheld. A small sum in compensation was offered by ERYC but was refused by CH. These matters came nowhere close to amounting to abuse of power or misfeasance, indeed they do not appear to have given rise to any breach of duty or other tortious act.

[115]It follows that CH and LH appear to have no reasonable complaint about any action taken by HP or ERYC. In HP’s case, their home visits appear to have been appropriately conducted. Furthermore, CH can have no reasonable complaint about the report that was made by a HP WPC to the CPC held in January 2008. CH’s complaint was to the effect that that report unfairly raised continuing concerns about the children’s safety after he had been acquitted. However, whatever the report stated, it was not acted upon since the CPC decided to remove the children from the at risk register and that all social services involvement with the family would cease forthwith.

[116]Negligence. For the reasons already given, neither CH nor RH have a claim in negligence. None of the defendants owed either of them a duty of care and, in any case, it would not be fair and reasonable for either of them to be able to claim damages in negligence from these parties. Furthermore, no breach of duty occurred since no police officer of social worker acted negligently and no foreseeable recoverable loss was caused by any representative of any of the defendants.

[117]Misfeasance in public office. Neither CH nor RH have a claim arising out of the misfeasance in public office of any police officer or social worker. No representative of any of the defendants acted unlawfully and none deliberately targeted either of them intending to cause them harm. In other words, no deliberate misuse of the powers being exercised by these officers and social workers occurred.

[118]Wrongful arrest and false imprisonment. CH was not arrested unlawfully and his two periods of detention were not unlawful.

[119]Malicious prosecution. GMP did not prosecute or charge CH, the CPS undertook these responsibilities. The prosecuting file prepared by GMP was properly prepared and there is no evidence that any police officer involved in charging CH or preparing evidence for the charging decision acted with any malicious intent or with the intention of targeting him in order to ensure that he was unlawfully and unreasonably charged. Furthermore, there is clear evidence that the Crown Prosecutor who took the charging decision did so on reasonable and proper grounds and that that decision was neither unlawful or unsustainable.

[120]Assault and trespass to the person. The handcuffing of CH was reasonably necessary to aid his lawful arrest. The method of handcuffing him was appropriate and no more force was used than was reasonably necessary to arrest him. When arrested, he was aggressive and it was reasonably foreseeable that he might harm someone near him if he was not restrained in the way that he was when being arrested. There is no evidence that the handcuffs caused him any injuries, those he attributes to the handcuffing arose, it would appear from the evidence, from his previous building and renovating activities and were, in any event, insignificant and such as to give rise to very limited damages if negligence or assault was established.

[121]HRA claims. Neither CH nor RH has been denied access to a court to pursue their claims, has been unlawfully detained, has had his or her family life interfered with as a result of unlawful acts or omissions by any representative of any of the defendants or has been tortured. No HRA claim has, therefore, been shown to have a reasonable prospect of success since no claim of any kind has been established. (3) Foreseeability and remoteness

[122]Had CH and RH established actionable negligent conduct, no foreseeable harm or directly inflicted harm has been shown to have been caused. The loss that is claimed is, save for the injuries allegedly caused by CH’s handcuffing, economic in nature and only indirectly related to the causes of action in negligence that are relied on. For all these reasons, there could have been no recoverability even if negligence and an actionable duty of care had both been established.

[123]If all the other causes of action had been established, only very limited damages could have been recovered. The recoverable sum for false imprisonment for about 7½ hours would be less than £1,000. The recovery for malicious prosecution and misfeasance in public office would be limited to the direct losses that were incurred, particularly reasonable travel costs and any reasonably incurred costs that were ruled to be irrecoverable by the costs judge when assessing CH’s costs claim. The loss of business profits are not recoverable as damages for misfeasance in public office, the costs of preparing the claims are only recoverable as assessed costs in an assessment of costs for a litigant in person and are not recoverable as damages, only a very small sum is recoverable for the lost holiday in January 2007 and the housing costs and debts claims are irrecoverable as being too remote from any of the claimed breaches of any of the claimed causes of action. Compound interest is not recoverable.

[124]Personal injuries to the wrist. Even if CH established a claim for damage to his wrists, the claim would be very small. He has produced no appropriate medical evidence to show that anything other than, possibly, nominal damages would be recovered, no loss of earnings or employment have been alleged and the only treatment relied on to support the claim is a minor procedure conducted under local anaesthetic. The general damages for pain and suffering would be very small. (4) Quantification

[125]Punitive damages. A substantial award of aggravated and exemplary damages would be awarded if all allegations maintained by CH and RH were established. It is clearly a very serious matter to be falsely arrested, charged, prosecuted, detained and made subject to child protection measures if such measures were taken by those who knew that no crime or risk of harm existed and the measures were solely directed at harming CH and RH. However, there is no prospect of such a claim succeeding on the evidence now put forward even though it has not been tested and the defendants’ cases have not yet been pleaded.

[126]In the absence of punitive damages being awarded, the maximum damages that CH and RH might recover if, but only if, they established full liability for all causes of action, are not likely to have exceeded £5,000 to £10.000 in total. (5) Limitation

[127]The claims brought in negligence that relate to CH’s alleged injuries and under the HRA are statute barred and there is no prospect of CH and RH showing that time should be extended to bring such claims outside the statutory limitation that they are now subject to. It was not reasonable, on the facts of this case, for CH and RH to await the results of their complaints to GMP and ERYC’s respective complaints procedures before starting this claim. (6) Conclusion

[128]CH and RH have produced no evidence upon which their claims could succeed or that their damages could be recovered. Their claims in negligence for the alleged injuries suffered by CH and under the HRA are, in any event, barred by limitation. 5. Procedural Objections to the Claims Proceeding

[129]No reasonable prospects of success. I have concluded that the claim in its proposed amended form has no reasonable prospects of success. I have reached this conclusion by undertaking an exhaustive examination of the hundreds of pages of proposed amended pleadings, witness statements, reports of investigations into the claimants’ complaints undertaken by GMP, the IPCC and ERYC and the heavily annotated bundles of documents prepared by CH and RH and submitted to the court to support the applications to amend and for consequential directions. I am not concerned to decide conclusively that the claims should be dismissed or whether CH assaulted RH. What I have been required to do is to decide whether to grant permission to amend. The appropriate test that I have adopted is: if the claim presented in the materials that I have summarised has a reasonable prospect of success, permission to amend should be granted unless there are overriding reasons why such a claim would be an abuse of process.

[130]For the reasons that I have already given, I have concluded that the claims that have been pleaded have no prospects of success. It is clear, therefore, that permission to amend should be refused on this ground and the claim should be struck out.

[131]Failure to comply with the CPR and court orders. I will briefly explain why I would have refused permission to amend and would then have struck out the claim as an abuse of process even if the proposed amended claim had a reasonable prospect of success. The first basis for considering the proposed claim to be an abuse of process arises from the claimants’ inability to plead their claim in a way that would permit it to be tried with reasonable economy and expedition without undue recourse to the court’s resources and in conformity with the Civil Procedure Rules. The claimants have now had at least three opportunities to plead their claim, two of which were ordered by the court accompanied by detailed guidance as to how the amended claim should be pleaded. The current version is pleaded in such a verbose, argumentative, repetitive and incoherent manner that it could not be permitted to stand as a pleading. Similarly, the witness statements filed by CH suffer from the same deficiencies and would have to be prepared again in a manner that conformed to the CPR. The claimants have demonstrated, by their failure to comply with the directions and guidance provided by Master Eyre and then by me, that they cannot produce a satisfactory pleading that conforms to the rules. They are acting in person and have no intention of instructing solicitors. In the light of that history of failed pleadings, the claim in its proposed amended form would be struck out as being an abuse of process.

[132]Delay. The events giving rise to the claim occurred in 2007 and the complex and difficult claim against three defendants would be tried by a judge alone since an application for a jury trial would be likely to be refused. A fair trial of this action, which would not get to a hearing for at least 18 months, is now impossible since memories would have failed and the issues of dishonesty, malice, reasonable suspicion and credibility would require extensive cross-examination that would be heavily dependent on recollection.

[133]The trial would take place, if it took place at all, some eight years after the critical events occurred. It is true that about 18 months of that period have been caused by the court but the rest of the period to date is attributable to the claimants not starting their claim until March 2010, about two years later than it need have been started and in taking about 18 months to prepare and serve all the materials that they consider are necessary to support the proposed amended claim. Since the claims are in any case hopeless, the undue delay of nearly four years engendered by the claimants provides an added reason for not allowing it to continue.

[134]Abuse of process. The claim is also an abuse of process for these additional reasons.(1) The claimants intend to conduct the claim from Japan without returning to England for any part of the pre-hearing proceedings or for the trial. Their proposal is that the trial can be conducted by telephone or Skype. They seek an interim payment in order to enable them to fund such essential costs as the preparation of documents and undertaking disclosure and they are both unable and unwilling to appoint an agent in England to conduct any part of the proceedings on their behalf or to undertake any of the many administrative tasks that will be involved in bringing a claim of this size and complexity to trial. My current estimate of the length of the trial is that it would last for at least 10 working days if all issues and all parties remained in contention at that trial. It is, in my judgment, impossible to conduct the claim to trial or at trial on the claimants’ proposed basis and any attempt to do so would give rise to great prejudice to all the defendants and would be unworkable.

(2) The claimants are not entitled to an interim payment since such payments are only permitted where it can be shown that they are very likely to succeed in recovering a sum in excess of the interim payment. The claimants come nowhere near being able to establish this. Of greater significance is the almost inevitable applications by each defendant that the claimants should provide security for costs. CPR 25.13(2)(a)(i) provides that individual claimants who are permanently resident outside the UK and the EU may be required to provide security for costs. There would be no good reason for a court to decline to order security in this case and every expectation that each defendant would apply at the earliest opportunity for security. The security is intended to be sufficient to cover any costs order that the defendants might obtain in their favour if they succeed at trial in defeating the claim against them. Although the security would be ordered in stages, it is likely that the first order for security, which would probably be made within months of the action being permitted to proceed, would require the claimants to pay into court a sum of at least £60,000 to cover the defendants’ costs up to the next stage of the preparations for trial. The overall sum that is likely to be required prior to the trial is likely to exceed £250,000. The claimants have no means of providing any security let alone a sum of the size that is likely to be ordered.

(3) The claimants may only appear at pre-trial hearings and at the trial itself via a telephone link with the permission of the court. Such permission is unlikely to be given and, at best, a video link would be ordered. That would have to be paid for by the claimants and it is more likely that they would need to attend the trial in England over a 10-day period or more. The claimants do not have the resources to fund a video link for any hearing or to travel to and stay in England for any hearing or the trial.

[135]There are, therefore, a further three reasons why the continuation of this claim would amount to an abuse of process.

[136]Orders sought. The claimants seek orders that they should be permitted to serve the claim form and witness statements already served in draft. For the reasons already given, I am not prepared to make those orders given the prolix and incoherent nature of those documents.

[137]The claimants also seek an order that the court should copy the nearly 1,000 pages of documentation and serve the copies on each defendant and, additionally, copy and serve the amended pleadings. The court is unable to provide that service to litigants. The claimants would need to appoint an agent to undertake these tasks and they are both unable and unwilling to do this.

[138]CH seeks an order that he should be permitted to represent RH and that they should be able to appear at all hearings and the trial in the ways that I have already described. I am not prepared to make any of these orders. Had the action proceeded, it would be for each judge at each hearing to decide whether to permit CH to represent RH and to permit the hearings to proceed by telephone, Skype or video link.I consider that it would be inappropriate for CH to represent RH as well as himself. RH has no obvious means to pay for any representation for herself and she appears unable to represent herself. 6. Overall Conclusion

[139]Summary. The proposed claims have no prospect of success and would amount to an abuse of process. The claimants’ applications to amend, to have the amended pleadings re-served and for other procedural relief are all dismissed.

[140]Order giving effect to judgment. The order to be made in consequence of this judgment is as follows:(1) The appeal is dismissed.

(2) The claim is struck out.

(3) No order as to costs.

[141]Service of order and judgment. The order and judgment should be served on the claimants by email. The court will also serve a hard copy by post to the address in England that the claimants have already provided for such service. HH Judge Anthony Thornton QC