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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bedford v Bedfordshire County Council [2013] EWHC 1717 (QB) (21 June 2013) URL: https://www.bailii.org/ew/cases/EWHC/QB/2013/1717.html Cite as: [2014] PTSR 351, [2013] EWHC 1717 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
BEDFORD |
Claimant |
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- and - |
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BEDFORDSHIRE COUNTY COUNCIL |
Defendant |
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Edward Bishop QC (instructed by Weightmans) for the Defendant
Hearing dates: 6th, 7th, 10th, 11th & 12th June 2013
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Crown Copyright ©
Mr Justice Jay:
Introduction
The Law governing the substantive issues
"In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of the above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental to the scheme of the Convention, it is sufficient for the applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
The Key Issues arising
(i) is it equitable in all the circumstances of this case to extend the Claimant's time for issuing proceedings pursuant to section 7(5)(b) of the HRA?
(ii) was there a real and immediate risk of serious harm to the Claimant which the Defendant local authority knew or ought to have known about?
(iii) if there was, did the local authority take such steps as were reasonable in all the circumstances to eliminate or substantially reduce that risk?
Essential Factual Narrative
"AH and another resident knocked on the door of another resident's bedroom. Both went in and shut the door. X acted as look-out, whilst AH asked [her] to give him a 'blow job', oral sex. [she] agreed. When [she] tried to stop AH held her head close to his groin so that she could not. He then urinated in her mouth and when she pulled away AH urinated in the bedroom.
AH and X then attempted full sexual intercourse, but were unsuccessful. [she] then informed staff that a similar incident had occurred previously."
"12. In the light of AH's current transient living situation and his extensive antecedents, in my assessment there is an extremely high risk of AH re-offending and potentially harming members of the public [I note that the risk was not confined to those close to AH in children's homes]
13. In the light of the gravity of these offences and AH's considerable previous convictions, I am aware that the Court are [sic] seriously considering the imposition of a Custodial Sentence on this occasion. I am also aware that the alternatives open to the court are limited In addition it is significant to note that the majority of AH's offending has occurred within a Care environment and as a result of his anger management difficulties. "
"With hindsight it comes as no surprise that AH, as a young person, would commit and be convicted for a violent sexual act. To some the surprise is that this had not happened earlier and involved even greater violence. As the detail of AH's life story has shown, from an early age there were many signs and pointers that would strongly suggest that his future sexual and personal development would be problematic and that, without appropriate intervention and help, the consequences for his life as an adult would give rise to great concern."
This opinion has to be read in conjunction with paragraphs 2.9.2 and 2.9.7, in particular the reference to research suggesting that various psychodynamic elements (Professor Sines' apt terminology) created the makings of a dangerous person. The Defendant's lay witnesses tended to agree with paragraph 2.9.1, emphasising though the adjectival phrase 'with hindsight'. Ms Gray did not, pointing out that a child's sexual behaviour is often most unpredictable. In the end, though, I abstain from coming to a conclusion on this issue, simply because (a) there are dangers in mixing hindsight and foresight, and it is so easy to be wise after the event, and (b) the Court has not received expert evidence from all the right quarters to enable a properly informed judgment to be reached. Instead, I prefer to observe that even if paragraph 2.9.1. may be read as, in part, a foresight judgment, unless it be said that AH should have been managed in a completely different way, for example placed in secure accommodation, which is not the Claimant's case, this point does not possess many teeth. The Defendant of course knew about AH's offending history including the gross indecency perpetrated on 27th November 2001, and in those circumstances needed to keep him well in scope of the radar whilst under the Cheltenham's direct care. The Defendant would say that the same principle applies to all the troubled children in their care, admittedly to varying degrees, and that they approach each different child on a case by case basis.
Limitation
"In my view, it is desirable to follow a similar approach in relation to the HRA and not to list the factors or to indicate which factor may be more important than another. It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors, proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case."
July 2004: C's mother instructed Hooper & Wallen, solicitors in Torquay, to handle claims to the CICA and against the C's assailant [1/270]
November 2004: C's solicitors advised C's mother of a possible claim against the Cheltenham [1/271]
February 2005: C applied for legal aid for investigating claims against The Cheltenham and the local authority [1/286]
May to Sept. 2006: C obtained police witness statements and documents, including VAS book detailing AH's behaviour on a daily basis, restraints, sanctions and supervision levels whilst at the Cheltenham in May 2004
April 2007: C's conference with Counsel. Told no hope of a claim against the Cheltenham [1/273]
June 2007 to Nov. 07: C's current solicitor (Irwin Mitchell ("IM")) instructed; obtained full file for both CICA and negligence claims in November 2007 [2/301]
January 2008: IM spoke to Leading Counsel on the telephone, who advised that "further investigations" were necessary to consider a claim against The Cheltenham.
January 2009: Leading Counsel provided a written Advice, having been chased in August 2008. He advised no prospects of a common law claim against either The Cheltenham or D. Leading Counsel also advised there was an "arguable" claim under the HRA [2/303].
January 09 to March 11: C's solicitors attempted for no clear reason to obtain documentation concerning AH's medical history from the police [2/320/1]. They asked D for documentation concerning AH's period as a looked after child for the first time in October 2009
17th October 2011: Pre-action disclosure hearing. In response to D's submissions that a claim under the HRA was statute-barred, C's Counsel submitted that there was a potential claim in negligence for which time was still running [2/349]
28th October 2011: C issued proceedings, wrongly thinking that the limitation period was about to expire [2/310]
Findings on the Substantive Issues
Conclusion
Note 1 It is convenient at this stage to footnote the relevant statutory provisions. The general power to make a Supervision Order lies under section 63 of the Powers of Criminal Courts (Sentencing) Act 2000. Under Schedule 6, paragraph 3, an ISSP is a specified activity which the court has power to attach to the S.O. It is not altogether clear whether the power to impose a curfew is a night-time restriction under paragraph 3 (where the maximum period permitted for a minor is 3 months) or a curfew order under section 37 of the Act (again, a maximum period of 3 months). As for electronic monitoring or tagging, the power to impose this requirement was originally created by section 38 of the 2000 Act but at the material time was to be found in section 36B (inserted into the 2000 Act by section 52 of the Criminal Justice and Court Services Act 2000). It is unclear from this section whether the tagging requirement could have been for more than 3 months. At all events, the 3 month period for which it was in fact imposed would have expired on 21st April 2004 had it not been revoked. [Back]