M.V. v. THE UNITED KINGDOM
Inadmissible
Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano
1. The applicant, MV, is an Argentinean national who was born in 1973 and lives in Stanmore. The President granted the applicant's request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms C. Ferguson of Liberty, a nonGovernmental organisation based in London. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Y. Ahmed of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born in Argentina in 1973. She was the eldest of four children: two sisters (VV and FV) and one brother (LV). The applicant's parents separated in 1981 and in 1983 her mother (AP) began a relationship with a British citizen (PON). In 1985 the applicant's mother travelled to England to set up home with PON and she was later joined by her four children. 5. The applicant alleges that following the move to London she was emotionally, physically and sexually abused by PON. 6. In 1986 the applicant moved to Argentina, where she lived with her grandparents. During this time she had no conscious recollection of the sexual abuse; however, due to her erratic behaviour she was sent twice weekly to a psychiatrist. 7. The applicant returned to London in 1988 to live with her mother, PON, and her three younger siblings. She claims that on her return PON once again began to abuse her both physically and sexually. The abuse continued until she moved out of the family home in 1991. 8. Initially the applicant did not tell anyone of the abuse. However, in 1991 her younger sister, VV, told a family friend that she had been sexually abused by PON. This information was eventually related to AP, who confronted the applicant about it. The applicant confirmed that she too had been sexually abused by PON. AP did not immediately report the allegations to the police. 9. Instead, in 1992 AP left PON and returned to Argentina with FV. VV had already returned to Argentina and was living with her grandparents while the applicant had gone to live in Portugal. 10. By 1993 AP, VV and FV had returned to the United Kingdom. It was at this time that AP reported the allegations of sexual abuse by PON to the Metropolitan Police. During the subsequent investigation witness statements were taken from the applicant, VV, FV, AP, PON's ex-wife (CON), and his two children from that marriage (GON and KON). The applicant's brother, LV, was not interviewed at this time. 11. In her interview VV revealed that PON had abused her in a number of ways from the age of eight, predominantly by rubbing himself against her with his penis. She also described being fondled in a jacuzzi, horsewhipped, bitten on her bottom and karate-chopped between her legs. FV also described being made to have a shower with PON and being punished by him with a whip. She also stated that she was aware VV had been touched inappropriately by PON. 12. In April 1993 the applicant returned from Portugal to give a statement. In that statement she described what had taken place in 1986 when AP had gone away for a week, leaving the children in the care of PON. The applicant was twelve years old at the time. She stated: “ [PON] asked me if I would sleep with him. I was only 12 so I thought nothing of it. I went to sleep in his bed ... I remember [he] had wrapped his leg over me and pulled me close. I was scared. I was lying on my stomach and [he] was lying on my right. I remember him breathing. I was not sure what [he] was doing but I felt he was trying to make me take my Mum's place while she was away ... My Mum was away for a week. I cannot remember how many times this happened but I think it happened more than once.” 13. The applicant also described a time when she was fifteen years old when AP had returned to Argentina for three weeks: “[PON] told me that he had a heart condition and asked me to sleep with him as he was scared to sleep alone. I said I would. When it came time to go to bed I went into my brother's room, got the sofa bed and put that next to his bed and slept there. He made me hold his hand but nothing else. The next day he was angry and said I was no company and that he would ask [VV] to take my place.” 14. She also stated that: “I also remember when I was 12 he would give me driving lessons. He would sit me on his lap and get me to move the steering wheel. I think this was strange now because he never offered to do this when I was 16.” 15. Social services' records also indicated that AP had informed a social worker on 10 March 1993 that the applicant had told a friend that PON had fondled her breasts when she was twelve. 16. In her interviews with police and social services KON at times claimed that she had not been abused, while on other occasions she implied that she had. She said that T, another child of PON who was living in Malta, had told her that he had put his hands down her jeans and fondled her. 17. PON was arrested and questioned in May 1993. Although the tapes of the interview have since been destroyed the entry in the crime report stated that he denied all of the allegations. He was released on bail and told to return to the police station on 14 June 1993. 18. On or about 20 May 1993 the police decided, without any reference to the Crown Prosecution Service, that no further action would be taken against PON. The relevant entry in the crime report, which was written by PC G, read as follows: “Nothing has been heard directly from Malta about T [another child of PON] being abused. This matter will have to be reinvestigated should T ever come to England and make an allegation. In discussion with Detective Sergeant [B] we have formed the opinion that there is insufficient evidence for a successful prosecution in this case. A lot of pressure would be put on KON in respect of her evidence. It is not clear that she would attend court, leaving MV and VV unsupported in their account of what happened. In view of the above I shall classify this as no crime. Should any further evidence come to light this will of course be reclassified and investigated accordingly.” 19. On 20 May 1993 PC G informed PON's solicitor by telephone that he would not face prosecution. PC G and Detective Sergeant B also informed the applicant and her family that no prosecution would take place and that this decision had been made 'in order to protect the children'. 20. On 18 August 1993 a child protection case conference was held concerning VV and FV. Detective Sergeant B was in attendance. At that meeting AP produced a tape recording of a telephone conversation she had with PON. In the course of the conversation PON belittled the abuse and sought to blame VV for what had happened. It appears that AP had further tape recordings but the police did not ask to see them at this time. 21. The conference concluded that: “We believe that [VV] has been sexually abused and we will place her name on the Child Protection Register in the category of Sexual Abuse and likely significant harm of emotional abuse. Appropriate boundaries have been breached by [PON] entering the room whilst [FV] was in the shower. We believe he has abused other children and that [FV] is at risk of being abused by him. We will therefore place her name on the register in the category of likely significant harm from sexual abuse.” 22. It was therefore decided that social services would seek to accommodate VV and treatment would be offered to her. FV was to remain with AP under the condition that she have no contact with PON. Treatment was also to be offered to her. 23. In August 1993 FV went to live with her biological father in Portugal. However, she returned to the United Kingdom in December 1993 and thereafter lived with AP and PON, who were again co-habiting. Her name was again placed on the Child Protection Register. 24. In 1994 AP married PON. The relationship was on and off for the next few years before finally coming to an end in January 1999. 25. In 1999 all interview records, case notebooks and the custody record were destroyed. 26. In November 2000 the applicant's brother, LV, committed suicide. The following month, the police re-opened the investigation into the allegations of abuse. It was agreed, however, that the re-investigation would only consider new evidence. 27. On 6 June 2001 the applicant gave a further statement. In that statement she explained: “I made a witness statement to Police on the 10th April 1993, regarding [PON]. I was 19 years old and at the time couldn't bring myself to give the full details of what took place. I wish to add the following...” 28. She proceeded to set out in greater detail the allegations made in April 1993. In particular, she stated that during the “driving lessons” PON had had an erection and moved under her. Moreover, she claimed that after inviting her to sleep in his bed he had also had an erection and was rubbing himself against her in a sexual motion. Afterwards, her nightdress was wet. In addition, she alleged that the sexual abuse had been accompanied by serious cruelty, physical abuse and the humiliation of all the children. 29. PON was arrested on 4 July 2001 and subsequently charged with thirteen counts of indecency and child cruelty, two counts of indecency and one count of cruelty related to offences committed against the applicant. 30. On 28 August 2001 the police were given AP's tape recordings of conversations she had had with PON concerning the abuse. One of the tapes contained the following statements by PON: “I want you to understand something. These things that happened with [VV] happened three years ago, OK. And they got out of hand between us but not too much, [AP], but it doesn't make it right...I want to sort this out with you and [VV] ... at the end of the day...I was the adult and I should have fucking stopped it. But I never took her knickers down or tried to screw her or anything like that, for fuck's sake...what happened with [VV] was the situation, not the way I am. OK. You can trust me ... Things happened with [VV], but not what you think happened, not what you think happened...I'll tell you what happened and I'm not proud of it. I'm ashamed. It got too close with [VV], but it wasn't one way, and I was the adult and should have stopped it. But she never touched me or done anything ... I've never done anything that bad to [VV] Bad enough, but not that bad.” 31. On 3 September 2002 Croydon Crown Court ordered that the prosecution against PON be stayed because of abuse of process. The court gave three reasons for its decision: first, in 1993 PON had been told unequivocally that no further police action would be taken; secondly, little evidence had been discovered in addition to that which was available in 1993; thirdly, there was material which was no longer available, particularly in relation to contemporaneous notes of interview, as a result of which it would be impossible for PON to have a fair trial. The applicant did not challenge this decision. 32. During the hearing, police officers gave slightly divergent evidence concerning the 1993 investigation. Detective Sergeant B indicated that there had been a prima facie case against PON but it was not considered to be in the best interests of the applicant and her siblings to put the case before a court. Sergeant G (formerly PC G) agreed that the reason not to proceed was mainly to do with the children's welfare but stated that in any case there had been insufficient evidence to prosecute. 33. On 11 October 2005 the applicant filed a civil claim in which she claimed damages from the Commissioner of Police for the Metropolis for personal injury and loss arising from the alleged negligent manner in which the police had pursued the allegations of child cruelty and indecent assault against PON and from the decision not to prosecute. The Commissioner applied to have the application struck out on the basis that it disclosed no reasonable grounds. 34. In a decision dated 21 June 2006, the District Judge considered the decision not to prosecute to be separate and apart from the police investigation. Insofar as the claim concerned the conduct of the police investigation, the judge held that the allegations had to be struck out as the law did not impose a duty of care on the police in respect of the conduct of a criminal investigation. Such a duty could only arise if it could be shown that the police had assumed responsibility towards a particular claimant in such a manner as to give rise to a duty. However, that was not the position in the present case. The judge accepted that exceptionally, in a child cruelty and sexual abuse case, if an investigation had been carried out so negligently that a child was not protected from future harm, it was at least arguable that the police might exceptionally be held liable. However, he held that the above exception did not apply to the applicant as she was no longer a child in 1993 and had therefore been in no different a position to any ordinary witness or victim. 35. With regard to the failure to prosecute, the District Judge considered it arguable that a limited duty of care might arise in the context of the facts of the case. In particular, the judge found it disturbing that the CPS was not apparently even consulted with regard to the failure to prosecute PON, particularly in view of the severity and magnitude of the alleged offences. Indeed, he noted that it would have been expected that the file was at least sent to the CPS for its consideration as to whether or not to prosecute. However, instead of sending the file to the CPS the police had taken the decision not to prosecute themselves on the ground that it would not be in the best interests of the applicant or her sisters. 36. The Commissioner of Police appealed to the County Court against the District Judge's decision, maintaining that he should have struck out the claim regarding the decision not to prosecute. The applicant cross-appealed on the ground that the judge had been wrong to strike out the claim in relation to the investigation. Following a lengthy consideration of the District Judge's decision, on 8 February 2007 the court dismissed the appeal and the cross-appeal, leaving the decision of the District Judge as it was. In doing so, the judge noted that it was possible, even if the possibility was not a very strong one, that further examination of the facts, reasoning and information behind the 1993 decision not to prosecute might lead to the conclusion that the taking of that decision gave rise to a limited duty of care. 37. The Commissioner appealed to the Court of Appeal. At the hearing, counsel for the applicant conceded that there could be no claim for negligent failure to investigate the complaints properly in 1993 and the lower courts had been right to strike out those aspects of the claim. He argued, however, that the decision not to prosecute was different because in coming to that decision the police had taken into account the interests of the children. 38. On 21 December 2007 the Court of Appeal allowed the appeal and struck out the applicant's claim altogether. It found that following Hill v. Chief Constable of South Yorkshire Police [1989] AC 53 (see below), the existence of a duty of care in a case such as the present would not be in the public interest as it would lead to the police carrying out their duties in a detrimentally defensive frame of mind. In any case, the Court of Appeal noted that even if there had been a duty of care, the applicant's Particulars of Claim did not disclose a cause of action because she would have had to have pleaded – and could not possibly have pleaded – that no reasonable prosecutor would have failed to prosecute. 39. On 30 July 2008 the House of Lords refused to grant the applicant permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance. 40. On 10 February 2006 Dr. N, a Consultant Psychiatrist, prepared a report on the applicant. 41. In that report he noted that she was suffering from clinical depression which was moderate in its severity. Although he noted evidence of propensity to mental disorder within the family, he concluded that her experience of abuse while she was a child was the original cause of the mental disorder now afflicting her. However, he considered that the applicant's experience of uneven and unsettled parenting by AP was also a contributory factor. 42. With regard to the question of whether the failure of the original prosecution of PON was a significant contributing factor, Dr. N acknowledged that the answer was “a difficult and complicated determination resting as it does upon the implication of the narrative biography, the complex family dynamics, subconscious psychological themes and a broader consideration of [the applicant's] personality, psychological constitution and prospects”. Nevertheless, although the argument was “both subtle and complex”, he concluded that “a significant proportion of [the applicant's] ongoing psychological difficulties can be traced to the failure of the original prosecution of [PON] in 1993”. 43. Physical and sexual abuse of a child are criminal offences in England and Wales. Prior to 1 May 2004, the relevant sexual offences were set out in the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences (Amendment) Act 1976 and the Sexual Offences (Amendment) Act 1992 (“the Sexual Offences Act 1956 to 1992”). Cruelty to a person under sixteen years of age is – and was at the material time – a criminal offence by reason of section 1(1) of the Children and Young Persons Act 1933. 44. Under domestic law the police owe no general duty of care in tort to victims of crime to investigate their allegations (Hill v. Chief Constable of South Yorkshire Police [1989] AC 53). However, this position is not tantamount to a “blanket immunity” and in certain cases the police could be found to owe a duty of care to a victim (see, for example, Swinney v. Chief Constable of Northumbria Police Force [1997] QB 464, in which the police appeared to have assumed responsibility for the victim's safety). 45. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 46. Section 7(1) of the Act provides that a person who claims that a public authority has acted or proposes to act in a way which is unlawful pursuant to section 6(1) may bring proceedings against the authority under the Act in the appropriate court or tribunal or may rely on the Convention rights concerned in any legal proceedings. 47. Pursuant to section 8, the court may grant such relief or remedy, or make any such order within its powers as it considers just and reasonable in relation to any act of a public authority which it finds is unlawful.