AB, R (On the Application Of) v Hampshire Constabulary & Ors

The statutory special-measures regime for vulnerable witnesses governs the giving of evidence in criminal proceedings. It does not impose implied duties prescribing how police investigations must be conducted. Non-statutory interviewing guidance describes good practice rather than legally enforceable requirements, although significant departures may be relevant when assessing whether an investigation was effective.

Article 3 requires the police to take all reasonable steps to secure evidence concerning alleged serious violence. A breach requires conspicuous, substantial, egregious or significant investigative errors; isolated or minor errors are insufficient. The duty is procedural and does not guarantee a prosecution or conviction.

Reasonable adjustments for a disabled witness depend on effectiveness and practicability. Assistance from people familiar with the witness’s communication methods may satisfy the duty where a suitable intermediary is unavailable.

A vulnerable child with Down’s Syndrome, autism, severe learning difficulties and limited verbal communication demonstrated conduct which led his parents to fear that he had suffered a serious sexual assault at a respite care centre. The police investigated, arrested and interviewed a care worker, gathered medical and other evidence, and sought a registered intermediary for a video-recorded interview. None was available. The interview proceeded at the child’s school with his teacher and teaching assistant present.

The police and Crown Prosecution Service reviewed the evidence. Because neither the precise offence nor the offender could be established to the evidential threshold, the police decided to take no further action. The claimant sought judicial review of the investigation and that decision.

The principal issues were whether the investigation breached implied duties under the Youth Justice and Criminal Evidence Act 1999, relevant guidance, Articles 3, 8 and 14 of the Convention, the reasonable-adjustment and public-sector equality duties, or the child-welfare duty; and whether the no-further-action decision was unlawful.

1. The claim for judicial review was dismissed. The special-measures provisions of the Youth Justice and Criminal Evidence Act 1999 regulate how vulnerable witnesses give evidence in criminal proceedings. Their language, structure and purpose do not impose express or implied duties requiring the police to conduct an investigation in a particular manner. In particular, they did not require the appointment of an intermediary, early investigative advice, a special-measures discussion or medical evidence about competence. A child’s video-recorded interview is not inadmissible merely because it was conducted without an intermediary.

2. The Achieving Best Evidence Guidance was advisory and described good practice. It was artificial to treat it as a statute whose breach automatically rendered an investigative decision unlawful. Significant departures may require justification and may be relevant to an Article 3 assessment. Here the police made reasonable efforts to find a registered intermediary. When none was available, they planned and conducted a suitable interview with assistance from the claimant’s teacher and teaching assistant. That departure from best practice was justified and involved no public law error.

3. Under Article 3, the police must take all reasonable steps to secure evidence concerning alleged serious violence. Simple errors and isolated omissions do not suffice; the investigative failures must be conspicuous or substantial, or egregious and significant: D v Commissioner of Police of the Metropolis [2019] AC 196 applied. The police interviewed relevant persons, arrested and questioned a suspect, examined potential medical, forensic and electronic evidence, interviewed the claimant using communication aids, undertook an identification procedure and obtained prosecutorial advice. The investigation was full and effective. Article 3 imposes a procedural duty, not a duty to secure a prosecution or conviction.

4. There was no discrimination contrary to Article 14. The police recognised the claimant’s materially different position from the outset and adapted their investigation to his individual communication needs.

5. The police made reasonable adjustments under the Equality Act 2010. The familiar location, trained interviewer, advance planning, communication aids, and participation of the teacher and teaching assistant were effective and practicable adjustments. A suitable intermediary was unavailable, and the statutory duty did not require further attempts to secure an unregistered intermediary.

6. The child-welfare duty and public-sector equality duty were satisfied in substance. Permission to add the public-sector equality ground was also refused because it was unarguable and late. The reviewed decision to take no further action was rational and lawful. The decision-maker was entitled to conclude that the evidence did not meet the prosecution threshold and that another interview would not overcome the lack of clarity about the offence and identification.

This was a first-instance judicial review claim. Sir Wyn Williams directed a rolled-up hearing of permission and the substantive claim. The court granted permission on the effective-investigation, guidance and discrimination grounds, refused permission on the Children Act 2004 ground, refused permission to add the late public-sector equality ground, and dismissed the substantive claim.