R (on the application of AB) v Hampshire Constabulary & Ors

The claimant, a vulnerable teenage boy with Down's Syndrome and autism, challenged the adequacy of the police investigation into an alleged sexual assault and the decision to take no further action. The principal legal issues were whether (a) provisions of the Youth Justice and Criminal Evidence Act 1999 (notably ss.16, 17, 19, 21, 27 and 29) imposed implied statutory duties on the police to appoint a registered intermediary and to conduct investigations in a specified manner, (b) the police unlawfully departed from Achieving Best Evidence (ABE) guidance, (c) the investigation breached procedural duties under Article 3 (and Article 8 and Article 14) of the European Convention on Human Rights, and (d) duties under the Equality Act 2010 and the Children Act 2004 were breached.

The court held that the 1999 Act governs special measures in court and does not, expressly or impliedly, impose a statutory duty on the police to conduct investigations in a particular manner or to appoint registered intermediaries. The ABE guidance is advisory; significant departures require justification but do not automatically amount to public law error. On the facts, police made reasonable efforts to obtain a registered intermediary from the NCA, planned and conducted a well-prepared Achieving Best Evidence interview at the claimant's school with his teacher and teaching assistant present, and took other appropriate investigative steps. The court concluded there was no breach of Articles 3, 8 or 14, no failure to make reasonable adjustments under the Equality Act 2010, and no breach of section 11 of the Children Act 2004 or of the public sector equality duty. The claim for judicial review against the first defendant was dismissed.

This judicial review concerned the police investigation into allegations that, following a respite stay, a 15 year old boy with Down's Syndrome and autism had been sexually assaulted. The claimant's parents recorded worrying demonstrations and reported the matter. Police undertook joint investigations with children's social services, arrested a member of staff (CD), secured clothing and electronic devices (finding no forensic or internet-related evidence), and sought a registered intermediary through the National Crime Agency. No registered intermediary was available within the timeframe; police obtained practical assistance from the claimant's school (the teacher JD and teaching assistant RH), prepared a detailed interview plan and conducted a video-recorded Achieving Best Evidence (ABE) interview on 12 October 2017 with JD and RH present.

The claimant sought judicial review challenging (i) adequacy of the investigation especially because no registered intermediary was used, (ii) failure to follow ABE guidance and to seek early investigative advice/special measures discussion with the CPS, (iii) breaches of Articles 3/8 (and Article 14), (iv) failure to make reasonable adjustments under the Equality Act 2010, (v) breach of section 11 of the Children Act 2004 and the public sector equality duty (s.149 Equality Act 2010), and (vi) lawfulness of the police decision to take no further action. The claimant relied in part on expert material; the claimant had not obtained permission to adduce expert evidence.

The court framed the issues as (1) whether the 1999 Act imposed implied investigatory duties; (2) whether departures from guidance were unlawful; (3) whether the investigation met Article 3 procedural requirements; (4) whether equality and adjustment duties were breached; and (5) whether the "no further action" decision was lawful. On interpretation, the court found the 1999 Act and its special measures regime regulate the admissibility and form of evidence in court rather than the method of police investigation, so no implied statutory duties arose. The ABE guidance is advisory; significant departures must be justifiable but do not automatically produce public law remedies. Applying established Article 3 principles, the court held that the police took reasonable, proportionate and competent steps (including attempts to obtain a registered intermediary and then using the claimant's school staff who knew his communication), and that the resulting investigation was not so defective as to breach Article 3. The Equality Act and Children Act complaints were dismissed on the facts because reasonable adjustments had been made and the authorities had regard to children's welfare. The decision to take no further action was within the range of reasonable responses to the assembled evidence.

Procedurally, the court recorded shortcomings in the claimant's litigation conduct (late and unpermitted amendments and expert material) and refused further amendments that were unarguable or out of time. Relief sought was judicial review of investigatory adequacy and the decision to discontinue; the court granted limited leave on some grounds but ultimately dismissed the substantive claim against the first defendant.

The claim is dismissed. The court held that the Youth Justice and Criminal Evidence Act 1999 does not impose implied statutory duties on the police to appoint registered intermediaries or to conduct investigations in a specified manner; ABE guidance is advisory and departures can be justified; on the facts the police made reasonable efforts to obtain an intermediary, properly planned and carried out a recorded interview with people familiar with the claimant's communication needs, conducted a full investigation and acted lawfully in deciding to take no further action. Claims under Articles 3/8/14 ECHR, the Equality Act 2010, the Children Act 2004 and alleged failures to follow guidance were not made out.