LG v The Independent Monitor, Court of Appeal - Administrative Court, December 21, 2017,  EWHC 3327 (Admin)
|Resolution Date:||December 21, 2017|
|Issuing Organization:||Administrative Court|
|Actores:||LG v The Independent Monitor|
Case No: CO/1423/2017
Neutral Citation Number:  EWHC 3327 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21 December 2017
THE HON. MR JUSTICE LANE
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Mr H Southey QC (instructed by Royal College of Nursing) for the Claimant
Mr C Knight (instructed by the Government Legal Department) for the Defendant
Hearing date: 30 November 2017
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JudgmentMR JUSTICE LANE:
LG worked as a District or Community Nurse. Around 2011, she began to make visits to the home of P, an elderly lady who suffered from dementia. LG was required to administer insulin to P. There is no dispute that, owing to her age and condition, P was a vulnerable woman.
P's family members became concerned that money was going missing from P's purse in her handbag. Eventually, in September 2013, P's family members placed covert CCTV equipment in P's home. On 21 September 2013, LG was recorded on the camera, acting in a manner that has been described as suspicious, near P's handbag.
The police then became involved. They installed their own camera in P's home. A recording taken from this was said again to show LG acting suspiciously near P's handbag.
It is common ground that neither recording went so far as to show LG taking any money from P's purse. Nevertheless, the police concluded that money had gone missing from the purse, since they had placed banknotes inside it, the numbers of which had been recorded.
LG was arrested in October 2013 and charged with two counts of theft. At her trial at the Crown Court, LG's representative submitted that her admission to police officers, during interview, that she had stolen money from P's purse on two occasions had been obtained by trickery. The Recorder decided to exercise his discretion under section 78 of the Police and Criminal Evidence Act 1984, to exclude the admissions.
Section 78(1) reads as follows:-
``(1) In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.''
Before the Recorder, the case put on behalf of LG was that the police officers interviewing her had falsely given LG the impression that recordings from the cameras showed her stealing money from P. In essence, that false impression had been created by the officers referring on several occasions to LG having been ``caught'' by the cameras or, in one passage, ``captured'' by them.
The Recorder noted that LG was said, by the point of the interview, to have been suffering from depression, amongst other mental health difficulties. The Recorder, however, observed that the statement indicated LG had demonstrated some degree of insight into the criminal process, during her interview, by questioning whether or not the police were allowed to install CCTV in P's home. The Recorder believed this showed ``a thoughtful defendant who was able to manage information that was being put to her''.
The Recorder observed that the interview was the ``central and sole evidence'' against LG, given that the CCTV ``simply does not indicate that [LG] is the thief''. In such circumstances, the Recorder considered that ``careful, a proper and full compliance with their obligations is a matter which is all the more important for police when handling cases of this kind''.
The Recorder concluded as follows:-
``In the circumstances, it seems to me that this is a suspect, a defendant who was misled by carefully crafted questions by the officer concerned which produced in her the belief that CCTV was said to have incriminated her. She made a confession as a result and having done so the further carefully crafted questions that I have referred to, which were not themselves improper, merely added to the impression of an overwhelming case already being constructed by the police against [LG]. Her further admissions, and indeed her admissions which go beyond any reference to the CCTV material should be heard in that - or should be considered in that context.
The question I return to is the question set out in section 78, should the admission - would the admission of this evidence have such an adverse effect on the fairness of the proceedings that the court ought not to admit it? It seems to me, having regard to all of the circumstances in this case, that there would be such an adverse effect on the fairness of the proceedings that I should not admit this evidence.
Accordingly, the defence application is allowed.''
In light of that ruling, the Recorder directed the jury to acquit LG of the theft charges. This was in July 2015.
The enhanced criminal record certificate
On 19 January 2016, the Chief Constable of the Hertfordshire Constabulary issued an enhanced criminal record certificate (ECRC) in respect of LG. The ECRC disclosed the criminal investigation into LG and her acquittal at the trial.
LG was dissatisfied with the Chief Constable's issuing of the ECRC. Accordingly, LG applied to the Defendant, the Independent Monitor, (IM), pursuant to section 117A of the Police Act 1997 (the 1997 Act). In his decision of 14 December 2016, which is the subject of the present proceedings, the IM concluded ``that it would be proportionate to disclose the disputed information in the Applicant's ECRC''.
Although described as ``amended disclosure'', in terms of the ECRC, which accompanied the IM's decision, are identical with those produced by the Chief Constable. Subject to redactions in the light of my anonymity order in this case, they read as follows:-
``HERTFORDSHIRE CONSTABULARY HOLD THE FOLLOWING INFORMATION WHICH WE BELIEVE TO BE RELEVANT TO THE APPLICATION OF [LG] [DATE OF BIRTH] FOR COMMUNITY NURSE IN THE ADULT WORKFORCE.
THE INFORMATION HELD BY POLICE IS THAT WHILST EMPLOYED AS A DISTRICT NURSE BETWEEN 2001 (sic; actually 2011) [AND 2013] [LG] VISITED AN 83 YEAR OLD LADY SUFFERING FROM DEMENTIA AND LACKING MENTAL CAPACITY. RELATIVES SUSPECTED [LG] WAS STEALING MONEY FROM THE SERVICE USER AND SO IN SEPTEMBER 2013 THEY PLACED A CCTV CAMERA IN HER LOUNGE. [LG] WAS SEEN ACTING SUSPICIOUSLY NEAR THE SERVICE USER'S BAG ALTHOUGH THE FULL OFFENCE OF THEFT WAS NOT SEEN. AS A RESULT OF THIS HERTFORDSHIRE POLICE INSTALLED THEIR OWN COVERT CAMERA AND [LG] WAS SEEN TO DO THE SAME AGAIN BUT AGAIN BUT [SIC] THE FULL OFFENCE OF THEFT WAS NOT SEEN.
ON 15TH OCTOBER 2013 [LG] WAS ARRESTED ON SUSPICION OF THEFT. DURING HER POLICE INTERVIEW [LG] DENIED STEALING FROM THE SERVICE USER UNTIL INFORMED THERE WAS CCTV EVIDENCE. [LG] THEN ADMITTED TWO THEFTS, WAS CHARGED WITH STEALING £26 AND £10 ON TWO OCCASIONS IN SEPTEMBER 2013.
[LG] APPEARED AT [...] CROWN COURT ON [...] JULY 2015 WHERE THE JUDGE DIRECTED THE JURY TO FIND [LG] NOT GUILTY AS THE POLICE INTERVIEW WAS DEEMED INADMISSIBLE.
AFTER CAREFUL CONSIDERATION, WE CONCLUDE THAT THIS INFORMATION IS RELEVANT AND OUGHT TO BE DISCLOSED TO AN EMPLOYER, IN THIS INSTANCE, BECAUSE: [LG] IS SEEKING EMPLOYMENT WITHIN THE ADULT WORKFORCE; SHE WAS ARRESTED WHILST EMPLOYED AS A DISTRICT NURSE IN THE SAME WORKFORCE IN 2013, ON SUSPICION OF STEALING MONEY FROM A VULNERABLE ADULT IN HER CARE.
THE INTERFERENCE WITH THE HUMAN RIGHTS OF THOSE CONCERNED HAS BEEN CONSIDERED AND IT HAS BEEN DETERMINED THAT, IN THIS INSTANCE, DISCLOSURE IS PROPORTONATE AND NECESSARY.''
The decision of the Nursing and Midwifery Council's Case Examiners
On 11 February 2016, the Nursing and Midwifery Council had issued LG with the decision of the NMC's Case Examiners, made on 9 February 2016. The Case Examiners ``decided there is no case to answer'' in respect of a referral made to the NMC by the Community NHS Trust, which had employed LG as a Community Nurse.
The NMC's letter went on to describe the background to the charges of theft, before describing the outcome of the proceedings at the Crown Court.
The Case Examiners were said to have considered various documents, including the police interview record, a police report dated 16 January 2014, a Psychiatric Report on LG dated 24 July 2014 and the transcript of the Crown Court proceedings. The Case Examiners also considered a written response from LG's representative, The Royal College of Nursing, together with attached documents. Having noted the decision of the Recorder, the Case Examiners:-
``... also took account of the Psychiatric Report by Dr Gary Robert Jenkins dated 24 July 2014. This report comments on whether any mental health problems would have affected [LG's] ability to answer questions calmly and accurately during a police interview. Dr Jenkins concludes ``I think it extremely likely that she was consumed by a sense of contrition whereby she lapsed into a delusion of guilt leading to what was most likely to be a false confession of guilt''.
Although the Case Examiners considered that the issue of admissibility of evidence was one for the Conduct and Competence Committee, it noted that it was the role of the Case Examiners to consider ``whether the evidence is sufficiently cogent to support a realistic prospect of a panel of the Conduct and Competence Committee making a finding of fact''.
The Case Examiners considered that taken at its highest, the description of the CCTV ``may show a suspicious hand movement but does not show theft taking place''. The Case Examiners:-
``also considered that the decision of [the Recorder] not to admit the evidence from the Record and Interview is further compounded by the expert evidence from Dr Jenkins that [LG's] state of mind most likely led to a...
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