That in summary was the question for the High Court in R (on the application of Pitts) v Commissioner of Police for the Metropolis  EWHC 646 (Admin) (see here for the judgment). The Court held that a decision by a police force to record a crime could only be successfully challenged if it was shown to be (in public law terms) unreasonable or irrational. This is a significant threshold to cross. The court will ordinarily afford the relevant police force deference in its decision-making processes in such matters. Claimants should note this and would be advised to proceed cautiously before bringing claims for judicial review against a police force in respect of crime-recording decisions.
The facts of Pitts
On 29 November 2014, Marcus Pitt’s (“the Claimant) adopted sister, “T”, who was an in-patient at the Bethlem Hospital in London suffering from (at that time un-diagnosed) mental health problems, stayed overnight at the family home. On 1 December, she reported that she had been attacked and raped by a stranger at about 10:30 pm on 29 November 2014 whilst walking in the locality of her home. On 3 December, T changed her account and said that the Claimant had raped her. On 7 December 2014, the claimant was arrested and released on bail. The police made further enquiries. On 10 February 2015, an officer involved in the case, DS Callanan, prepared a report for his superior officers about the case. The important points of the report were as follows:
- T had made previous complaints about father. They had been untrue.
- T had refused to provide “intimate samples” when she had first made complaint.
- T had changed her account.
- The statements of the Claimant’s mother and his sister, “A”, contradicted the suggestion by T that the Claimant had raped her in the family home.
- T suffered from a significant though undiagnosed mental illness.
DS Callanan therefore concluded that “the matter can be subject of no further action and consideration given to the matter being ‘No Crime’”.
DS Callanan’s report was considered by a DI Humphrey. He submitted the report to DCI Pople with a recommendation that the investigation be closed.
On 25 February 2015 DCI Pople sanctioned “no further action”. However, he was not at that stage prepared to conclude that no crime had been committed. In order to reach a decision upon whether he should determine that no crime had been committed he asked for further information. In due course this information was provided.
On 4 March 2015 DCI Pople determined that he could not be satisfied that there was “additional verifiable evidence” that a criminal offence had not occurred. Accordingly, the Metropolitan Police Force (the Defendant police force in these proceedings) (“the MPS”) concluded that T’s complaint should remain recorded as a crime within its records.
The Claimant and his family were aggrieved by the MPS’s decision and made representations to DCI Pople. After receiving further evidence from the Claimant and his family, DCI Pople reviewed his earlier decision. He concluded that there was sufficient evidence in witness accounts to show that the incident could not have taken place as alleged by T. He therefore referred the matter to a “No Crime panel” within the MPS with a recommendation that the panel should conclude that no crime had taken place. The MPS’s No Crime panel decided otherwise. Ultimately, the MPS’s Force Crime Registrar concluded that T's complaint should remain recorded as a crime. His reasoning was, in part, as follows:
“On the face of it there appears to have been no time for the circumstances reported by [T] to have occurred. However, all of the details supplied that contradict the reports made by [T] have been given by either the [Claimant] or members of his family. There is no independent corroboration of any of their reports apart from each other. As such there is a possibility that these reports or some of these reports are being made in the best interest of the family. With that in mind I am unable to be certain beyond reasonable doubt that the incident as described by [T] did not occur, so cannot authorise the crime to be cancelled ….”
Section 44 of Police Act 1996 provides that the Secretary of State (ordinarily for the Home Department) can require chief constables of police forces in England and Wales to provide her with statistical data. In practice, the Home Secretary uses this power to inter alia require forces to provide statistical data in relation to the number of crimes they record. Such data must be recorded in accordance with the “Home Office Counting Rules for Recorded Crime” (“HOCR”) (see the latest version here).
The HOCR provide (at paragraph 2.2) that:
“An incident will be recorded as a crime (notifiable offence) for ‘victim related offences’ if, on the balance of probability:
(a) the circumstances of the victims report amount to a crime defined by law (the police will determine this, based on their knowledge of the law and counting rules); and
(b) there is no credible evidence to the contrary immediately available”.
The HOCR provide further (at paragraph 2.3) that: “[a] belief by the victim, or person reasonably assumed to be acting on behalf of the victim, that a crime has occurred is usually sufficient to justify its recording” and (at paragraph 2.5): “[o]nce recorded, a crime will remain recorded unless additional verifiable information (AVI) is found and documented which determines that no notifiable crime has occurred or crimes are transferred or cancelled i.e. where crimes are created in error, or as a duplicate of an existing crime”.
The Court’s judgment in Pitts
The Court examined Section C of the HOCR, which concerns the criteria by which decisions are made as to whether an incident which has been recorded as a crime may be cancelled from the records. One of the criteria is as follows:
“C2: CANCELLED: ADDITIONAL VERIFIABLE INFORMATION THAT DETERMINES THAT NO NOTIFIABLE CRIME OCCURRED BECOMES AVAILABLE.
Where following the report and recording of a crime additional verifiable information (AVI) is available that determines that no notifiable offence has occurred the crime may be removed.”
The Claimant argued a decision-maker applying this criterion for the cancellation of a crime should decide that no offence has occurred if he is so satisfied on “balance of probability”. The Defendant disagreed with this approach. The MPS submitted that the language of the guidance demonstrates that the standard to be applied when deciding whether an incident which has been recorded as a crime is to be reclassified should be beyond “a reasonable doubt”. The Court agreed with the Defendant’s submission. Williams J held that:
“41. Having reflected upon the rival contentions, I am satisfied that the proper application of criteria C2 … demands that a decision maker is satisfied beyond reasonable doubt that no offence has been committed before he decides that the classification of an incident recorded as a crime should be cancelled. In my judgment the use of the word “determines” emphasised as it is points strongly to a different standard than “balance of probability” …”
The Court then considered whether the MPS had erred in refusing to reclassify the crime. In reaching a view on the matter, Williams J firstly noted that:
“43. It is common ground that Mr Duncan's decision can be challenged successfully in this court only if it is shown to be unreasonable or irrational. That is a significant hurdle to jump. Mr Duncan, as the Force Crime Registrar, is given responsibility under the Rules for determining whether a complaint of rape should be classified as no crime. He is acting as would a “specialist tribunal” and his decision is entitled to significant respect”.
Williams J then determined whether the hurdle was crossed. He concluded that it was. He explained his reasoning as follows:
“44. The sole basis upon which Mr Duncan decided that he could not be satisfied beyond reasonable doubt that no crime had been committed was the possibility that the family members had colluded together, in effect, to exonerate the Claimant. I have no doubt that there will be many instances when a decision maker will be justified in adopting such an approach. However, each case must be scrutinised in the light of the information which is available …
“45. On the basis of the information provided by the Claimant, mother and A together with T's known unreliability and her retraction of the allegation that the Claimant had raped her it is extremely difficult to see how a reasonable decision maker could harbour a doubt about whether T's complaint against the Claimant was false”.
Williams J therefore quashed the MPS’s decision on the basis that its decision was unreasonable and thus unlawful.
Williams J noted that his decision was “of comparatively limited significance”. His comment is apposite. The Court will only interfere with a crime-recording decision where the decision was irrational or unreasonable. This is a high threshold to cross. In summary, a decision may be challenged as unreasonable if:
- it “is so unreasonable that no reasonable authority could ever have come to it” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1);
- the decision-maker took into account irrelevant matters and/or failed to consider relevant matters (Re Findlay  AC 318); or
- the decision-maker made a mistake of fact.
A claimant will therefore have to provide the Court with sufficiently cogent evidence to persuade it to exercise its supervisory jurisdiction.
More generally, the case should remind claimants that judicial review is a remedy of last resort. Barring exceptional circumstances, a claimant should exhaust his alternate remedies before bringing a claim. In the case of crime-recording decisions, a claimant should be expected to exhaust the relevant police force’s internal review procedures before filing a claim.