[2024] UKUT 126 (AAC)

Preliminary analysis: the written evidence

Before giving our analysis as to mistakes of fact, we make the following preliminary points about some of the written evidence. These preliminary points will inform our analysis as to mistakes of fact.

The Serious Incident Report was drafted by DJ, a staff member who was in the home at the time of the incident (but who did not profess to have seen the appellant’s arms connecting with L). As well as drafting the report, DJ initialled it. (DJ was also the staff member to debrief TM.) The Serious Incident Report was also initialled by PR, who had returned to the home in the aftermath of the incident and did not profess to have witnessed the appellant’s arms connecting with L. The Serious Incident Report was also, crucially, initialled by AD (page 52). AD is the staff member who professed, according to the Serious Incident Report, to have seen the appellant’s arms connecting with L’s “body (chest and shoulders)”.

The Serious Incident Report is the first dated document before us to have been created after the incident. The appellant’s manuscript report was in fact the first document created after the incident. But that was not before us. The Serious Incident Report is dated the same day as the incident.

Next in our preliminary analysis is the second of the dated documents before us to have been created after the incident: the “Designated Officer (formerly LADO) referral form for Professionals” (“the Lado referral form”). We say the second of the dated documents because it is not apparent when the debrief document was created. The Lado referral form was completed by BD, whose role at the home was Acting Assistant Team Manager. It was common ground that he did not witness the incident, but turned up later the same evening. It was common ground therefore that, in completing the Lado referral form, BD was merely repeating (or rather purporting to repeat) what others had told him. The exception to that is that the report addresses his own involvement in the aftermath, including his allegation that the appellant had told him “I hit him he was spitting water at me” (page 34).

The Lado referral form completed by BD differed in a number of ways from the Serious Incident Report (our underlining)—

A couple of points emerge from the differences identified at paragraph 67 above. First, the differences between what BD said in his Lado referral form and what the staff had said in the Serious Incident Report cast doubt on the reliability of BD’s report in the Lado referral form. That is not simply because it was drafted by a non-witness to the incident, but also because it does not reflect what was said in the Serious Incident Report (to which witnesses DJ and AD had initialled their agreement). Second, if BD’s report got those matters wrong, his report could have got other things wrong too, in particular, his assertion that L had said “you fucking bitch you hit me”. That statement does not appear in the Serious Incident Report, as we have noted. Nor is it apparent where BD got it from. We return to this later in this decision.

The new points introduced into the completed Lado referral form appear then to have crept into later documents. By “new”, we mean that they did not reflect the Serious Incident Report initialled by the witnesses. In particular, see the record of the JEM meeting of 3 March 2021, the 22 March 2021 employment agency referral form, and the 30 June 2021 police letter to the DBS. We next take each of those documents in turn, starting with the record of the JEM meeting.

As to the record of the JEM meeting, we make several observations—

Generally, the JEM meeting minutes seem based on what BD had said in the Lado referral form and appear to add nothing to the evidence of the alleged assault.

Next in our preliminary analysis is the referral form by TW of the employment agency. That form said “[The appellant] was seen swinging her arms in the direction of a young person and connecting with his upper body, chest and shoulders” (our underlining). This statement by TW of the agency appears taken from the Lado referral form, or at least, reproduces what BD had said in that form. This statement by TW of the agency does not however match the Serious Incident Report, created earlier than TW’s referral form. The Serious Incident Report said instead: “connecting with his body (chest and shoulders)” (again our underlining). It appears that TW took from BD the information that TW entered into the referral form that TW completed, given that BD told the appellant that he would be informing the agency. BD however, as was common ground, was not a witness to the incident itself.

Moreover, although containing a statement allegedly made by the appellant (and so appearing ready to include statements allegedly made), the referral form completed by TW of the agency does not say that L said “you fucking bitch you hit me” or that L said “you hit me, look what you have done to me you fucking bitch”. Nor does the form say that the appellant told BD that the appellant had hit L (even in the part of the referral form asking whether the appellant had admitted the conduct). We make nothing of the failure in the form to mention what L had allegedly said; it was not clear that the form was intended to include statements by the alleged victim. But given that the form did repeat the appellant’s alleged statement that “if he hits me i’ll hit him back i’m not scared”, we would expect the form also to have contained another key statement allegedly made by the appellant, that is, “I hit him he was spitting water at me”.

Next in our preliminary analysis is the note of the debrief meeting in which DJ briefed TM (Team Manager at the home) about the incident. That note was initialled by AD as well as by DJ. AD was the one who professed to have seen the appellant’s arms connecting with L. By initialling it, AD agreed that the content of that debrief note was accurate. The note did not however materially add to the description in the Serious Incident Report of the appellant’s arms connecting with L. Nor did the note add to what the appellant and L had each reportedly said.

Next in our preliminary analysis is the 30 June 2021 letter from the police to the DBS. It is not apparent – from that letter or from the other evidence – whence the police got the “information” contained in that letter. The police letter plunges straight into a report of what had happened, as if it was all fact. The letter does not even report the police having spoken to anyone except the appellant. In particular, the letter does not report that the police had spoken to L and to AD. The Lado referral form, completed not by the police but by BD, did report: “27^th August 2020 – Police arrived at [home]And [sic] took a statement from staff member [AD] and young person [L]. The Police requested details of [the appellant] as well as her address”. Even if we were to accept as accurate BD’s report that the police had spoken to AD and to L, it was not apparent from the police letter or from other evidence which parts of the police letter, if any, reported what the appellant, L and AD had each told the police directly. And there was no statement in evidence from either AD or L. The only attribution from the police of what the police had been told by anyone is the manuscript notes of the appellant’s police interview (and even then, the letter seems to elevate a statement made in the interview that the child was taken to McDonald’s into a statement that the appellant was among those who took him). Where the police letter reported that L had said something during the incident, did that come from L himself directly to the police? Or did it come from AD? Or did it come from someone else the police might have spoken to informally at the home? Where the police letter reported that the appellant had said or done something, did that come from L or AD directly to the police? And if it came from AD, which parts of it came from her own knowledge and which parts came from what she had been told?

There is also the allegation in the police letter that “She wrote that she defended herself and swung at the child”. We cannot see in the rest of the evidence that the appellant was said to have written this. We do not even have evidence that the appellant’s written statement was read by anyone, or even passed to someone other than BD (the Acting Assistant Team Manager who arrived on scene in the aftermath).

This lack of attribution in the police letter is of particular concern in relation to the statement in it that “The child was backing away and shouting “you f***ing bitch, you hit me…”. The letter did not say whence the police had got the statement. Was it from BD? Or from the child himself? We return to this below.

We take the following from paragraphs 64 to 77 above. It appears that documents dated after the Serious Incident Report have included “evidence” taken from the Lado referral form completed by BD, when that form itself contained assertions (a) which were not taken from a document initialled by the two key witnesses, AD and DJ, and (b) whose source was not apparent.

Finally in our preliminary analysis is the most contemporaneous evidence, the account written by the appellant in the hour or so after the incident. That account has not been provided to the appellant, the DBS, the police or the tribunal. The appellant has been confident – without being sure that it will not be found and put to the tribunal – in asserting to us a belief that it supports her account that she did not intend to assault the child.