[2024] UKUT 126 (AAC)

Mistake of fact in finding that the appellant assaulted the child

We find that the DBS made a mistake in finding that the appellant assaulted the child.

It is clear that, in this context, “assault” was used to mean battery. We asked Mr Serr what mens rea the DBS had intended in making this finding (Footnote: ²). His submission was to the effect that it had to be intentional hitting.

We find that the appellant did not intend to hit L beyond any contact she might make in attempting to fend him off and defend herself.

We say that for the following reasons.

We do not find that L said “you fucking bitch you hit me”, for the following reasons.

First, the evidence of that statement in the three places it occurs is not reliable.

Those three places are—

We take each of those documents in turn.

As to the report in the Lado referral form of L having said “you fucking bitch you hit me”, BD who drafted that report was not on scene at the time L allegedly said that. The order in which AD and DJ appeared on scene, according to the Lado referral form, suggests that it was said in front of AD. However, the Lado referral form does not say that AD had told BD that L had said it. The form does not say where BD got it from. The Lado referral form has other aspects casting doubt on its reliability too; see paragraphs 66, 67 and 68 above. The allegation that L had said “you fucking bitch you hit me” might have come to BD from L himself. But there is nothing to show that. The evidence in the Lado referral form that L said “you fucking bitch you hit me” is not therefore reliable.

As to the reference in the JEM meeting minutes to L having said “you fucking bitch you hit me”, those minutes too do not say where JEM got it from. Two persons from the home attended the JEM meeting: TM (Team Manager) and BD (Acting Assistant Team Manager). BD had been on call and arrived in the aftermath of the incident on the same evening. TM was briefed on an unknown date by DJ (page 60). However, nowhere in the papers, including in the note of that briefing, is it said that DJ mentioned L having said to the appellant “you fucking bitch you hit me”. The briefing note recorded that DJ told TM that AD had told DJ, during the incident, that AD “had witness [sic] agency worker [the appellant]swinging her arms at [L] (over arm, front crawl style) connecting with various parts of [L] body”. This briefing note says nothing however about what L said except that he was “verbalising his intention” to assault the appellant (page 60). So there is no reason to find that JEM got from TM of the home the allegation that L had said “you fucking bitch you hit me”.

DC Annmarie Brown also attended the JEM meeting. The allegation that L had said “you fucking bitch you hit me” could theoretically have come from DC Brown. But where she would have got it from is not apparent from the evidence before us. If she was one of the officers who had attended the home after the incident, she might have heard it from AD or from L himself. We have no evidence of DC Brown ever having been told it herself however. Moreover, in citing what AD had reported, the JEM meeting minutes did not say that AD had reported L having said “You fucking bitch. You hit me”.

We do know, however that BD asserted in the Lado referral form that L said “you fucking bitch you hit me”. And BD was at the JEM meeting. The best guess, and it would be a guess, is that BD repeated to the 3 March 2021 JEM meeting what he had said the day after the incident in the Lado referral form. If that is where the JEM meeting got it from, then it is not an additional source of evidence of L having said “you fucking bitch you hit me”; rather, it repeats evidence we already have – that in the Lado referral form. If that is not where the JEM meeting got it from, then it is not clear where it could have come from. So it cannot in any event be relied on as evidence additional to that in the Lado referral form.

The 30 June 2021 police letter to the DBS does not say where the allegation came from, either. Again, it could be repeating what BD had said in the Lado referral form. Or it could have come from a police officer having spoken to AD or L, at the home. However, the police seem to have attended the following day (page 33) (Footnote: ³). By that time, DJ had (the day before) drafted the Serious Incident Report, which AD at some point initialled. It seems unlikely that AD would have said it to the police the day after not saying it for inclusion in the Serious Incident Report. If the police in fact attended the same day as the incident (meaning the date was wrong for that attendance in the Lado referral form), and even if AD did say it either to BD or to the police, AD had clearly changed her mind about it by the time she came to initial the Serious Incident Report, which did not include it. The same applies if DJ was the one to have reported that L had said “you fucking bitch you hit me”.

Our second reason for not finding that L said “you fucking bitch you hit me” is that it does not appear in the Serious Incident Report. That report was drafted by one of the witnesses (DJ) and initialled by the other (AD). In that report, the first words reported as coming from L during the incident were: “that fat bitch has thrown water all over me and I’m going to punch her right in her fucking face the bastard”, and not that the appellant “has hit me”. If – whether before or after saying “that fat bitch has thrown water all over me” – L had said “you fucking bitch you hit me”, one would expect that to be recorded in the Serious Incident Report, initialled by the two witnesses, rather than only “that fat bitch has thrown water all over me”. The first time that, according to the Serious Incident Report, L makes any reference to the appellant having hit him is when he FaceTimes his Mum later, in the garden—