Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 126 (AAC)

Fecha: 18-Abr-2024

(We return later in this decision to what we make of this part of the Serious Incident Report.)

94.

Crucially, the Serious Incident Report does not include “you fucking bitch you hit me” even in the part of the report which instructed: “Highlight any significant comments made during the Incident”. In that part of the Serious Incident Report, DJ wrote (and AD agreed by initialling the report)—

“[The appellant] was heard saying “if he hits me I’ll hit him back I’m not scared of him”

[L] told DJ [the appellant] had pushed him into the radiator.

[L] told AD that [the appellant] had thrown his water bottle at him.”.

95.

That part of the Serious Incident Report was the ideal opportunity to record that L had also said “you fucking bitch you hit me”, had AD and DJ wanted to assert that he had said it.

96.

Our third reason for not finding that L said “you fucking bitch you hit me” is that it was not mentioned in the note of the debrief meeting between TM and DJ (both of the home). DJ provided the information in that note, and AD initialled the note as accurate. DJ and AD were the two witnesses to the incident. This briefing note says nothing about what L said except that he was “verbalising his intention” to assault the appellant (page 60).

97.

Fourth and finally, in our reasons for not finding that L said “you fucking bitch you hit me”, it follows from what we say above that the only attributed instance of this statement is in the Lado referral form, drafted by BD. So we can attribute it to BD. But he did not observe the incident and it is not apparent where he got it from.

98.

For the same reasons as those at paragraphs 85 to 97 above – but changed mutatis mutandis to refer to the following alleged statement – we do not find that L said “you hit me, look what you have done to me you fucking bitch”.

(b)

Not evidence of assault in any event

99.

But even if L did say “you fucking bitch you hit me” or “you hit me, look what you have done to me you fucking bitch”, that was not of itself evidence that the appellant had assaulted him (even if L intended it so). It was consistent with her arms having connected with his chest and shoulders while trying to fend him off and defend herself. We return to this later.

(c)

Alleged statement by L to his mother that a staff member had hit him

100.

We said we would return to what we make of the report in the Serious Incident Report that L told his Mum that a staff member had hit him. This came after he had been kicking the front door, threatening and swearing at the appellant and calling her a fucking fat black bitch and black cunt who he was going to “get”. Given that it is reported in the Serious Incident Report, which is the document we find the most reliable, we accept that L did tell his Mum that a member of staff had hit him. We accept too that he meant that the appellant had assaulted him, rather than merely that she had connected with his body in fending him off. However, that does not mean that she in fact assaulted him. We accept that L was angry and that he wanted, as he was reported in the Serious Incident Report to have said, to “get” her. But we do not accept the DBS’s submission that the reason he was angry must have been because she assaulted him. The appellant had stood up to him by removing the water bottle from him and then fending him off. That of itself would have sufficed to anger him.

(d)

Alleged admission to BD

101.

We do not accept that, as stated by BD in the Lado referral form he completed the day after the incident, the appellant “informed me “I hit him he was spitting water at me””. The appellant denied to us that she had said it. We believe her, and find that BD must have misheard her, for the following reasons—

(1)

First, when we asked the appellant why BD would have said it, she told us—

“I don’t know. May be my language. Maybe he didn’t hear me real good. I am African. When I came here few years ago my English was not pure. I never said I hit him – only that he hit me. Maybe he misunderstood. He just listened, didn't probe”.

We accept the appellant’s evidence that BD did not probe what she said and that her English was not as good at the time of the incident as it is now.

(2)

Second, in court, the appellant spoke very fast and we ourselves found it sometimes hard to hear everything she was saying. We had to ask her to repeat herself at the hearing, when her English was better than it would have been three and a half years ago at the time of the incident. That increases the likelihood that, without BD similarly probing three and a half years ago, he misheard what the appellant said.

(3)

Third, it appears that BD himself might have been unsure – by the time he informed the agency of the incident – of whether he had heard the appellant correctly. The agency’s referral form post-dates the JEM meeting (whose minutes did repeat BD’s allegation of the appellant’s admission). The agency’s referral form did not include that the appellant had told BD that she had hit L. Given that TW of the agency had included in that form the allegation that the appellant had said “if he hits me i’ll hit him back i’m not scared”, one would expect TW also to have included other statements allegedly made by the appellant if those statements had been reported to TW. We touched on this at paragraph 73 above. There is even a section, later in the referral form completed by the agency, which requests “Information as to whether the referred person has accepted responsibility or admitted the conduct or any part of it, provided any explanation or shown any remorse or insight”. In response to that request, TW had written “No she hasn’t”. Had BD reported to TW that the appellant had admitted to him that she had hit L, one would expect that reported admission to be included in this part of the agency’s referral form. We find therefore that BD did not report to the agency that the appellant had admitted to hitting L. Had he been sure of having heard that admission, we would expect him to have passed it on to the agency.

(e)

The description in the Serious Incident Report

102.

The Serious Incident Report did not say that AD (or anyone else) saw the appellant “hitting” L. It used rather the carefully neutral word “connecting”: “connecting with his body (chest and shoulders)”. That report is not therefore evidence that the appellant intentionally hit L.

(f)

Generally

103.

We have not accepted that L said “you fucking bitch you hit me” or that he said “you hit me, look what you have done to me”. In view of that, and of our other points above, even the written evidence did not, on analysis, support that the appellant had intentionally hit L. The only person who professed to have witnessed the appellant making physical contact with L was AD. She did not say that the contact was intentional, or even use the word “hit”. She said, by initialling the Serious Incident Report, that the appellant’s arms “connect[ed] with his body (chest and shoulders)”. The neutral “connecting” has been chosen over less neutral terms such as “hitting”. It seems the other evidence nonetheless elevated into hitting and assault something which was not described as either by anyone who witnessed the incident apart from L (and even then, we do not have evidence from him before us, nor even a record of what he told the police).