[2024] UKUT 126 (AAC)

Whether mistake of fact in finding the appellant to have said “if he hits me I’ll hit him back I’m not scared of him”

We find that the appellant did say “if he hits me I’ll hit him back I’m not scared of him”. We find however that she did not mean that she would in future assault L. We take each of those two findings in turn.

The Serious Incident Report (initialled by AD and DJ), and not merely the Lado referral form (drafted by BD who was not there), said that AD had heard the appellant say “if he hits me I’ll hit him back I’m not scared of him”. This part of the Serious Incident Report said (our underlining)—

We accept that AD believed that she had heard the appellant say “if he hits me I’ll hit him back I’m not scared of him”. First, we have already believed AD and accepted that AD saw the appellant “connecting” with L’s chest and shoulders. Second, the Serious Incident Report was careful to use the neutral “connecting”, rather than “hitting”, for the part contributed to that report by AD (who was the only one who professed to have seen the “connecting”). This suggests care not to gloss or exaggerate. Third, similarly, DJ was up front in the Serious Incident Report about being unable quite to make out what the appellant had said. This too suggests care on the part of those initialling the report not to exaggerate. So when the Serious Incident Report does go so far as to say that AD heard the appellant say “if he hits me I’ll hit him back I’m not scared of him”, we accept that AD believed herself to have heard that.

It is possible that AD misheard the appellant. We accept from the extract at paragraph 113 above that DJ, “couldn’t quite make out” what the appellant had said. And yet DJ was, we accept, standing in front of the appellant, between the appellant and L. So the sound must have come forward from the appellant towards DJ, rather than away from DJ. And yet DJ still “couldn’t quite make it out”. Moreover, the extract at paragraph 113 above paints a picture of noise and of a variety of simultaneous actions. It is possible that, in the midst of that, AD misheard. And we note that the appellant very fairly said she did not know, in answer to “is it possible that AD misheard?” and did not accuse AD of lying about this.

However, although it is possible that AD misheard the appellant, it is more likely – and so we find – that AD did not mishear her. We say that for the following reasons. First, AD had worked with the appellant on shifts; AD was probably more familiar with the appellant’s mode of speech than was BD (whose assertion of the appellant’s admission we have rejected). Second, the appellant’s voice will have been raised in the thick of the incident, by contrast with later when the incident was over and she was with BD in the separate room. Third, if AD had been in any doubt at all that the appellant had in fact said it, AD would not in our judgment have recorded it in the Serious Incident Report, given what we say at paragraph 114 above.

It is for those reasons that we find that the appellant did say “if he hits me I’ll hit him back I’m not scared of him”.

It is for the following reasons, however, that we find that the appellant did not mean, by saying “if he hits me I’ll hit him back I’m not scared of him”, that she would – even in the very near future – assault L.

We have, in the extract at paragraph 113 above, repeated the context of that statement. This is because (unlike the alleged admission later to BD) it shows – and we accept – that the appellant made the statement in the thick of the incident. At that point, the situation was this: (i) L was separated from the appellant only by DJ, (ii) L was still threatening physical violence to the appellant (“I’m going to punch her right in her fucking face the bastard”), and (iii) L was still trying to get physically close to the appellant to act on that threat: “trying to get to [the appellant] by trying to barge past DJ, his fists were clenched and face was red with rage. AD and DJ asked [L] several times to calm down but he continued to try and get to [the appellant]”.

We find that – faced with an aggressive L trying to get to her to punch her face – the appellant said “if he hits me I’ll hit him back I’m not scared of him” due to anxiety, fear and a lack of training, and in a fight or flight response. We accept, from the Serious Incident Report, that the appellant said it at the point when L was trying to punch her. In other words, we find that she said it in the face of imminent further violence. She may not have had time to consider why she was saying it. But if she did consider why she was saying it, we find that, at its highest, it meant nothing more than “I will defend myself” (for L to hear while trying to attack her and to be discouraged from attacking her). While training might have taught the appellant to walk away rather than try to defend herself, she had not had any de-escalation training by that point. Moreover, walking away from an aggressor who was trying to get to her would not necessarily have worked; he was moving towards her and we find he would have followed her had he not been removed. It was understandable for the appellant to have said something intended to discourage her aggressor in those circumstances. We say that especially in view of her lack of training in how to de-escalate in what might be considered counter-intuitive ways.

We deal finally with Mr Serr’s submission for the DBS that, in saying “if he hits me I’ll hit him back I’m not scared of him”, the appellant was giving a present tense narration of the past, that is, that she meant “he hit me and I hit him back”. Mr Serr submitted that it would be a strange way of looking at it to construe the statement as referring only to the future. We do not accept that submission. The DBS found that it referred to the future, albeit the near future. We have dealt with it on that basis, and not on the basis that it was an admission of having intentionally hit the child.