“Will you walk a little faster, said a whiting to a snail”

An application (unsuccessful) to commit Mr Whiting for alleged breaches of an injunction made in the Court of Protection. Re Whiting 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B27.html

This was an application made by a Local Authority for a committal of Mr Whiting for alleged breaches of an order made in the Court of Protection, which had been designed to protect a vulnerable woman who lacked capacity to consent to sexual intercourse from any unwelcome advances.

The Judge praised the LA for good practice and good social work generally

6. Too often, bad practice is rebuked and good practice is unacknowledged. I am happy to have this opportunity to redress the balance at least a little. However, I emphasise this for another reason – as later in this judgment I have found myself driven to make criticisms of the way this application has been pursued. I intend those criticisms to be constructive and to restate guidance. I do not want them to eclipse my positive acknowledgment of the social work practice here and the way that, in my view, it has afforded WAJ much better protection against the many vicissitudes of life. Most importantly, I do not want anything I say to weaken that relationship.

7. Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.

8. On 21^st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows:

“(1) Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

One can see perhaps why professionals would have preferred that Mr Whiting played no further part in the life of WAJ.

Here are the alleged breaches

14. In this case, the breaches were pleaded as follows:

“(1) Leslie Whiting is alleged to have contacted WAJ eight times by telephone at the end of August 2012 in breach of paragraph (2)(c) of the enclosed order.

(2) Leslie Whiting is alleged to have contacted WAJ once by telephone during September 2012 – WAJ recorded the telephone call and played it back to her social worker, and the social worker has confirmed that the voice she heard on the recording was that of Leslie Whiting and that, in her opinion, the tone of his voice was aggressive. This is in breach of paragraph (2)(c) of the enclosed order above.

(3) Leslie Whiting is alleged to have contacted WAJ by telephone on or around 23^rd October 2012. He is alleged to have been heard by Rachel Curl, the manager at a respite unit, making verbal threats to WAJ and also against WAJ’s mother. This is in breach of paragraphs (2)(b), (c) and (d) of the enclosed order.

(4) WAJ was found on 15^th December 2012 by Cambridgeshire Constabulary at Leslie Whiting’s residence, 19 Myrtle Avenue, Peterborough. Leslie Whiting is reported to have been heavily intoxicated and aggressive towards the police officers. WAJ’s friend, Tony Armstrong: they had visited Leslie Whiting to exchange Christmas presents but when they had gone to leave his property, he became upset. Leslie Whiting is believed to have encouraged WAJ to visit him, in breach of paragraph (2)(e) of the enclosed order.”

If one were able to prove those, particularly the last, one would expect at least a suspended sentence.

Now, for reasons that are not plain to me, the application for committal was lodged in January 2013, and heard in November 2013, an extraordinary delay

In the autumn of 2012, and certainly by December, the Adult Services in Peterborough believed that they had grounds upon which to establish that Leslie Whiting had breached the terms of the district judge’s injunction. Accordingly, an application to commit was launched. The application notice is dated 11^th January 2013. It is an application which has, to say the least, a very dispiriting litigation history. That I am hearing the case in November, and now December 2013, relating to alleged breaches in the autumn of 2012 tells its own story.

To enlarge on that a little, the Judge cited the hearing in September 2013

• District Judge Eldergill heard the case on 18^th September 2013. His order records the following: 
  

  “(2) The application was due to be heard on 15^th January 2013 then on 29^th July 2013 and then on 19^th September 2013. On each occasion procedural irregularities have caused the hearing of the application to be postponed.”

  The district judge went on in paragraph (3) of that order to identify the relevant guidance for practitioners in order that those procedural irregularities might not dog the case further. It is, I think, helpful to set that out in this judgment. It reads:

  “(3) The applicant is referred to the Court of Protection Rules 2007, and in particular to Part 21 and Rule 9, Court of Protection Practice Direction PD21A; committal for contempt of court (practice guidance) [2013] 1 WLR 1316, 2013 EWHC B4 (COP); committal for contempt of court (supplemental practice guidance) [2013] EWCH B7 (COP); Part 81 of the CPR and the relevant case law.”

  The district judge also signalled, by way of completeness, at (4):

  “It is unlikely that any further adjournments of the application will be granted.”

Now, what was the evidence produced to demonstrate that those alleged breaches were proven?

15. . The applicant sought to prove the breaches by the affidavit and oral evidence of a social worker. The affidavit the social worker spoke to, at the hearing of November 2013, was dated January 2013. Exhibited to it was a short chronology of similar date. There were fundamental difficulties with the affidavit, with the chronology and indeed the oral evidence. Timescales and dates were vague. There was heavy reliance on hearsay evidence from a variety of sources. There was a dearth of primary material – for example, mobile phone records – even though it appears they may have been capable of being obtained. The passage of time also meant that the social worker’s evidence was characterised by a lack of detail, but so too, it must be said, the affidavit and the chronology were decidedly sparse. I must also add that it was particularly frustrating that the photocopies of the chronology were barely legible and the original appeared to have been lost.

16. The injunction from which the alleged breach arises is, as I have said, that of 21^st August 2012. The fundamental problem with the first breach, dealing with each in turn, is that it relates to “the end of August”. Did that include the period before the injunction was made? At this stage that is simply not known. Were some of the alleged eight telephone calls made before 21^st and some after? Again, the answer to that is not known. The allegation is simply not drafted tightly enough and, to my mind, fails on that basis alone.

17. The second alleged breach fails for a similar reason. The social worker was able to tell me that she listened to a recording made by WAJ on her phone, for evidential purposes. The social worker said that she had listened to that during September. It could therefore have been any date between 1^st and 30^th September. Moreover, that was the date the social worker listened to the recording, not the date the call was received. When was it received? Again, that could not be ascertained. Given that the order itself was only made ten days prior to 1^st September, it lets in the real possibility that the call might have been made sometime before that. The burden here is on the applicant and the standard is the criminal standard. This drafting simply lacks the degree of specificity that is required in an application of this kind, and that, too, fails.

18. The third allegation relies entirely on second hand hearsay. The primary witness, whose evidence must be taken to be challenged, was not available, This did not begin to meet the requisite standard of proof. The fourth allegation, however, is, in my view, established. I am satisfied that the police attended Leslie Whiting’s home on 1^st December 2012; I am satisfied that the social worker giving evidence was directly informed of this and; I am satisfied that Leslie Whiting was drunk and aggressive, and I am also satisfied, on the basis of WAJ’s actions throughout the previous months, that she was determined to steer clear of Leslie Whiting if at all possible. That she had attended at his home that day was, in my view, as a consequence of being lured or coerced, probably, as the social worker told me, induced by the prospect of Christmas presents.

One can obviously see that the only allegation proved to the requisite standard was the fourth. Of course, whilst the fourth was the most serious, by the time the Court actually gave judgment on it, it was nearly a year old.

This piece of the judgment is a salutary lesson for professionals (not least the lawyers preparing the evidence for the committal hearing)

19. The commitment and sincerity of all the professionals working in this area is beyond any doubt. It has been on display in this case. What is required, however, is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach. It seems to me that nobody has hitherto engaged directly in that exercise. It is striking that the best attempts to marshal the evidence were in fact made by WAJ herself. The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.

20. The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny. Collating evidence when working with those who, in certain areas of their lives, may lack capacity is inevitably challenging. Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.