XPQ v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB) (07 June 2018)

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England and Wales High Court (Queen's Bench Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> XPQ v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB) (07 June 2018)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/1391.html
Cite as: [2018] WLR(D) 349, [2018] EWHC 1391 (QB), [2018] 4 WLR 102

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		Neutral Citation Number: [2018] EWHC 1391 (QB)
		Case No: HQ15P0213

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

7th June 2018

B e f o r e :

THE HONOURABLE MR JUSTICE LANGSTAFF
____________________

Between:

	XPQ	Claimant
	- and -
	THE LONDON BOROUGH OF HAMMERSMITH AND FULHAM	Defendant

____________________

Ms Catherine Meredith (instructed by Leigh Day) for the Claimant

Mr Nicholas Grundy QC & Ms Millie Polimac (instructed by Borough Solicitor at the London Borough of Hammersmith and Fulham) for the DEFENDANT
Hearing dates: 12th - 16th February 2018
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE LANGSTAFF:

Introduction

The Claimant was born in Ghana. Her mother died in childbirth. Until around the age of 5 she lived with a person described as a grandmother; but after that was taken to the house of "Uncle Jojo" where she was wickedly exploited: first by being expected to work in domestic servitude for him, and then being physically and sexually abused both by Uncle Jojo and male acquaintances. For a while she was probably trafficked within Ghana to another, but returned to Jojo's house.

Though there is significant uncertainty about her precise date of birth, late in adolescence or early in adulthood she came to the United Kingdom where it was said she could have an education and earn some money. However, for a while in the United Kingdom – the precise duration of which is in issue – she was forced into prostitution.

In order to implement its international obligations the UK set up a National Referral Mechanism ("NRM") with effect from 1^st. April 2009. This is a system for identifying victims of trafficking and supporting them. Those who might be victims of trafficking are referred to the NRM. The Competent Authority then decides whether there are reasonable grounds for believing that a person referred to it may be a victim of trafficking. If it decides that there are reasonable grounds, the person concerned is entitled to a minimum of a 45 day recovery and reflection period while the Competent Authority makes a substantive "conclusive grounds" decision in respect of the trafficking claim. During this 45 day period support is provided, usually comprising the provision of accommodation and cash payments. Once that period ends, the Competent Authority will make a decision whether there is sufficient information for it to find that the person concerned is indeed a victim of trafficking. This is a conclusive grounds decision that the person is an actual identified victim of trafficking. Just such a "conclusive grounds decision" was made in the case of XPQ.

If a positive conclusive grounds decision has been made, and if no extension has been applied for the victim must find "move on" support within 14 days, which is normally the responsibility of a local authority to provide.

Whilst in detention, following a conviction for having used a false document, a referral was made to the NRM in the Claimant's case on 11^th. November 2011. On 26^th. March 2012, following this referral, she was released from detention, and provided with accommodation in a "safe house" run by Hestia, an organisation supporting women who have been trafficked. The accommodation was female only.

On 21^st. October 2012 the Home Office identified that she had reasonable grounds under the NRM to be regarded as trafficked, and she was granted the reflection and recovery period provided for by the scheme.

On 22^nd. March 2013 the Home Office made a conclusive grounds decision that she had been trafficked, and granted her leave to remain in the jurisdiction valid until 10^th September 2013. She was given notice to quit the safe house since the support available for her during the recovery and reflection period had ended with the making of a conclusive grounds decision and the grant of leave to remain.

She currently is recognised as a refugee and has been granted leave to remain in the UK (until 2^nd October 2018).

Notice to quit the safe house was due to expire on 3^rd May 2013. The Claimant applied to the Defendant as housing authority for a London Borough for housing assistance, so that she could secure new accommodation after that date.

The Defendant as housing authority is subject to the duties under the Housing Act 1996. Part V11 of the Act provides, by Section 184, that if a local housing authority has reason to believe that an applicant may be homeless or threatened with homelessness (as the Claimant was) they should make such inquiries as necessary to satisfy themselves whether she was eligible for assistance, and if so whether any, and if so what, duty was owed to her under the Act.

Section 184(2) provides that the housing authority might also "make enquiries whether he has a local connection with a district of another local housing authority in England and Wales or Scotland."

If a local housing authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need they "shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part" (Section 188(1)). The duty arises irrespective of any possibility of referral of the case to another local housing authority.

The Defendant concluded, in a process which it will be necessary to consider in a little further detail below, that it had reason to believe that the Claimant might be homeless, eligible for assistance, and have a priority need. The Defendant recognised that it therefore came under the duty to secure that accommodation was available for her occupation pending a decision as to the duty, if any, owed to her under the provisions of Part VII (Section 188(1)).

In purported discharge of this duty, the Defendant secured a place for the Claimant in Rose Lodge in Wembley on 3^rd. May 2013. Whereas the Claimant had been accommodated in a safe house with female residents only for over a year prior to this, and before that in a women's prison, Rose Lodge was not single sex accommodation. The Claimant complained of this, asserting that the accommodation was shared with 5 men, and that although she had a bedroom with a door with a functioning lock, the bathroom available for her use, which was liable to be shared by other (male) residents, did not.

Whilst in Rose Lodge, and after she had complained of this potential intrusion of males into her privacy, she made a further complaint that she had been harassed by one of the male residents. She said he had followed her into the kitchen and shouted at her on 15^th.May 2013, and later had opened the bathroom door when the Claimant was in the room. Further (according to the pleading) she was:

"assaulted and harassed by a male resident. The Claimant came down the stairs from the bathroom and was met by the male resident on the stairs who tried to engage her in conversation and touch her arm. When she returned to walk up the stairs he grabbed her pyjamas at the rear by her buttocks. She was scared."

The date of this was said to be 22^nd. May.

On 29^th. May 2013 Romin Sutherland, a project manager of the Zacchaeus Trust (a charity addressing poverty issues caused by unfairness, the law, and the legal benefits system) sent emails to the Defendant, complaining that a vulnerable survivor of human trafficking for the purpose of sexual exploitation had been placed into accommodation which was inappropriate and unsuitable for her needs and had suffered foreseeable harm as a result. On 30^th. May 2013 the Defendant then provided the Claimant with alternative temporary accommodation, this time in a self-contained unit in South Tottenham.

The Claimant's case, as pleaded, was that she arrived at the address in Tottenham shortly before 7pm. When taking her belongings out of a cab outside the address, a woman pulled up in a car and started calling her by the name she had used when working in prostitution. She asked the Claimant if she was living at the address. When, some 2½ hours later, the Claimant went to buy cleaning products from a shop, and as she was walking there, the woman in the car appeared again and started calling out to her. She asked why the Claimant was ignoring her. The Claimant panicked and got on a bus quickly. On the next day 31^st. May 2013, she was too afraid to go out and contacted the police. An urgent move was requested, and the Defendant forthwith provided it by offering an address in Shepherds Bush.

Arising out of those facts, the Claimant sought damages for the sexual assault and harassment she had suffered, victimisation and a risk of re-trafficking, psychiatric injury, re-traumatisation, anxiety, stress, depression, fear and humiliation and injury to feelings. The particulars asserted a violation of her "rights as a victim and a gross interference with her personal dignity", significant psychiatric damage, the feelings of re-traumatisation, anxiety, distress, depression, fear and humiliation she had suffered as a consequence of the two placements in unsuitable temporary accommodation, and Francovich damages against the Defendants in respect of breaches of the EU Trafficking Directive 2011/36/EU. In addition, she claimed aggravated damages, and exemplary damages. She also claimed declarations that the Defendants were in breach of their duties under the Trafficking Directive, Human Rights Act 1998, the Housing Act 1996 and common law duties of care.

The Law

In O'Rourke v Camden LBC [1998] AC 188, the House of Lords held that what was then Section 63(1) of the Housing Act 1985 did not create a private law duty for which damages could be claimed. Section 63(1) of the 1985 Act was the precursor to Section 188 of the 1996 Act. The terms of the latter section are materially the same. Nicholas Grundy QC for the Defendant submits, and I accept, that this is authority binding upon me: accordingly, Section 63(1) (therefore now Section 188 of the 1996 Act) does not give rise to a cause of action sounding in damages.

In his speech in that case Lord Hoffmann, with whom the other members of the House agreed, ended with this paragraph:-

"Both in principle and on the authority of the actual decision of this House in Cocks v Thanet District Council [1983] 2 A C 286 I would therefore hold that the breach of statutory duty of which the Plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge Tibber [the County Court Judge who decided the case at first instance] striking out the action."

It is unnecessary to cite more of the reasoning.

Accordingly, if the Claimant is to establish a right to the damages and declaration she seeks she cannot do so unless she can show that legislative developments since O'Rourke was decided on June 12^th. 1997 are such that, at least in a case involving someone who has been recognised as being the victim of trafficking, it no longer holds good.

Her argument is that Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings ("the Directive") has not been implemented as such in UK law. Nonetheless, its terms are such that parts of it at least have direct effect in UK law. Insofar as concerns the duties which are to be owed to an Applicant for housing accommodation provided by a public authority, if it does not have direct effect, the duties set out in the Housing Act 1996 must be interpreted in the light of the Directive; the Council of Europe Convention on Action Against Trafficking in Human Beings ("ECAT") and its Explanatory Report ("ECATER"); Articles 3, 4 and 8 of the European Convention on Human Rights, as applied by the Charter of Fundamental Rights of the EU, and informed by the international framework for the protection of victims of trafficking.

The central proposition of law asserted by the Claimant is that Article 11 of the Directive is directly enforceable against the Defendant. Article 11, under the heading "Assistance and Support for Victims of Trafficking in Human Beings" provides:-

"1. Member States shall take the necessary measures to ensure that assistance and support are provided to victims before during and for an appropriate period of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, and in this Directive

2. Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable grounds indication in believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3…

5. The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims' subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information and translation and interpretation services where appropriate."

This Article has to be viewed in the context indicated by the recitals to the Directive which having drawn attention to the Treaty on the Functioning of the European Union ("TFEU") - and in particular Article 82(2) and Article 83(1) thereof - recite, amongst other matters, that preventing and combating trafficking in human beings is a priority for the Union and the Member States; that (Recital 7) the Directive adopts "an integrated, holistic and human rights approach to the fight against trafficking against human beings and when implementing it… More rigorous prevention, prosecution and protection of victims' rights, are major objectives for this Directive. This Directive also adopts contextual understandings of the different forms of trafficking and aims at ensuring that each form is tackled by means of the most efficient measures." Recital 18 states:

"It is necessary for victims of trafficking in human beings to be able to exercise their rights effectively. Therefore assistance and support should be available to them before, during, and for an appropriate time after criminal proceedings. Member States should provide for resources to support victim assistance, support and protection. The assistance and support provided should include at least a minimum set of measures that are necessary to enable the victim to recover and escape from their traffickers. The practical implementation of such measures should, on the basis of an individual assessment carried on in accordance with national procedures, take into account the circumstances, cultural context and needs of the person concerned. The person should be provided with assistance and support as soon as there is a reasonable grounds indication for believing that he or she might have been trafficked and irrespective of his or her willingness to act as a witness. In cases where the victim does not reside lawfully in the Member State concerned assistance and support should be provided unconditionally at least during the reflection period. If, after completion of the identification process or expiry of the reflection period, the victim is not considered eligible for a residence permit or does not otherwise have lawful residence in that Member State, or if the victim has left the territory of that Member State, the Member State concerned is not obliged to continue providing assistance and support to that person on the basis of this Directive. Where necessary, the assistance and support should continue for an appropriate period after the criminal proceedings have ended, for example if medical treatment is on-going due to the severe physical or psychological consequences of the crime, or if the victim's safety is at risk due to the victim's statements in those criminal proceedings."

Article 12 of ECAT provides, under the heading "Assistance to Victims" as follows, so far as material to the present case:

"Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: a) standards of living capable of ensuring their subsistence, through such measures as appropriate and secure accommodation, psychological and material assistance;…

2. Each party shall take due account of the victim's safety and protection needs…"

Article 12 is expanded upon in ECATER, from paragraphs 146 to 171. It makes the point that victims who break free of their traffickers' control generally find themselves in positions of great insecurity and vulnerability. At paragraph 150 the aim of the assistance to be provided by Article 12 is said to be to assist the victims in their physical, psychological and social recovery. The comment is made that the authorities must therefore make arrangements for those assistance measures while bearing in mind the specific nature of that aim. The assistance measures referred to are said to be minimum ones (paragraph 151).

Article 12(1) specifies that accommodation must be "appropriate and secure" as victims need adapted and protected accommodation in which they can feel safe from the traffickers.

There follows at paragraph 154:

"The type of appropriate accommodation depends on the victims' personal circumstances (for instance, they may be living in the streets, already have accommodation, and in the latter case it will be necessary to make sure that the accommodation is appropriate and does not present any security problems). Where trafficking in human beings is concerned, special protected shelters are especially suitable and have already been introduced in various countries. …the purpose of such shelters is to provide victims with surroundings in which they feel secure and to provide them with help and stability. …the protection and help which the refuges provide is aimed at enabling victims to take charge of their own lives again."

Paragraph 164 points out that under article 12, paragraph 2, each Party must take due account of victims' safety and protection needs. Victims' needs can vary widely depending on their personal circumstances. They may arise from matters such as age or gender, or from circumstances such as the type of exploitation the victim has undergone, the country of origin, the types and degree of violence suffered, isolation from his or her family and culture, knowledge of the local language, and his or her material or financial resources. It is therefore essential to provide measures to take victims' safety into account. For example, the address of any accommodation needs to be kept secret and the accommodation must be protected from any attempts by traffickers to recapture the victims.

In opening the case, Ms Meredith submitted that in this context (that of Article 12 of ECATER) "safe" meant safe from the risks of re-trafficking, and I accept this submission.

Direct Effect?

The Directive entered into force in the United Kingdom on 6^th April 2013. In two cases at a high level reference has been made to the directly effective nature of the rights. In Hounga v Alan and Another (Anti-Slavery International intervening) [2014] UKSC47, [2014] 1 WLR 2889, Lord Hughes JSC, with whom Lord Carnwath JSC agreed, noted at paragraph 61 of his judgment that the UK was bound by a series of international instruments, all of which adopted the same definition of trafficking, which originated in the Protocol to the UN Convention against Transnational Organised Crime 2000 ("the Palermo Protocol"), ratified by the UK on 9^th. February 2006. The accepted definition was:

"For the purposes of this Protocol: (a) 'trafficking in persons' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, or abduction, or fraud, or deception of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) the consent of a victim of trafficking in persons to the intended exploitation set forward in sub-paragraph (a) of this Article shall be irrelevant where any of the means set forth in sub-paragraph (a) have been used; (c) the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in persons' even if this does not involve any of the means set forth in sub-paragraph (a) of this Article."

In commenting upon this, the judgment reads:

"The same definition appears in subsequent international instruments, the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197), ratified by the UK on 17^th December 2008, and the directly effective EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims which came into effect on 6^th April 2013 after the events with which this case is concerned. The first two instruments are not part of English law, but it is of course a general principle of that law that ambiguous questions of construction are to be resolved in favour of compliance with the UK's international obligations where reasonably possible, and such obligations may similarly inform the application of open questions of common law."

Ms Meredith focuses upon the words: "the directly effective EU directive 2011/36/EU".

The second authority she relies upon is R v L (C) and others [2013] 2Cr. App. R. 23, [2013] EWCA Crim 991, which marginally pre-dated Hounga v Alan and Another and was cited in it. At paragraph 18 in the judgment of the court, delivered by Lord Judge LCJ the following is said:

"If issues relating to the age of the victim arise, and questions whether the Defendant is or was a victim of trafficking or whether the alleged defences were an aspect of the victim's exploitation, have reached the Crown Court, or a Magistrate's Court, they must be resolved by the exercise of the jurisdiction to stay a prosecution in accordance with the process endorsed in R v M (L) [2011] 1Cr. App. R. 12 (p.153) (at [15] – [19]) and R v N (A); R v Le [2012] 1 Cr App R 35 (p.471) (at [86]) that remains the correct procedure for determining such issues, even after the Directive 2011/36/EU became directly effective. This provides sufficient vindication for the rights enshrined in the Directive as well as the Anti-Trafficking Convention and indeed Arts 4, 6 and 8 of European Convention on Human Rights."

Again, Ms Meredith founds on the expression "…became directly effective."

In neither case was the question whether the Directive was directly effective in the sense contended for by Ms Meredith of any determinative relevance to the cases under consideration: in Hounga v Alan and Another the question was whether the defence of illegality could succeed, where the illegality was entering into a contract of employment. The Claimant could not lawfully do this given her immigration status. The defence had defeated a claim by her in respect of acts of racial discrimination against her whilst in the employment which it had been illegal for her to enter. However, the Supreme Court held that the acts of discrimination against her on the grounds of race had an insufficiently close connection to the illegality in her entering the contract for the defence to succeed. Ms Hounga had been trafficked: but the question whether the rights conferred by the Directive were directly effective was not in issue.

In R v L, one of the Appellants likewise was a woman who had been trafficked into the UK, where she had been forced into prostitution. She was convicted of the possession of a false identity document. The offence was committed as a result of her being a victim of trafficking provided with a forged passport to use as if it were genuine. Yet she had been compelled to use it, to commit a criminal offence to facilitate her further trafficking. The Court held that she was entitled as such a victim to protection from prosecution or punishment for acts which she had been forced in that way to commit. In providing such protection for trafficked persons the appropriate course was to use the abuse of process jurisdiction. Accordingly, since if the facts relating to L's case had come to light before her trial the court would have (or would have been likely to have) stayed the proceedings against her on the ground that to proceed would be an abuse, her conviction would be quashed. In this context, the reference in paragraph 18 of the judgment involved no consideration of the extent or manner in which Directive 2011/36/EU was "directly effective", or even whether it was directly effective in the sense now contended for by Ms Meredith.

The sense for which Ms Meredith contends is that obligations within an EU Directive which is not implemented within the time limit set by the Directive may become directly enforceable. The principles of law by which this occurs are clear. Direct effect arises if the obligation concerned is unconditional (Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, at paragraph 25) it is sufficiently precise; and contains no right of reservation: Van Gen den Loos. In Francovich v Italy [1993] 2CMLR 66 the court identified factors relevant to the question whether an obligation was unconditional and sufficiently precise – the identity of the persons entitled to the guarantee provided for by the provisions of the Directive in question; the content of that guarantee; and the identity of the person liable to provide the guarantee.

Mr. Grundy accepts that the Directive has not been implemented in UK law, and that in accordance with Ratti [1979] ECR 1629 it, or parts of it, may have direct effect after the date (11^th. April 2013) when it was to have come into effect: but this is subject to qualifications. He submits that the line between that which is unconditional and that which is subject to conditions can be clearly determined, and that decisions of the CJEU such as Rieser Internationale GmbH v Autobahnen- und Schnellstrassen-Finanzierungs-AG (Asfinag) (2004) (C-157/02) albeit relating to road tolls demonstrate that within one and the same directive some obligations may meet the criterion, and others not (see paras. 35-38, and contrast with paras. 40-42). Where there is room for variation in the performance of an obligation it cannot be held sufficiently precise and unconditional. Thus Green J. observed in R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business Innovation and Skills [2015] EWHC 2041 that the Court of Justice of the European Union has tended to hold that where broad options are conferred on member states this is not normally conducive to direct effect.

Ms Meredith places reliance on a decision of Sir Stephen Silber, that of R(Galdikas) v Secretary of State for the Home Department [2016] EWHC 942 as one in which he regarded the Directive as having direct effect. The claim (one for judicial review) alleged that the Secretary of State's support regime for EEA nationals who had been accepted as victims of trafficking but had not yet been granted discretionary leave to remain in the jurisdiction failed to meet the obligations imposed by Article 11 of the Directive. The court held that Article 11(2) provided a free-standing duty to provide a trafficked person with assistance and support after the end of the 45 day recovery and reflection period, which was not linked to that person's willingness to assist criminal proceedings against the alleged traffickers to which Article 11(1) referred. In doing so, Sir Stephen Silber stressed that though the Home Office had a discretion as to how the provisions of the Directive were to be implemented in order to reach the results to be achieved, they had an obligation to achieve it (see paragraphs 26 and 27). On analysis, he held that the result obliged by Article 11(2) was a discrete obligation and not, as the Home Office had argued, to be read together with that in Article 11(1).

In resolving whether the Directive is in its relevant respects binding on the Defendant, I start with what is in issue here. There are two questions to be answered: first, is Article 11 of the Directive of direct effect, and second, if so, has the Defendant Council failed to fulfil such of its obligations as are of direct effect? As to both of these questions, the language is broad: what is to be provided to victims by Article 11(1), (2) and (3) are "assistance and support", without specifying what form this should take except within 11(5). This again is silent as to the precise measures to be adopted, though clear that the result must "ensure victims' subsistence". I would be prepared, without deciding it, to hold that a broad view is to be taken of "subsistence", as indicated by the words which follow which relate not just to physical matters such as "accommodation" but also to measures such as "psychological assistance, counselling and information". However, the definition of what accommodation is "appropriate" is not further defined, and it is plainly related to "subsistence" which even in its broader sense gives rise to considerable discretion. It is common ground before me that "safe" means safe from the risks of re-trafficking. Though I do not exclude parts of the Directive (which do not fall for more detailed consideration here) being sufficiently precise and unconditional for those parts to have direct effect, in Article 11(1) there is a very great degree of choice given to the Member State. It is for that State to decide what is appropriate, and what is appropriate may vary between Member States across the Union such that it is not sensible to think that what is "appropriate" has an autonomous meaning for the purposes of E.U. law. So far as accommodation in the UK is concerned, what is appropriate is for the local housing authority to determine: the legal boundaries to any such determination are set by whether it is perverse to cross them (see e.g. per Dyson J. in R v Newham LBC ex parte Sacupima (2001) 33 HLR 1 at paragraph 23 for an expression of this concept). Accordingly, I accept the thrust of Mr Grundy's submissions on the first question.

I have not been helped in resolving this by the submissions as to the effect of Galdikas. That decision concerned whether there was a duty resting on the State to provide some assistance and support in the particular circumstances of the case: it was not concerned with whether there was a free-standing duty but what was necessary to satisfy it, a rather different question. There is no trace in the judgment in Galdikas that the issue whether the obligation in Article 11(1) was of direct effect was argued. Indeed, the case was – as Sir Stephen Silber observed – concerned not with how a result was to be achieved but whether it was.

Indirect Effect?

If not of direct effect, the Directive may nonetheless have an indirect effect, for there is an obligation to interpret legislation purposively to achieve the objects envisaged by that Directive, set in its proper context. The recitals to a Directive reliably indicate that context. Part 7 of the Housing Act 1996 speaks of "suitable" accommodation. Though this word may doubtless be adapted to the particular circumstances of the individual seeking assistance and accommodation under the Act, when it comes to those in respect of whom there has been a conclusive grounds decision that they have been trafficked, it may be taken to equate to "safe and appropriate". There is, in my view, therefore an obligation under the Act resting on a housing authority considering the case of a trafficked person to provide such accommodation. However, this interpretative approach does not enable the Claimant to claim that a trafficked person has a right to claim damages for any failure by a housing authority to provide it, for on this approach the right remains one conferred by the Housing Act, in respect of which the decision in O'Rourke is binding as noted above.

Even if I were wrong on that, however, and an obligation indeed rested upon the Defendant under the Directive to ensure that the Claimant was given appropriate accommodation, for failure to observe which damages could be claimed in a private law action, I would have concluded that the Defendant was not in breach of that duty in the particular circumstances of this case, for the reasons which follow.

I should make it clear that whilst deciding against the Claimant's essential case that she has rights arising under the Directive which have been breached, I do not accept the submissions of the Defendant in their entirety. It was submitted that once a reasonable grounds decision had been made, the duties pursuant to Article 11 kicked in: but though a starting point for the discharge of these duties could therefore be identified, no end-point was provided for. Mr Grundy submitted that it was implicit that the duties concerned could not last forever. He sought first to argue that some end-point was necessary, and second that such an end-point was to be determined by reference to the 45 day recovery and reflection period, drawing support from Article 13(1) of ECAT, and observing that this was reflected in the NRM. In any event, any reasonable period must long have expired (in his submission) by the time that the Claimant was served with a notice to quit. Thus, it followed, that whether of direct effect or not the rights under Article 11 of the Directive could have no bearing on her case.

I do not accept this. It does not seem to me that the rights to which Article 11 refers are subject to any time limit as such. They are there to fulfil a purpose, which expressed broadly is to protect a victim of trafficking against both the immediate consequences of her being compelled to live a life she would not freely have chosen, and the dangers that she might be re-trafficked if left without subsistence, including accommodation: in my judgment, the Directive is intended to and should be construed purposively. The question is not how long the obligation should last, but whether circumstances have now changed for the better such that the protection afforded by Article 11 is no longer necessary: the assessment necessary to judge this is qualitative not quantitative.

Further potential causes of action

In the alternative, Ms Meredith submits that what occurred here amounted to a breach of the Claimant's rights under the European Convention of the Protection of Human Rights and Fundamental Freedoms ("ECHR"), in particular Article 4 (the right to freedom from slavery and forced labour, trafficking falling within its scope, which is to be read in harmony with other rules of international law, including ECAT). This imposes positive as well as negative obligations, requiring an effective, comprehensive approach including measures to protect victims, operational measures to protect against real and immediate risks of being trafficked or exploited, and a procedural obligation to investigate. Article 8 is also relied on.

Further, additionally or alternatively, it is submitted that the claimant falls within a class to whom specific common law duties are owed, for as a recognised victim of trafficking she satisfies the test of proximity, and she submitted that this makes reliance on O'Rourke misplaced. She recognises, however, that to sustain this argument she must also show that reliance cannot be placed on cases such as Mitchell & Another v Glasgow City Council [2009] UKHL 11 and Mitchell v Chief Constable of South Wales [2015] UKSC 2 which consider the extent of duties owed to protect people against the actions of others who are independent of the parties to an action. In the latter case it was argued for the Claimant appellants that the Court should develop the common law to encompass the duties of the Police (to preserve the Queen's peace) under the ECHR, but that argument was emphatically rejected by the majority, as expressed in the judgment of Lord Toulson JSC at paragraphs 123-125. The former was a case in which, again in the full glare of European Human Rights jurisprudence, the Council as housing authority were held to have no liability in negligence where the victim of a fatal attack and the perpetrator of it were both tenants of the Defendant housing authority. The Defendant had reports from the victim of abuse and threats to kill aimed at him by the perpetrator, and without telling the victim summoned the perpetrator to a meeting and threatened him with eviction. Soon after, the perpetrator committed the fatal attack on the victim. A case that the Defendant was negligent in not telling the victim of the intended meeting, so that he might have been better able to avoid the fatal consequences, was rejected, the House of Lords holding there was no duty to do so.

Moreover, the law does not as a general rule impose liability on a defendant (D) for injury or damages to the person or property of a claimant (C) caused by the conduct of a third party (T): this is trite law, to be understood as Lord Toulson JSC explained it at paragraph 97 of Mitchell – that it is one thing to require a person who embarks on action which may harm others to exercise care, but another matter to hold a person liable in damages for failing to prevent harm caused by someone else. This latter would impose liability for a pure omission.

The great reluctance of the law to impose liability on D for the actions of a third party over whom D has no control, nor with whom D enjoys any relationship of proximity, did not feature significantly, if indeed much at all, in the submissions of counsel before me in this case: but it is so well recognised in the law that it generally requires no argument. In the present case, I shall return to this reluctance when considering the facts a little more closely below.

These decisions, of the highest domestic authority, are binding upon me. In short, I see no room on the present facts for a claim before me of common law negligence. The ECHR does not require it: the positive obligations to protect victims do not have the consequence that a victim of trafficking, uniquely, may maintain a private law action for damages either in respect of the actions of third parties, who are not their traffickers, nor in respect of the nature of accommodation provided by a local housing authority. I cannot, as Ms Meredith seeks, distinguish O'Rourke.

I should add for completeness that a further argument was raised as to the effect of the EU Charter of Fundamental rights. In essence, this did no more in my view than buttress the submissions being made as to the applicability of Article 4, read with sections 6 and 7 of the Human Rights Act 1998: but that argument falls short for the reasons I have just set out.

If a duty, was there a breach of it?

I have already said that if there had been a duty giving rise to a right to a private law claim for damages I would not have found that in the particular circumstances there would have been a breach of that duty. First, save in one relatively minor respect, the Claimant has not established the facts on which she relies in order to show the cause of the losses for which she claims. However, my conclusion that the facts are not such that any claim in negligence can succeed requires detailed explanation.

(1) The Facts: reliability of the Claimant's accounts

Although it is undisputed, and I accept, that the Claimant was a victim of trafficking, I cannot accept what she says as to any other particular fact specific to her claim unless it is corroborated by independent testimony. This is not a moral judgment, since it is almost inevitable as a consequence of being forced into prostitution that she will be distrustful of authority, which if combined with the fact that she has had to survive by deception for a number of years may make it necessary for her to say what suits the moment. But it is a conclusion to which I am driven for a number of reasons.

First, she gave a statement on 13^th. July 2012 in support of a claim for asylum, and her claim to have been trafficked. It consisted of over 100 paragraphs. In it, she gave her date of birth as 30^th. April 1982; set out her early history in Ghana (which I have summarised above) and said that she travelled from Ghana on 22^nd. September 2001 and arrived at Heathrow Airport around 5.00 am on 23^rd. September 2001. The detailed recall not just of dates but of time is impressive. She described living after that at a range of addresses over what can only have been a significant period of time. She described how she had then escaped from prostitution, by slowly becoming friendly with a regular client. He told her minders that he was taking her out for a drink, and because he was a trusted regular they let her go, enabling her to escape. She described how she had eventually found a room in Mitcham. When questioned about this, she confirmed that she had first lived in Mitcham after she escaped from prostitution.

There is documentary evidence in medical records that a woman giving a name the Claimant used, the same birthday (though a year of birth 4 years different), and an address at Morden attended a consultation as a new patient with a clinic in Mitcham on 12^th. December 2001. This patient gave a history of having been born in Ghana. The height of the patient as recorded is consistent with the height the Claimant appeared to me to be. A woman giving the same details was seen by a number of doctors at regular intervals over the years which followed. Most regularly she was seen by a Dr. Lall and a Dr. Rana.

When it was put to her by Mr.Grundy that these records related to her, and that since they started in 2001 they showed that only three months after she said she had first arrived in the UK she registered with the same clinic as treated her throughout her stay in the UK thereafter, in order to support his point that this account was inconsistent with the statement she had made when seeking asylum, and she must have been free of her traffickers much earlier than her account in court would suggest, she told me that the entries in the record prior to 2011 did not relate to her. She accepted, however, that those made from then onward did. She said she had first registered with Dr. Lall and Dr. Rana's practice when she was released from Yarlswood in September 2011.

I cannot accept that this is true. Not only do the records correspond in the details I have indicated, but on 15^th. March 2011 there is a record that her medical records were sent by the surgery to "solicitor IMMIGRATION DOCTOR". There are references to prison. The doctors who treated her after 2011, on her account as given in the witness box, included Dr. Lall on three occasions, and Dr. Rana on two. They had seen the other patient – other, that is, if it was not her – on many previous occasions. The Claimant's details are recorded together with those in respect of the woman seen pre-September 2011 as if they form a seamless whole. It is wholly improbable to think that the doctors' surgery may have made a mistake in attributing her records wrongly to a patient regularly treated at the same practice by the same doctors over some time, who had attended frequently yet had stopped doing so just as the Claimant, with all her similarities of detail, and condition, began to attend the surgery. Yet on oath she asked me to accept this.

She was imprecise about many dates, telling me at one stage how mixed up in respect of times she could be, yet had the clear recollection not just of date but time of arrival in the UK. This gave me further pause. It was as if rehearsed.

She told me that she only had the confidence to talk about what had happened to her after she had been to prison. Everything she said until 2011 simply was not correct. Since then she had been truthful. In general terms, I am happy to accept that a victim of trafficking may as a result of her experiences not only be reticent but also untruthful, and this may actually confirm that they have been trafficked (when finally disclosed) rather than lead to a conclusion this is not so. But an issue for me is whether what she says in court, now, is reliable. The evidence about her attendance at the surgery is sufficient on its own to persuade me it is not, but it does not stand alone.

On 27^th. January 2012 the Claimant saw Dr. Helen Youngman. By then she was at a stage when – she said – she told the truth rather than not. Interestingly, she gave her date of birth as 30^th. April, but adopted a different year from that which she had used for the GP surgery, although she accepts that the surgery records since 2011 do indeed relate to her. Dr. Youngman took a "past history" in which she recorded that the Claimant said that she came to the UK "in 2000", and was diagnosed with sickle cell disease. Suffering from this disease is a further point of congruence with the medical records she disputes as relating to her; the date of her arrival however lacks the precision of her evidence. The account given to Dr. Youngman, as recorded by her, was that "a female acquaintance [of the man for whom she worked in Ghana] brought her to the UK in 2000 and forced her to work as a prostitute for about eighteen months. She managed to get out of this and run away and has had little contact with the man that brought her up since". I note in passing that if this is true, it could be consistent with a date of December 2001 as the date of her first registration at the surgery. She described having been taken in by a Ghanaian lady and given a job of looking after her three children, enrolling in Merton College in 2004 where she obtained an NVQ in childcare and began an access to learning course. This is consistent with a letter sent by "Caretech Community Services" on 18^th. November 2004 to Dr. Lall at the surgery giving the name the Claimant used and asking if there were any medical reason why she would not be able to fulfil "her role as a support worker".

This account taken by Dr. Youngman is so very different in detail from the account given when she applied for asylum that it becomes difficult to trust the information given in either: however, Dr. Youngman's report has some support from the letter from Caretech to which I have referred.

When she applied for housing assistance from the Defendant she did so in the company of Sadia Wain, a case worker at Hestia, which provides a national service for victims of human trafficking. Ms Wain was the Claimant's case worker at the time. They were handed an application form to complete. The Claimant signed it as true. At the top of the document, underneath requests for personal details of name, date of birth, place of birth, gender and language is a row which requests details of marital status. There are five options: "married/civil partnership; separated; divorced; single; living with partner". This is relevant information when seeking housing assistance since if the honest answer is that an applicant is married it may demonstrate that that applicant is not in priority need. The box against "single" was ticked. The Claimant was cross-examined about the accuracy of this. She told me on oath that she had never been married. Ms Wain said that this box was ticked because the Claimant said she was single. The Claimant told me that whilst in prison she had met a pastor who wanted to marry her: but they had never been married. She never saw him after she left prison. She had not ever lived in the same house as he did. She had been married neither in Ghana nor in the UK.

However, again, the account she gave me as to her marital status does not fit with other evidential material.

Given that Dr. Youngman was a psychiatrist, it would (I infer) have been important for her to record the Claimant's "Personal History" in some detail, and accurately, as she gave it. Diagnosis and treatment in psychiatry depend particularly on what the patient has to say. In the last two paragraphs of the account of her personal history as set out by Dr. Youngman, the doctor recorded:

"In terms of relationships [the Claimant] has been in a relationship with a man for four years. This man in fact is a cousin to her Aunty though she says this was not how they met. [The Claimant] married this man only a year ago which coincided with her time in prison. On further questioning [the Claimant] said that she had had a traditional African ceremony and had not needed to be present at the wedding but that she does hold a marriage certificate.

Currently her husband is living in Croydon as her Auntie has been looking after her during her illness but she hopes to live with him"

This is not all. In February and April 2013, Dr. Goldwyn saw the Claimant at the Helen Bamber Foundation for the purposes of a medico-legal report. At paragraph 10, Dr. Goldwyn reported what the Claimant had said:

"She met [name given] and they had a marriage proxy performed for them in Ghana. They lived together for some time, but [the Claimant] told me that sexual relations had been very difficult for her since her sexual exploitation, seeing that she had been forced to sell her body for sex. She said that she is very frightened of men and would avoid being in the same room as a man on her own. She told me also that her husband found it hard to accept her because of the past sexual abuse and at present they are separated".

In her witness statement prepared for her asylum application she said (at paragraphs 92-95) that she met her husband via Facebook at the end of 2007 and decided to marry him; that he was a pastor; that marriage permission was refused by the Home Office; that she was in detention for a long time and "my husband said that if they were not allowing us to marry he would marry me inside. Then he got married to me."

The Claimant told the Defendant her language was English. There is no reason to think that either doctor was mistaken in their report of what had been said to them. There can be no doubt that the Claimant's account for asylum purposes was her own. Nor that she said what was in effect the opposite of what she said when filling in her application form for the Defendants. Her evidence to me in court contradicts what both doctors record, and she herself said when seeking asylum.

These differing accounts are very difficult factually to reconcile. It suggests to me that I can trust none of them.

I formed the impression, too, that when giving evidence the Claimant was inclined to respond with an answer which might suit the moment rather than be accurate.

My conclusion about the general lack of reliability of the Claimant's evidence to me, such that I should not accept it as proof of any matter unless there is independent corroboration, is relevant to the issues in this case. I must however make it clear that I do not question that for a period of time (the length of which I conclude she has exaggerated for the purposes of the case before me) the Claimant was trafficked in this country by forcing her into prostitution and that she may well have been required by her traffickers to pay them sums of money afterward from such employment as she was able to obtain.

Whether the Claimant's account is reliable is principally relevant to her description of the conditions at Rose Lodge when she arrived there, what happened whilst she was there, and her account of what occurred at Tottenham, since these are not only main areas of factual contention but also the principal matters on which the Claimant relies as causing her distress and damage. Since there is some corroboration of the allegation that whilst at Rose Lodge the claimant was sexually assaulted, I shall deal with that after I have considered her case as to the other matters.

(2) The Facts: Process of Allocation of room in Rose Lodge

First, the way in which the Claimant was treated when she applied for housing with the Defendant. She suggests that she was poorly treated by the Defendant's officers, and told to sleep outside. She says that at one stage the Defendant threatened to call the Police. Poor treatment is denied by the Defendant. Whereas it may be that she was shown no special favour, there is no other supporting evidence than her own which allows me to hold that she was indeed treated badly: though Ms Wain did accompany her to the offices of the Defendant, in order to make the application, and it is not in issue that the Defendant's officers asked questions of the Claimant, as they were bound to do before allocating temporary accommodation on the basis that she was in priority need. I find that she has not factually established that she was treated in a manner which reasonably foreseeably could give rise to any compensable injury.

(3) Allocation of room in Rose Lodge

Underlying the allegations in respect of both Rose Lodge and Tottenham is the contention that it was not only inappropriate but unlawful for the Defendant to place the Claimant in accommodation (Rose Lodge) where she would be in a building with other men without having private facilities of her own; and (Tottenham) where she was exposed to a real risk of trafficking again. There is no suggestion that the placement at Rose Lodge exposed the Claimant to a risk of her being re-trafficked. The Lodge was thus safe in the sense in which the matter has been argued before me.

In my view it is undesirable, if it can reasonably be avoided, that a woman who has been the victim of trafficking for sex should be accommodated in premises where there is no self-contained accommodation of her own where other men may be present and thus share such bathing, toileting and cooking facilities as there are. However, if there is a duty to ensure that accommodation is "appropriate" in respect of which a private law claim may succeed, the question whether it is so undesirable as to amount to a breach of this duty requires further examination. It must depend critically, at least where temporary accommodation is concerned, as here, upon what housing was reasonably available for allocation by the housing authority, and what that authority actually knew about the applicant, or ought to have known.

The evidence before me was that single sex accommodation was very difficult for the Defendant to secure. Lucy Baker could not say if it was available. The Borough did not have access to any bed and breakfast accommodation which was single sex only. It follows that although there might have been some, a very strong case would need to be made out if the Claimant were to be chosen to occupy it rather than another person with apparently more pressing need. Whether it was made out depends on the information which the Borough had, or should have had, before it about the Claimant's housing needs when allocating accommodation to her for temporary stay, pending final determination of her housing needs.

The information which the Borough had, I find, prior to making the allocation it did was set out in essence in a letter of 16th April 2013 from Rachel Witkin to Bruce McKay. It told him, and through him the Defendant, that the Claimant had been recognised as a victim of human trafficking, was extremely vulnerable, had suffered a particularly traumatic background and suffered from severe depression. In a critical passage the letter read:

"She will need to live in London so that she can continue her appointments at HBF and receive specialist therapeutic care. It is also very important that she is located where her friends can visit her but away from areas where she may be at risk from others due to her trafficking background. Hammersmith and Fulham is therefore in our view, the appropriate borough in which she should be housed and supported."

What she did not say was that the Claimant required single sex accommodation, or even self-contained accommodation.

The Borough had information from its own doctor (Dr. Keene) that although the Claimant had sickle cell disease he saw no medical reason why she should be held to be in priority need. He found no mental illness. Having heard the evidence of Prof. Katona, in my view Dr. Keene was almost certainly wrong in that conclusion: but in any event the Defendant determined that the Claimant was in priority need, so his view of the Claimant's mental state caused no persisting difficulty.

The Defendant was criticised for not making fuller enquiry when assessing the Claimant's case before allocating housing to her. It did not enquire into any information which the police had in respect of the investigation into those who had trafficked the Claimant: but it was not asked to. It did, however, understand that she had been accommodated in a safe house by Hestia and simple enquiry would have shown that this was in single sex accommodation. Further more detailed enquiry was not in my view to be expected of the Defendant, and if indeed it had been carried out would if anything have shown less reason than appeared on 3^rd. May for her to be placed in single-sex accommodation: for, if those enquiries had unearthed the material now before me, it might be expected that the Defendant would have come to the same conclusions as I have after listening to evidence and expert cross-examination in this case: that for some period of time, probably to be measured in years rather than months, prior to her conviction and imprisonment, and after she had escaped from her trafficking into prostitution (though she may well have been required for a time to pay others with money from the wages she was earning) the Claimant lived in London, either on her own or in mixed company. Although at times in the documentation produced on her behalf it is said that she had always lived in single sex accommodation prior to coming to Rose Lodge, further inquiry if conducted would have shown that this was probably not the case. Instead of focussing on the information it might have had had it made further enquiries – which as these last remarks indicate depend on the nature of the inquiry, the answers to which would not necessarily be all one way – it is more helpful to focus on the information it already had, and was given. Having considered what was said to it in particular in the letter from Rachel Witkin it had no particular reason to suppose that Rose Lodge would be unsuitable as temporary accommodation because it was mixed-sex, or that such men as were there would pose any real risk of sexual harassment to the Claimant. It would have had reason to think she should be nearer to Hammersmith, but its failure to arrange that has not been criticised in this action. It understood that Rose Lodge was suitable for family and mixed-sex single accommodation.

There has been no suggestion that accommodating the Claimant at Rose Lodge was unsafe in the sense that it exposed her to any additional risk of being re-trafficked than that she already had accepted by deciding, herself, that she wished to stay in London.

Accordingly, the facts would not have led to a conclusion that the decision to allocate temporary accommodation pending further enquiry at Rose Lodge was negligent or in breach of statutory duty.

(4) Conditions at Rose Lodge

As to conditions at Rose Lodge, when she arrived, she suggested that she was the only woman there – that all the other residents were men - and the shared bathroom she was to use had no functioning lock.

Lucy Baker, PATHS manager in the Defendant's Housing Options Division said in her evidence that the accommodation provider at Rose Lodge (the property was not itself owned by the Defendant) "…confirmed there were other women living at Rose Lodge at the time…". At paragraph 16 of her witness statement she said that it was incorrect to assume that the Claimant had been "…housed with 5 single men". Whether the Claimant was the only woman present at the B&B premises was thus put in issue evidentially. The confirmation to which Ms Baker was referring was provided to her on 31^st. May 2013 when Julie Winter of Altwood Housing Ltd (the accommodation provider) sent an email to Ms Baker setting out the "breakdown of female to male occupants in the premises throughout the month of May 2013". Detailed figures were set out for the day to day occupancy of the Lodge. She also enclosed photographs of the bathroom door. If the figures she supplied are correct, they show that when the Claimant was placed at Rose Lodge there were equal numbers of men and women (three of each), and that though in general throughout May there were four men to two women there was never an occasion when there was a lone female. From the information she supplied, if accurate, there were two rooms on the top floor one of which was occupied by the Claimant, and the other by a man, at the relevant time. They had a bathroom which either could use. Her information was that there was no fault with the lock. The photographs supplied to her of the bathroom door at Rose Lodge show a lock which has no obvious or visible defect.

The material provided by Ms Baker is hearsay evidence that the Claimant's account is inaccurate. No direct evidence has been called before me as to the precise gender breakdown of occupancy or as to the state of the bathroom lock. However, nor was any evidence called on behalf of the Claimant to support her case in respect of either point.

The Claimant's contemporaneous conduct might give some support for her account of conditions at Rose Lodge. Even if self-originating, it was at least contemporaneous: she said she complained to Sadia Wain on the night she arrived. Ms Wain made a full typed note of the events of the day, which concluded with the note that the Claimant had texted her at 6.24 pm to say she had arrived at Rose Lodge. There was no further note. Yet in her statement at paragraph 25 Ms Wain set out her recollection that the Claimant had phoned her later that evening, in a distressed state, crying, to complain that she was sharing a bathroom with five men and it did not have a lock on the door, and to ask why, given her history, the Defendant should have sent her there. She did not make a note of this in addition to her record of the day's events, nor separately, until her witness statement. This is surprising, since I would expect Ms Wain to have done so: it was the type of reaction which cried out for a careful note to be made, together with the reasons given to her to explain that reaction. Nor does it appear that Ms Wain actually made any contact with the Defendant herself about it with any urgency – she said she tried the next day but did not get through. She said in her witness statement that she spoke to Rachel Witkin of the Helen Bamber Foundation about the call. Rachel Witkin gave evidence – in my view, she was an impressive witness – and did not specifically confirm this. Indeed what she said suggested otherwise: thus at paragraph 17 of her witness statement she said: "Following XPQ's arrival at Rose Lodge I was aware from telephone calls with her that she was distressed and anxious due to the situation for her there" (emphasis added) and went on to mention specifically that she had been given information by Romin Sutherland. She did not add "and Ms Wain". This suggests that she has no particular recollection of Ms Wain having raised these matters with her that night or the following morning. Ms Wain was criticised, too, in cross-examination by Mr Grundy for having helped the Claimant fill in her housing application form in which the Claimant said she was single at a time when Ms Wain knew the Claimant had earlier said that she had been married (her response was that she was not there to judge the claimant in any shape or form, which rather missed the point that she was helping the claimant to provide information which she knew might not be true to the Defendant). Despite these points, arising from the cross-examination, I have nonetheless concluded on balance that I should accept Ms Wain's evidence that such a complaint was made to her, on the day of arrival, because the fact of there being a complaint fits with the evidence of what was said (later, and perhaps revealing a less distressed state) to Rachel Witkin and Romin Sutherland:

No-one to whom the Claimant complained verified the accuracy of what she was saying in those complaints. Her complaint to Ms Witkin, and probably to Ms Wain, does not establish any fact other than that she complained about such matters at the time of her arrival. Mr Grundy cross-examined to suggest that the Claimant wanted to be housed in the Hammersmith and Fulham area, and it is clear that she did: but when she arrived at Rose Lodge she would have found herself in Wembley, and this may explain some of the reaction she expressed to others. Accordingly, given my serious reservations about the Claimant's evidence, and although I would have hoped for better evidence than that supplied by the Defendant, I have concluded, on balance, that the Claimant has not established either that she was the only woman resident whilst there were five men in the house, or that the bathroom door had no working lock. I accept what was said by Julie Winter to Lucy Barker as accurate.

I note, for completeness, that when the Claimant spoke to a Police Officer (DC ANSTISS) on 7^th. May, four days after she had moved in, the officer made the note:

"Today i (sic) spoke to [the Claimant], she has been moved to temporary accommodation, Rm 6, Rose Lodge……..Wembley…She is happy at location, no welfare issues."

This does not sit easily with the Claimant's account in her witness statement that immediately after she arrived at Rose Lodge she was scared to go out for three days during which she just lay on her bed, crying: and I have no reason to think that the Police Officer made an erroneous note of what was said.

I find therefore, that the accommodation was mixed sex, and that the bathroom door did not have a malfunctioning lock. It follows that if a later report by her that a man (whom I take to be the same man as she alleged had assaulted her) had come into the bathroom while she was there was true this would have been because she had left the door unlocked, and not because he was pressing his unwelcome attentions upon her.

Sheron Barrett, an officer of the Defendant, received information at some time in the week after the Claimant moved in to Rose Lodge that she said she had to share a bathroom, to which she responded that the Claimant was meant to have an en suite (however, the accommodation booking form which had been filled in on 3^rd. May answered the question whether self-contained accommodation was required by crossing the box for "no".) Ms Barrett sent an email to those booking temporary accommodation requesting that the Claimant be moved to another temporary accommodation on 10^th. May. Nothing came of this until after the events of 22^nd. May had been investigated by the Police. Although a move to self-contained accommodation would have been desirable, to fail to effect it at this stage was not in my judgment a breach of duty to the Claimant: what is in issue is the initial allocation to a room without private facilities, with which I have already dealt.

(5) Tottenham

The Claimant's credibility is also relevant when considering the account she gives of events at Tottenham. The only evidence of what happened comes from her. Consistent with the approach I have set out, I cannot accept it because there is no independent corroboration of it. On that basis alone, I would hold that the Claimant has failed to prove that when at Tottenham she was accosted by a person who was one of, or was related to, those who had trafficked her.

However there are more reasons than this for rejecting her account as to what happened there. First, Joanne Philips, a case worker at the NextDoor project, Zacchaeus Two Thousand Trust (Z2K) gave an account on 31^st. May 2013 of what the Claimant had said – that as she arrived at the address in Tottenham to which she had been moved, one of the men from the trafficking ring saw her and called her name. She pretended not to hear and did not answer, but because she later had to leave to buy cleaning products (given the state of the room) she went outside and when she did so found the same man with a woman in a car. She recognised them. The man called to her to ask if that was where she now lived. She did not answer, but immediately got on a bus to give the impression that she had only been visiting, and returned later when he had gone. She had panicked.

In her witness statement, there was a slightly different account. The Claimant described hearing a woman calling her by her working name when she arrived: she recognised the woman as someone senior to her in the trafficking network with whom she had once worked. She recalled the woman saying, as she took her bags out of the taxi, "oh, this is where you're living now". She described leaving the flat to get cleaning products, but that when she went outside to do so the man and the woman did not see her were though they were still there

These two descriptions are not consistent, as to who spoke, when they said what they said, whether the man and woman saw the Claimant when she came out to get cleaning material, and whether the Claimant went off in a bus in order to evade them. I simply cannot accept either account.

Since there is no reliable evidence that the incident happened at all, and since there was some evidence that the Claimant did not want to be in Tottenham but in Hammersmith and Fulham, I find on balance that no such incident occurred. The claim in respect of damages caused by the "Tottenham incident" fails, whatever the legal basis of claim.

In any event, the Claimant cannot assert that the duty owed to her was absolute. Not only did it depend on the behaviour of others over whom the Defendant had no control, but the Claimant could never have established that the Defendant knew there was such a risk that while in Tottenham she would come into contact with those who had been involved in her trafficking that the Defendant should never have arranged accommodation for her there.

There was no evidence that the Defendant actually knew that the Claimant would be at risk in Tottenham. The argument for her was that the Defendant ought to have known this was a real risk because she had told the Police that she had been trafficked in North London, and the Defendant knew or ought to have known that she was assisting the Police in enquiries with a view to prosecuting those responsible. If they had done so, they would have discovered that she had been on a drive round in London identifying particular locations where she remembered she had been made to provide sexual services. They included North London.

In a letter before action, Leigh Day, solicitors acting on her behalf, asserted that she had specifically stated to staff at the housing authority that North London was a no go area for her. There is no independent confirmation of this, and in line with my approach it has not been established by her own evidence. It is not repeated in the Particulars of Claim.

In the Particulars of Claim, a number of specific places where she had been trafficked were mentioned (see paragraph 12). Most were south of the river: those to the North were Oxford circus, Soho, Paddington, and Edgware Road. None is close to Tottenham. In the Claim it is said rather that had enquiries been made "...the Defendant would have discovered the fluidity of the trafficking network inside and outside London requiring accommodation in a place of safety which was suitable to the Claimant's needs. Indeed, this was only confirmed by DC Watkins on 31^st.May 2013 after which the Claimant was allocated accommodation in Shepherd's Bush".

If and insofar as the "fluidity" of the trafficking network is concerned, it is difficult for the Claimant to place reliance on it: one feature of the case which was not in dispute is that throughout she expressed a wish to stay in London, and indeed wished to live in the area served by the Defendant council. It may be thought that Paddington and Edgware Road (areas identified in the drive round, and therefore potentially risky on the Claimant's case) are far closer to Shepherd's Bush, where the claimant wished to be, than is Tottenham.

In short, I do not accept that the Defendant did foresee or should have foreseen any particular risk to the Claimant from her former traffickers by rehousing her in Tottenham. Even if events had happened in line with one of the accounts she offered, it was not reasonably foreseeable that such a chance encounter would occur; and in any event the Defendant took prompt action to move the Claimant the very next day. The speed of response could not sensibly be open to criticism. Where duties are not absolute – and they are not, here - a duty to take action to avoid risk arises when the person subject to the duty knows or ought to know of the potential risk. Until it was told of what had happened, the Defendant did not know nor ought it to have known of the risk for the reasons I have given: as soon as the Defendant was told, it did then have reason to believe there was a problem, but it took action in response to that knowledge by moving the Claimant promptly to Shepherd's Bush the next day. The speed of this response cannot be criticised. In short, the Defendant discharged its duty, if it had one.

(6) Harassment at Rose Lodge: what happened

Central to the Claimant's case were the circumstances that gave rise to a complaint by her whilst at Rose Lodge that she had been the victim of a sexual assault from a man there. She described how this man would watch where she was in the house and would follow her, and wait for her in the kitchen which was narrow. There he would squeeze in behind her and lean over as though he were trying to reach something on one of the top cupboards such that his whole body would be pressed up against her. On one occasion he shouted at her in the kitchen for cooking eggs and seemed angry, without reason. He would follow her to the bathroom, sometimes stand in the bathroom and wait for her there; would stand near her bedroom door; would try to open her bedroom door when it was locked. All these incidents had, on her account, happened prior to the 22^nd. May when the central incident occurred.

On the 21^st. May, and thus the day before the central incident, Romin Sutherland (a project manager with Z2K) sent an email to Sheron Barrett at the Defendant. He said that the Defendant had placed the Claimant into unsuitable accommodation. He gave four reasons for its unsuitability: that it was not appropriate for her to be housed with five single men; that "the police have requested that [the Claimant] remain close to LBHF (i.e. Hammersmith and Fulham) as she is assisting them with their enquiries and I understand that a number of arrests have already taken place"; that she was receiving a mental health service from the Helen Bamber Foundation (which is based at Museum Street); and fourthly that she was a sickle cell sufferer, which further exacerbated her depression and vulnerability. What he did not mention or make any comment about was a man subjecting her to particular individual harassment: this suggests that no such complaint had reached his ears by then, although the Claimant on her account would have reason to make it.

Her account of the central incident was that on 22^nd. May 2013 she was coming downstairs from her bedroom when the same man tried to speak with her. She tried to turn around and walk back up the stairs. He grabbed her bottom (she was wearing her pyjamas). She felt very scared and tried to push his hand away to make him stop and went back to her room and locked the door. She telephoned the manager of Rose Lodge to tell him what had happened, and he telephoned the police.

On 24^th., after the incident on 22^nd., the manager of Rose Lodge, Julie Winter, contacted the Borough by email (Richard Kent) to say she had been told by the Claimant that there had been "some harassment" aimed at her. Julie Winter then spoke in more detail to the Claimant. She described the incident I have dealt with above. But on 24^th May, when she emailed Richard Kent, she had been told by the Claimant that she did not want the aggressor to know that she was making a complaint about him. Following that, Julie Winter reported the allegation to the Metropolitan Police. They attended on 25^th..

The manager of Rose Lodge (Julie Winter, whom I have mentioned already) notified the police. They attended and spoke to the Claimant. PC Hopkins made a note of what was said. She complained that since she had moved in the man concerned had been trying to touch her when she was near him. The officer noted the account she gave of the incident of the 22^nd. that she "...was coming down the stairs from her bedroom when she saw [the aggressor] who tried to engage her in conversation then touched her arm. She turned to walk up the stairs and she felt him grab her pyjamas at the rear by her buttocks. She was scared and swiped her arm at him to make him stop which he did. She went back to her room and locked the door…...she believes [the aggressor] is suffering from some sort of mental health issue." He noted that she did not want to substantiate any accusations, and requested that the police gave the suspect words of advice, which an officer did. She signed PC Hopkins' pocket book to confirm that she did not want to make allegations.

When questioned about that, the Claimant said she had not said that she did not want to press charges. She did indeed want to do so. Rather than accept that she had raised the question of the man's mental problems, she said this is what she had been told by the police, and having been told by the police that he was a sick man that this calmed her nerves. She rejected a suggestion that she had exaggerated what had happened in an attempt to get moved into the Hammersmith area from Wembley.

Though the Claimant's recollection of conversations with the police does not coincide with the detail of the notes made at the time by the officers concerned I have concluded that there was some incident between the man concerned and the Claimant. It happened as the police recorded it (I have concluded this because it seems to me probable that the police would have raised the matter with the man concerned and that there is nothing to suggest that he denied it). Whether it was an assault as later described is more doubtful but I accept Prof. Katona's view that this does not really matter so far as creating an effect upon the Claimant is concerned: if she perceived it as a threat, it would have an effect upon her. I do not accept that it was the police who claimed to the Claimant that the man had mental health issues. First, the police put it the other way round: and this is consistent with the Claimant's approach as recorded by the police of not wishing to pursue the allegations further. I would find it surprising if (as the Claimant testifies) her being told that the man concerned had mental problems would have calmed her nerves as she said. Tending to confirm my view is the fact that the lodging manager herself noted that the claimant did not wish to be identified as a complainant. However, I accept also from the evidence before me that many of those who have been trafficked do not necessarily wish to pursue individual claims before the courts: to do so may involve reliving experiences they would rather forget. Though she has chosen to tell me, untruthfully, that it was the Police who raised the question of his mental state and suggested she should not pursue the matter, this may have been an attempt to explain away her reluctance to relive the past, when she may have thought her account would otherwise lack credence.

Following a further complaint from Mr Sutherland on 29^th.May, the Claimant was moved to the self-contained accommodation in Tottenham. Despite his complaint she was not removed from the property nor was she moved until 30^th.May.

It is said on behalf of the Claimant in her particulars of claim that choosing to place her in temporary accommodation with other males including those who were themselves vulnerable with mental health problems, without any support and without minimum measures required to ensure her safety was negligent. Indeed, far from protecting her she was placed in a situation where she became vulnerable to harassment and sexual assault on account of shared bathrooms and communal areas, the lack of working locks on bathroom doors, the lack of any CCTV for the property or other security measures and the lack of support or supervision. In her claim for damages she submitted that she was entitled to aggravated damages because she was the victim of victimisation and harassment and sexual assault by another resident, and that the incident of sexual assault was not only foreseeable, but allowed to happen and not properly investigated "irrespective of the Claimant's understandable wish not to be identified as a complainant whilst being forced to live at the same property". In passing, I note that this might also be some confirmation, from her own pleading, that the Claimant did not wish to pursue matters.

As to these claims:-

(a) I do not consider that it was reasonably foreseeable to the Defendant that a male fellow resident would sexually harass the Claimant; if I am in error in respect of that, on the state of the law as I have set it out above the Defendant is in any event not liable for failing to prevent harm caused by someone else.

(b) Further and separately, there was no evidence beyond the fact of the incident, and other complaints made by the Claimant of a very dubious reliability, from which to establish that any reasonable observer would have foreseen a real risk of harassment. Whereas I consider it undesirable for a woman who has escaped from forced prostitution to be placed in a house which includes a number of single men, I do not consider that this gives rise to any greater risk that that woman would be assaulted by those men any more than a risk that she would assaulted by any man she might work with, see in a cafe or shop, or come close to on public transport. Since there was no special relationship between the Defendant and the man concerned creating a relationship of proximity, I hold that no duty in negligence to keep her safe from harm inflicted by others arose, and it follows that none was broken; that the Defendant has not been shown to be responsible for what it was that occurred; and that insofar as the Claimant relies upon this incident for having caused her damage, she cannot succeed.

Delay in moving the Claimant from Rose Lodge after the complaint of assault

I have already accepted the pleaded case for the Defendant that there was nothing in the material which the Defendant had before it which showed that it was an essential requirement that the Claimant should have self-contained rather than bed and breakfast hotel accommodation, nor that she should be housed in single sex (women only) accommodation, even though I have expressed the view that it would be better if she had been. I consider, too, that there was no pressing need to remove her from the temporary accommodation at Rose Lodge upon the complaints that were made prior to the complaints of harassment being made in respect of the incident on 24^th. May. These came to the attention of the Defendant in the evening of 24^th.May. The Defendant showed, in its response to what was said to have happened in Tottenham, that it could, where it thought it necessary, act with great speed to secure the safety of the Claimant. I infer it could have done so by moving her from Rose Lodge, if not on 24^th. (it was late in the day that Richard Kent was told of what had happened) then on 25^th.or 26^th. May. The Police inquiries took place on 25^th. May. The Defendant would not have known of the result of that till the evening of the 25^th.at the earliest. The Defendant suggests that the period between 24^th. (or 25^th.) and 29^th. May, when the accommodation in Tottenham was arranged, was an appropriate timescale within which to take action. I do not accept this. In my view, not only could the Defendant have acted with greater speed, but it should have done so at this point. It knew that the Claimant was a victim of sexual exploitation; that Sheron Barrett had thought she should be moved to accommodation with private facilities; and that she was living in accommodation where she shared common parts with men, one of whom she complained had shown interest in her which had just culminated in what was either an assault or some incident close to an assault.. The first legal answer to a claim based on this failure is that the Defendant had no duty toward her in private law. However, even if the Defendant had been subject to a duty there would be a second reason, which is evidential, to reject a claim for damages based upon breach of it: there is no material to show that the delay caused any damage to the Claimant. No further incident of which she complained occurred during the period between 24^th. and 29^th. May. Prof. Katona in his reports does not suggest that any delay at this stage was causative of any loss: indeed, he hardly mentions it at all. Thus no loss or damage has been shown to flow from this failure, even if there were an actionable breach.

Extent of Exacerbation of Pre-existing Mental condition

For completeness, I should deal with submissions made to me about the extent to which any of the breaches alleged by the Claimant exacerbated her condition so as justify an award of compensation. Prof. Katona (who, like Rachel Witkin, was an impressive and careful witness) thought that 75% of the Claimant's current psychiatric condition was caused by factors which pre-existed the assault (if it was one) at Rose Lodge, and the events at Tottenham. Of the 25% for which those two events were responsible, as he saw it, he assessed that the sexual assault caused the greater part, and that the lesser part was caused by the events in Tottenham. He accepted that it was very difficult to be exact about percentages: however, he thought that the effect on the Claimant of events at Rose Lodge appeared to be like picking at a wound: it had a disproportionate impact, taking the Claimant back to memories of previous experiences. He thought her experience at Rose Lodge was the more important of the two because the Claimant seemed much more upset and emotionally engaged about that than she had about events at Tottenham. He viewed Rose Lodge as a single experience within a very short period of time. Since, on my assessment, I would discount events in Tottenham as having any impact at all since I have concluded there is no reliable evidence that they happened, Rose Lodge remains. I accept Prof. Katona's evidence that it was hard for him to judge whether there had actually been a sexual assault, but that what was described was not necessarily not such an assault: the main thing that struck him as harmful to the Claimant's mental state was that a man behaved towards her in a way which she perceived as a threat of a sexual type, given her previous experiences. He has seen the whole experience of Rose Lodge as one episode: but I have to take into account my view that there is no reliable evidence that any harassment occurred before the events of the 22^nd., and that the Claimant would exaggerate events if she thought it might suit the moment. If, contrary to the conclusions I have already expressed as to duty and breach, the incident was of a type which was wholly foreseeable and one from the occurrence of which the Defendants should have shielded the Claimant, then it would on the evidence of Prof. Katona have had an impact upon her. In that event, if damages did fall to be assessed, I would have held that her underlying condition had been exacerbated to the extent that around 15% of its current level can be attributed to her reaction to it.

Conclusions

In conclusion, I hold that:

(i) the Directive has neither direct nor indirect effect, but

(ii) if it did have indirect effect the Claimant would be no better placed than she would be if a claim in common law negligence could succeed.

(iii) actions by reference to the European Convention of Human Rights, and the replication of those rights in the European Charter, do not take matters further.

(iv) A private law action for negligence in respect of the allocation of housing by the Defendant is precluded by authority.

(v) Insofar as there is space for any further action on the ground that the local authority had a duty of care for the safety of the Claimant, and broke it, this fails because the Defendant had no responsibility for the actions of those at Rose Lodge or at Tottenham (if any), who were independent third parties, and their actions were neither the very sort of thing that was likely to happen nor even reasonably foreseeable.

(vi) In any event the allocation of Rose Lodge was not inappropriate as temporary accommodation for someone who had not (contrary to her case) been accommodated entirely hitherto in female only accommodation, but had lived free of trafficking for some time prior to her imprisonment;

(vii) Further and separately, breach would fall to be judged by what was known or ought to have been known to the Defendant. On neither basis was the Defendant required to secure female only accommodation or self-contained accommodation such that a failure to do so would give rise to an action in law. Though my view is it would have been better if the latter had been provided, this falls short of an obligation for a breach of which damages are payable or a declaration should be granted.

(viii) The Defendant should have moved the Claimant from Rose Lodge more quickly than it did, but it had no private law duty to do so, and in any event this failure caused no loss nor does it appear to have exacerbated any pre-existing psychological condition from which the Claimant suffered.

(ix) The allegations made in the claim and in closing by Ms Meredith that the Defendants lacked a policy to deal with those who had been trafficked, and their staff were untrained, did not in either case cause or contribute to the exacerbation of the Claimant's pre-existing post traumatic stress disorder in respect of which she claims, nor in a private law action does the absence of such a policy require a declaration to be made, and I decline to make one. As I have indicated, the facts show, on my assessment that the Defendant did not act inappropriately in any way that could give rise to a claim for damages

(x) Had she succeeded in respect of her claim concerning harassment and assault at Rose Lodge the Claimant would have been entitled to claim damages for an exacerbation of her pre-existing condition such that 15% of her present condition would be attributable to the breach: however, for the several reasons I have given, her claims do not succeed and her case is dismissed.

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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> XPQ v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB) (07 June 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/1391.html Cite as: [2018] WLR(D) 349, [2018] EWHC 1391 (QB), [2018] 4 WLR 102

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th June 2018