Deceit and subterfuge underpinned PCC’s decision to fund chief’s civil claim

Much has been written elsewhere, almost exclusively by me, concerning the North Yorkshire Police investigations codenamed Operations Rome and Hyson. The satirical magazine Private Eye did, however, break mainstream media ranks and publish an article in the last week of August, 2016 [1].

The Eye piece is a scathing condemnation of the failed criminal investigation (Rome), then the civil action (Hyson), mounted by Dave ‘Knacker’ Jones, North Yorkshire Police’s chief constable, against citizen journalists who were criticising his force.

This latest article of mine looks more closely at the deceit and subterfuge that surrounded the formal decision by Julia Mulligan, the Police and Crime Commissioner for North Yorkshire, to use a huge amount of public funds to allow three high ranking police officers,  including Jones, one retired detective superintendent and a former Chair of North Yorkshire Police Authority in pursuit of harassment claims against two citizen journalists and a justice campaigner.

The civil court case, which is currently estimated to have cost the taxpayer £450,000 (Private Eye reckons it is higher than that), also featured four members of the Hofschröer family. Three as police funded claimants, Robert, Diane and Martin, and Peter (Robert’s brother) as defendant, with no funding.

It serves no useful purpose to rehearse here the infamous ‘Grandma B‘ campaign, mounted by Peter Hofschröer, over allegations that the other family members involved in the court case deprived his mother Barbara of the family home in Acomb, York with nefarious motive. My single contribution to this wholly unsatisfactory affair is to say that, on the face of the documents and evidence I have access to (which is not all of them, of course), the police picked the wrong side in the argument over the alleged property fraud.

The presence of Hofschröer family members on opposing sides of the claim gives the whole matter the bizarre feel of a family dispute gone terribly wrong. Whereas, the real motivation behind the civil claim was, say Private Eye, to silence the police force’s critics, once and for all. The Hofschröer family dispute just provided a convenient ‘cover story’ for that principal aim.

One of the many extraordinary aspects of the Hyson civil claim is that it was launched two months after Peter Hofschröer was arrested and held on remand, with no access to legal advice or his paper or electronic files. He has not been at liberty since and was convicted at Teesside Crown Court in July 2016 on indecent image charges [2].

Hofschröer now faces Part 1 extradition proceedings by the Austrian authorities at a Westminster Magistrates Court hearing listed for 15th September, 2016 on charges relating to stalking, child pornography and defamation under sections 107, 207 and 297 of the Austrian criminal code. It is also reported that he is appealing the paedophilia conviction, although how that could be grounded is not entirely clear, given that the trial was conducted by one of the North East Circuit’s longest serving judges, HHJ Tony Briggs QC.

The net effect of all this, as far as the police, and the rest of the Hofschröer family is concerned, is that none of the offensive articles about which they complained have yet been removed from the internet, nine months after an injunction prohibited their publication – and the likelihood of ever collecting the costs awarded against Peter Hofschröer are almost non-existant.

Put shortly, and given his continued incarceration over the criminal matters, the civil claim against him was a complete waste of time and money.

Which brings us to the decision to spend a vast amount of public money, made by the PCC and published on her website [3], some twelve months after she was required to do so, by law.

Despite being asked a number of times the PCC refuses to explain the delay between the first of the lawyers’ Hyson invoices pouring in (July 2015) and the Decision Note being put up, unannounced, on her website fifteen months later. What follows in this article will go a long way to unlocking that mystery.

To facilitate this analysis, the text of the formal Decision Note dated 29th September, 2015 is taken verbatim from the NYPCC website and highlighted below in blue. My comments, grounded mainly in responses to correspondence with the police and the PCC’s office, freedom of information request finalisations and public accounts access disclosures, are in black type beneath each section.

Screen Shot 2016-09-04 at 13.50.10

Executive Summary and Recommendation

The Police and Crime Commissioner (PCC) is ultimately responsible for representing the public in all matters, as well as overseeing  the policing budget to ensure good value for money for the taxpayer.

Many would submit, along with myself, that allocating around £50,000 each in free legal fees to the Chief Constable, Deputy Chief Constable and the Head of Uniformed Services (whose combined total salaries of around £340,000 per annum plus benefits totalling another £60,000pa ) would not pass any known Value For Money test.

It should also be said that, in my extensive investigative experience, the PCC in North Yorkshire puts her unquestioning support of the police – and particularly Dave Jones – well ahead of any representation of the interests of the public. 

This Decision Notice will demonstrate that the PCC is holding the Chief Constable to account by monitoring the financial support of a specific case which is currently a matter of ongoing civil proceedings.

The one significant feature of the PCC’s tenure has been her complete failure to hold the Chief Constable to account. This was a key strand of argument from those opposing her in the PCC elections in May 2016, when Julia Mulligan was elected on a much reduced majority. The shambles surrounding this Decision Notice is a further example of that.

The PCC is satisfied that supporting the action by individuals is a lawful and proportionate use of public money and is in line with her priority of supporting victims and ensuring an efficient and effective police service. This Decision Notice will explain the scrutiny process.

In the Hofschröer case there has been one victim who stands out above all others: Disabled World War 2 veteran, Barbara Hofschröer, who was displaced from her home and now languishes in a council run care home, cut off from her chosen carer. Whilst no right thinking person could condone the appalling manner in which the campaign for justice for Grandma B (as Barbara is widely known) was run by her son and carer, Peter, at the heart of this issue is a grave miscarriage of justice.

In order to be as open and transparent as possible, the PCC publishes all Decision Notices so they are available to the press and the public.  This happens whenever a decision is in the public interest, of which there are several tests. In addition, the PCC expects the Chief Constable (CC) to draw to her attention issues which (amongst other things) are sensitive, contentious, novel or repercussive or where there is a real risk that the Commissioner or Chief Constable could be exposed to public criticism.

This Decision Notice was only published after considerable pressure was brought to bear by me, both via social media and a complaint to the Police Scrutiny Panel. Almost a full year after the PCC was legally obliged to do so.

In making this decision publicly and formally, through a published Decision Notice, the PCC will demonstrate that:

  • She is holding the Chief Constable to account by monitoring the financial support provided to a specific legal case, which is in the public interest

On any reasonable view it is difficult to see how the public interest is satisfied by granting huge benefits, by way of free legal fees, to very highly paid senior police officers over ‘hurt feelings’.

  • She is satisfied that supporting the action is a lawful and proportionate use of public money in line with her priority of supporting victims, and is in the best interests of the public purse

There are thousands of victims of serious crime in North Yorkshire who have received no financial support, whatsoever, from either the state in general, or North Yorkshire Police in particular. To allocate huge sums of money to alleged victims of harassment without violence is preposterous. Away from North Yorkshire, I draw the stark example of the families of the twenty-one victims of the Birmingham pub bombings who are desperately seeking public funding for legal representation at the new inquests. They have, so far, been refused legal aid and an appeal direct to the Home Secretary has been made. Perhaps they might get  more joy from Julia Mulligan?

She is upholding her commitment to being open and transparent.

The repeated use of the expression ‘open and transparent’ is troubling (they are underlined for emphasis). It has been proven beyond any doubt, whatsoever, that the PCC’s office is anything but. To the extent that Julia Mulligan is due to appear in Huddersfield County Court on 11th October, 2016 over her persistent breaches of Data Protection and Freedom of Information Acts. Much of the withheld information that forms the grounds for my claim concerns Operations Rome and Hyson.

1. Introduction and Background

Over the last seven years an individual has been involved in a complex family dispute.  Some of the allegations made have been investigated for possible criminal offences.  During the course of the investigation, members of the public and several professionals involved in the case, including former and serving police officers, have sustained alleged harassment.  The alleged harassment has included an amount of comment about their personal integrity and has been experienced through correspondence with the force and the Office of the PCC (OPCC), in formal complaints and on various social media outlets including websites and blogs.

The individual concerned was Peter Hofschröer. In an ‘open and transparent’ Decision Notice it seems odd that he has not been named. Six months after court proceedings were opened in a public hearing. Similarly, the websites referred to were Real Whitby and the North Yorks Enquirer. The blog in question was the previously mentioned Grandma B.

Criticism of North Yorkshire Police is of course accepted as fair comment and complaints are dealt with in accordance with procedures.  North Yorkshire Police strives to encourage engagement and debate with the public it serves, and in no way seeks to “close down” legitimate criticism that is helpful in improving the service response.  However, some of the comments have been so personal as to have affected the health of some of the recipients.  Police officers are used to dealing with difficult situations, they have broad shoulders and they are certainly not above criticism. 

There can be few, if any, other public bodies that are as sensitive to any criticism as North Yorkshire Police. It only encourages debate if they are able to control the agenda. Similarly, if the force is tackled on any area where their service falls below the required standard they are simply not interested in engaging with those who highlight shortcomings.

Similarly, the assertion that complaints about NYP officers are dealt with according to procedures is risible. A growing portfolio of cases to which I now have access has proved, beyond any doubt, that abuse of the complaints system by the force is on an industrial scale.

There has however been years of unwarranted harmful personal abuse that has tied up police time.  If the behaviour had been physical then there may have been a variety of different solutions to stop the behaviour and the Chief Constable has a statutory Duty of Care to look after the health and safety of his employees no matter how any distress is caused. Along with the health and safety of individuals, the effectiveness and efficiency of the police service is paramount and must be protected.  Over a considerable period of time the contact of individuals has impacted greatly on police resources in a way that is not sustainable.

The three officers concerned here are Chief Constable Jones, Deputy Chief Constable Tim Madgwick and Chief Superintendent Lisa Winward (since promoted to Assistant Chief Constable). The harassment, according to the claim’s particulars and their own witness evidence, comprised of emails and articles on two websites. It is very doubtful that the two chief officers saw the emails and even more doubtful that they read the articles on what are two niche websites. Indeed, the pleadings made it clear that a lot of the ‘harassment’ complained of required a Google search by a team of expensive lawyers, working on their behalf, building a case.

The Chief Constable took the decision to proceed based on clear advice from a leading Barrister.  Based on that advice, the Chief Constable took the view that civil litigation was a necessary step to exercise his duty of care to members of his own organisation and to protect members of the public.

The leading barrister is Simon Myerson QC, who had also been advising on the spectacularly failed criminal investigation, Operation Rome. It is unclear why, in an ‘open and transparent’ Decision Notice why such a high profile lawyer would not be named. He had already appeared in court in the matter twice by the time the Decision Notice was published.

The decision by the Chief Constable to fund legal action to support individuals – both former and serving officers, and others connected with the case – attempting to prevent further alleged harassment was considered at great length.  Legal advice was proactively sought. 

Alongside that formal legal advice, both the PCC’s and Chief Constable’s Chief Finance Officers were consulted and provided their professional opinion.  Financial regulations were also checked. 

The External Auditors have also scrutinised the rationale and confirmed that North Yorkshire Police has the powers to undertake the actions that it has.

An employer has a statutory duty of care to the employees of the organisation.  Responsibilities include matters of health and safety and well-being.  Supporting this case seeks to addresses this.  Along with this duty on the employer there is a legal power and duty upon the PCC to maintain an efficient and effective police force for the area.  Supporting this action seeks to contribute to this in relation to the significant time and resource that has already been spent on this matter.

As is often the case in legal proceedings, most of the cost is frontloaded as evidence has had to be filed at the beginning.  This Decision Notice is being considered before the proceedings move towards any possible further hearings.

Two hearings had already taken place at Leeds High Court and a third hearing was already listed, before the Decision Notice was published. On 9th February, 2105; 25th June, 2015.  and 27th November, 2015 respectively

The position at this time is that the defendants can now decide whether to contest the case brought.  If they do so, a final hearing timetabled by the Judge would then be required.  It is of course hoped that a lengthy hearing can be avoided by the defendants agreeing to proposals made.

By the time the Decision Notice was issued it was clear that the two journalists were not going to go down without a fight and that a lengthy and costly legal battle was inevitable.

The final cost of the civil case will depend at what stage the case is finalised. Any early settlement will avoid a contested final hearing.  So far (to the date of this report), external legal advice and representation in the civil proceedings has cost £162,406. Most of the cost is frontloaded in this type of proceedings, as evidence has had to be filed at the beginning.

An estimate for the anticipated costs was made before the start of the proceedings and was estimated at around £202,000.  This is set against the cost of over £400,000 which the matter had already cost the force in dealing with the activities of those against whom the civil claim is made.  There was no apparent end to the case without positive action and other solutions had already been exhausted, which was a key factor in determining the course of action through the civil court.

It must have also been clear at that time that the estimate for the legal costs was going to be well in excess of the £202,000 estimate referred to in the Notice. The claim of £400,000 being the cost of dealing with the ‘activities’ of the defendants has been proved beyond any doubt to be far-fetched in a highly forensic article I wrote on the subject earlier this year. Read ‘409,970 reasons not to trust North Yorkshire Police’ [4].

In addition, the victims of the alleged harassment need to be able to seek relief from the alleged harassment they have felt and the PCC felt it appropriate to support them as victims in these proceedings.

A freedom of information request has been submitted to the PCC’s office to establish how money other victims of crime have been granted access to police funds to pursue civil claims.

2. Other Options Considered

It is for the Court to find, on consideration of evidence put before it, whether the issues and behaviour concerned have amounted to legal harassment of the individuals concerned. However, North Yorkshire Police felt obligated to take positive action to try to protect its staff.  Therefore it was decided to support the officers to commence civil proceedings as individuals.  In addition, as all solutions in the criminal arena had been exhausted for other claimants, a decision was taken to combine all actions of all individuals concerned from the start.  This was considered to be the most operationally and administratively effective solution saving both financially and court time (and therefore further public money) to combine all actions of the individuals concerned from the start.  It is hoped that the final outcome will reduce the distress felt by all those party to the action.

Citizen journalist Nigel Ward was included in the action despite none of the police officers (serving or retired) having any evidence against him, whatsoever. The Hofschröer family and their social worker had none either. That meant eight of the nine claimants had nothing against Mr Ward. Yet, the police officers held him in the claim until June, 2016 before discontinuing their claims and agreeing to pay Mr Ward’s costs. At the final hearing, Mr Ward was also awarded his costs against the ninth claimant, Jane Kenyon-Miller. This is likely to add over £100,000 to the police bill and raises huge public interest and misfeasance questions about the funding, by the police, of an action that, in the end, amounted to a wealthy public figure trying to crush a penniless pensioner into silence over her dodgy business dealings.

3. Contribution to Police and Crime Plan Priorities

The action supports the Policing Priorities in the Police and Crime Plan.

This statement is a nonsense. There is nothing at all in the Plan that supports senior police officers being granted huge sums of public money to pursue journalists over alleged harassment. Especially, after the CPS had twice ruled against the police on charging decisions over those same allegations.

4. Implementation and Resourcing Implications

The proceedings will continue in line with Directions made by the Court and regular meetings will be held to monitor progress and plan for different outcomes depending on any Orders or Judgment.

A freedom of information request has been made concerning the notes of those meetings. The decision to proceed to trial in a one versus one situation was very high risk for the police – and so it proved. The officers involved in that decision should be named and shamed.

5. Consultations Carried Out

Professional consideration and advice has been provided by: 

Department
Office of the PCC
Financial Services
Local Policing
Human Resources
Joint Corporate Legal Services
Corporate Communications

 5. Compliance Checks

Financial Implications/Value for money: 

Comments of the Commissioner’s Chief Finance Officer
Prior to any expenditure being undertaken on the work to support funding this case the PCC CFO and CC CFO were consulted and their authorisation sought to spend public money in the way proposed. As PCC CFO, and therefore advisor to the PCC on financial matters, it was my opinion at the time, and continues to be my opinion that the organisation has the ‘power’ to incur expenditure in this way based on 2 reasons from a financial perspective.

This is patently untrue. Work was in train on Hyson as soon as Rome ended in July, 2014. The earliest recorded discussions taking place over funding was three months later, in October 2014. There are also significant breaches that have been exposed, by freedom of information requests,  over procurement regulations in force. Solicitors and barristers were awarded contracts for over £200,000 without any tendering protocol being observed. Requests for sight of the Single Tender Access documents, upon which the police later relied as an explanation, have fallen on stony ground.

The first reason is that an employer has a statutory duty of care to their staff in matters of health and safety and well-being, which is something that supporting this case looked to address. The second reason is that the PCC has a legal power and duty to maintain an efficient and effective police force for the police area. Given the amount of time and resources that has been spent on this matter previously, an estimate of which is set out within this Decision Note, then to protect the effectiveness and efficiency of the Force and to enable scare resources to be directed to the most appropriate areas of policing then the power exists to spend the money in the way outlined within this Decision Note.

It has been demonstrated beyond any doubt that the figure of £400,000 relied upon for expenditure on Operation Rome – and used as justifaction for spending £200,000 on Hyson – was largely an invention.

As mentioned elsewhere, legal advice has been sought and received in relation to the power of the organisation to spend public money in this way which supports the views of the statutory officers employed by the PCC and CC. In addition to this the External Auditors for North Yorkshire Police and the PCC have looked separately into this matter, to satisfy themselves that the organisation had the power to spend the public’s money in this way. While their formal opinion has not been received on the 2014/15 Statement of Accounts it has been communicated that they are satisfied that the ‘powers’ that the organisation has relied upon to incur this expenditure are lawful.

The External Auditors, Mazars, were not even aware of Operation Hyson until I raised it with North Yorkshire Police during the public accounts access period in July, 2015. Exactly a year after the first invoice connected to Hyson was raised by Simon Myerson QC. Mazars have not produced any evidence of independent legal opinion concerning the lawful ‘powers’ of a chief constable authorising himself £50,000 of free legal fees.

Comments of the Chief Constable’s Chief Finance Officer
I am in full agreement with the remarks made by the Commissioners Chief Finance Officer. 

I have submitted a freedom of information request to North Yorkshire Police seeking all meeting, briefing notes, internal and external emails connected to the decision (and the rationale behind it) by the force (and the PCC) to fund the civil action.

Legal Implications:
External expert legal advice has been sought (which is legally privileged) and there has been significant consideration of the ‘vires’ (lawful power) to use public money to support the funding of this case.  The T/Force Solicitor and Head of Legal Services is satisfied that this report does not ask the PCC for North Yorkshire to make a decision which would (or would be likely to) give rise to a contravention of the law.

It has been proved conclusively, by me, that the PCC received no independent legal advice concerning ‘vires’ – and none was ever sought. At first, Force Solicitor, Jane Wintermeyer, falsely claimed to me, in writing, that legal opinion had been sought on 13th January, 2015. She later retreated from that position and said the opinion was given in conference with Simon Myerson QC on 15th October, 2014. Myerson has never been instucted by the PCC on this (or any other) issue – and neither has any other solicitor or barrister according to a freedom of information response.

Human Resources Implications:
Welfare provision has been considered throughout in relation to those directly affected, due to the duration of this case, ongoing assessments should continue as part of our duty of care as an employer.

No medical evidence was adduced at any stage in the claim to support the proposition that the three serving police officers have been affected in a way, beyond hurt feelings, that would justify the spending of public funds to the tune of £450,000.

Public Access to information
As a general principle, the Commissioner expects to be able to publish all decisions taken and all matters taken into account when reaching the decision.  This Notice will detail all information which the Commissioner will disclose into the public domain.  The decision and information will be made available on the Commissioner’s website.

This is patently untrue. This was a Decision Notice that should have been published in October, 2014 when the decision was allegedly made to dip into the public purse to fund this legal free-for-all. It was admitted to me, in writing, by the North Yorkshire Police Force Solicitor that there was no intention to publish a Decision Notice about this grotesque waste of public money without a formal complaint being made to the Police and Crime Scrutiny Panel concerning its absence. The failure to publish placed the PCC in breach of The Elected Local Policing Bodies (Specified Information) Order 2011.

In summary, it can now be seen that this Decision Note was a lame attempt to cover over a number of defects in due process and slack accounting procedures at the very least.

During my investigations into the Hyson case I have been variously and regularly been obstructed, lied to, smeared and even threatened with legal action by either the Force Solicitor, or those working on her behalf.

The Chief Financial Officer failed to comply with her disclosure obligations under the during the public accounts inspection in 2015.

The ‘open and transparent’ Police Commissioner consistently refused to answer questions over the funding – or even whether she had read the particulars of claim or statement of case – during proceedings by citing potential prejudice. Then, incredibly, airily dismissed fifteen public interest questions put to her in an open letter published on both this and the North Yorks Enquirer websites [5]. She went further and, incredibly, asked me not to repeat that costs had been awarded against Jane Kenyon-Miller and the other eight claimants. Nothwithstanding the fact that I was in court when the draft orders to that effect were agreed between counsel for the parties and nodded through by the presiding judge.

It is not known, as yet, whether, Mrs Mulligan and ‘Knacker’ as the satirical irreverently refer to her chief constable will be suing Private Eye over the article. Using public funds, of course.

This is a story that still has some way to run and if those officials, elected or employed, who have treated both the public and the law with utter contempt may well find that their seeming sense of invincibility will be shattered in a way they might not have considered possible. A study of section 6(1) of the Prosecution of Offences Act 1985 might well be prescriptive.

 

Annotations

[1] Private Eye, August 2016: ‘Police 5 – North Yorkshire Boors’.

[2] York Press, 11th July, 2016: ‘Historian who had 36,000 indecent images gets two and a half years’

[3] North Yorkshire Police and Crime Commissioner, 29th September, 2015: ‘Decision Notice 011/2015 – Formal support and explanation from the Police and Crime Commissioner regarding funding of ongoing civil litigation action (sic) to protect officers and members of the public against alleged personal harassment’.

[4] Neil Wilby, 20th March, 2016: ‘409,970 reasons not to trust North Yorkshire Police’

[5] Neil Wilby, 29th July, 2016: ‘Open letter to Julia Mulligan’

Page last updated on Monday 5th September, 2016 at 0845hrs

© Neil Wilby 2015-2016. Unauthorised use or reproduction of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from and links to the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Author: Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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