Sold down the river

In October, 2020 I wrote a short piece that featured, yet again, the ‘cover-up’ culture that pervades every part of North Yorkshire Police, writes Neil Wilby.

There are over thirty other such articles on this website. It is a rich seam for any curious journalist to mine. That, apparently, excludes those working for the tame local and regional media. Notably, the York Press, BBC Radio York, the Yorkshire Post and the Northern Echo. Their business models seem to exclude these type of investigations, and reporting, in favour of a largely unctuous public relations service to the police. That, of course, is entirely a matter for those publishers and broadcasters – and their readers or listeners. They know them best.

But it is an inalienable factor in why this police force continually fails the public it should serve, particularly in high profile investigations involving loss of life, and then executes cover-up after cover-up, safe in the knowledge that they face little or no meaningful challenge from the mainstream media.

The October article had, at its heart, three bereaved families. All losing family members in two of the rivers that surround York, the Foss and the Ouse. Apart from the deep distress caused by the usual defective NYP investigations into those deaths, two of the families suffered further harm at the hands of a police control room CCTV operator when he made inappropriate, insensitive remarks in the comments section of the York Press page on Facebook. His post was below an article concerning the death of Steven O’Neill, a 29 year old man visiting the city to see his brother, who was stationed at the nearby Imphal Barracks.

As a follow-up to the article, a request for further disclosure, by way of the Freedom of Information Act, was made to NYP on 1st December, 2020. Plainly expressed and uncontroversial:

“In October, 2020 I wrote and published this article:

https://neilwilby.com/2020/10/26/we-investigated-ourselves-and-found-nothing-wrong/

Within it is referenced an incident involving offensive posting on a newspaper website by a NYP Force Control Room operative.

1. Was the operative served with a Police Regulations notice?

2. If so, what were the Standards of Professional Behaviour allegedly breached?

3. If so, in what form did the disposal of such proceedings take?

4. Was the subject operative an authorised contributor to NYP social media account output (i) at the material time (ii) currently?”

It was also carefully framed so that no living person could be identified from it, thus triggering any of the section 40 exemptions under the Act.

As is usual, the request was stonewalled by the police, ignoring their lawful duty to respond within 20 working days, and the right to an Internal Review (a complaint, in effect, under section 45 of the Act) was duly exercised:

“I am writing to request an internal review of North Yorkshire Police’s handling of my FOI request ‘Rivers deaths in York’.

The grounds for complaint are:

1. You have breached section 10 of the Act.

2. You have breached section 17 of the Act.

3. To the extent that, in my respectful submission,

(i) the information is being deliberately withheld by NYP to avoid further reputational damage. I hold an account from one of the bereaved mothers that heavily supports that proposition.

(ii) the information is being deliberately withheld as part of a wider, and long-running, campaign of harassment, conducted by the chief constable and at least one other very senior officer against a journalist following his vocation. A simple reference to other requests made by this applicant to NYP, via the WhatDoTheyKnow website, lend significant weight to that assertion.

All rights of remedy, either by way of section 77 of the Act, or by civil proceedings are, accordingly and herewith, reserved.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r…

It reflected the permanently attritional relationship between journalist and successive chief constables, Tim Madgwick, Dave Jones and Lisa Winward, all of whom have deeply resented the level of scrutiny that an experienced and resourceful investigator brings to their door.

Jones during his ill-starred tenure was defeated twice in court, having wasted over £30,000 of public money on hopelessly misconceived defences of proceedings brought by that same journalist in county court and at information rights tribunal.

The bereaved mother referenced in the complaint is Sharron Scott, the mother of Steven O’Neill.

That review request was acknowledged, and recorded, on 4th January, 2021 by Amie McNairn, a Legal Officer (Civil Disclosure) within North Yorkshire Police.

On 30th January, 2021, having failed to meet the discretionary requirement under section 45 of FOIA, but a statutory requirement under section 39A of the Police Act, to answer that complaint, NYP were informed thus:

“A complaint, by way of Sections 50 and 77 of the Act, is being prepared for submission to the Information Commissioner’s Office [ICO]. They will, no doubt, be in touch with you in due course”.

North Yorkshire Police was belatedly placed in special measures by the ICO last year (read here), after many well-evidenced requests from this quarter to do just that. Dating back to 2016, when very serious concerns were first raised over the routinely lawless approach to their statutory responsibilities. They were addressed more pointedly the following year (read more here).

The same police force that gets into a hot sweat, and rushes to the local press, if a woman drives to meet her sister in Whitby for a fish and chips meal during ‘lockdown’.

On 9th March, 2021, and before the hopelessly ineffective, inefficient Information Commissioner had swung into action, a response to the original request was belatedly provided by Caroline Williams, the Civil Disclosure Team Leader.

“I write in connection with your request for information which was received by North Yorkshire Police on 1st December 2020.  Please accept our apologies for the delay in providing you with a response. 


Decision 
Q1-4. Your request for information has now been considered and I can neither confirm nor deny that any information is held, under Section 40(5)(b) – Personal Information. 

Disclosure under the Freedom of Information Act 2000 (the Act) is to the world, therefore Section 40(5)(b) applies as to either confirm or deny that any information is held would disclose that individuals had, or had not, been subjected to such notices, which itself is personal information and 
therefore exempt under Section 40(5) of the Act. 
 
North Yorkshire Police has determined that in all the circumstances of the case the public interest in maintaining the exclusion of the duty to neither confirm nor deny outweighs the public interest in confirming or denying whether or not information is held. 
 
Pursuant to Section 17(4) of the Act this letter also acts as a refusal notice in relation to the duty to confirm or deny. “

To the wider world there might be mild surprise over the fact that, in a request seeking no personal information that would identify a living person, the police would deploy an exemption that relies on such an application. There might be even more surprise over the public interest test conducted by NYP where not disclosing a disciplinary outcome against an un-named individual, behaving unethically and unprofessionally, trumps the distress caused to bereaved families.

To this journalist the response comes as no surprise at all: The Civil Disclosure Unit has a lengthy track record of pre-formed decisions not to disclose information, with poorly conceived exemptions formulated around such finalisations.

NYP’s disclosure misdemeanours are not limited to freedom of information requests, of course. In one case, an outraged appeal court judge, Lord Chief Justice Thomas, humiliated Dave Jones, over persistent and mendacious failings, in a manner very rarely seen, before or since, in a courtroom. The force’s conduct was described as ‘reprehensible’ and ‘the worst the trial judge, in 50 years as an advocate and senior judge, had ever seen’. Neither Jones, nor the Chief Crown Prosecutor for Yorkshire and Humber, faced any sanction as a result of the Court of Appeal’s blistering condemnation (read full judgment here). It was head down, hope no-one is looking, particularly the local and regional media, and business as usual.

Very many others complain of similar failings, either via information rights requests (freedom of information or data subject access); in civil proceedings or in criminal trials. As a journalist, court reporter and occasional litigant in person, these are matters upon which close quarter, highly informed commentary can be made.

North Yorkshire Police is, very evidently, a force with a serious culture problem, dating back decades, and it gets worse every year, seemingly, not better. For the simple reason there is no-one that holds them to account.

In the present information request, this is the challenge presented to NYP in the form of a second Internal Review request dated 14th March, 2021 (the first remains unanswered):
 

“I am writing to request a second internal review of North Yorkshire Police’s handling of my Freedom of Information Act request ‘Rivers deaths in York’.

The grounds for complaint are as follows:

1. To almost any independent observer, with a working knowledge of the Act, this has the appearance another pre-formed finalisation by NYP’s hierarchy not to disclose information to this particular journalist, whom has exposed their persistent, mendacious lawlessness and failing after failing in the running of their force. A significant number, it must be said, via FOIA requests. As such, the decision maker(s) has/have breached the fundamental principles of requests being both applicant and motive blind. 

2. More crucially, relying on section 45(b) as an exemption to frustrate disclosure is, in my respectful submission, both wholly misconceived and, very arguably, mischievous.

In so doing, again in my respectful submission, NYP has breached both section 17 and section 77 of the Act.

3. To the extent that;

(i) it is part of the wider, and long-running, campaign of harassment, referred to in the first internal review request against a journalist following his vocation as “social watchdog” (a term coined by Upper Tier Tribunal judge, Nicholas Wikeley). Again, the reviewer is invited to reference other requests made by this applicant to NYP, via the WhatDoTheyKnow website, that lend significant weight to that assertion.

(ii) A number of Code of Ethics breaches are self-evident.

4. The reviewer’s attention is drawn to the fact that, in 2018, I succeeded in First Tier Tribunal proceedings (EA/2017/0076) against the NYP’s Civil Disclosure Unit in a challenge to a section 45(b) exemption. It may not be entirely a coincidence, but it was the very same disclosure officer (Caroline Williams) who signed off the finalisation of that request. 

5. Early in those proceedings it was established, beyond any doubt, that section 45(b) can only be relied upon by a public authority (or police force) if a distinction is made between section 40 (5) (b) (i) and 40 (5) (b) (ii). No such distinction is made here. Guidance issued by the Information Commissioner’s Office is very clear: In all cases, a public authority needs to consider the details of the exemption. In any refusal notice under the Act it is necessary to explain exactly which subsection is engaged, and why.

https://ico.org.uk/media/for-organisatio…

6. It should be self-evident to the reviewer that Parts 1. to 3. of the request are, effectively, consecutive and, as such, conjoined by the same narrow issue. Part 4. of the request is, however, a discrete matter and should have been subject to separate analysis by the decision maker. It plainly wasn’t. 

7. Taken together, paras 5. and 6 above strongly support the proposition, advanced at para 1 above, of a pre-formed decision, probably rushed and forced onto the disclosure officer by her superiors, and generic, rather than fact specific, reasoning is attached to it. 

8. Further, and in any event, the disclosure requested is not personal information. The request was carefully framed to circumvent that possibility. Parts 1, 2 and 3 are of the same class routinely posted on the NYP website regarding misconduct outcomes: https://northyorkshire.police.uk/access-…

9. The reviewer is also invited to consider Foster v IC (EA/2013/0176) in assessing whether the ‘neither confirm nor deny’ can sustain.

https://www.casemine.com/judgement/uk/5b35bf872c94e01ed25501a7

10. There is no prejudice to the rights and freedoms or legitimate interests of an unidentified officer in disclosing the requested information There are also no Article 8 Convention rights in issue..

10. The public interest test is deficient insofar as it raises no points of argument specific to the requested disclosure at either at Parts 1,2 and 3 or, separately, point 4. Indeed, the reviewer may well find that no such test was carried out.

11. The presumption at the outset of any such test is to disclose the information, a point not in evidence in this finalisation. Further, it is respectfully submitted that there can be no sustainable points placed in the balance that outweigh the interests of bereaved families knowing the truth and that miscreant officers have been appropriately dealt with in accordance with the applicable statutory framework. The conduct complained of was discreditable conduct, not a matter to be treated so lightly as NYP appear to have done.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r…

The internal review request was acknowledged and recorded by the Civil Disclosure Unit on 16th March, 2021.

This is another case that has Tribunal, and grotesque waste of public funds, written all over it. North Yorkshire Police did not, according to well placed sources, subject their errant control room officer to any meaningful disciplinary process and, having fobbed off Sharron Scott by saying ‘he has been spoken to’ they do not want to admit the fact that due process, an investigation and a published outcome has been subverted.

Eventually, it a point they will have to concede before a judge but, in present circumstances, that may be another three years down the road. By which time, the force will have suffered considerably more reputational damage than dealing with the matter appropriately in the first place and some, if not all, of those responsible for this farrago will, of course, have retired or moved on.

Regrettably, that is the modus operandum of the modern police service, not limited to North Yorkshire, it must be said: Admit nothing and use every means possible, fair or foul, regardless of cost to the public purse, to wear down the challenge. However compelling that may be.

Page last updated at 1045hrs on Wednesday 17th March, 2021.

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Photo credit:

© Neil Wilby 2015-2021. 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.

Published by Neil Wilby

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

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