Senior judge dismisses complaint over Recorder’s ‘offensive’ tweet.

An appeal has been filed against a judgment given by Lady Justice Carr DBE following a complaint against Mr Recorder Nolan QC to the Judicial Conduct Investigations Office (JCIO).

The complaint concerned a tweet posted on social media by the part-time, fee-paid judge in the late evening of 18th June, 2020:

It appears that the subject Twitter account has now been deleted.

The Middle Temple website states: “Ben Nolan was called to the Bar in 1971 and took silk in 1992. He lives in the Yorkshire Dales and practices across the North-Eastern and Northern Circuits with chambers in Newcastle, York and Manchester. He has a mixed practice and is noted in Legal 500 as a ‘well known circuit heavyweight in serious crime’. He is a Recorder and Deputy High Court Judge. He is actively involved in advocacy training in the Inn and on circuit”.

Recorder Nolan features elsewhere on this website (read here) after presiding over a high-profile and notably acrimonious civil claim in September, 2019. His heavily criticised judgment is, presently, the subject of an appeal to the High Court (read here).

In a complaint outcome letter dated 21st August, 2020 the JCIO say:

In her judgment, the Nominated Judge (NJ) concluded that “I do not consider that the posting of the tweet amounted to judicial misconduct. The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge. Nor did the contents of the tweet identify in any way that the author was a judge. In short, the tweet contained a private expression of opinion, albeit in offensive language, on the part of the Judge in circumstances that did not implicate him as a judicial office holder. In these circumstances, it did not risk bringing the judiciary into disrepute”. The NJ also considered that “the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”. Accordingly, the complaint has been dismissed under Rule 41 (b) of the Judicial Conduct (Judicial and other office holders) Rules 2014.

The complainant has appealed the findings in these terms:

“I appeal the outcome of a complaint investigation into a judge as conducted by JCIO on the grounds as seen below. Evidence is attached. Copies of the original tweets can be obtained from JCIO. The outcome letter to the complaint states: 

The tweet was not sent from a judicial account. The details of the account did not identify its holder as a judge.

The March 2020 Guide to Judicial Conduct states: 

Judges should be aware; however, that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary whether or not a judge’s comments would lead to recusal from a particular case. This risk arises in part because the judge will not have control over the terms of the debate or the interpretation given to his or her comments.

The risk of expressing views that will give rise to issues of bias or pre-judgment in future cases before the judge is a particular factor to be considered. This risk will seldom arise from what a judge has said in other cases, but will arise if a judge has taken part publicly in a political or controversial discussion.For these reasons, judges must always be circumspect before accepting any invitation, or taking any step, to engage in public debate. Consultation with their relevant leadership judge20 before doing so will almost always be desirable.Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including a set of chambers or firm of solicitors), group or cause or to a lack of even handedness. Care should also be taken therefore, about the place at which and the occasion on which a judge speaks. Participation in public protests and demonstrations may well involve substantial risks of this kind and, further, be inconsistent with the dignity of judicial office.


This is stated in the context of post on social media or to newspapers etc. There is no requirement in the Conduct Regulations that a judge is able to state anything he or she wishes provided he is not identified as a judge. The rules apply to judiciary regardless of if they are commenting from a personal perspective, or as a judicial office holder. Different rules apply to such as The Secret Barrister who is believed to be a member of counsel but is not identified directly as such. 

There is no mention made in the Conduct regulations that the judge is able to publicise his own views regardless of if he mentions his judicial office or not. The rules apply equally to if comments are made in relation to someone identifying themselves as a judge or not. 

The response of The Rt. Hon. Lady Justice Carr hinges on the basis that the judge was not identified on his Twitter account as a judge. This is the basis for her dismissal of the complaint on the grounds that the judge was not identified as such. This is not relevant to the complaint and has been seized upon as grounds to dismiss the complaint erroneously and contrary to the relevant rules. I was able to identify the Twitter account holder as a judge and the majority of the persons following the account will also have been aware that he was a fee paid judge from either media or professional connections. The basis on which the complaint has been dismissed is therefore spurious and erroneous. 

I refer also to the comment in the outcome letter which states:

“the tweet did not reflect any social prejudice on the part of the Judge. Rather it reflected what the Judge had seen in the newspapers and on television”.


This is problematic in a number of areas. Firstly why would Nolan comments on something that he has learned from second-hand experience? Is also his comment not reflective of social prejudice on the part of the source material in which he has seen such comments? Finally has the judge been asked the question of where this opinion came from (either his own or some form of repetition of a third party opinion) by JCIO in the course of the investigation? Were the sources of these ideas stated and relevant enquiries made to ascertain if these were the sources of such ideas? Regardless of if a prejudice has been obtained from TV or newspapers the expressing of the same ideation by a person – particularly a person intelligent enough to recognise them as being prejudice – is effectively them expressing the same prejudice. 

Any expression of social prejudice on the part of a judge is, I would submit, an exceptionally concerning matter. 


I wrote to ask JCIO:  Finally: you state a copy of the outcome letter has been sent to the judge. Is this identical to the copy sent to me? 

And JCIO replied: Yes, the same copy as stated in my letter of 21 August.

This being the case is it not so that now the judge at the centre of the complaint has the name of the person who made the complaint, as seen in the top left hand corner of the letter sent to me? Is this a breach of relevant data protection guidance? 

For this reason I appeal the complaint outcome to the Ombudsman.”

Recorder Nolan has been approached for comment.

The Judicial Conduct Investigation Office has been approached for clarification on timescale for finalising the appeal.

A copy of the Amended Guide to Judicial Conduct, referred to in the complainant’s appeal, can be read here.

Page last updated: Wednesday 22nd September, 2020 at 1105 hours

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.

© Neil Wilby 2015-2020. 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 Media, with appropriate and specific direction to the original content.

Greek trial delayed until connected proceedings in Bradford are heard

The CoVID-19 crisis that has afflicted the criminal and civil justice systems in England and Wales appears to have extended to the paradise Greek island of Crete.

An appeal against a judgment that was handed down as long ago as April, 2013 was adjourned at a short hearing on 22nd September, 2020. It is now listed for 1st February, 2022, a delay of over 17 months.

Full details of the background to the claim can be found elsewhere on this website at this link.

The appellant is Ralph Christie, a Leeds-born resident on the island, who turned his hand to property construction and development. From 2002, he grew from a very modest beginning to being on the cusp of having his company listed on the Stock Exchange before a spectacular and catastrophic falling out with one of his former business partners.

The adjournment followed an application by Nikolaos Giakoumakis, the lawyer representing the respondent, Bradford businessman Stephen Thomas. He argued that this appeal should not be heard until the conclusion of another trial involving his client. This is a Family Court matter where Thomas is involved in an acrimonious dispute with his ex-wife, Jane. The genesis of that action dates back to events in 2006. Its disposal, it is said, will have a direct bearing on the Greek case.

After hearing from George Komisopolis, representing the appellant, the court upheld the defence application to adjourn.

Ralph Christie said outside the court: “The delay is, of course, very disappointing but matters that will emerge in court at Bradford about Mr Thomas, and his financial dealings here in Crete, can only be to my advantage. At this stage, it would not be sensible to go beyond that”.

Page last updated: Wednesday 22nd September, 2020 at 0700 hours

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.

© Neil Wilby 2015-2020. 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.

Day of reckoning

In the summer of 2009, a dispute began between two erstwhile business partners when Bradford businessman, Stephen Thomas, walked into a police station and reported concerns over his dealings with Ralph Christie, a Leeds-born flooring retailer and contractor turned property developer, who had risen to prominence on the paradise Greek island of Crete over the course of the previous seven years.

The report led to the issue of civil proceedings by Thomas against Christie and two criminal trials in which Christie appeared as defendant. The first in Chania, the Cretan capital in 2013 and the second in the more urban surroundings of Bradford Crown Court in West Yorkshire, UK (read more here).

Judgment was given in favour of Thomas in the civil proceedings, in April 2013, whilst Christie was incarcerated in a Greek jail on Crete, ahead of the criminal trial. The claim totalled over 1.6 million euros.

At the Greek criminal trial, where Christie faced fraud and money laundering charges, he was emphatically acquitted. Thomas fled the island along with two other key prosecution witnesses, Susan Watt and Neil Waite, on the morning of the trial. In Greece, if civil proceedings are issued, the court, via judicial investigators, has the powers to advance the claim to criminal proceedings.

They claimed that they were the subject of intimidation, although the evidence behind that claim appears to be sparse and no proceedings have ever been brought against any alleged perpetrators, despite submissions to that effect by lawyers on behalf of Thomas, at the outset of the criminal trial, which caused an adjournment of almost 3 weeks.

Neither Thomas, nor Ms Watt, nor his civil lawyers turned up at the resumed hearing on 14th October, 2013.

In Bradford, fifteen months later, the jury cleared Christie of 14 of the 19 counts on the indictment. He was found guilty of the remaining 5, all for fraud by false representation, and received a sentence of 7 years imprisonment. Those guilty counts are still hotly disputed, as is the Proceeds of Crime Act (POCA) Order that was subsequently made in the same court in 2018 (read more here).

Two of the three witnesses who had fled Crete before the trial there did, however, give prosecution evidence in the Bradford trial. However, the jury did not believe either Watt, on seven of eight counts, or Waite on a separate single count. The guilty count, which concerned Stephen Thomas’ brother, Simon Thomas, is, according to Ralph Christie, the most controversial of the five.

A value of £55 million attached to all the offences on the indictment had been reduced to £486,000, plus interest by the time the POCA Order was made. Costing millions of pounds, and thousands of police officer, CPS lawyer and court hours, it amounts to one of the most spectacularly failed, and expensive, fraud investigations in police history. Yet, not one single West Yorkshire Police officer has faced a complaint investigation as a result of that shambles and the force remain determined to use every means possible to avoid doing so.

Ralph Christie contends strongly that his youngest brother, Cedric, a former police officer was the unseen hands behind the significant rise in the number of criminal charges that had grown from three to five to nineteen from the committal hearing at the now defunct Calderdale Magistrates Court, in April 2012 up to the final trial.

Stephen Thomas did not give evidence at Bradford, in spite of being the star witness for the police for years; nor did he feature on the indictment along with his former property development partner. Belated disclosures from West Yorkshire Police show that there were over 200 exhibits attached to his various statements made against Ralph Christie. None of which were in either the used, or unused, schedules of materials used, respectively, by the Crown Prosecution Service or disclosed to the defence team at trial. At least one of those exhibits was tainted as it comprised materials stolen from Ralph Christie’s villa in September, 2009. A fact of which WYP, and the Crown, were very well aware. But it didn’t appear an impediment to the latter when relying on that material during a Proceeds of Crime Act hearing in March, 2018.

An extraordinary situation and one that begs the question: What was Thomas saying to the police, and vice-versa, in all that time, and what were the police telling the CPS? One interesting fact that has emerged simply adds to the odour: The solicitor representing Stephen Thomas at the time, Phillip Sweeney of Opus Law, wrote to Detective Constable Charles Skidmore of West Yorkshire Police and pointed out that the witness statement presented to his client to sign was ‘neither accurate nor succinct nor representative of his [Stephen Thomas’] intructions to you’.

That inaccurate witness statement, processed by Skidmore, has never been produced to Ralph Christie, or his legal team during either criminal or civil proceedings, or via data subject access requests.

Thomas also appears to have enjoyed a charmed life, and a police and prosecutor safety net, with regard to other complaints and proceedings brought against him by his ex-wife, Jane Thomas, who alleges large scale fraud. These allegations feature in the judgment of the Greek criminal court. Matters that her former husband still denies. A final hearing is set to take place to settle these long running issues at Bradford Law Courts in November, 2020.

DC Skidmore has always been the subject of fierce criticism by Ralph Christie over his incompetence and apparent confirmation bias. Apart from the issues concerning the witness testimony of Stephen Thomas, the truthfulness, and motive, of a letter drafted by Skidmore and sent by David Levy, a very senior prosecutor, to the Greek authorities in 2011 has also been persistently and robustly challenged. To add to those, the background to how a memory stick belonging to Ralph Christie, believed to be product from the burglary at his villa in Crete in 2009, turned up at Dudley Hill Police Station in Bradford during the same month has never been properly explained by the police, or DC Skidmore, who was the officer fronting the investigation.

Yet the errant officer was allowed to retire from the force without facing any internal investigation, let alone sanction. A remark that also applies to the senior investigating officer in Operation Laggan, the codename for the ill-starred investigation set up to snare Ralph Christie. That was the hapless Detective Inspector Stephen Taylor. Formerly a close working colleague of Cedric Christie in the force’s Economic Crime Unit.

In December, 2011, a few months after he had retired, Cedric wrote to DI Taylor about the case against his elder brother and said: ‘You are really scraping the barrel now and you know what I mean. This concocted farce started just over 3 years ago and still no charges’.

The missive from his former colleague appeared to galvanise DI Taylor as the first charge was laid against Ralph Christie six weeks later. A theft charge upon which the jury returned a not guilty charge at Bradford Crown Court over three years later. The Greek authorities did not charge Christie with theft based on the same evidential materials.

On 22nd September 2020, at the picturesque Chania Court House in the administrative capital of Crete, Ralph Christie and Stephen Thomas are set to face one another in a further legal renewal. This time it is Christie who is in the driving seat in a much delayed appeal against the civil judgment, granted in favour of Thomas, as referred to earlier in this piece.

Given the findings of a three judge panel at the criminal trial, including the senior appellate judge on the island of Crete, in the same courtroom, Christie quite rightly assesses his chance of success as better than 50%. The bench found the Thomas allegations of fraud against Christie unproven and had some harsh words regarding his own conduct in concealing substantial investments abroad from his ex-wife during an acrimonious divorce settlement – and also from the UK and Greek tax authorities.

The three senior judges were also emphatic that the two men were business partners over a significant period, with ample documentation to that effect, despite a 54 page witness statement, filed and served by Thomas, going to considerable lengths to persuade the court that was not the case.

Under Greek law, that may pose a difficulty for him if he returns to the island for the hearing of civil claim appeal.

It is expected that the hearing will be relatively short, judgment will be reserved and handed down sometime during mid- to late October, 2020.

Ralph Christie, who will be represented by local lawyer George Komisopolis at the hearing says: “I am very hopeful that justice will prevail here in what is now my home country. The quashing of this judgment against me will impact markedly on other actions I am taking to clear my name, including the challenge against the Proceeds of Crime Order against me. That hearing, in my opinion, should have been delayed until after the conclusion of these proceedings in Chania”. He was previously represented by Dr Themistoklis Sofos, a leading Athens lawyer.

Stephen Thomas has been approached for comment. He is represented by Athenian lawyer Andreas Voltis and the Chania lawyer Nikolaos Giakoumakis.

UPDATE: A short report on the hearing can be read here.

Page last updated: Wednesday 23rd September, 2020 at 1000 hours

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.

© Neil Wilby 2015-2020. 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.

Even more rotten

On 21st August, 2020 an article was published on this website, headlined ‘Rotten to its Core‘ (read here). It referred to the actions of Greater Manchester Police (GMP) in the eight years following the shooting of an unarmed man, Anthony Grainger, in a supermarket car park in Culcheth, Cheshire by a GMP armed response unit.

Within the piece were exclusive revelations concerning a corrupt detective who had worked on that undercover police operation, codenamed ‘Shire’. The officer also worked on the predecessor drugs investigation, Operation Blyth, but cannot be named for legal reasons and great care was, and is, being taken to avoid any possibility of ‘jigsaw identification’, in order not to prejudice any future proceedings against the officer, even though s/he has not yet been charged and, also, to protect unwitting others who are now dragged into the scandal.

The officer’s identity is, however, well known within GMP, not least because of the elite unit in which s/he was posted and there is a also relative who works for the force. Some colleagues were present when the arrest was made.

Not unnaturally, it created a great deal of public comment, opprobium and, indeed, alarm on social media, although completely ignored by the local and regional press. The most troubling aspect of the case is the genesis of the investigation: The subject officer allowed a packet of drugs to fall from a jacket pocket whilst dropping off a child at school (the location of which is now known but not disclosed here), left the scene without picking it up and the drugs were ultimately found by a pupil, handed to a teacher at the school, who called the police. The arrest followed, at the detective’s workplace, during which more drugs were found – and a search at home found yet more drugs and a cache of ammunition. The latter strongly suggests links to at least one organised crime group. The officer is presently suspended on full pay.

On 16th August, 2020 Gail Hadfield Grainger, the bereaved partner of Anthony, wrote to the Greater Manchester Mayor, Andy Burnham, who has a dual role as Police and Crime Commissioner for the region. This is the communication, in redacted form:

“Subject: Another corrupt officer attached to Operations Blyth and Shire.

Dear Andy

It is with some dismay that I have to write to you, yet again, over concerns related to the ‘investigations’ that ultimately led to Anthony’s death.

There is, apparently, no-one holding the chief constable to account, including yourself and Bev Hughes, and that is why GMP is widely, and quite correctly, labelled ‘rotten to the core’.

The latest revelation concerns [name redacted] whom, as you may know, featured strongly in both the subject investigations involving Anthony. [Gender redacted] has been arrested and is presently under investigation by the IOPC (believe it or not) over drugs offences. 

Both the Daily Mirror and the Daily Star have been trying to get the story past their lawyers. So far, unsuccessfully, because of the very limited response from the GMP press office. The facts are that [name redacted], when dropping off a child at school, inadvertently allowed some Class A drugs to fall from [gender redacted] pocket. These were picked up and handed to a teacher, who called the police. 

GMP officers found ammunition and a further supply of cocaine at [gender redacted] home address (more than for personal use). [Name redacted] also had drugs on [gender redacted] person when searched at [Name of office building redacted]. The offending is, apparently, common knowledge amongst the [name of unit redacted], of which [Gender redacted] is part.

Now to the important part. My information, from two sources, is that GMP are going to cut a deal with [name redacted] so that the story doesn’t get into the public domain and, they thought, reach my ears. [Gender redacted] won’t be prosecuted and misconduct proceedings will be held in private. [Gender redacted] will, of course, be on full pay for as long as [name of staff association redacted] can spin this out and then, of course, receive [gender redacted] pension.

It is not confirmed yet, but I have reason to believe that [name redacted] lives in the [name redacted] area. [sentence redacted].

In these circumstances, I require from you a firm undertaking that this officer will be prosecuted and sentenced with the same rigour as any other member of the public and that you properly and fully hold the chief constable to account over this disgraceful situation. Those orchestrating the cover-up should also face the full force of the law. You were noisy enough on that very same point when grandstanding for the Hillsborough families.

In the absence of you taking all the necessary and correct steps to put right this series of wrongs then I will go public and you will be doorstepped if you won’t face the cameras and answer questions.

A copy of a letter sent to all Greater Manchester MPs, including of course my own, is attached. The contents are self-explanatory. Your failure to hold the chief constable and his corrupt police force to account has been expressed within.

Yours sincerely

Gail Hadfield Grainger

Bereaved family member and victim – Anthony Grainger”

 

The Deputy Mayor’s response amounted to just five short, sterile paragraphs. It is completely absent of any empathy or sympathy for the distress and alarm these latest developments have brought to Gail and her family. In Ms Hughes’ familiar style she relies entirely on what the police have told her without making her own, independent, enquiries.

She quite correctly opens by saying that she is limited to what she can say because of an ongoing criminal investigation. But she omits to say for how long this investigation is ongoing. It is believed to have been running for over six months. The letter goes on to say that there are simultaneous investigations being conducted, misconduct by the Independent Office for Police Conduct (IOPC) and a criminal investigation led by the GMP Head of Professional Standards Branch (the very same PSB unit that has led the sustained ‘cover-up’ over Anthony Grainger’s death since March, 2012). The investigation was sent back to PSB, by the IOPC, rather that the watchdog take the more logical and transparent step of inviting another large metropolitan force to get to the bottom of what could be widescale corruption of which the subject officer may only form a part.

Ms Hughes says, despite the lengthy and troubled background to the Grainger case, that she is ‘assured that there is no question that a deal is being done with the officer’. But she gives no clue as to the source of that ‘assurance’ making it, in the event, worthless. She adds that any decision to hold a misconduct meeting in private would be made by the Panel Chair. Omitting to mention that the Mayor decides which legally qualified Chairs form part of his standing list from which a selection is made each time a misconduct hearing is deemed necessary.

She concludes by saying that ‘I am assured that the investigation will be conducted in a thorough and professional manner through to its conclusion and all available evidence presented to the CPS and any misconduct panel’. Again there is no clue whatsoever of the identity of the officer giving the assurance.

It is true to say that Gail Hadfield Grainger was surprised, disappointed and not a little angry that Andy Burnham had not responded himself and, more particularly how weak and supine the response was, after careful analysis.

Accepting, of course, the limitations of the Mayoral response in order to protect the integrity of the investigation (Gail has a Masters degree in law), there was no mention of:

– The ‘Rotten to its core’ label now widely attached to Greater Manchester Police.

– Why the investigation is taking so long? A member of the public found with drugs and ammunition, during and post-arrest, would have been charged, put before the local Magistrates’ and committed for trial at Crown Court within hours, not months.

– What safeguarding measures are being/were put in place at the school and whether counselling for the children and staff unwittingly involved in these crimes was offered?

– The danger this bent cop, and the missing firearm for which the ammunition was acquired, poses to the public of Greater Manchester, and serving colleagues, whilst still at large.

– The fiasco surrounding the investigation of every other officer accused of criminal offences and/or misconduct and involved in either the killing of Anthony Grainger, or the grotesque and sustained ‘cover-up’, by GMP, that followed.

– The fact that a key member of her own team, Paul Gilfeather, was convicted of Class A drugs offences in December, 2018 (read here).

Since that exchange of correspondence, other information has been shared by insiders that adds considerably to the risk that the public are being placed under. It is alleged that the subject officer has, before the suspension from duty:

– Unlawfully accessed police computer systems.

– Had involvement with at least one organised crime group. It is generally accepted that, where there is OCG drugs and firearms offending, as in this case, it usually follows that trafficking, extortion, robbery, theft to order, money laundering are also adjacent.

– Tipped off criminals as drug busts and other disruptive police activity in the locality were being ‘blown’ regularly. Senior officers, prior to arrest of their colleague, were said to be perplexed as to how this series of failed operations had come about.

Other matters more broadly connected to this troubling case include:

– One of the Mayor’s key political allies is said to be a recreational cocaine user. GMP should be aware, as the dealer is said to be a police informant. However, there is no suggestion whatsoever that Andy Burnham is adjacent to that fact. That is also the case with his now dismissed PR Guru, Gilfeather.

– It is alleged that an officer who worked on Operation Blyth was prosecuted for stealing drugs from the police force exhibits store.

The attempt by Beverley Hughes to downplay the case, and its wider ramifications, should trouble every single person in Greater Manchester and beyond. Her suitability to be be holding any police officer to account, given her own highly questionable ethics and professionalism, is just another part of the factual matrix. As is the total reliance on anonymous sources, within a corrupt police force, for her ‘assurances’ that everything will turn out well for the public in the region. The damning evidence already heard at the Manchester Arena Inquiry again expose the frailty of that proposition, as the rank incompetence of the senior leadership is again exposed, unchecked by any form of accountabilty from the Mayor’s office.

The last word, for now, goes to Gail Hadfield Grainger:

“Since this officer’s arrest was first brought to my attention it has caused great anguish to both my family and myself. The role played in the two operations that led to Anthony’s death cannot be erased from history and is a significant trigger. Nor can the terrible mistakes that preceded that utterly tragic event or the cover-up engineered by the police almost from the moment Officer Q9 pulled the trigger.

“With very good reason, I do not trust either the police service, or the Independent Office for Police Conduct, or the CPS, to bring to book this latest GMP criminality, without fear or favour and, unfortunately, the inactions of the Mayor, and this recent letter from his deputy, do nothing to dispel that deep rooted concern. The case should have been given to another police force to investigate”.

The Mayor’s and the police press office have been invited to comment.

Page last updated: Wednesday 9th September, 2020 at 1735 hours

Photo Credits: Greater Manchester Police, ITV News, Derby Telegraph (Stockphoto)

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.

© Neil Wilby 2015-2020. 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.

 

‘A grubby little police force’

This catchphrase, now widely shared on social media and indelibly associated with Durham Constabulary, was first coined in November 2016 as part of communication between journalist, Neil Wilby, and the force, concerning a concise, plainly expressed freedom of information request (read in full here).

The disposal of that request quickly turned very ugly after Durham made, very arguably, the worst and most offensive response in the history of the Freedom of Information Act, 2000. It was an unwarranted, unvarnished, libellous attack by a police force, against an enquiring reporter, that also contained a series of deliberate and inexcusable untruths. There had never been any communication or interaction between them prior to that request, which made a response of that deeply offensive nature all the more inexplicable and inexcusable.

Those police officers responsible, both civilian and warranted, should, on any independent view, have faced a criminal investigation or, at the very least, a disciplinary hearing. A clearer case of misconduct in public office or, in police regulations parlance, disreputable conduct, would be hard to find.

Interestingly, the senior officer with portfolio holder responsibility for information rights at that time was Deputy Chief Constable Jo Farrell, since promoted to the top rank following the sudden, inexplicable ‘retirement’ of her predecessor, the vastly overblown Mike Barton.

Their motivation, it seems, was to frustrate a journalistic investigation into yet another shoddy operation, in a lengthy cataloge in that era, by North Yorkshire Police. Durham’s part in that probe is that they had, allegedly, taken over a fraud investigation from NYP as it involved a very prominent, and influential, former police authority Chair in North Yorkshire, Jane Kenyon. Over the years, a regular object of derision in the satirical magazine, Private Eye, regarding her dubious business dealings (read more here).

The criminal ‘investigation’ also featured Thomas William Miller, a Scarborough councillor better known as Bill, who is now married to Kenyon. The victims of the alleged fraud were one Miller’s sons, Jeremy, and his daughter in law, Karen. All four had been involved in a company called Dales Timber Ltd.

In the event, disclosure was refused by Durham after a series of ludicrous, childish, unlawful posts on the What Do They Know website, upon which the request was first posted. They relied on Section 14 of the Act, saying the request was ‘vexatious’, without actually explaining why.

Following a complaint to the Information Commissioner’s Office (ICO), the Durham decision was overturned. During the watchdog’s investigation the police force continued their smearing campaign against the journalist. Given weight to the argument that this was not about an information request but much more about pursuing a vendetta.

They eventually, and reluctantly, made partial disclosure from which it could readily be deduced that the fraud ‘investigation’ on behalf of NYP was a sham. There was simply no intention to gather probative evidence, take statements from key witnesses and/or suspects, seize evidence or apply the necessary rigour to what, on any independent view, was a very serious matter involving a high profile public figure with a history of dodgy dealing. Efforts since, via the Police and Crime Commissioner, the disgraced Julia Mulligan, a close Conservative Party associate of Jane Kenyon, to have the flawed fraud investigation re-opened, were vigorously rebuffed.

The outfall from that venomous attack by Durham is still the subject of civil proceedings that were first brought in November, 2017 against Durham, who have done everything they can to frustrate that process. A resumed hearing is listed for November 2020. The first, in December, 2019, was adjourned due to the court not allocating sufficient time for the hearing to be completed. [The court service’s over- listing of multiple back-to-back hearings, with no provision for urgent or emergency matters to be dealt with by district judges, will be the subject of a future article].

The claim has been brought by way of section 13(2) the Data Protection Act, 1998 (since superceded) following the sub-optimal disposal of a data subject access request; Durham’s Information Rights Manager, Leigh Davison, has admitted the breach and apologised in her witness statement but, at the same time, their counsel, Daniel Penman, pleads that there is ‘no cause of action’ and advises Durham to refuse to pay the nominal damages sought.

Penman, an oppressive, excessively bullish and sometimes foolish individual is, in those terms, ideally suited to this particular client. One of his bizarre claims, made during informal discussions with the district judge at the conclusion of the last hearing, designed only to humiliate his opponent, was that Mark Gosnell, a senior civil judge based in Leeds, is known as ‘Mr Justice Gosnell’. He was not then and is still not now a ‘red judge’; notwithstanding the very fine and highly regarded arbiter that His Honour undoubtedly is.

He did not welcome the advice from a seasoned journalist/court reporter that, without a change in approach towards other parties to litigation, or journalists, he may well not make the advance in his career his undoubted promise as an advocate might warrant. An approach also in evidence at Bradford Law Courts during a hotly contested civil claim at which both journalist and barrister were present (read here) when he and his leader, the similarly bullish Olivia Checa-Dover, tried, unsuccessfully, to prevent Neil Wilby reporting on the case. Anyone reading that trial summary will understand precisely why those instructing counsel, led by Alison Walker of West Yorkshire Police no less, would have preferred the highly controversial matters aired in the resolution of that £5 million claim, including lurid details of the activities of a “bad apple” officer (read more here), to remain concealed.

A second civil claim is to be issued shortly against Durham concerning the same data subject access request: The force, via Ms Davison, maintains that all materials to which the applicant was entitled were disclosed, when it is patently obvious that such an assertion has no basis in either the facts or evidence. There is also a peripheral issue of the torn packaging in which the subject access materials were sent. Taken at its face, a minor matter of course, but one that created significant distress and alarm at the prospect that sensitive personal data, sent out by a police force, was accessible to anyone within the postal service.

At the time, Durham didn’t even have the courtesy or professionalism to respond to the email and attached photographs, evidencing the flimsy, careless and, in fact, unlawful manner in which the data was transported. But for “a grubby little police force” that type of treatment comes as standard. They utterly resent any form of scrutiny or challenge.

Ms Davison is the subject of robust criticism, over both disclosure failings and her lack of professionalism and the seeming lack of integrity of her department, from other service users such as Huddersfield businessman Stephen Bradbury who has also succeeded at the ICO in his complaint against Durham and has been forced to issue civil proceedings, grounded in Section 168 of the Data Protection Act, 2018 and Article 82 of the General Data Protection Regulations (GDPR), over a grotesque breach of his privacy and misuse of personal data. Despite the ICO finding, the police have ignored all attempts to settle the claim without resort to legal action.

The case of local man Mel Dawson has reached the national newspapers (read here). Durham Constabulary has been responsible for a quite remarkable sequence of ‘disappearances’ of important data. Not least of which is all materials related to a search warrant that Mr Dawson asserts was unlawfully obtained.

Another more startling critic of the Information Rights Department, Ms Davison, the force’s Legal Services Department and Chief Constable Farrell is one of their former colleagues, Michael Trodden, who complains bitterly over disclosure failings relating to a criminal trial at which the detective was cleared by a jury (read here) and in misconduct proceedings that followed.

A third Yorkshire man, Darren Longthorne, together with his wife, Tracey, are also fiercely critical of Ms Davison, and others, following the death of the latter’s father and a botched investigation by Durham that followed. The inevitable disclosure failings by the police are at the heart of their complaints.

This is an emerging picture of sustained abuse of the Freedom of Information Act, the Data Protection Act and the Criminal Procedure and Investigations Act by a law enforcement agency. A national disgrace and one upon which the statutory regulator should be taking much more robust action than the occasional slap on the wrist.

It is a near certainty folowing publication of this article that other complainants will come forward and add further weight to the “grubby little police force” strapline.

More recently, yet another decision made by the ICO has gone against Durham following a further Neil Wilby information request (read in full here). The genesis of the request was the media storm over another grotesquely failed ‘outside force’ investigation. This time concerned the alleged theft of sensitive documents relating to the review of the police actions following the Loughinisland massacre in 1994.

Durham Constabulary and the two officers who led the investigation, at the invitation of the Police Service of Northern Ireland (PSNI), the aforementioned Barton and the civilian investigator, Darren Ellis, about whom much has been written elsewhere on this website (read more here), were absolutely slaughtered both in the High Court and the national press over their conduct – and particularly over warrants obtained unlawfully against two hugely respected Irish journalists, Trevor Birney and Barry McCaffrey. The latter two are presently involved in mediation over settlement of their claims for unlawful arrest, trespass and detention. Neither Barton nor Ellis have faced any investigation or proceedings over their ghastly conduct.

In their response to the information request, again very precisely drafted, Durham claimed that they held no information and that under the Police Act, 1996 the request should be transferred to Durham. It was a response so ludicrous that it might have been written by a 12 year old – and was nothing more than a peurile, vacuous ruse to avoid disclosing more damaging material, particularly internal and external emails, to journalist they dislike intensely. If Ms Davison didn’t write it herself (the response was sent anonymously in breach of Code of Ethics and Authorised Professional Practice), then it went out under her departmental direction and control.

The force even refused to fulfil their obligations under FOIA and, more particularly, the College of Police’s Authorised Professional Practice, regarding the request made for an internal review of the decision not to disclose anything.

Durham has also now revealed that four other requests were received on similar subject matter and they got away without making any disclosure to those applicants.

It took the ICO seven months to reach their decision but, for them, they were scathing in their criticism of Durham and directed that the request did have to be dealt with by them and all materials prior to the investigation commencing should fall for disclosure. Some, but not all, of the disclosure has now been made and, as expected, almost the entire artifice was designed to protect one man: the thoroughly disgraced Darren Ellis.

PSNI do not escape censure either as they repeatedly, and unlawfully, intervened in the request, apparently on behalf of Durham, attempting to take it over and then refusing disclosure by way of a section 31 exemption. One is entitled to muse over the calibre, and integrity, of employees of that force engaged in their disclosure unit and, of course, the unseen hands directing them from above.

The battle over the Loughinisland disclosure continues, however, as once again, it is clear that not all the materials known to be in existence at Durham have been disclosed. A matter that is, once again, destined for both the ICO and the civil courts.

In the meantime, the public are entitled to seriously question the hundreds of thousand of pounds, and countless officer hours, squandered by Durham Constabulary (and, in two of the cases, NYP and PSNI) to simply conceal materials that will further damage their reputation as “a grubby little police force”. It is a matter so serious that it should warrant a mandatory referral of the conduct of those officers involved, from the past and present chief constables downwards, to the Independent Office for Police Conduct.

The immediate past chief constable, Mike Barton, now faces an uncomfortable few weeks as the real reason for his hasty exit from the top job has been exposed by an insider. A follow-up to this article will be published during w/c 28th September, 2020, wherein those revelations will be expanded upon.

It is not a pretty picture for either Barton or his boss, the late Ron Hogg, whom, it seems, concocted the ‘spend more time in my greenhouse’ story that the local and regional media swallowed whole. Within days a national newspaper had revealed that Barton had taken on a lucrative role with a Canadian IT company (read more here). This, in addition, to continuing to pick up the pieces from his force’s failed enterprise in Northern Ireland. Both a long way from his garden in Blackpool.

Barton received a CBE on the day he required. In all truth, one is entitled to ask how he had the brass neck to accept it.

The police force press offices at Durham and PSNI, the interim Police and Crime Commissioner for Durham have all been approached for a statement.

Page last updated: Thursday 3rd September, 2020 at 1300 hours

Photo Credits:

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.

© Neil Wilby 2015-2020. 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.

‘Rotten to its core’

These are the words of leading counsel, Leslie Thomas QC, about what is now recognised as the most scandal-ridden police force in the country.

They were spoken in May 2017 at the conclusion of a public inquiry into the death of Bolton man, Anthony Grainger. Mr Thomas went on to claim Greater Manchester Police attempted to “cover up” failings over the tragic and needless death.

He added: “Key documents have been destroyed, accounts and logs embellished, police statements carefully stage-managed, evidence has been concocted, redactions made for no good reason and thousands of pages of relevant material withheld.

“Taken together with the sweeping failures in planning and execution of this operation, this smokescreen by GMP reveals an organisation that is rotten to its core.”

The inquest touching Mr Grainger’s death was converted to a public inquiry by way of a decision taken in March 2016 by the Home Secretary of the day, Theresa May. This followed the abandoning of a Health and Safety prosecution against Peter Fahy, the chief constable at the time, in January, 2015.

The perenially inept Fahy, who had pleaded not guilty at Liverpool Crown Court, had been charged as the corporation sole, a legal status that meant he represented GMP, but bore no criminal liability.

The prosecution set out to prove 26 alleged GMP failings arising out of Operation Shire, an armed police deployment acting without any proper intelligence basis for so doing, and when the use of armed police was unnecessary or premature. Particularly when some of them had been hanging around for up to 14 hours before reaching the death site.

But, following an application by defence counsel that the prosecution was an abuse of process, the CPS offered no evidence and a not guilty verdict was formally recorded. ‘Shire’ had followed another flawed and controversial drugs-focused operation, code-named Blyth, also dogged with corrupt officers.

It was argued, some might say incredibly, that evidence gathered by the force was so secret it could not be shown to a jury and, therefore, Fahy and GMP could not get a fair trial. It was, on any independent view, another in a long line of disgraceful episodes in the recent history of GMP.

Fahy, whose dreadful legacy still puts Greater Manchester at risk, retired later that year. Some of those perils are outlined in this shocking and widely read catalogue of scandals besetting GMP, many of them on Sir Peter’s watch (read here).

One of his worst bequests was the choice of his deputy, Ian Hopkins, promoted to that role in 2012 after joining GMP in 2008 as an assistant chief constable. Hopkins had previously served, without any obvious distinction, in three small county forces.

Following the Fahy retirement, Hopkins was take his place as chief constable, after no other officer, internally or externally, made the short-list for what should be a highly prestigious role, heading up the third largest police force in England and Wales.

The force, on Hopkins’ watch has, almost since the day of his appointment, staggered from crisis to crisis, scandal to scandal, on a routine basis, and confirmed his position as the worst chief officer in the country, by some distance. Most heavily underscored by the disastrous IT Transformation that is commonly known as iOPS (read more here) and the catastrophic human tragedies associated with Operation Augusta.

One of the worst of those scandals will surface again shortly as the Grainger shooting is about to hit the headlines, once more, for all the wrong reasons.

At the Grainger Public Inquiry, Assistant Chief Constable Steve Heywood was caught telling untruths and admitted making forged entries in a policy log in an attempt to justify the fatal attack. Just part of the catalogue of disgraceful GMP conduct referenced by Leslie Thomas QC.

Heywood told the judge, under probing from counsel to the inquiry, Jason Beer QC, that he did not intentionally mislead the inquiry. Against a background of his force doing just that, over and over again, in those same proceedings.

He signed off on sick leave the day after giving that evidence and never returned to duty, thereafter. It was reported that, during his eighteen month ‘sickness’ absence, he received salary and benefits worth a sum over £250,000. He ‘retired’ in October, 2018 on a full police pension, having reached 30 years service.

This officer, whose evidence was generously described by the inquiry Chair, Thomas Teague QC, as ‘lacking candour’ was not, subsequently, prosecuted over what might be considered, at their highest, to be very serious criminal offences; the Crown Prosecution Service ruling that there was insufficient evidence to secure a conviction. Later revised, after it was belatedly accepted that it did, in fact, meet the evidential threshold, to ‘not in the public interest’.

An investigation followed the public inquiry, by the Independent Police Complaints Commission, into Heywood’s misdemeanours. It began in October 2017 and concluded in May 2018. Roughly five months longer that a competent probe should have taken. They, eventually and belatedly, ruled that he had a case to answer for gross misconduct. It took GMP until November, 2018 to accept that finding. Another six months deliberately wasted.

The disgraced IPCC, upon whose evidence the CPS had relied in deciding not to charge Heywood, had in the meantime changed their name to the Independent Office for Police Conduct.

In May, 2020 the Government produced a ‘whitewash’ response to the 346 page Report into the Death of Anthony Grainger (read inquiry report in full here). It said ‘valuable lessons have been learned for the future’ and ‘good progress’ had been made on nine of the recommendations set out by HHJ Teague. There did not appear to be any probative evidence supporting those assertions (read here).

Supine and very largely ineffective Policing Minister, Kit Malthouse, said: “These organisations [the National Police Chiefs Council and GMP] have accepted the recommendations which were made and assured Government that, in the eight years since the operation in which Anthony Grainger was fatally shot, significant work has taken place to implement changes”. Again completely without supporting evidence. Simply relying on the word of the same senior officers who had condoned the disgraceful conduct of the force at the inquest.

Four officers remain under investigation by the IOPC in connection with the incident and its aftermath. They include another assistant chief constable and Fahy protege, Terry Sweeney. The IOPC seem determined to string out proceedings as long as humanly possible, apppearing to do little or nothing between updates to the bereaved family.

In the midst of all this controversy, in May 2019, Ian Hopkins was given a two year extension to his highly lucrative chief constable contract by the Manchester Mayor, despite being the officer very closely involved in the purchase of illegal gas canisters, deployed in the immediate aftermath of the fatal shooting of Anthony Grainger. One was thrown into the car in which he lay dead. The canisters, purchased in the USA, had been stored by GMP for some time before that unlawful use.

The marksman who shot Grainger, anonymised under the codename Q9, was recently told that he had no case to answer for misconduct (or criminal liability). The watchdog found Q9’s reason for using lethal force was “honestly held”. A surprise and disappointment to the Grainger family having heard his evidence, and that of the others involved in the botched operation, at the public inquiry.

The gross misconduct proceedings against Steven Heywood were listed to be heard at GMP HQ from Monday 1st June, 2020 and scheduled to last three days. They sensationally collapsed, early on the second day, when counsel for the Chief Constable of Greater Manchester Police, who had brought the proceedings against Heywood, submitted to the Panel that charges against him should be dismissed. This remarkable turnaround, by Gerard Boyle QC, followed an application on Friday 29th May, 2020 by GMP to the effect that proceedings should be adjourned whilst an issue concerned redacted materials in the hearing bundle was resolved.

The response of counsel for Heywood, John Beggs QC, was to apply for a stay to the proceedings on the grounds that the delay in bringing the proceedings, and a contemplated further delay, was unfair and prejudicial. Beggs, in oral submissions, also made great play of the redactions issue being unfair to his client, although his copious written pleadings were largely silent on that point.

The way the proceedings played out, regrettably, had the appearance of a well-rehearsed pantomine. With ‘the baddie’ making good his escape.

However, to her great credit. the Panel Chair pulled no punches when responding to the submissions by counsel, being harshly critical of the conduct of both parties.

A transcript of the Panel’s decision and closing remarks – and the response of GMP to them – can be found here.

The officer providing the statement on behalf of the force was Deputy Chief Constable Ian Pilling, Command Team portfolio holder for professional standards, and it is with him that the search for those responsible for the debacle begins: “Following submissions made at the gross misconduct hearing in relation to retired ACC Heywood on June 1, the force has made the decision not to pursue these proceedings further and invited the panel to dismiss the charges against Mr Heywood.

“This misconduct case involved consideration of some complex issues relating to certain information and intelligence which, for legal reasons, could not be provided to Mr Heywood and could not be made public or indeed even shared with the panel dealing with the misconduct hearing.

“Evidence relating to those things was heard in private at the Anthony Grainger Inquiry, and as such was redacted from the public records of that inquiry. The law concerning what can be disclosed in a public inquiry is different from that in misconduct proceedings.

“Following submissions made on Monday, the force has accepted that some of these matters could not be overcome and it would be unfair to pursue the case against the retired officer.

“These are complex issues and the available options were often constrained by the law. Decisions have been made based on professional advice and in the best interests of reaching the most appropriate outcome – however, in this case this hasn’t been possible, which I very much regret.”

As can be seen from the transcript, the Panel Chair, Nahied Asjad, slammed GMP for “delays and procedural errors” and said the handling of the misconduct hearing “could undermine public confidence in the force”.

“There has been a  fundamental disregard for everyone involved in the proceedings, including Mr Grainger’s family, Mr Heywood and the public”, she added.

In the face of that stinging criticism, DCC Pilling added: “The Chair has been clear that the Panel are of the view that GMP did not deal with some key elements of this matter in an appropriate way. Whilst we need to examine the comments more fully, we absolutely accept that mistakes have been made and this matter should have been handled much more effectively.

Pilling did not offer his resignation, as he rightly should have done but did go on to say:

“We apologise unreservedly for the errors which were made, in particular to the family and partner of Anthony Grainger and to all other involved parties.”

gail hg

An apology not accepted by Gail Hadfield Grainger, Anthony’s co-habiting partner at the time of his death – and an intelligent, dignified, determined and resourceful campaigner for justice ever since.

She has similar disregard for the perennially weak IOPC Director of Major Investigations, Steve Noonan, who said: “Anthony Grainger’s family, and the wider public, deserved to hear the evidence and Mr Heywood account for his actions. We acted quickly and decisively to examine Mr Heywood’s conduct once it was brought into question during the Grainger Public Inquiry in 2017. In May 2018, after our seven month investigation, we concluded he should face a public hearing to answer allegations that the evidence he provided to the Inquiry may have breached police professional standards relating to honesty and integrity and performance of duties. GMP agreed with our findings.”

“Today’s developments mean that there can be no ruling from the police panel, as to whether or not Mr Heywood committed gross misconduct to a degree that would have justified dismissal, were he still serving.

“Three new investigations stemming from evidence given at the Anthony Grainger Public Inquiry, which reported its findings in July 2019, began earlier this year, and we will continue to work hard to ensure those allegations are thoroughly examined, that actions are accountable and lessons learned.”

Gail absolutely rejects that lessons have been learned by either GMP, or the IOPC, whom she holds jointly responsible for the Heywood fiasco with the CPS, who provided two different and equally weak arguments before deciding not to prosecute. A decision that had all the appearance of being pre-formed with a resort to any excuse not to put matters before a jury.

On Friday 21st August a very short remote hearing took place under Regulation 34 of the Police Conduct Regulations 2012, applicable in this particular case. The chair, DCC Pilling looking shifty and uncomfortable, who is also Appropriate Authority and responsible almost entirely for the Heywood debacle, determined that no disciplinary sanction would be applied to the former assistant chief constable in the light of the Panel’s decision at the June hearing.

Steve Heywood did not attend the proceedings and neither did his legal team. Gerard Boyle QC, as mentioned above counsel to GMP, was in attendance but had nothing to add to Pilling’s decision.

The execution of the Heywood cover-up was complete. Nothing to see here, folks. Move along to the next one, which allegedly involves a cocaine-using officer, with links to illegal firearms, presently being ‘investigated’ by the IPCC following an arrest. The officer cannot be named yet, for legal reasons, but was involved with both Operations Blyth and Shire, the latter to a significant degree. GMP are desperately trying to suppress details of the shocking nature and scale of offending. The officer was attached to one of the highest profile and most prestigious units in the force where, it is said, the offending is common knowledge.

Gail Hadfield Grainger has, quite rightly, expressed her outrage at this latest ‘cover-up’ involving officers in the team responsible for her partner’s needless death. An email setting out her concerns that ‘a deal’ may have been done with the offender, to slip the officer out of the GMP back door away from public view, without prosecution or a misconduct hearing held in public, has been sent to Andy Burnham. He has until Monday 31st August, 2020 to respond.

The Home Secretary, Greater Manchester Mayor and the chief constable have been approached for comment.

Page last updated: Monday 24th August, 2020 at 1735 hours

Photo Credits: Greater Manchester Police, ITV News

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.

© Neil Wilby 2015-2020. 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.

Blind in one Eye

Much has already been written on this website about the well-publicised innocence claim of Robin Garbutt, convicted of brutally murdering his wife in April 2011 (read here). A jury at Teesside Crown Court found that, a year earlier, he had bludgeoned his wife to death whilst she lay sleeping in bed above the village shop and post office that they jointly ran in Melsonby, North Yorkshire.

His alibi was that robbers, armed with a gun and an iron bar, had first killed his wife upstairs then, a short time later, robbed the post office safe and shop till before making good their escape, at the busiest time of the day, unseen by another living soul.

There have been numerous attempts to overturn the verdict, all unsuccessful. The first, when the Court of Appeal ruled in 2012 that the conviction is safe; the fourth, and latest, is a third application to the Criminal Case Review Commission (CCRC) made on 5th December, 2019 (read more here).

One of the publications appearing to overtly support the Garbutt campaign is satirical magazine, Private Eye. They ran (for them) a lengthy piece on the case in their edition 1514 at the end of January, 2020. The author was the award-winning Heather Mills. It was not, it might be said, either her, or the Eye’s, finest hour. The article appeared to be grounded in the work of another investigative journalist, the late Bob Woffinden, whose efforts had, largely, led to the first two failed CCRC applications, in 2015 and 2017, with the new, and latest, angle being a perceived connection to the Post Office Horizon software scandal.

There were a number of basic errors in the first Eye piece and they have steadfastly refused to respond to repeated exhortations to correct them. Even the location of Melsonby village, in North Yorkshire, was wrongly identified. That simple mistake, naturally, gives rise to concerns about the authenticity of the rest of their offering.

Whether they choose to admit the errors and correct them is, of course, is entirely a matter for them, but it does see history repeating itself for both the same journalist and publication, as they were also supporters of the long-running, high profile, Simon Hall miscarriage of justice campaign which ended with him confessing to the murder, then taking his own life.

Recycling matters already heard by the jury, and later considered by both the Court of Appeal and the CCRC, does not assist any reader minded to take an impartial view of the case. These include time of death, contaminated crime scene evidence, ‘lost’ evidence, and the shop finances (read more here).

The Eye does not appear to have understood, either, that the prosecution did not have to prove motive. That is not a requirement in a criminal trial. Nor have they grasped that Robin Garbutt talked himself into prison, without assistance from anyone else. He lied to the police and he lied to the court from the witness box. Ultimately, the jury did not believe the ‘armed robbery’ story, or that all was well in the Garbutt marriage and their business, and that is why he is serving a life sentence.

The latest piece in the Eye in the late July, 2020 edition, numbered 1527, sees the main focus on the Horizon software issue upon which Garbutt’s legal team now appear to pin most of their hopes of a referral, by the CCRC, back to the Court of Appeal. The remainder of the article is taken up with an almost verbatim repeat of the issues articulated in the January article.

Further submissions in connection with the third application to the CCRC were made by Garbutt’s legal team on 24th July, 2020. The watchdog acknowledged receipt, in writing, four days later. It appears that the Eye received a copy of those submissions at the same time as the CCRC. It is said they relate to issues raised by the High Court judgment of Mr Justice Fraser handed down on 16th December, 2019. The magazine does not explain the lengthy delay in Garbutt’s lawyers making their additional points.

Private Eye correctly alludes to the forty-seven Horizon miscarriage of justice cases already referred to the Court of Appeal by the CCRC. What they do not mention is that ten of the alleged miscarriage cases have not been referred. The applicants having received a Provisional Statement of Reasons indicating that there will not be a referral unless there is more compelling evidence that has not yet been made available to the criminal justice watchdog. Four more cases remain under review at the present time. This information would have been readily available to the Eye with a quick phone call or email to the CCRC press office.

The Post Office Horizon scandal does not, therefore, guarantee an applicant to the CCRC a golden ticket to the Court of Appeal. Each case is considered by the watchdog strictly on its merits.

The Eye has previously, and wrongly, opined that they expected all the Horizon cases to be referred to the Court of Appeal.

These are the closing five paragraphs of the Court of Appeal judgment handed down in May, 2012. It deals with the Post Office part of the prosecution’s case as well as the main plank of the defence claim: That a robber, or robbers, killed Diana Garbutt. The view of the three senior judges is unequivocal and appears to slam firmly shut the Post Office Horizon door through which Garbutt hopes to walk:

The numbering of the paragraphs is the same as in the judgment:

“(25). The premise on which this appeal has been so well argued is that the jury may have proceeded from theft to murder. We have asked ourselves anxiously whether that might be so. We are clear that it cannot be. The Post Office irregularity evidence could not by itself prove theft. It became important once it was known that there was nothing in the safe and the defendant’s explanation for the absence of money there was the robbery that he said had occurred. It was important because it provided an alternative explanation consistent with there having been no robbery. But the evidence before the jury, we are quite satisfied, that the possibility of there having been the robbery which the defendant described must have been rejected quite independently of the financial evidence [Emphasis added].

(26). In arriving at that conclusion we have thought it right to make a number of assumptions in favour of the defendant. First, the evidence of the sighting of the defendant on the village green the previous night, whilst if accurate it would prove him a liar, might simply be an entirely innocent mistake. Second, the fact that nobody saw any robber(s) leaving might well be sheer chance; no-one was looking out for a stranger and all had their own affairs to concentrate on. The two ladies who had lines of sight to the back door might not have been looking that way at the right time. However, it is the evidence of the timing of the death and its impact on what must have happened which leads us to our conclusion.

(27). If the robbery which the defendant asserted had occurred, the robber(s) must have been at the shop from sometime at least an hour before a man appeared through the internal door and made the defendant hand over the cash. On the evidence of the timing of the death, he or they had probably been there several hours before appearing. There is no reason why anyone bent on robbery would arrive so early and do nothing to further the robbery. Nor would there be any reason for such person(s) to go upstairs to the living quarters when they were after the money in the post office and shop. The only possibility suggested is that the robber(s) knew of the time clock on the safe and that it could not be opened before 08.30hrs. Accordingly, It is suggested, he or they might have arrived and taken up station silently upstairs to wait for the audible beep of the time clock being operated. We make the assumption in favour of the defendant that it might be possible for a robber to know this, as it may be that the system is (or was) common to many post offices. But if the robber(s) did know this, there was even less reason to get there hours before the robbery could possibly be accomplished. Still less would there be any reason to go upstairs, where it would be obvious on the merest reconnaissance, that since there was only the defendant about downstairs, there might be someone else present.

(28). Next, if the robbery occurred as the defendant asserted, the robber(s) must, having gone for whatever reason upstairs, then have encountered Mrs Garbutt, he or they must then almost instantly, and silently, have killed her, for she raised no alarm and the defendant downstairs heard nothing at all. That is highly improbable. Still less likely is it that having done so, the killer(s) would remain in the upstairs living quarters with the body, patiently waiting for the safe to be open, when at any time the defendant might have to come upstairs. Equally improbable is it that, having once killed, he or they should offer no violence whatsoever to the defendant when finding him alone in the shop.

(29). If the robbery occurred as the defendant suggested, the robber(s) must also have taken to the scene the iron bar which was used to kill Mrs Garbutt, and which did not belong in the house or shop. That might be done, even though, if the defendant is right, there was doubtful need of it since he, or they, had a gun. The iron bar must then have been placed on the wall outside the back of the premises. It is extremely difficult to see this occurring either in the haste of flight or, even more improbably, by leaving the premises, depositing it, and returning.

(30). To those considerations must be added the facts that the defendant, who had suffered a previous robbery, (a) left the back door unlocked despite warning his staff never to do so, (b) having had silent alarms fitted to the shop with a series of panic buttons which he instructed staff how to use, did not make any attempt to touch any of them and (c) gave evidence which was directly contradicted that he did not know the alarm to be silent. Those facts would not be conclusive alone or together, but they support our clear conclusion. [Emphasis added].

31.For all those reasons we are quite satisfied that this conviction is not unsafe and that the late disclosure of the additional post office records does not render it so. The appeal must accordingly be dismissed. [Emphasis added].”

On plain reading, there is nothing in either of the two Private Eye articles, or elsewhere in the public domain, that will overturn that judgment. Add to that, the recent startling assertion by campaign leader, Jane Metcalfe, in a publicly available podcast (see here), that there had been two other armed robberies before the Garbutts took over the post office premises in 2003. A claim, it must be said, entirely unsupported by evidence. But if that is the belief of Garbutt then it makes the unlocked door (and the failure to activate the silent alarms) even more remarkable and strikes further at his own credibility.

A more recent development relied upon by the Eye does not assist the Garbutt campaign, either: The discovery that the iron bar, used as the murder weapon, was not in the position it was ultimately found, on the day after the murder, makes it even more unlikely that the CCRC, or judges in any future appeal, would be persuaded that the murderer(s), robber(s) returned to the scene, two days after the heinous crimes, to carefully place the bar in its position on the top of a nine foot high wall so close to the murder scene, in a location that was, by then, swarming with police and forensic officers.

The bottom line in this troubling case is that either Neil Wilby or Heather Mills, backed by her magazine, Robin Garbutt’s campaigners and his lawyers, is wrong: The former has spent approaching 500 hours on the innocence claim and written well over 40,000 words on the topic. The latter appears to rely on what she is being told, selectively, by the campaigners, without applying the same independent, evidence-based approach of her journalist contemporary.

The eagerly-awaited decision of the CCRC will go a long way to providing the answer.

In the meantime, Garbutt’s lawyers, Martin Rackstraw of Russell-Cooke Solicitors and leading criminal barrister, Jim Sturman QC, involved in this case for over 7 years, may wish to remind themselves of the  statutory criteria for admitting fresh evidence. They are, of course, those set out in section 23 of the Criminal Appeal Act 1968. Ultimately, the court has to consider whether or not it is necessary, or expedient in the interests of justice, for such evidence to be received. The court is required for this purpose to have regard, in particular, to the matters set out in s.23(2)(a), (b), (c) and (d). Read that section of the Act in full here.

For the purpose of exercising its statutory function, the appeal court has to balance two competing principles:

The first principle is that it is incumbent on a defendant to present his whole case at trial (the one trial principle). It is, in general terms, contrary to the proper administration of justice for a defendant to advance on appeal a case different from, or other than, the case he is able to present at trial. On plain reading of the trial judge’s summing up, at no point did Garbutt’s defence team advance Post Office software discrepancies, or resultant cash shortfalls, as the reason for the empty safe in the shop. Indeed, Garbutt confirmed at trial that the amount he alleged was stolen from the safe tallied with the shop accounts.

The second principle, however, is that it is generally abhorrent to the proper administration of justice that a defendant may have been wrongfully convicted.

The court has to weigh carefully both these two matters, and all other relevant matters (including those specified in s.23(2)(a) to (d)), in deciding whether or not to receive the proposed fresh evidence.

The Court of Appeal reminded itself in R v Slade and others [2015] EWCA Crim 71 that the impression sometimes given by appellants – and, on occasion, perhaps, was sometimes given in the arguments advanced before them on behalf of the appellants in that particular case – that if only the fresh evidence may afford a ground for allowing an appeal then that of itself justifies its reception into evidence. But, demonstrably, the consideration has to be wider than that: The ultimate question being, whether it is necessary or expedient, in the interests of justice, to receive the evidence.

Dennis Slade, the lead appellant in the cited case above, and, by all accounts, a career armed robber, featured in another very recent article on this website (read here). That, in part, explains the choice of  the cited legal authority. The other factor is that, by way of balance, the appeal succeeded and the conspiracy to murder convictions were quashed.

Right of reply was offered to the Garbutt campaigners, the Private Eye and Heather Mills. None of them even acknowledged the communications.

There is a similar eerie silence from Martin Rackstraw and Jim Sturman QC.

However, Mark Stilborn, Garbutt’s brother-in-law made this post, dated 6th August, 2020, on the Robin Garbutt Official website:

“Last week everything was finally submitted to the CCRC after the covid hold-up. The Private Eye magazine have done a very supportive article in there (sic) current publication highlighting some of the facts.

“One of the main points being the prosecution relied heavily on evidence from the post office specialists to try and implicate Robin was stealing from the post office although no physical proof of this.

“However following recent high court rulings it has seen the CCRC send over 45 cases (sic) back to the court of appeal stating the Post Office evidence can not be relied on.

“If this is the case then surely the evidence against Robin must be deemed unreliable thus removing the case for theft from the equation.

“This been (sic) the case then there is no case against Robin as the prosecution always maintained whoever stole the money killed Di.”

Apart from the glaring factual errors, beginning with the date when further submissions were made by the Garbutt team to the CCRC, Mark’s outpourings and muddled thinking further demonstrate that the family, at least, really have no clue at all about the case against Garbutt and the very high hurdle they face in ever overturning the conviction.

Page last updated at 1020hrs on Monday 24th August, 2020 at 0710hrs.

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: Norvic Philatelics

© Neil Wilby 2015-2019. 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.

Supercops assert rights to secret hearings

On 28th February, 2020 a highly significant judgment was handed down by Mr Justice Murray at the Royal Courts of Justice. Surprisingly, there appears to have been little national media coverage, given the intervention of both Bloomberg and the Press Association in the proceedings.

It followed two ‘without notice’ applications made by the National Crime Agency (NCA) in May and July, 2019. The first sought an Unexplained Wealth Order and the second an Interim Freezing Order (IFO). They were both heard in private on 12th July, 2019, two days after the second application was made.

Unexplained Wealth Orders (UWOs) were introduced pursuant to the Criminal Finances Act (CFA) 2017, in order to bolster the UK’s proceeds of crime regime and they have been the subject of much media attention since, mainly because of the vast sums of money and high value property involved.

The UWO, specifically, was the government’s response to the difficulty in bringing civil recovery proceedings where there was little information about an individual’s source of wealth and they were reliant upon assistance from other countries to provide evidence that the assets in question were the proceeds of crime.

The UWO, instead, places the onus on the subject of the order (the respondent) to explain the origin of assets that appear to be disproportionate to their lawful income.

Russian oligarchs allegedly laundering eye-watering sums of money in ‘Londongrad’ were seen as prime targets of the new legislation. Although recent press coverage appears to suggest that Director General, Lynne Owens, has conceded the fight against this particular group as ‘too big to handle’ (read more here).

The significance of the instant hearing was fourfold:

(i) It lifted an anonymity order granted by Ms Justice Laing on 4th July, 2019 in favour of the subject of the applications, Mansoor Mahmood Hussain. Six limited companies in which Hussain, better known locally as ‘Manny’ (or ‘Manni’), has a controlling interest were also listed on the application.

(ii) It named some of the leading players allegedly, or in most cases, proven to be involved in organised crime in the Leeds and Bradford area.

(iii) It set out the general principles for the making of a UWO and IFO and will stand as a legal authority on these matters unless, or until, challenged in a higher court.

(iv) It deals with the general principles for hearing UWO applications in private. That is to say with neither public nor press present.

The subject UWO Application was made by the NCA on the basis that they suspect that Manny Hussain is involved in serious criminality in connection with the activities of organised crime gangs (OCG’s) operating in the Bradford area; the criminality spanning a spectrum of serious crimes, including murder, drugs, firearms, fraud and money-laundering offences. The OCG’s concerned are known to be violent. The NCA’s case, in broad terms is that Hussain has been acting as an enabler, laundering the proceeds of the activities of a number of criminals, who are members of, or associated with, those OCG’s.

The main evidence supporting the UWO Application is set out in two witness statements, with supporting exhibits, made by Andrew Coles, an NCA Financial Investigator.

The evidence supporting the IFO Application is set out in a third witness statement made by Mr Coles, in which he also set out additional evidence of the NCA in support of the Agency’s application that the matters be heard in private.

According to the evidence of Mr Coles, 40 year old Hussain, born in Leeds, is self-employed as the director of a number of companies, purportedly engaged in property development and management. He has never been convicted of a criminal offence and has received only one, long spent, police caution, for assault and battery, administered in January 2009 by his local West Yorkshire force.

The other parties to the IFO are companies that are wholly owned by Mr Hussain and through which he controls various residential and commercial properties relevant to the UWO Application and, of course, the IFO Application. They are: (i) Laurel Terrace Limited (ii) Land88 Limited (iii) Jayco88 Limited (iv) Cubic Business Park Limited (v) 88M Group Limited (vi) 2 Park Square Limited.

The properties controlled by those companies are (i) Freehold property at 2 Sandmoor Drive, Alwoodley, Leeds, one of the most exclusive residential addresses in the city and its suburbs, the registered owner of which is Hussain. (ii) Freehold property at 3 Laurel Terrace, Armley Leeds, the registered owner of which is Laurel Terrace Limited. (iii) Freehold property consisting of land on the north west side of Paddock Hill, Mobberley, Knutsford, in the Cheshire stockbroker belt, the registered owner of which is Land88 Limited. (iv) Freehold property consisting of land on the south side of Doncaster Road, Wakefield, the registered owner of which is Jayco88 Limited. (v) Freehold property consisting of the Cubic Business Centre, Stanningley Road, Bramley, Leeds, and land adjoining it, the registered owner of which is Cubic Business Park Limited. (vi) leasehold property consisting of the ground floor flat at 101 Walton Street, Kensington, London, the registered owner of which is 88M Group Limited. (vii) freehold property consisting of 28 Park Square West, Leeds, including 13 The Stables, Somers Street, Leeds and 11 The Lodge, Somers Street, Leeds, the registered owner of which is 88M Group Limited; and (viii) freehold property consisting of 2 Park Square East, Leeds, the registered owner of which is 2 Park Square Limited.

Screenshot 2020-06-27 at 08.22.53
2 Park Square East (red door) with Leeds Town Hall in background

The latter four properties are in the exclusive legal quarter of the city, just a stone’s throw from the Crown Court.

The Cubic Business Centre is an impressive new ‘state-of the art’ building . It consists of 33 fully furnished offices all with air conditioning. There are conferencing facilities available, communal breakout areas, relax room, kitchen, shower room and also a gymnasium. There is ample onsite car parking and parking for staff and clients. They also have on site security surveillance which is manned at reception. CBC has its own website (see here).

The NCA’s case, put shortly, was that they had sufficient evidence to support a reasonable suspicion that Manny Hussain, a known associate of leading members of OCG’s, acts as a professional money launderer for a number of well-known criminals who operate in the Leeds and Bradford area, using specialist knowledge and expertise to find opportunities for his criminal associates to retain and to launder the proceeds of crime. One such way is to channel proceeds through corporate vehicles in order to fund the purchase of residential and commercial properties, principally held by, or through, companies that he controls. The NCA suspects that each of the properties listed above falls into that category.

The short history of the case is that the UWO Application was originally listed before Ms Justice Laing on 4th July 2019, to be heard in private. At that time, the NCA did not consider, on balance, that it was necessary, also, to apply for an IFO in connection with the UWO, in the interests of proportionality and taking the least invasive approach. It considered that the effect of service of the UWO, if granted, would carry sufficient weight to prevent Mr Hussain from taking action intended to thwart the UWO or any future civil recovery proceedings against him or his companies.

Following informal applications by Bloomberg and the Press Association challenging the decision to hear the UWO Application in private, the judge adjourned the hearing to 12th July 2019 in order to permit the two media organisations to make written submissions in support of the the press applications in accordance with CPR 39.2 (5).

On 8th July 2019 Reynolds Porter Chamberlain LLP (“RPC”), solicitors for Bloomberg and the PA wrote to the court indicating that their clients no longer wished to challenge the decision to hear the UWO Application in private and, therefore, wished to withdraw both press applications.

In its skeleton argument for the hearing on 12th July 2019, in relation to those press applications, the NCA indicated that it had spent considerable time preparing to address the issues of law and practice raised by those applications, including gathering evidence set out in the third witness statement of Mr Coles. Following the adjournment on 4th July 2019, the NCA also received information that, it considered, altered the risk profile so that an application for an IFO would now also be necessary.

Although the press applications were withdrawn, the NCA considered that they had raised fundamental issues of broad principle as to the nature and operation of the UWO jurisdiction and, in general, the need for privacy in relation to applications for a UWO to protect the integrity of the NCA’s investigation to which the UWO relates, as well as to protect the rights of the respondent to the UWO. Therefore, the NCA urged Mr Justice Russell to rule on the issue of principle raised by the now-withdrawn press applications. Firstly, addressing the general UWO jurisdiction and the need for privacy in a public judgment and then, secondly, dealing with the particular circumstances of this case in a confidential judgment to be handed down at a hearing in private.

Since the UWO and IFO were made, the existence of the UWO and the IFO have ceased to be confidential and have, in fact, been superceded by an acccount freezing order (AFO) made on 12 February 2020, following a hearing in public, by Mr Justice Supperstone. For that reason, there was no longer a need for a separate confidential judgment.

The legal framework is set out in highly forensic detail at paras 19 to 76 of the judgment, read in full here.

The privacy issues raised by the Press Applications

As made clear by Civil Procedure Rule (CPR) 39.2, the general position is that a hearing is to be open and held in public. Open justice is a fundamental constitutional principle. A hearing will be held in private only where strictly necessary to secure the proper administration of justice, after the court has satisfied itself that relevant considerations render it strictly necessary and after the court has considered any duty to protect or have regard to a right to freedom of expression which may be affected.

CPR, at section 39.2(3), sets out various relevant considerations and, for completeness, they are repeated here:
“(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.”
Open justice is, therefore, the starting point and the default position. To the extent that there are restrictions on reporting, it is also necessary to consider Article 10 of the European Convention on Human Rights (“ECHR”) as incorporated into English law by the Human Rights Act 1998.

The rule of open justice is, of course, not absolute. CPR 39.2(3) stipulates that a hearing must be held in private if the court is satisfied as to one or more of the matters set out in that rule. Mr Andrew Sutcliffe QC, leading counsel for the NCA, submitted, in relation to the issues raised by the press applications, that subparagraphs (a), (c), (e) and (g) of CPR 39.2(3) each apply in this case in relation to both the UWO Application and the IFO Application.

Mr Sutcliffe also noted that the open justice principle is, occasionally, expressly derogated from by statute and submitted that the statutory material and guidance underpinning UWOs fall into this category, anticipating that UWO applications will, generally, be made without notice and determined in private.

Section 362 I(1) of POCA expressly provides that an application for a UWO may be made without notice. Again, for completeness, the revised Practice Direction provides at paragraph 11.1 as follows:
“11.1 The application [for a UWO and a related IFO] will be heard and determined in private, unless the judge hearing it directs otherwise.”
The presumption, therefore, is that the hearing will be private. In relation to court documents, the revised Practice Direction provides at paragraphs 9.1-9.3 as follows:
“9.1 CPR rules 5.4, 5.4B and 5.4C do not apply to an application under Part 8 of [POCA] (including an application for an unexplained wealth order or an interim freezing order) …, and paragraphs 9.2 and 9.3 below have effect in its place.
9.2 When an application is issued, the court file will be marked ‘Not for disclosure’ and, unless a High Court judge grants permission, the court records relating to the application (including the application notice, documents filed in support, and any order or warrant that is made) will not be made available by the court for any person to inspect or copy, either before or after the hearing of the application.
9.3 An application for permission under paragraph 9.2 must be made on notice to the appropriate officer, or (in the case of an application for an unexplained wealth order or an interim freezing order) the enforcement authority, in accordance with CPR Part 23.”

Mr Sutcliffe submitted that three important points can be drawn from the above provisions:

First, he says, it is clear that there is a strong presumption of privacy built into the UWO regime. It is not a matter of the NCA having to make an application to depart from a starting point of a public hearing. It is for those seeking to challenge the privacy and/or to obtain copies of court documents to make an application to do so.

Secondly, Mr Sutcliffe submitted, these measures are not simply about preventing the removal of property by the respondent before the order can be granted. The status of a UWO application is not tied to the existence or status of an IFO application, the latter being concerned with the risk of dissipation of property. To the contrary, section 362J(5) of POCA provides that an application for an IFO must be made without notice if the UWO application to which it relates was made without notice, rather than the other way around. This demonstrates that a UWO application is not made without notice for property preservation purposes.

Cousel noted that further support for this point is to be found in the Revised Code of Practice at paragraph 38, which states in relevant part: “… In deciding whether an application should be made without notice, the appropriate officer should consider the benefit of not holding the proceedings after giving notice to all parties. An obvious and common reason would be so as not to alert the person(s) connected to an investigation that it is ongoing. On notice proceedings might enable the person to move material or information and thereby frustrate the investigation. … .”

Mr Sutcliffe submitted, further, that a UWO is, of course, fundamentally about obtaining information and documentation and not the risk of dissipation of property. This is consistent with the policy underlying CPR r 39.2(3)(a).

Thirdly, Mr Sutcliffe submitted that, as paragraphs 9.2, 9.3 and 11.1 of the revised Practice Direction make clear, the presumptive position is that the hearing of an application for a UWO will be in private and the relevant court documents will not be made available. That position is not dependent upon whether the relevant UWO application has been made on notice or not. It specifically concerns, he submitted, the need for privacy of the hearing and related court documents. The presumption of privacy thus applies equally to applications made on notice, making clear that the need for privacy is not only about the potential impact of the respondent being on notice to the NCA’s investigation, but it is also concerned with the rights of the respondent. This is consistent with the policies underlying subparagraphs (c), (e) and (g) of CPR r 39.2(3).
He acknowledged that it would not invariably be the case that a UWO application would have to be without notice and heard in private. The specific facts of each case need to be considered carefully by the enforcing authority before making its application and by the court. He submitted, however, that the starting point of an application without notice and a hearing in private, as set out in the statutory provisions and supporting material for UWOs, was driven by a clear logic and set of policies, which he summarised as follows:
i) First, where the application is made without notice (as permitted by section 362 I(1) of POCA), the jurisdiction recognises that in all likelihood, publicity would defeat the object of the hearing (subparagraph (a) of CPR 39.2(3)).

ii) Secondly, the application necessarily contains significant amounts of sensitive information, both confidential and personal, about the respondent. Subparagraph (c) of CPR 39.2(3) is also plainly engaged; but equally (if not more importantly) where the application is without notice and the respondent unaware of it, subparagraph (e) of CPR 39.2(3) is also engaged.

In relation to the second of these points, Mr Sutcliffe amplified as follows:

(i) The considerable media interest in UWOs is undeserved. A UWO is merely a tool designed to assist with information-gathering during the early, preliminary stages of an investigation, where there is a dearth of information available to the NCA. Consequently, the threshold tests for the application are relatively low. The Holding Requirement and the Value Requirement, as set out in the statutory framework, are not difficult to satisfy. As to the Income Requirement and the Serious Crime Requirement, each depends on there being reasonable grounds for suspicion and no more. The test for “suspicion” is fairly low, and may be established by reference to evidence that would fall short of that necessary to establish actual involvement in crime, as noted by the Privy Council in Hussein v Chong Fook Kam.

(ii) Consequently, a UWO application is designed (a) to assist the NCA at the very early stages of its investigation, at a time when it has relatively little information and (b) to be an information-gathering tool. The obtaining of a UWO does not mean that the NCA will necessarily proceed with a civil recovery investigation or proceed to take advantage of any further or more intrusive investigative measures available to it.

(iii) The result is that a UWO application necessarily sets out in detail the fact that the NCA suspects that: (a) if the PEP Requirement applies, the respondent is a politically exposed person who has been involved in (most likely) embezzlement and corruption; or
(b) if the Serious Crime Requirement applies, as in this case, the respondent is a person who has been involved in very serious criminality, such as, among other things, human trafficking, arms offences, drugs offences, fraud offences and money laundering offences.

(iv) The UWO application sets out the foregoing detail, together with detailed information about the respondent’s income and finances, yet this is done at a stage where the investigation, and underlying evidence, is embryonic. Some of the information will be from public sources, but much of it will be likely to have come confidentially from other authorities and agencies, as required by paragraph 178 of the Revised Code of Practice (see [40] above) and other third parties.

(v) Plainly the content of that confidential information, if made public, is likely to have a personal and reputational impact on the respondent. The notion that the press, or any other member of the public, should be able to hear of the NCA’s suspicions as to the respondent’s character and criminal involvement, and details of the amount and suspected source of the respondent’s wealth, in circumstances where the respondent is not even aware of the fact that the hearing is happening, let alone has the opportunity to seek to protect his confidentiality and reputation, is obviously unfair to the respondent; not to mention contrary to the interests of justice. Plainly, therefore, sub-paragraph (e), as well as sub-paragraph (c), of CPR 39.2(3) is engaged.

(vi) Indeed, even if the application is on notice, for similar reasons subparagraph (g) of CPR 39.2(3) would also almost certainly be engaged. There is no justification for a respondent’s character being put forward for the type of public trial by media that often follows any media interest, at such an early stage of the investigation. Indeed, were that invariably a risk, then proportionality might require in practice that the NCA would have to apply a far higher threshold test as to the evidence and certainty of guilt than the statute requires before proceeding to make an application. That outcome would undermine the intended function of the UWO jurisdiction.

For those reasons, Mr Sutcliffe submitted, it is wholly unsurprising that the architects of the UWO jurisdiction envisaged the need for, and put in place safeguards to protect, the privacy of the hearing and outcome of the application for a UWO. To the extent that it is considered necessary to go behind the reasoning of the statutory and supporting regime, he submitted, it is plainly the case that numerous triggers in CPR 39.2(3) independently apply; namely, sub-paragraphs (a), (c), (e) and (g), which cumulatively establish an overwhelming case for having the hearing of an application for a UWO in private, in the vast majority of cases.

In his submissions, Mr Sutcliffe also dealt with the question of whether the court needed to undertake a balancing exercise, considering the respondent’s rights under Article 8 of ECHR and weighing them in the balance against the rights of Bloomberg and the PA (or any other relevant news organisation) under Article 10 of ECHR. He submitted, however, that such an exercise was unnecessary in this case, given the clear application of CPR 39.2(3), which required the court to hold the hearing in private. There are other potential rights of the respondent, for example, under Articles 2 and 6 of the Convention, which would also need to be taken into account which would make the exercise not at all straightforward.

Finally, Mr Sutcliffe submitted that the NCA had given serious consideration to the question of whether a hearing in public, but with reporting restrictions in place, would be sufficient, but had concluded that that approach would be insufficient. It being the case that a number of sub-paragraphs of CPR 39.2(3) independently apply, the hearing must be in private. Reporting restrictions alone, for example, would leave the risk of “jigsaw identification”. This is not a case, he says, where the sole concern is that Manny Hussain will thwart the UWO before it is served on him. Other issues and concerns are engaged, including the potential impact on Hussain of any publicity relating to the making of the UWO.

The judge accepted and substantially agreed with these submissions. For the reasons he gives, in light of the nature and purpose of the UWO application, CPR 39.2(3) is highly likely to be engaged, requiring the court to hold the hearing in private to secure the proper administration of justice. Given, in particular, (i) the very early stage of an investigation at which a UWO application will be sought by an enforcement authority, (ii) the relatively low threshold for obtaining a UWO under section 362B of POCA and (iii) the potentially disproportionate personal and reputational impact on a respondent of the fact that a UWO has been obtained if that fact is publicised, several sub-paragraphs of CPR 39.2(3) are likely to be engaged, most notably, sub-paragraphs (a), (c), (e) and (g), particularly in a case such as this where the UWO application involves consideration of the Serious Crime Requirement. This was anticipated by the statutory framework and guidance applicable to UWOs, which makes it clear that, while close and careful regard must be had to the specific circumstances of each case, the presumptive starting point is that a UWO application will be made without notice and that the hearing of the UWO application and any related IFO application will be in private.

In this case, it was clear, for reasons given below, that the presumptive starting point applied in this case and that it was necessary for the proper administration of justice that the hearing be conducted in private. In particular, the judge was satisfied of the matters set out in subparagraphs (a), (c), (e) and (g) of CPR r 39.2(3).

The judge also agreed with Mr Sutcliffe’s submission that it is not necessary in this case to go further and undertake a balancing exercise of the type carried out by Sharp J (as she then was) in DFT v TFD [2010] EWHC 2335 (QB) at [15]-[19], weighing the Article 8 ECHR rights of the respondent against the Article 10 ECHR rights of Bloomberg and the PA, particularly bearing in mind that other ECHR rights of the respondent are also potentially engaged and would need to be considered, most notably, his rights under Articles 2 and 6 of the ECHR. The judge in this case also agreed that reporting restrictions would be insufficient. Given the conclusion on the application of CPR 39.2(3), the hearing was required to be held in private, as ruled at the time.

Supplemental reasons for ordering that the hearing be conducted in private

Mr Sutcliffe for the NCA made the following additional submissions in support of the the application that, in this case, both the UWO Application and the IFO Application should be made without notice and the hearing conducted in private:

(i) Publicity would defeat the object of the hearing, engaging sub-paragraph (a) of CPR 39.2(3), for the following reasons: (a) The NCA considered that there was a material risk that Manny Hussain might move, or arrange to be moved, information and documentation potentially relevant to a possible civil recovery investigation in advance of a UWO being made. (b) Whilst the NCA had originally considered that an IFO was not required, it reached that view on the basis that the UWO Application would be made without notice. Putting Hussain on notice of the application would likely have triggered the risk that ultimately necessitated the IFO application. Given the NCA’s obligation to consider proportionality, the NCA had considered that, if the hearing was not on notice, the judicial weight that comes with a court order would have been sufficient to dissuade Hussain from transferring any of the subject Properties once he was served with the UWO. The NCA, having considered that point following the adjournment of the hearing on 4th July 2019, assessed that the risk profile changed. Evidence in support of that view was given in Mr Coles’ third witness statement. In particular, it came to the attention of the NCA that 3 Laurel Terrace was to be transferred to a new owner, although the NCA was not able to identify the intended transferee. Accordingly, the NCA determined that there was a need for an IFO and made the IFO Application. Had the UWO Application and the IFO Application been made on notice, there is a material risk that the purpose of obtaining a UWO would have been defeated.

(ii) It would be unjust to Manny Hussain, engaging subparagraphs (e) and (g) of CPR 39.2(3), for the hearing not to be conducted in private. For reasons articulated in Mr Coles witness evidence, the NCA considered that there was a significant concern over Hussain’s rights under Article 2 of the ECHR. The organised crime gangs involved in this case are known for violence. There was a genuine and well-founded concern that publicity over the subject and nature of the UWO might give rise to a threat to Hussain’s person. So long as the UWO was not publicised (and Hussain did not personally publicise it, which he was highly unlikely to do in the circumstances), the level of threat-to-life (“TTL”) in relation to Hussain would be considered low. However, as at the point of service of the UWO, the NCA would be alert to the possible need to trigger its TTL procedures. Should the existence and nature of the UWO become widely known (and particularly, in a manner that the NCA was unable to manage or control), the TTL risk to Hussain would be likely to escalate.

(iii) The UWO Application and the IFO Application involved consideration of detailed personal and confidential information about Manny Hussain, his finances, and his wealth, engaging subparagraph (c) of CPR 39.2(3).

(iv) As detailed in the NCA’s submission regarding satisfaction of the Serious Crime Requirement, he is suspected of involvement in serious crime. It would plainly be an intrusion into his privacy for those suspicions to be aired in public, at a stage where they are no more than suspicions. A UWO offered Hussain the chance to satisfactorily explain his wealth and to maintain his good character. Publicity of the NCA’s interest would severely undermine that. For these reasons, sub-paragraphs (c), (e) and (g) of CPR 39.2(3) were engaged.

(v) The UWO Application concerned the operation of organised crime gangs in the UK. Publication of the NCA’s suspicions, and publicising the UWO Application, carried the risk of prejudicing the NCA’s wider investigation. Given that it is highly unlikely that Mr Hussain would choose to publicise the existence of a UWO, media reporting of the UWO, in any way likely to identify the subject or content of the wider investigation, could well prejudice the nature of that ongoing investigation. On that basis, subparagraph (g) of CPR 39.2(3) was engaged.

These submissions of Mr Sutcliffe, which are amply supported by the evidence set out in the witness statements of Mr Coles and the supporting documentation exhibited with them were, unsurprisingly, adopted by the court.

The tests to be met for UWO application to succeed

In relation to the Serious Crime Requirement, the NCA suspects Hussain of acting as a professional enabler and serial money launderer for a number of individuals involved in organised crime gangs, specifically an organised crime gang operating in the Bradford area operated by the Khan family, headed by Mohammed Nisar Khan, known locally as “King Meggy“, and his brother, Mr Shamsher Khan, and an organised crime gang operating across the north of England run by Dennis Slade, there being a degree of connection between the individuals involved in the two organised crime gangs.
In his evidence, Mr Coles sets out in detail the alleged and known criminal activities of a number of individuals suspected or known to be involved in serious criminality, particularly in relation to drug disputes, gang violence, armed robbery and serious fraud. These individuals include:

(i) Mohammed Nisar Khan, who is currently serving a life sentence for the murder of Amriz Iqbal and believed to be responsible for numerous serious assaults, including attempted murder, as well as involvement in the illicit trafficking of drugs and firearms on his own behalf and that of other organised crime gangs, with a significant record of previous convictions, largely for violence and drug-related crimes;

(ii) Shamsher Khan, who is known to the police for violence and drug-related offences, as well as obtaining mortgages by fraud and money laundering offences;

(iii) Dennis Slade, who was the head of an organised crime gang involved in cash-in-transit robberies involving firearms, which operated across the north of England, and who has various convictions for, among other things, burglary, theft, handling stolen goods and crimes of violence including assaults occasioning grievous bodily harm (GBH) and actual bodily harm (ABH) as well as suspected connection to two murders for which he was arrested but not charged;

(iv) Ms Maxine Valentine, Mr Slade’s estranged wife, who is said to have enjoyed a lavish lifestyle on her husband’s criminal earnings and who was convicted at Teesside Crown Court on 28 January 2011 on two counts of money laundering, for which she received a sentence of 12 months’ imprisonment;

(v) Simon Morris, who has previous convictions for dishonesty offences, has also been implicated in Mr Slade’s fraud offending and was arrested by West Yorkshire Police in connection with a multi-million pound property fraud along with Irfan Ali, who is a close associate of Mr Mohammed Khan; and

(vi) Brian Morris, father of Simon, who also has previous convictions for dishonesty offences and was arrested alongside his son and Ali in connection with the multi-million pound property fraud referred to at (v) above.

In his evidence, Mr Coles sets out the details of Hussain’s involvement with these individuals. Some of the highlights are:
(i) Manny Hussain has, since 2005, frequently been stopped by the police while in Mohammed Khan’s company and has been observed spending time in his company on other occasions;

(ii) Hussain frequently drove King Meggy to and from Leeds Crown Court and attended with him during the trial of Dennis Slade;

(iii) Meggy is connected to a company, Twenty Four Seven Security Services (UK) Limited, which uses one of the subject properties, the Cubic Business Centre, as its business address and displays its signage at another of the properties, 3 Laurel Terrace;

iv) Hussain travelled to Malaga with Meggy for a trip lasting less than 24 hours, purportedly to attend the opening of a nightclub there;

v) Hussain paid private school fees for Meggy’s son for a period of just over two years in the sum of just under £10,000;

vi) Hussain funded Shamsher Khan’s confiscation order in the amount of £134,000 following his conviction for mortgage fraud offences, the source of those funds suspected by the NCA to be funds held, directly or indirectly, by Hussain for or on behalf of Mohammed Khan;

vii) Slade gave the address of one of the subject properties, 2 Sandmoor Drive, the property held in Hussain’s own name, as his home address during his trial, without, it appears to the NCA, Slade having paid any rent in relation to that property;

viii) Ms Valentine has stated to the authorities that 2 Sandmoor Drive is “part-owned” with a friend, and she was regularly driven to and from Leeds Crown Court by Hussain during Slade’s trial there;

ix) Hussain provided Slade with a luxury residence, The Lodge, owned by another company, owned or controlled by Hussain, following Slade’s release from prison;

x) Hussain visited Slade regularly in prison, sending money to the prison for Slade and advancing funds to Slade’s daughter;

xi) Hussain has been a business partner of Brian Morris, the two having been co-directors of a company called BM Car Parks Limited and, potentially, in relation to another company called Ideal Properties, which makes Brian Morris a “connected person” in respect of Hussain under both Corporation Tax and POCA regimes;

and,

xii) West Yorkshire Police has shown evidence to the NCA indicating that Hussain has been involved in property business dealings with Simon Morris.

A point not heard in court was the suspicion amongst the local property developing fraternity that Slade, for a period, acted as bodyguard for Simon Morris after an incident where a shot was said to be fired through the windscreen of the latter’s car.

As a result of its investigation, the NCA have concluded that there are reasonable grounds to suspect that Hussain and his corporate vehicles, including the other IFO Respondents, which are “connected” with him, have conducted themselves in a way that was likely to facilitate the commission of:

(i) serious criminal offences within England and Wales, namely money laundering offences, by way of concealing, disguising, converting, transferring, and/or being involved in arrangements concerning, and/or acquiring, using and/or having possession of the proceeds of the above identified criminality; and

(ii) of serious offences by the persons identified above, of the underlying serious crimes respectively identified, by way of providing a money-laundering service and thereby enabling those criminals to retain the benefit of their criminality over the years, and, as a result, facilitating their continued offending.

Moreover, the NCA suspects that Manny Hussain has not merely been involved in at least one serious offence, thereby satisfying the Serious Crime Requirement, but rather plays a wider role in relation to organised crime in the Bradford area, standing at the centre of a network of organised crime as a designated “clean skin”; namely, a person with no serious criminal convictions to this name, who enables those operating the criminal activities of the organised crime gangs with which he is connected, by providing a money-laundering service. So, the NCA submits that Hussain’s activities not only facilitate the commission of individual serious crimes, but they also facilitate organised crime on a large scale, which is a further factor exacerbating the seriousness of the criminality in which it is suspected that Hussain is involved.

Having reviewed the evidence provided by Mr Coles in his first witness statement and considered the submissions made on behalf of the NCA, the judge concluded that the Holding Requirement, the Value Requirement, the Income Requirement and the Serious Crime Requirement were all amply satisfied. The remaining question, therefore, was simply whether it was appropriate in all those circumstances for him to exercise his discretion to make the UWO. He concluded that it was, for the following reasons:
(i) The statutory requirements were met;

ii) the aim of the measure was to improve the ability of the authorities to investigate and, where appropriate, recover the proceeds of crime, which is a legitimate aim;

(iii) having reviewed the terms of the UWO with counsel, the judge was satisfied that it was no wider than appropriate and that it was proportionate, with a view to enabling the NCA to determine whether to commence civil recovery or other proceedings (which in fact they did, obtaining a £1.13 million Account Freezing Order in January, 2020);

(iv) there are relevant safeguards in the legislation, for example: (a) A UWO does not confer the right to require a person to answer any privileged question nor to produce privileged or excluded material; (b) a statement made in response to a UWO may not generally be used in evidence against the respondent in criminal proceedings; (c) the statutory presumption that relevant property is recoverable property where the respondent fails to comply or purport to comply with the UWO may be avoided if there is a “reasonable excuse” for non-compliance and may subsequently be resisted if “the contrary is shown”.

In terms of proportionality, the NCA considered that it could not achieve the necessary objectives by less intrusive means. The primary alternative would have been to seek a Disclosure Order (“DO”), with Disclosure Notices (“DNs”) being issued to various third parties from whom information would be sought. The NCA had several reasons for discounting this approach:
(i) It would require identifying relevant third parties upon whom to serve DNs, whilst in this case many of the sources of funding are completely unknown (or even which solicitors acted on the various transactions);

(ii) the transactions go back further than six years, which is the usual document retention period for many financial institutions;

(iii) the use of DNs would alert third parties to the fact that the NCA is interested in the source of Manny Hussain’s wealth, which would arguably be more intrusive than a UWO;

(iv) the use of a DO and DNs would be less practical and cost-effective than a UWO in a case such as the present one where the nature of Hussain’s suspected role as an enabler and money-launderer necessarily makes the sources of funds likely to be disparate and complex.

Ultimately, a UWO would be less intrusive in its impact, the NCA said, given that failure to comply with a UWO is not a criminal offence, unlike failure to comply with a DO, unless the respondent knowingly, or recklessly, makes a false or misleading statement in their response.
As far as Hussain’s human rights are concerned, the NCA submitted that the proposed UWO pursued a legitimate aim, would be in accordance with the law and would be justified and proportionate in all the circumstances.
As far as proportionality and having regard to Hussain’s human rights are concerned, the judge accepted and agreed with the submissions made on behalf of the NCA.

In compliance with its duty of full and frank disclosure of all material facts, and to pursue reasonable lines of enquiry before making the UWO Application, the NCA noted various points “putting on its defence hat”, which were set out in Mr Coles’ first witness statement. These involved various arguments that Hussain might possibly seek to run when put on notice of the UWO, rebutting the submission that one or more relevant elements of each of the key requirements for obtaining a UWO were satisfied (Holding, Value, Income and Serious Crime). None of the points raised, in the judge’s view, had any real force. It is important to bear in mind, he said, the relatively low threshold for obtaining a UWO, but also the limited effect of a UWO and the various statutory safeguards to which he had already referred.

After the judge reviewed with counsel the form of UWO sought by the NCA, the conclusion was that the terms of the UWO were appropriate and proportionate in light of the evidence, and therefore made the UWO on the terms sought by the Agency.

Reasons for making the IFO against Mr Hussain and the Other IFO Respondents

Mr Sutcliffe made the following submissions in support of the IFO Application against Mr Hussain and the other IFO Respondents:
i) The requirements of POCA are satisfied in that the application is made by the NCA, which is the same authority that applied for the UWO, and it is sought in “the same proceedings” as those in which the UWO was made; and

ii) the NCA considers that it is “necessary” to make an IFO for the purposes of avoiding the risk of any recovery order (that might subsequently be obtained) being frustrated, for the reasons explained in Mr Coles’ third witness statement, namely: (a) The NCA had received specific information from the Money Laundering Reporting Officer of the relevant firm, that Hussain intended to transfer 3 Laurel Terrace; (b) Mr Coles was further notified by the Land Registry that an application had been lodged by the firm of solicitors in question; (c) no information concerning the application was available to the NCA, and despite a request by Mr Coles, pursuant to section 7 of the Crime and Courts Act 2013, the Money Laundering Reporting Officer of the relevant firm responded refusing to provide any information about the transfer, including as to the intended transferee; and (d) a search of the Land Registry on 9th July 2019 indicated that no transfer had yet taken place.

Mr Sutcliffe submitted that this evidence demonstrated that there was a clear risk of imminent dissipation of 3 Laurel Terrace, justifying the IFO Application. Furthermore, he said, given the NCA’s suspicion that all of the subject Properties are held or controlled by Mr Hussain as forms of investment of the proceeds of crime, on behalf of third parties, then if the intent to transfer 3 Laurel Terrace was pursuant to a request from a relevant third party in order to realise funds, then if only 3 Laurel Terrace were frozen, it is likely that Mr Hussain would transfer another of the Properties in order to realise funds. Accordingly, he submitted, the NCA considered there to be a risk of dissipation in relation to all of the Properties and therefore it sought an IFO in respect of all of them.
The cumulative value of the Properties was believed to be just under £10,000,000. All of the subject Properties were then currently unrestrained. Some of them were also unencumbered, meaning that it would be easy for Mr Hussain to release equity from them, which could be dissipated quickly and with ease. All except one of the Properties was held by one of the other IFO Respondents. Accordingly, it was necessary to make the IFO (but not the UWO) against each of the other IFO Respondents as well as Mr Hussain.
Having considered that nothing significant arose by way of the NCA’s compliance with its duty of full and frank disclosure, and having reviewed with counsel the form of IFO sought, the judge was satisfied that the relevant statutory requirements for the IFO were met and that the terms of the IFO were appropriate and proportionate.

Conclusion

For the foregoing reasons, at the conclusion of the hearing the court was satisfied that:
(i) it was strictly necessary to conduct the hearing of the NCA’s applications for a UWO against Mr Hussain and an IFO against Mr Hussain and the other IFO Respondents in private. That is to say, without both public and press present; and (ii) in all the circumstances, it was just, appropriate and proportionate to make: (a) the UWO sought by the NCA against Mr Hussain; and (b) the IFO sought by the NCA against Mr Hussain and each of the other corporate IFO Respondents.

Connections to other cases on this website

One of the drivers for West Yorkshire Police to continue to harass John Elam, whose miscarriage of justice case was raised in Parliament in 2014 (read more here) is their obsession with social, or other connections, to Dennis Slade. There is no such association. Seven years of the most intensive, intrusive covert and overt police surveillance should have convinced them of that. A recent success in a civil claim against the force by Elam  (full story to follow) has needled WYP further.

Former Head of the Economic Crime Unit of West Yorkshire Police, Cedric Christie, was involved in investigations into Simon Morris, a former Director of Leeds United football club, both pre- and post-retirement from the force. Cedric is believed to be at the very centre of the controversy over the conviction of his elder brother, Ralph Christie at Bradford Crown Court in 2015. From being a powerful miscarriage of justice advocate, the younger brother turned turtle and appears to have provided the impetus for his former force to convict on 3 of the 5 counts upon which he was found guilty. The jury acquitted Ralph on 14 other counts, in a number of which Cedric is believed to have also taken a hand (read more here). He is presently refusing to answer any questions on these matters.

As referred to above, Shamser Khan was involved in large-scale mortgage fraud. His conviction, and subsequent POCA recoveries involving other mortgage frauds, led indirectly to Operation Thatcham, a large scale crash for cash investigation (in which Khan has no known involvement at all). During Thatcham, a well known Bradford doctor was arrested by police as part of an alleged conspiracy to defraud. However, no allegations were ever put to him in interview and he was never charged with any offence. That arrest of Dr Abdul Rashid is now the subject of a hotly disputed, long running civil claim which could cost the police up to £5 million in costs and damages (read more here and here).

Page last updated at 1115hrs on Monday 3rd August, 2020.

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: National Crime Agency

© Neil Wilby 2015-2019. 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.

Dr Truthseeker loses her moral compass

Over the past three months, a number of articles have been added to this website on the subject of a murder, in 2010, at Melsonby Village Store and Post Office in North Yorkshire. At the conclusion of a criminal trial that took place a year later, at Teesside Crown Court, the judge and jury found that Robin Garbutt had brutally killed his postmistress wife, Diana, as she lay sleeping, striking her around the head three times with a rusty iron bar.

Garbutt has always maintained his innocence, despite being proved to have lied to both the police and the jury. His alibi of armed robbers killing his wife, then making off with the contents of the post office safe and shop till, leaving him unharmed and free to raise the alarm, was described as ‘ludicrous’ by the judge, Mr Justice Openshaw.

A series of appeals launched by the murderer and his campaign team have seen his sister, Sallie Wood, and brother-in-law, Mark Stilborn to the fore. The first was to the Court of Appeal in 2012, which was comprehensively dismissed, followed by three applications to the Criminal Case Review Commission in 2015, 2017 and 2019. The latest of which is still under review by the miscarriage of justice watchdog (read more here). Neither of the previous applications has merited an investigation by the CCRC. It is very likely that the latest one will be closed in the same way (read the reasons why here).

Garbutt has scrupulously avoided publication of the reasons for those failed applications and appeal.

Since the end of 2018, the Garbutt innocence campaign has been led by 57 year old York resident, Jane Metcalfe, who works in Learning Support at nearby Askham Bryan College. She has achieved considerable success in raising the profile of the case, both within the miscarriage of justice fraternity and in print and broadcast media.

Regrettably, that has come at a cost as she, like the man to whom she now devotes her life, has proved to be, at best, economical with the truth and, at times, an outright liar. Most notably, with her now abandoned mantra: “Robin has only ever told the truth“. The appearance of the first Garbutt article on this website (read here) blew away that myth and, thankfully, she has not repeated it since.

The campaign under her leadership, has acquired a motley crew of fellow travellers, developing an unpleasant edge by attacking and smearing anybody who criticises the Garbutt/Metcalfe narrative. Those bold enough to ask questions, however innocuous, are insulted, blanked or blocked on social media (read more here).

But, most notably, this is an enterprise in which there is scant regard for the victim and her family: Diana’s mother, Agnes Gaylor, is resolute in her belief that the right man is in prison for killing her beloved daughter. She tires of hearing ‘Robin is such a nice man, he couldn’t possibly have done it‘.

Mrs Gaylor is airily dismissed by Metcalfe and others as “not being in possession of the full facts”, despite attending every day of the four week murder trial – and hearing, and seeing, all the evidence. Jane, on her own admission, did not attend Crown Court for even a single day and has little or no knowledge, or experience, of the criminal justice system.

It is against this background that, on 7th June 2020, Midlothian-based author, researcher and alternative therapist, Dr. Sandra Lean, chose Jane Metcalfe to feature in the pilot episode of a new podcast venture billed as ‘The Truthseekers‘.

Dr Lean is best known for her support of the unsuccessful innocence campaigns involving two other murderers, Luke Mitchell and Gordon Park. The latter recently had a posthumous appeal dismissed by three law lords which, effectively, brings that campaign to a close. Park committed suicide in HMP Garth in January 2010 but the troubling murder spawned two books: One by Douglas ‘Dick’ Binstead, the other by Lean.

Explaining his motivation, Mr Binstead told his local newspaper, the Carlisle News and Star: “I had contemplated writing the book for some years, because I had always been fascinated by the mysterious and unique case of Gordon Park.

“What finally provoked me into actually putting pen to paper was a 2015 book ‘No Smoke! The Shocking Truth About British Justice,’ which singles out the case in question and seeks to depict it as an example of flawed police investigation, a totally misconceived decision to prosecute it, and finally a wrongful decision by the jury to convict the accused.

“As I had been involved in the case as a prosecutor and was very familiar with the evidence on which the case was based, I strongly felt that I should redress the balance.”

The Binstead account is fiercely critical of the Sandra Lean book. He states: “Whatever merits her book, and her appraisal of the evidence in the Park case may have, they are, to my mind, completely eclipsed by her entrenched and overwhelming antagonism towards, and her disdain for, the way that the organs of the criminal justice system operate and conduct their affairs.”

That she should choose Robin Garbutt as her next marquee case, given its own recent troubled history, demonstrates extraordinarily poor judgement as this brutal dismantling of her Jane Metcalfe interview amply demonstrates. Nevertheless, the words of Dickie Binstead prove highly portentious.

Dr Lean has also been associated with the innocence claims of another wife-killer, Adrian Prout; the late Simon Hall and Matthew Hamlen. The latter spawning another notably unsuccessful podcast series entitled ‘Justice in Jeopardy‘.

Prout admitted the crime in 2011, following a four year campaign to clear his name. He took police to where he had buried the body.

Hall committed suicide in prison in 2013 after confessing to murder. It followed a prolonged, high profile innocence campaign. His widow, Stephanie Hall, a regular miscarriage of justice commentator, maintains that Robin Garbutt has ‘groomed and conned’ Jane Metcalfe and that Sandra Lean, whom she knows quite well, has exploited her in what is an opportunistic, bandwagon-jumping interview. They may well both turn out to be portentious observations.

This is a verbatim transcript of the Lean/Metcalfe podcast with corrections, observations inserted in bold type by Neil Wilby, who has spent over 400 hours on a ground up, independent investigation of the Garbutt innocence claims.

The Truthseekers, Episode One. 7th June, 2020.

Dr Sandra Lean with Jane Metcalfe

Sandra Lean: Would you like to kick us off just by giving us some background to this case?

Jane Metcalfe: Hi Sandra, thanks very much for having us.  Robin and the family are really chuffed about the whole thing, it’s great.  We feel really very honoured, so it’s great.  So thank you for wanting Robin’s story on here.  Yeah, the background to this case, if I could maybe start by saying how I know Robin.  Many, many years ago, Robin’s long-term girlfriend was a really close friend of mine.  They were together for a quite a long time.  So that’s how I initially knew Robin.  Then they parted company and sold the house that they had.  Then Robin went on to buy another house.

As will be repeated many times in this piece, Jane struggles to tell the full truth: Her interest in the case was sparked by her close friend, Clare Bradley, giving evidence for the defence at the murder trial. To the effect that Clare had a normal relationship that ran its natural course and Garbutt had never been violent towards her. The trial judge placed due emphasis on that important point in his summing up. Jane, as will be seen later in the interview, didn’t even know the name of Garbutt’s mother, who gave evidence at the trial and whose name and picture appeared on television and in the press at the time.

JM: The background of him and Diana is that they met and Diana moved into his house when they met.  Then they bought the Melsonby Post Office in North Yorkshire in 2003, which is when they got married.  They wanted to set up a business together and live and work together.  In Melsonby the Post Office is right on a busy junction, it’s a gorgeous little village of 700 people, approximately.  So the Post Office was a real hub of the village.  It was where everybody did their meeting, everybody knew everybody, and all the children would gather there on a morning before they got the bus to school.  Robin would start serving customers from 4.30 in the morning.  It was a really http://unclear.  It was on the junction of the A1 so lots of people came off the motorway onto the little link way where the post office was. Everything was good.

 – There is no ‘little link way’ off the A1, as Jane describes it. At the Barton interchange (just north of Scotch Corner) it is necessary to join the B6275 towards Piercebridge and then take a left turn onto a minor road towards Melsonby. The Black Bull pub and St James Church were, and are, the hubs of the village. The junction of East Road, Moor Road and West Road is busy at school time in the morning and afternoon, during term time. The picture painted by Jane was not so rosy, in reality. A village shop, off-licence, newsagent, post office, opening 7 days a week from early morning until 6pm, was taking, on average, a meagre £570 per day. Diana soon lost interest in the post office, and the business was put on the market in, or about, 2005. At one point, the murder trial jury heard, Robin had told Diana, at least once and in the hearing of a customer, “to get up off her fat arse and do something”. She would, habitually, not rise from her bed before 8.30am, despite the shop having been open for around 4 hours by then. Everything, plainly, was not good.

JM: It’s worth mentioning before Robin & Diana bought it, the Post Office was robbed…. had two armed robberies before they bought it.  It’s important to know that.  And then, sadly they were robbed in 2009.  17th March 2009, which was a Tuesday, which is the day Robin didn’t have any staff in on a Tuesday, he worked on his own, and they were robbed then.  There was never any suggestion at that point that the robbery was anything other than a genuine robbery.  The Post Office agreed and the Police agreed that there was never anything to suggest anything otherwise.

There is no trace on the internet of two other armed robberies at Melsonby post office, prior to 2003. This was not raised either at trial, on appeal and in acres of press coverage both at the time of the murder and the subsequent criminal trial. There is no reference to these highly significant events on the ‘Robin Garbutt Official’ website, either. Further enquiries are being made at Post Office Ltd, North Yorkshire Police and the Northern Echo. As far as the alleged 2009 robbery is concerned, whilst an enquiry to the Post Office Ltd press office is awaiting response, it can be stated categorically that the police did not agree it was ‘a genuine robbery’. After Garbutt was sentenced, the Echo also raised the question of a fake robbery in 2009, based on the evidence of a witness in the trial (read the full article here). That piece, tellingly, made no mention of any previous robberies, either.

JM: Shall I go on to say about what happened on the 23rd of March in 2010?

SL: Yeah, that lets everybody know why we’re here and what this is all about.

Dr Lean asks no questions about the financial health of the business, the roles of the Garbutts within it or, more crucially, about the alleged armed robberies prior to 2003. This is important information, not previously in the public domain, or available to a resourceful investigative journalist. These issues, all highly relevant to the Garbutt case, should have raised a modicum of interest from the interviewer: When, by whom, how, type of weapons produced by the robbers, upstairs, downstairs, daylight, dead of night, injuries, proceeds, witnesses, scale of manhunt, capture, prosecution, sentence, enhanced security measures post-robberies? But from Sandra? Nothing.

JM: Yeah, so life was really good for them, everything was happy, they had a nice life.  Happy people.  And then tragically on the 23rd of March 2010, so it’s almost a year to the day, also on a Tuesday, they suffered another armed robbery.  Only this time the robbers had gone upstairs into their private quarters and Diana was killed by three blows to her head from a metal bar.  The reason that the robbers would have gone upstairs was because upstairs in the living quarters was a second safe.  It could be seen from downstairs in the shop through the- in the ceiling, it was built into the ceiling.  So the only reason anyone would go upstairs is for that reason, to go to the second safe.

‘Happy people, nice life’ says Jane in her familiar glib style. But that was not the picture painted at the murder trial, where evidence was heard from 87 witnesses. Diana was far from happy, constantly looking for other men, and sexual satisfaction, that Robin was either unable, or unwilling, to provide. The business was in financial trouble and had been up for sale for a number of years. The Metcalfe narrative concerning the second safe is highly speculative and, in parts, nonsensical. Anyone with knowledge of criminal methods, such as the journalist/court reporter writing this article, would know that robbers frequently go upstairs in search of handbags, purses, wallets, credit cards, cash, watches, jewelry, silver or gold, cameras, mobile phones, car keys, to name but some of the common targets. When Diana was murdered, none of those items were taken. The second safe was untouched. It had not been used for some years as the key was said to have been lost, the court heard. Matters that, understandably, raised significant suspicion with the police. Robin Garbutt had no cogent answer when these points were put to him by the police, in interview, and by the prosecutor at trial. Other than a random psychopath just happened on an unlocked door down an obscure ginnel, had gone into the property and perpetrated a brutal, apparently motiveless, attack on a sleeping woman. Then hung around for a couple of hours, at least, risking capture. Unsurprisingly, the jury and the appeal court judges did not accept that scenario.

JM: Leading up to the robbery, Diana and Robin were having… if I could just quickly say what the lay out of the Post Office was, it might be useful.  Downstairs was a very large kitchen, their kitchen.  Next door to it was the actual shop itself, so the little Post Office, the little shop, it was only small.  Little Post Office, little shop and outside on the ground floor was a little yard and then from the back door you’d go either into the kitchen or straight upstairs into the living quarters.  At that time they were having a big – they were having all the kitchen redone like a – they were having the kitchen redone anyway.  They’d spent money on the kitchen.  So everything was upstairs from the kitchen, in the living quarters and they were also getting ready to go on holiday to America two weeks later, I think it was.  To see Diana’s family but also they were going to renew their marriage vows.  And in preparation for them going on holiday, Diana had all their cases laid out in their bedroom, so the bedroom they’d normally sleep in had become – it was just covered in cases and Diana was getting ready to iron and pack everything away. So they were sleeping in the spare bedroom at this time, which wasn’t normal for them to do that.  So anybody who’d been doing a cursory ‘recce’ on the place would have expected nobody to be in the spare bedroom where the safe was.  So they were sleeping in the room where the safe was, which wasn’t what they normally did.

A collection of photographs of the rooms, interior and exterior layout can be viewed here. It adds important context, both here and later on in this piece. It is a large property as can be seen both from the internal and external photographs.

860711F4-4A7A-4082-B541-AD667C0B13CE

This is the shop area after a recent refurbishment.

At trial it was heard that there may have been another reason for the cases to be on the bed in the master bedroom: Either Diana was leaving Robin to live elsewhere, as she had planned to do only a short time before, or she was throwing Robin out (the property was, apparently, in her name). The proposition of ‘a cursory recce’ revealing the layout of the upstairs of the property, and the location of a safe concealed in the floor of one of the rooms, is just another example of how contrived the present version of the Garbutt/Metcalfe narrative is. The fact that Dr Lean doesn’t intervene, and seek clarity, reveals at an early stage how weak and mediocre this ‘interview’ is. It ill-serves the rest of the miscarriage of justice fraternity.

JM: So, on the morning of the 23rd, Robin got up and left Diana in bed and came downstairs, unlocked the door at 0430.  Delivery men and everything arrived with the newspapers, Milkman and (audio unclear) customers are coming in, slowly at that time, 4.30, but they’re trickling in.  Then at 0830 the gunman arrives and says to Robin “Don’t do anything stupid, we’ve got your wife” and Robin does what he says, gives him what he asks for which was to empty the till, empty the safe and then he leaves by the backdoor does the robber and then he (Robin) runs upstairs and he finds Diana.  He rings 999 and the operator- in fact it’s interesting, you can hear the 999 call, it’s available.  One of the ladies on a conference, messaged me, they played it on a news clip recently and she said to me, Michelle said to me “I’ve always felt that Robin was, from what you’ve said at different conferences that Robin was obviously innocent” but she said “If I had any doubts and then heard that 999 call, it would have, you know – it was clear that the man was in a terrible state.”  So it’s…

This section of Jane’s version of events is, again, deliberately misleading. The facts are, as evidenced at trial, that the till roll recorded the first customer at 5.15am. Garbutt’s testimony was that the wholesaler had already delivered the newspapers and he opened the back door at 4.30am to finish offloading the stock purchased the previous evening at the cash and carry. According to the murderer, the door remained unlocked, thereafter. He couldn’t explain to the court why he would take such a risk with the security of his business, his wife and himself. If, as Jane infers, ‘the gunman’ arrives at 8.30am then neither he nor his alleged robber accomplice could have killed Diana Garbutt. She had been murdered long before then.

46B8A2BB-0D50-462C-A382-61EBDD8B3C0E

SL: I will add the 999 call as a link to this so that people can hear it.

– Dr Lean has not added the 999 call. But it can be reviewed at this link here. Again, a complete abdication from the most obvious lines of enquiry do not serve her at all well. It is also a moot point as to whether the 999 call aids Garbutt. It spawned a TV documentary, in 2016, called ‘Killer on the Line: Robin Garbutt(watch here). The programme posits quite clearly that the emotion of the call was faked. The police, the prosecutor, the jury at the murder trial must have also taken that view. Michelle Feather’s message, a Facebook post on the Robin Garbutt page, against that backdrop is almost totally irrelevant. Especially, if the probative case papers have not been thoroughly absorbed. Of the two neighbours from whom Garbutt sought aid during that call, Pauline Dye gave evidence for the prosecution at trial. Her husband, David, had gone out a short time earlier. Pauline had been putting out washing in the shared yard with its view of the back door of the post office. She did not see the alleged robbers leave. Neither did the other occupant of the shared yard.

JM: It’s a really powerful, awful, heartbreaking phone call.  So he’s clearly in a terrible state, so the operator advises that he goes – is there anyone that can help him and he says that he’s got neighbours downstairs.  At the back of the post office is only a small little yard and they shared – Robin and Diana shared the little yard with two other houses.  So there wasn’t a big area at the back of the house, at the back of the Post Office.  So Robin ran downstairs and got help from the neighbour who came upstairs and helped him turn Diana over and clearly she was no longer alive.  And then the ambulance came and confirmed that she was dead, and that was the beginning of the nightmare really, that was the beginning.

The murder trial heard that the beginning of the nightmare for Robin Garbutt was arguing with the paramedic who attended Diana over the state of the body and how long she had been dead. He continued that curious, and suspicious, debate with the two police officers who were first on the scene.

D8577A7B-2519-4F43-A45F-E2225B7B7C9A

The ginnel that leads from West Road into the yard at the rear of the shop and by which route the robbers are claimed to escaped.

SL: Ok.  So from that point, it sounds like we’ve had a robber come in one door and hold up Robin and another has gone upstairs and attacked Diana?

– The very fact that Dr Lean rehearses this nonsensical proposition demonstrates one point very clearly: She has done no meaningful research on the Garbutt case.

JM: Yeah.

Jane blithely agreeing agreeing with that proposition, knowing it to be completely untrue, is a devastating indictment both of her inability to tell the truth and her willingness to draw anyone into the lazy Garbutt narrative who is gullible enough to accept its manifest flaws.

SL: So how do we get from there to where we are today?

JM: If I give a quick brief of the timeline, so people know what the timeline was and then we’ll go back and talk about individual parts of it.  So the robbery – the first robbery was in 2009, March 2009.  The second robbery was on 23rd of March 2010, which is when Diana was killed.  Robin was arrested three weeks later and then the trial was the following spring in 2011, so almost a year later it went to trial and then obviously Robin was convicted at trial.  Then the following year, the following June, I think it was, they then went to appeal, they appealed and they got to the appeals court.  Tragically, the appeal was upheld, no – it wasn’t upheld, we didn’t win, we didn’t win at appeal.  And then the following year Robin applied to the CCRC, which is the Criminal Case Review Commission and was unsuccessful.  That went on for probably 18 months, to-ing and fro-ing with the CCRC but that was unsuccessful. We now have another application in which was put in in December of last year, December 2019.   So that’s kind of a timeline as to where we are now and where Robin’s come (audio unclear).

– It is difficult to reconcile Jane’s assertive demeanour when discussing the case with the number of basic errors she makes. The appeal against conviction was dismissed by the Court of Appeal in May, 2012. In essence, three very senior judges emphatically affirmed the jury verdict that the robbery did not take place. As set out in the opening paragraphs of this article, the first CCRC application was not ‘the following year’ (2013) as Jane claims, it was in 2015. She omits mention of the second application which was quickly dismissed by the criminal justice watchdog in 2017. Another demonstration of a complete avoidance of uncomfortable truths.

JM: So at the very beginning, the prosecution’s case against Robin was two parts.  The prosecution case was that Robin had been stealing from the Post Office and that was his motive to kill Diana because they were going off on holiday two weeks later.  So the prosecution’s case was that a temporary Post Master would come in and look after the Post Office while they were away and at that point there would be an audit.  So what the prosecution said was Robin had been stealing – his theft was going to be revealed in this audit so that gave him his motive for killing Diana.  There’s lots that doesn’t ring true with that; firstly, Diana was actually the Postmistress, so Diana did all the books, so Robin didn’t – Robin was very much involved in the business, but Diana was the bookkeeper.  Also, there’s been a huge judgment now, to do with the Post Office Horizon scandal which was where the Post Office were prosecuting people wrongfully, accusing them of theft.  That also has a big link in there too.  There’s also an audit that should have been available to them at trial, from the Post Office which would have helped Robin massively, but the Post Office said it wasn’t available.  It only became available after trial.  So we’ve got Robin being accused of theft, and then the second plank of the prosecution case was time of death.  Initially, the Police said that Diana was still probably alive at 0630, 0700, 0630-ish, but then they changed tack further into the investigation, and I suspect it was because it became obvious that Robin had an alibi after 0430 because Robin had opened the Post Office at 0430.  He had customers coming in.  So the prosecution’s time of death was- they brought in a so-called expert, who was an expert on food analysis in the stomach contents of somebody who’d died.  She gave a very specific window of death; that Diana had been killed between 0230 and 0430 which if that was the case, it could only have been Robin.  There was only Robin in the building, so it was very powerful.  And apparently this expert was, according to Sally & Mark and the family who were at the trial, she was a really, really powerful witness.  She wouldn’t be moved from this 0230 to 0430.  So they were the two main planks of the prosecution’s case.

– These are the facts as rehearsed at trial and upon which the jury reached their verdict. A very different narrative to the rose-tinted view put forward by the Garbutt team: The prosecution did not have to prove motive for the murder, that is not a necessary ingredient of a criminal trial. They did, however, seek to give the jury an explanation as to how, or why, the Garbutts came to have so much cash available that they were able to enjoy a millionaire lifestyle with, in the year preceding the murder, nine holidays including trips to Paris and Amsterdam, or lavish weekend breaks where they would spend around £1,000 each time. There was also the unknown source of the substantial funds needed to refurbish the very large kitchen (see picture below), to which there is no reference by Jane, and, in the words of the appeal court judges, ‘scant explanation’ for the large sums of cash sent by Garbutt to his bank every month by special delivery post. The murder trial heard evidence from the Home Office pathologist, Dr Stuart Hamilton, that the death of Diana was likely to have occurred ‘in the early hours of the morning’. The pathologist retained by the defence came to a similar conclusion and was, for obvious reasons, not called to give rebuttal evidence. The expert testimony of Dr Jennifer Miller, regarding the fish and chip supper, was supplemental to the more conventional Home Office evidence on time of death and it is unclear whether the jury took any account of it. As crucially, the court heard from an expert neurologist, Dr Daniel du Plessis, who said that it could have taken Diana up to an hour to die from her injuries. Although ‘it was likely to be minutes, rather than hours’ was his evidence.

5F513D26-823B-4991-9F18-1FB697EC3413

There were a couple of other little smidgens that were going on as well.  The prosecution case was so, so… they cherry picked the investigation.  Cherry picked, and ignored huge pieces of evidence and cherry picked.  It was an incredibly weak case and I don’t think anybody ever thought that there was ever going to be a conviction.  I think everyone was quite confident that there was nothing on Robin; nobody had anything to worry about.  Lots of us thought it would never even get in a court room, never mind a conviction.  Lots of people have said since, people in the village that ‘we didn’t realise, we should have gone back and said more’ or some of their witness statements.  For example, some of the witness statements from when the police were gathering evidence from the local friends in the village, a few people said it felt like a ‘Robin hunt.’  It didn’t feel like they were investigating a robbery, an armed robbery at the Post Office and a murder.  It felt like they were more interested in what was going on with Diana and Robin, what they did in their private lives.  It didn’t feel like a – one lady said that she asked the police why is ‘xyz’ missing from my statement.  And they said ‘Oh don’t worry, it’s going in another report.’  So there was things missing from – but nobody really realised the importance of that at the time because nobody really thought that Robin was ever, there was ever going to be a conviction.  There was never any evidence on him.

In terms of ‘cherry-picking’ and ‘ignoring huge pieces of evidence’ it could very well be argued that no-one in the history of innocence claims is better at it than Jane Metcalfe. Who now, it seems, places herself in the campaign team at trial, despite not being the, and speaks for ‘everyone’ and ‘lots of people’. The petition on the Garbutt campaign website has amassed 54 signatures; his Facebook campaign page has 134 friends; the campaign Twitter account (@hanksoff03), run by her, has 190 followers. The conclusion, therefore, is that there is very little public support outside of their own tiny bubble and no visible political support, either. For the avoidance of doubt, the only evidence of note, from any of the villagers, that would have assisted the murderer was: ‘I saw the robbers enter (leave) the post office. This is a description of the men. This is the direction from which they entered (left). Not one of the 500, from whom statements were taken, did that. Either in regard to the alleged 2009 robbery, or the 2010 renewal. Jane also betrays her lack of knowledge as to how a murder hunt, and resultant house to house enquiries in the proximity, is conducted; principally building a picture of the victim and those closest to her. Robin Garbutt had put himself in the frame with his suspicious behaviour from the outset and he was never supplanted as prime suspect. That was entirely down to him, and no-one else.

SL: I’d like to come back to that bit about witness statements later but rather than interrupt your flow, if we carry on with the defence case and all the other bits and pieces that happened in this case.

Dr Lean doesn’t ask, either, of what ‘the cherry picking’ consisted or what were ‘the huge chunks of evidence’ that were missing. She simply allows her interview subject to make these wild, exaggerated, unsubstantiated claims, completely unchecked.

JM: Right. Yeah.  So the prosecution’s were ‘theft’ and ‘time of death’ and then there were a couple of other little smidgens, which one was that Robin couldn’t possibly, from the moment that the safe was opened to phoning the 999 call was, I think it was 79 seconds, and the prosecution tried to say that that was- it was impossible to do.  Well, it was possible to do.  The defence team were able to prove that the clocks were out on the till, the clocks were out on the safe.  So it wasn’t an exact science.  Remember that the Post Office is tiny, the shop’s tiny, the stairs are just through the door.  So for Robin to… you know, if someone’s got a gun to your head and tells you that a loved one is in danger you could move mountains in 79 seconds.  And the defence barrister and lawyer went round to the house and they repeated it.  And did it several times where they ran up and down the stairs more than once within the 79 seconds.

– This is the relevant section of Garbutt’s police interview (watch here) in which he describes what happens from the moment the alleged gunman arrived in the shop to the answering of the 999 call. The jury, unsurprisingly, did not believe this version of events. Neither did the Court of Appeal judges, or the CCRC, or the Crown Prosecution Service, or the police, or Diana’s family. Judge for yourself if what takes Garbutt four minutes to describe could be acted out in 20 seconds (not 79 seconds), as he emphatically claimed at trial. Jane states that the robber put a gun to Garbutt’s head. He says that the gunman kept the weapon down by his side the whole time – and couldn’t describe the gun to police (he changed that evidence in the witness box at court). He also told the police, strangely, that he ‘wasn’t worried’ by the sudden appearance of the gunman in his shop. Which ran counter to his later evidence in that ‘the agony of the moment’ prevented him setting off any of the four silent alarms, in the shop and post office, that were connected directly to an emergency control room. The Metcalfe assertion that ‘the clocks were out on the safe and on the till’ is not the evidence heard in court from Post Office experts: They were correct to the nearest second.

Dr Lean, for her part, is, once again, not even remotely curious about these crucial points, and glaring inconsistencies, that rail strongly against the Garbutt innocence claim.

There was also a lady on the green who said that she thought she’d seen Robin the night before carrying a bag under his arm, sort of suggesting that he was out hiding some money.  Again, it came to nothing.  Well, it was used in court.  It was used in court but there was another gentleman – what she said was that she was surprised because Robin didn’t speak to her and the reason he didn’t speak to her was because it wasn’t Robin.  Robin was at home in bed across the green and it was another man who apparently resembled Robin a lot who’d picked his little dog up and that’s what that story was.

SL: Did that other man come forward?

JM: He did, he did.  And Mike Naughton who was a private investigator employed very early on in the original investigation said it was shocking how like Robin he was.  But he was away on holiday, he was away abroad when the trial hit and there was always a query as to why he wasn’t told either he couldn’t go on holiday or usually if a witness is important… and of course he was a very important witness, because Mike Naughton he was incredibly like Robin, he could have been his brother.  They were the same height.  He said it was a striking resemblance.  So he was away abroad.

 – This is another Metcalfe red herring. Reports of such a likeness has never emerged, previously, at either the trial or the appeal, or on the Garbutt website. Nevertheless, the judge in his summing-up gave the jury the usual legal direction regarding identification evidence after defence counsel had, quite rightly, made significant play on the point during his closing speech: An honest, truthful witness can be mistaken when identifying a person fleetingly. There was no corroboration. The jury were, quite correctly, directed to treat such evidence with caution. If, as Jane asserts, the witness was so very important to the defence then he would have been at the murder trial. Robin Garbutt would have made sure of that. Holiday, or not. However, the Court of Appeal also gave Garbutt the benefit of doubt on this point when handing down their judgment saying it could have been ‘an honest mistake’ on the part of the lady on the village green. 

SL: It sounds like the defence, it should have been cut and dried for the defence.  They’ve got very little to actually defend against.

 – Once again, Dr Lean’s intervention borders on the incredible. To make such an assertion means she has not read either the summing-up transcript or the Court of Appeal judgment. Or, if she has, she doesn’t recognise their significance. The Garbutt trial turned on the armed robbery fantasy. The judge made that plain in his sentencing remarks, as did the three appeal court judges in upholding the conviction as safe. 

JM: Yes.

SL: So, tell me about the defence.  Tell me what they argued and how they tackled the case.

JM: Yeah, ok.  I think it needs to be said as well that everything that could have gone wrong , everything that could have gone wrong for Robin, went wrong.  The investigation was incredibly poor.  The crime scene wasn’t protected.  There was all sorts which we’ll go back to about the crime scene and then the court case…  Everything’s gone wrong.  Of course, when you choose a defence team for a murder- I mean, how many people do you know have to choose…? In our lives we might be able to get recommended an estate agent because many of us move house and we can recommended a good estate agent or a bad one.  “Stay away from them.”  But you don’t do that when you employ a defence team, do you?  How many people do you know who’ve needed a defence team for something like this?  So you don’t know until it’s too late that you’ve not got a very good defence team.

Did you want me to talk about the defence overall with the evidence to http://unclear Robin’s innocence?

– The fact that the police investigation was sub-optimal is accepted on all hands. It is covered in considerable detail in this article posted elsewhere on this website (read here). The defence barrister, James Hill QC, took full advantage and described it to the jury as ‘a comedy of errors’. The judge was rather more restrained, but summed it up by saying North Yorkshire Police showed ‘a regrettable lack of professionalism’. The jury were aware of all the police failings that the Garbutt team constantly re-heat, as was the appeal court. Both made their decisions in that light. When blaming the defence team, Peter Furness of Darlington solicitors, Clark Willis, and Mr Hill, Jane does not, as usual, go into specifics. Particularly, where they departed from the instructions of Robin Garbutt, by which both lawyers would be ethically and professionally bound. More crucially, Messrs Furness and Hill, the latter a very experienced and well regarded QC in defending murder allegations, had a client who had not told the truth to police and then, plainly, lied to the court; a disgruntled wife with a constantly roving eye; unexplained, lavish expenditure against a backdrop of a failing business and whose defence centred on an ‘armed robbery’ that very clearly did not take place. An independent observer might take the view that the defence team did very well in persuading 2 of the 12 jurors that Garbutt may not have been guilty. It is also a matter of public record that the defence team were praised by very senior judges for the way they presented the case at the Court of Appeal. This ‘sour grapes’ ground of discontent amongst the campaigners has never before been raised publicly and, again, does them very little credit. Dr Lean, of course, does not ask any specifics regarding the alleged defence team failings: What did the lawyers actually do wrong and where, specifically, did they ignore their client’s instructions?

SL: Yeah, actually I think it might be better if we go back before we come to that and talk about the actual evidence that was available that pointed away from Robin.  So tell me about things like the hair and the DNA and things like that.

JM: Ok.  Well initially at the crime scene, we know that the Police thought it was or decided that it was Robin very early on, probably within days.  We know that for a fact.  We can evidence that. But things like at the crime scene, in the bedroom where Diana’s hand was, there was a clump of hair and it wasn’t Diana’s.  Diana had dark hair and Robin had very short grey hair.  This was a mid-brown clump of hair and it was massively important because from that there could have been DNA harvested from it, and of course it was lost.  They were never able to use it because it was lost.  It was bagged and moved away but it was lost.  They showed it on a huge photograph in the courtroom but it wasn’t allowed because it wasn’t there in evidence.

 – The jury were made fully aware of the missing clump of hair and its potential significance. As evidenced by the use of the relevant crime scene photograph in the jury bundle. That is factored into their verdict. It is clear, also, that Robin Garbutt became a prime suspect a very short time after the body of Diana was discovered. The evidence of PC’s Reed and Graham-Marlow at trial bear that out. As does his first interview at Northallerton Police Station a few hours later.

What they’d said was that Robin had killed Diana while she was asleep.  But the crime scene photographs show that- oh, because they said there’d been no evidence of a fight, of a struggle but in fact the contrary because in the crime scene photographs you can see that on the bedside cabinet that the lamp’s fallen over, the mirror’s fallen over and the witness who came to help Robin had to pick things up to get across the bedroom to help because there was stuff all over the floor from a fight.  There was also a very strange thing; there was- The Police said there was no blood spatter.  There was never any blood on Robin.  When they examined his clothes there was no blood. And the Police, when they’d interviewed Robin at some point, said that there would have been a lot of blood, the bed was soaked in blood but there was none on Robin.  And there was two bedside lamps, nobody realized they’d gone missing but the Police had said there was no blood spatter to be found.  But months later some experts in London were looking at these crime scene photographs and said ‘where are these lamps?’  So a Police officer had to go back to the crime scene, because nobody was allowed to go anywhere near the crime scene – it was cordoned off and had been locked up and of course, Robin had been arrested by then.  So when the Police officer went back with another officer to look for these lamps, they’d been put on the top of a wardrobe, on the top shelf of a wardrobe.  So we don’t know why anybody would have done that.  They’d actually moved – and when they had examined them, there was blood spatter on them.  So whoever had harmed Diana would have been – they certainly would have had blood spatter on them.

 – This narrative also bears strikingly little resemblance to what was evidenced in court. The jury heard that there was no significant disturbance in that bedroom. Diana was laid face down IN the bed and had been struck three blows from behind. One to each side of her head and the one that was probably fatal, across the top of her skull. That was the wound that bled onto the pillow, not soaked all over the bed as Jane falsely claims. A forensic crime scene/blood staining expert, Joanne Millington, gave evidence at the trial and she told the court that there would be little or no blood spatter from the one wound that punctured the skin on top of Diana’s skull. That opinion was aided by the re-construction of a head, using a mannequin. The Garbutt campaign’s proposition that there was a fight between Diana and the killer overlooks the fact that she spent 7 years in the Army, latterly in close protection security, where she received unarmed combat training and, in her later civilian career, was used to handling prisoners from high category prisons, again with appropriate training. Diana’s body, hands or face showed no injuries consistent with a struggle. But, most crucially, it would have been, by necessity, a soundless altercation with no noise heard in the shop immediately below – and she then got back in bed, laid her head on the pillow and allowed the attacker to bludgeon her to death. Once again, Dr Lean sees no reason to challenge Jane’s ridiculous, contrived account. 

The other thing about the crime scene, massively important, is that none of Robin’s DNA.  The crime scene was a pillow where Diana had died and there was none of Robin’s DNA on the crime scene.  However, there was a mixed profile, of at least three males on there as well as another profile of somebody else that we’ll maybe talk about that’s connected to the little bar, the murder weapon.

 – One of the enduring mysteries of this case is how Robin Garbutt’s DNA is NOT on the pillow in a bed in which he says he slept with his wife on the morning of the murder. Dr Lean failed to take up that point.

This is a private bedroom.  This is a private bedroom.  And also the murder weapon was a rusty bar.  It was quite – the bar was used to murder Diana with.  And it was put – I knew I’d do this, you go round and round in circles and there’s so much to tell ‘While I’m talking about that, I need to tell you about that as well’ so I apologise.  So, the murder weapon.  Can we talk about the murder weapon?

SL: Yes, please.

C4CE1D4C-0C02-41E4-B8E6-C558ED608D61

JM: The murder weapon was found two days after the murder.  So the murder was on the 23rd, on a Tuesday and there was Police everywhere from that moment on and there was fingertip searches going on in the village. But this murder weapon wasn’t found for two days.  And it was found on a very, very high wall. Eight and a half, nine foot wall, right at the back of the Post Office, across the road.  I’m talking a small road, not a great big motorway road, a little village road.  And the Police said ‘this was the murder weapon.’  Initially they said there was DNA on it a full http://unclear male profile.  But they said this was the profile of the wielder.  Whoever had held the weapon and hit Diana with it.  Then it turned out that the DNA was actually belonged to a Police officer.  Robin’s DNA isn’t on it.  But the Police officer who was there when it was found, his DNA was on it.  The troubling thing about all of this is that, when the pillow case was investigated for DNA, it became apparent that there was a linear void in the pillow case which has come from a bar, so what we think’s happened is that whoever’s hit Diana, at some point they’ve gone to hit Diana but they’ve missed and hit the pillow case that she was laying on.  In this linear mark, rust mark, is DNA and in that DNA is a profile of the same officer.  Well, that officer wasn’t on duty that day.  He didn’t come on duty until the 25th.  So how on earth does DNA from an officer who doesn’t come on duty for two days appear on a crime scene that he’s never been in? He doesn’t go in the crime scene.  Which could surely only point to cross-contamination at some point.  Which can only render that there was so much wrong with the investigation and the trial.  It’s incredibly worrying that that’s happened.  That somehow there’s been cross contamination after… How did they come together?  The pillow and the bar after the…  We may never know how that happened.

 – The jury at the murder trial heard of how and where the iron bar was found and about the cross-contamination of evidence. The officer concerned, PC Darren Thompson, gave evidence and was cross-examined. Yes, Jane, the investigation was poor. But, Jane, the trial was conducted with that in full view of the jury and an open goal for the defence. However, the jury still found that Garbutt was lying about the armed robbery. That’s the reality.

SL: I think as well there’s something about, there was still photography of the wall on the 24th and the bar wasn’t there?

JM: That’s right. Yeah, yeah.  There was film footage of the actual wall and the camera pans across the top of the wall and this was found a long time after trial.  This was probably found after the appeal.  And people took still photographs of the wall which have been examined and people have examined the video footage and we know for a fact that this was on the 24th, the day before the bar was found, and the bar isn’t on the wall.  It’s not there.  So at some point the bar’s been placed.

DDE3E77F-D9ED-4F01-A934-EB05B412CA73

 – Jane’s proposition appears to be two-fold: Robin isn’t tall enough to reach the top of the wall from the West Road side of it and that someone has placed the iron bar on top of the wall two days after the murder in the expectation that it would then be found. The unspoken inference is that the police were responsible when the more likely scenario is that Garbutt, or an associate, has delivered the bar to that location, wiped clean of his DNA and, thus, throwing suspicion away from him. Of one thing the reader, Jane and Dr Lean can be certain: Two armed robbers, who have also senselessly beaten a woman to death for the sake of £16,000, did not return to Melsonby, swarming with police and with vehicle checks in situ, and place the iron bar, with the victim’s DNA still on it, less than 20 metres from the crime scene. 

What the prosecution case said was Robin had murdered Diana in the dead of night, while she was asleep and then he’d crept downstairs, ran across the wall – ran across the road, sorry, then placed this iron bar on top of the wall.  There’s all sorts wrong with that.  They never said a time, they just called it the dead of night.  It’s not something anybody would do.  I don’t know why anybody would do that.  I mean, if Robin had done what they say he had, I don’t think he would have run across the road and hide his – I think he’d find somewhere…  Why would he do that?  Why would you do that?  And also, not only that, Mike Naughton who is the private investigator we met a long time after.  We met him in 2018 by pure coincidence, but that’s another story.  But he was the private investigator employed by the original defence team, back in April, March-April 2010.  He went back and he recreated, tried to recreate the bar on the wall.  Because we knew the exact spot where the bar was found from police photographs, and it can’t be done.  He’s the same height as Robin and he- we photographed him trying to do this, and it can’t be done.  Robin would have had to climb up the wall, lean across a telegraph pole, and then lean as far as he could, and he still couldn’t reach the place where they said the bar was.  And the bar was placed strategically across the top.

DF43C268-DED3-402E-AA9E-F6A0A109E341

The other side of the wall – this side of the wall is 8 and a half, 9 foot, but the other side drops down to a – there’s a hill at the other side that drops down to about 3 foot, and the people that worked in the garage – there’s a garage on the other side of the wall – and the people who worked in the garage that day said that they were looking over the wall, watching all this story unfold, all the ambulances and Police, people cordoning off the road, and nobody saw the bar on the wall.  Because if anything had been left on that wall they’d have moved it because children pass, people pass, it wasn’t… so there’s huge doubts surrounding all of that for Robin.

SL: So one of the other things, from memory, they said that there was no suspicious people around in the area.  There’d been no suspicious activity in the area, either on the day of the murder or in the lead up to the murder, but that’s not true either is it?

 – This was not heard in evidence at either trial or the Court of Appeal. Dr Lean had plainly been primed by Jane Metcalfe to push that point.

JM: No, no. That’s anything but true.  There was tonnes of criminal activity around.  Not only was there suspicious activity, Sandra, there was known criminals in Melsonby on the 23rd of March 2010.  We talked about this the other day, Robin and Diana were massive creatures of habit and really were creatures of habit.  Every Monday night, Robin would go to the cash and carry and pick up fish & chips.  He’d go home, they’d have fish & chips and he’d take out the expensive stuff out of the little car outside in the back yard and then the following morning,  Tuesday, he’d get up, open up, let his delivery men in and then serve his customers in between emptying the rest of the goods from the car from the night before from the cash & carry.  On this particular night, the night before the murder, when Robin went to the cash & carry, four CCTV cameras picked up a car following Robin to the cash & carry.  We’ll not say following.  It was the same car picked up on four cameras on Robin’s journey to the cash & carry.  The same car is picked up on his return journey from the cash & carry.  And also, a fortnight before, there was some- when they’d been robbed in 2009, it really upset Robin, it unsettled him a lot and they did talk about leaving and moving because it really frightened him.  But they didn’t and lots of people persuaded them to stay and they loved their life there.  So there was things like- there was a noticeboard outside the window of the shop & the Post Office and the Parish Council agreed to move it, because Robin was nervous and he didn’t have a very good view out of his window so the Parish Council were really good and they moved it, they understood his fears.  The Post Office wouldn’t put any security in, that wasn’t what the Post Office do.  They were going to get CCTV but unfortunately… the money was going to be spent on something else, they didn’t spend the money on the CCTV, it was going to go on this fabulous new kitchen they were having done.

 – ‘Tonnes of criminal activity around’ says Jane. In a village that had one of the lowest crime records in a county that is shown, statistically, to be the safest in the country. The court heard that community police visits were reduced to one every four weeks, such was the peaceful nature of Melsonby. Garbutt couldn’t explain to the jury, and Jane doesn’t attempt to explain either, why spending £1,500 on a compact, but reasonably sophisticated, CCTV system for the interior and exterior of the shop was placed behind spending £10,000 plus on a refurbished kitchen. In the light of Jane’s recent claim that there had been three prior armed robberies, it would strike the independent observer as inherently absurd that such a decision could be taken by a postmistress and her shopkeeper husband. Unless, of course, Garbutt was already planning to repeat the 2009 ‘robbery’. There appears to be no other plausible explanation.

Two weeks before the murder, there was some shady characters came into the Post Office and other customers were in at the same and actually said to Robin ‘they look dodgy, they weren’t here to shop.’  And when Robin had said to them ‘excuse me, can I help you?’ they just picked up something and bought it just to sort of- but they were looking round, they were casing the joint.  And Robin made a diary note of it, he used to keep a diary in the shop and he diaried – he noted the day and the time.  I’m not sure if he got a car number, I don’t know if it went into that much detail but it was logged. There was also a strange car that was seen.  People had spotted a blue car and somebody crouching down in the car.  There was a motorbike involved and there was some criminals that had been convicted criminals, they’d done a hole in the wall, you know, like the cashpoints ‘hole in the wall’.  They were convicted http://unclear for that.  And they were actually in the village on the morning and it showed on the Sat Navs where they’d been and they just talked it away.  They just said they’d been pricing a job up.  They lived miles and miles away, the other side of Darlington somewhere.

 – None of this was heard at trial or at the Court of Appeal, apart from the blue car. Garbutt’s diary was not produced in evidence. Jane appears unclear about what it did, or did not, contain. If it was so crucial, she would know.

The other important point on that one was, after the murder there was an anonymous phonecall to the Crimestoppers.  There was a Crimestoppers thing, I think it still exists now; you can ring up with information for the Police.  This is all documented by the way, this isn’t hearsay, this is all in black and white. Somebody phoned and actually named – this was on the 24th, this was hours after the event -named somebody, gave them a name and said this guy – which I won’t name, has- was seen in a crackhouse yesterday with a load of cash and said he ‘didn’t mean to kill her, that was never- that was never what he wanted to do, he didn’t mean to kill her.’  That information was given to the Police and the Police said ‘we know it wasn’t him (the name) because he was under surveillance by the Police.’  No-one’s ever seen evidence of that.  No-one’s ever seen anything to show that that was true.  So there was lots of – there was a car that was burnt out later on that day, or the following day a few miles away.  There was a car that was found burnt out.  There was a ski mask and a ‘BB gun’, a ball bearing gun, they look very much like guns but they’re not real guns.  They were found behind a working men’s club about 17 miles from Melsonby.  And I think it was Cleveland Police that found it and they said ‘we’ve had no suspicious activity in our area’, knew there’d been a robbery in North Yorkshire so passed it to North Yorkshire Police.  It’s never even been tested for – Mike Naughton, the private investigator’s tried to request for them – they’ve never been tested.  They’re still – as far as we know in a box in a cupboard somewhere in wherever North Yorkshire Police keep their… I don’t know what they’ve done with it, they’ve never been tested.

– ‘No-one’s seen any evidence of that’ says Jane about the clearing of the Crimestoppers suspect. Nor are they likely to. For very obvious reasons, details of covert policing operations are shielded from the public eye. But if the CCRC did ever decide to investigate the Garbutt case further, they would have access to that material. No report of a burnt-out car appeared in the local press at the time of the murder and its alleged existence was not put before the Garbutt trial a year later. Jane omits to say whether the vehicle was found 5 or 50 miles from Melsonby. With regard to the ski mask, and the BB gun to which Jane alludes, these are the facts: The ski mask was of a completely different type, texture to the balaclava described by Garbutt to police at the time of the murder. He confirmed this from the witness box. In that same cross-examination he said that the gun exhibited, and shown to him in court, was of a similar square type, and colour, to the one used in the robbery. This ran counter to his evidence in many hours of police interviews, when he repeatedly said he couldn’t describe the gun. It is not known whether Cleveland and/or North Yorkshire Police tested either item for biometric samples. It would be utterly remarkable if they did not, in the context of other enquiries unconnected to the murder of Diana Garbutt.

SL: You can’t call it evidence because they didn’t use it? They didn’t test it?

 – Another ludicrous interjection from Dr Lean. Both items were used in evidence in court. Highly significant evidence as it happens, as Garbutt’s credibility before the jury crumbled once again.

JM: Yeah

SL: So, just to go back to – you mentioned the fish & chips there –

JM: Yeah.

SL: This ‘so called’ expert on the stomach contents…

JM: Yeah.

SL: This was based on the fish & chips that Robin and Diana ate on the night before?

JM: Yeah.

SL: But they even managed to mess up the collection of that, didn’t they?

JM: Yeah, they did.  The Police take the fish and chip wrappings from the communal yard and weigh them and then this ‘so-called’ expert is then going to decide, from the scraps that are left, how much Diana ate.  But initially, the first time they tried to do it, they chose the neighbours’ fish and chip wrappings, they didn’t even get the right – Diana’s fish & chip wrappings were still in the house, in their kitchen in a black bin liner, ready to go out into the bin.  But what they did was they – so she, the expert reckoned she can give an exact time for the time of death – which it’s not an exact science – she kind of makes out she can. In the – I’m sorry, I’m losing my thread there a bit.  I’m thinking about the appeal court and how we’ve been able to prove how her evidence has now been – shall I talk about how her evidence has now been…?

Jane correctly alludes to another North Yorkshire Police blunder, but it does not impact on the evidence heard at court, the conviction, the appeal or any applications to the CCRC. 

SL: Yeah, that’s the obvious next place to go.

JM: Yeah, the two main planks of the prosecution case are theft and time of death.  The first one is theft, and at appeal with an audit they were able to prove that Robin hadn’t stolen anything, at all, ever.  The business was a healthy, thriving business.  Newspapers have peddled that they were in debt.  They weren’t in debt.  It was all managed, they didn’t owe anybody any money, other than what they borrowed legally.  And there was no letters from anyone saying ‘you owe us any money’.  It was just a story they peddled.  So they were able to prove at appeal that no money had ever been taken.  The business was actually healthy and the Court of Appeal accepted that, but then Court of Appeal said ‘however, we think it was the time of death the jury convicted on, so off you go back to prison, we’re not – we accept there’s no theft.  We can wipe that clean, no theft, but you’re left with this one plank, time of death.  So Robin – that was it, back to prison.

 – The business was not healthy or thriving. Extensive evidence, including cross-examination, over two days at trial from two fraud experts made that plain to the jury. With regard to debts, they owed £43,000 in credit card and bank loans. Plus a £60,000 mortgage on a property for which they paid £105,000. Jane’s assertion that the appeal court made a finding that Garbutt ‘hadn’t stolen anything, ever’ is completely without foundation. Another Metcalfe lie. In six paragraphs (out of thirty-one) the appeal court judges summarise why they found that the conviction was safe. Central in that is the finding by the jury that the armed robbery did not take place, even after allowing a number of concessions in Garbutt’s favour.

So then there was lots of investigating done on the time of death.  And what it turns out happens is this expert, she actually turned out – it turned out her expertise was archeological digs.  That’s where he expertise lay.  But she – eventually another expert, a Home Office pathologist worked along with Robin and we discovered that this expert contradicted herself in another trial and had she used the same method with Robin as she had in another murder, she would have got a totally different result.  And also she got her science completely wrong, her science was completely wrong.  Now also, second plank; time of death has been completely wiped.  Rubbished her science, the science was wrong.

– The issue of the time of death is much simpler than Jane makes it out to be. As rehearsed above, the evidence of the Home Office pathologist (and that of the neurologist) was very likely to have had more impact on the jury than Dr Miller’s. A more recent expert brought in by the Garbutt team, Dr Brian Rouse, asserted that Dr Miller was ‘incorrect’, based on her allowing a greater margin of error in an almost identical case at which she gave evidence. His conclusion was that the time of Diana’s death MAY have been substantially later than 4.30am. POSSIBLY after 6.45am. That lack of certainty does not advance the Garbutt innocence claim or undermine sufficiently the evidence heard at trial regarding time of death.

The other interesting thing about that was in the court room, in the trial, this expert, the ‘time of death’ expert, the ‘stomach contents’ expert is pitched alongside this very reliable witness who came into play on the day of the murder.  A gentleman who lived in the village gave a statement to the Police saying he heard Diana call to Robin at 0645 on the morning.  He went to the shop every day, he used to go in every morning on his way to work, for the paper.  He remembers exactly why and what for.  He went straight to the Police when all hell let loose, and everybody arrived at this awful, awful morning.  He went straight to the Police and said ‘I heard Diana call to Robin from the back of the shop.’  Not – she wasn’t alarmed.  It was a, you know ‘Robin!’ She wouldn’t ever come through to the shop when she had her pyjamas or anything on.  And Robin just acknowledged and said ‘Yeah, in a minute Di, in a minute Di’ he was serving customers, and she wouldn’t come in until the customers left.  So in the court room, what they did was, we’ve got this very reliable witness who said he heard Diana, he wasn’t friends with Robin and Diana, he was just a gentleman who lived and worked in the village.  So he’s heard Diana’s call out at 0645.  What they did in the court room is, they said ‘we’ve got this evidence from this expert about time of death, who’s saying that Diana was killed between 0230 and 0430.  Now we’re not saying this gentleman is lying, who said he heard Diana at 0645, but clearly he’s mistaken.’  So they don’t pooh-pooh his evidence, but they undermine it because they’re pitching him against this expert.

 – The witness who gave evidence at trial was Brian Hird. He told the court that he didn’t know Diana and wouldn’t recognise her voice. His evidence was that he heard a female call out through a closed door at 6.45am. According to Mr Hird, Garbutt had replied ‘Yes, dear’ or ‘Yes, Di’ (not the embellished version Jane pushes). The murderer had never previously mentioned this to police, before the court hearing over a year later. Extraordinary in the circumstances considering that, if true, it would have been the very last time he heard his wife alive. He couldn’t explain, either, why he hadn’t spoken to Diana after that interchange, once customers had left the shop. Another damaging blow to his credibility. The jury were highly alert to Mr Hird’s evidence as, shortly after retiring to consider their verdict, they sent a question to the judge concerning Mr Hird’s witness statement. Nevertheless, they still found Garbutt guilty.

SL: But he had very good reason to remember, to know it was this particular day, didn’t he?

JM: Sorry Sandra, I didn’t hear what you said then, sorry.

SL: That witness that, they said he might have been mistaken, probably meaning it might have been another day.  But he had very good reason to remember why it was that particular day, didn’t he?

JM: Yeah, yeah.  Well he did.  I think he used to work full time, he worked for the environment and he used to go on a different – to do a different job.  He used to go and do some voluntary down by the – to do some environmental work.  And he was a keen bird watcher, listener.  So he was a keen bird – so he knew what he’d heard and he was specific about… And he’d gone that day, he went to the Police that day.  He didn’t go to them four days later and say ‘I can’t remember, I think I heard – actually went to the Police that day.  And I think he had to go to them twice before they came to get a statement from him.  As I say, we know that the Police had made their minds up – they cherry picked – they made their mind up that they had their man in Robin and they didn’t investigate so much more that could have been investigated.  And I can never get my head round that ‘Why?’  Why would they do that?  Why would they do that?  But it’s been put to me that, you know, they weren’t very experienced with murder cases in North Yorkshire and the inexperience – also they wanted to shut it down as quick as possible because the previous year, in the same – in North Yorkshire, not far from York, or in fact, in York there was the Claudia Lawrence case, which was a chef who worked at York University who went missing. And her case was criticised.  They criticised the investigation. You know, the Police were criticised highly because of that.  So maybe they wanted to shut this down.  Maybe they wanted – maybe that’s why they did it.  That was their motive for shutting this down.  You know? ‘We’ve got our man, we don’t need to look at anything else.  And we’re not going to throw the net any wider because we’ve got the man.’

 – The police were drawn to Robin Garbutt as a prime suspect by his own suspicious behaviour, as rehearsed above. 

SL: So, that then brings us to your involvement, and I have two questions for you.  The first is, why do you do this?  Why do you continue to do it?  How – why are you so involved in trying to get this – the details of this case, the facts of this case out before a wider public?

 – Jane Metcalfe is not determined to get the facts out at all: She and her fellow Garbutt campaigners have a lengthy history of concealing facts. Particularly those that run counter to whatever narrative they happen to running at a given time. She has been aided, in recent months, by journalists not applying the necessary rigour and simply accepting the highly distilled Garbutt narrative. 

JM: A couple of reasons.  One reason has become, it kind of evolves doesn’t it?  I was saying to Sally yesterday ‘we never set out to do a campaign.  We didn’t think ‘Ooh, let’s do a campaign.’  It wasn’t that.  I think they’d come to the end of the line. They’d gone through appeal.  We’d applied to the CCRC.  My God, that’s it.  You’re on your own. There’s nobody out there to help.  There’s no official body who’d come in to help you.  So, my reasons have sort of changed.  Now, part of the reason we do it is because public perception has to change.  People have to know that wrongful convictions are not rare.  They happen.  And not only do wrongful convictions happen, to overturn that wrongful conviction is virtually impossible.  The system works against you.  You’re one man/one woman, on your own and you’re working against this massive, massive machinery of the Police, the CPS,  and then beyond, beyond that.  I once likened it to – I couldn’t think of an analogy of how to describe what goes on in the justice system and I thought about – when several washing machines break down, bear with me, when several washing machines break down, and a few people’s kitchens get set on fire they do a recall.  They recall that machine and say ‘anybody who this Bosch number 64321, stop using it, we’re going to send an engineer in, or we’re going to take it off you and we’re going to replace it.’  We need the justice system to have something similar, that when it becomes obvious that there’s a massive doubt over a conviction there should be a team, some- a flag that’s raised, some professionals go in and sit around a table, with the family maybe or the victim himself and talk about it, and help.  And work towards that –  we’ve got some wonderful people in the miscarriage world, yourself, Sandra for one, and Dr. Naughton and Glyn Maddocks, and Dennis Eady.  People who are just incredible people who work so hard to make changes although against a big machine.  Maybe it will come, maybe we’ll get the changes.  So that’s one reason we felt it was really important to get the public perception changed because that would help Robin.

 – No changes to the criminal justice system will come about as a result of either Jane Metcalfe’s involvement, or Dr Lean’s for that matter. Except, perhaps, for the conduct of this campaign to be marked as vexatious, and oppressive to Diana’s family. It is also an abuse of the criminal appeals process on every level. Those involved with it need to take a long, hard look at themselves.

When they reached the end of the line, and I’ve known the family for a long time, I knew Robin from years ago but got back in touch with him, obviously, when all this happened.  My (audio unclear) with his mum and I wrote to his mum after the trial, and nobody thought Robin would get convicted.  Nobody thought they’d even get into a court room.  All his friends, nobody believed it.  And I got in touch with his mum, I wrote to his mum and she rang me.  I didn’t for a minute expect to hear from her.  I knew she was inundated with letters and calls from people and support.  She phoned me.  I wrote on the letter – I didn’t know her first name, so I just wrote ‘Dear Robin’s mummy.’  I got this call one day, picked up the phone and this lovely voice said ‘Is that Jane?’ ‘Yeah.’  She said ‘It’s Robin’s mummy’ and I couldn’t believe that she’d phoned me and we had a long conversation and from that we just became really close friends and became a close family friend with Robin, Sallie and Mark and the kids.  And when you watch your friends going through something like this and you know there’s not – and the more of the case that was revealed to me, actual statements and… I used to sit at home and read it and think ‘No, this is just unbelievable.  There’s nothing – there’s just so much evidence pointing away from Robin.  Overwhelming, shocking amount of evidence to support Robin’s innocence.

 – Jane falls between two stools again. She claims she has known Garbutt and his family for a long time, but didn’t know the name of his mother, or anyone who could give her that information until well after the trial. 

Sallie and I went to a meeting together, a wonderful meeting, United Against Injustice in Liverpool (UAI).  They don’t actually do your case, but they put you in a room with people who can help you.  That really was a starting point.  So, Sallie and I went to this meeting and my little girl came with me, my daughter came with me and the CCRC were there which was terrifying.  We, we – from there, we met other people who have advised us what to do and there was people up there telling their stories and you cried watching these people because you knew what they were facing.  And I said ‘Sallie, these are the people’ and she said ‘I could never do that.  I could never stand up there.’  And I said ‘I will.  I will.’  And when you love your friends, and I do love my friends, you’d do anything for them.  Wouldn’t you?  And even if – and I hate doing this, I don’t like being – I’d rather… But we had a joke actually about the – there was an awful photograph that was picked up of me.  It was a photograph and it wasn’t very flattering and I said to everybody – we wanted to publicise this meeting, this case and we had to use this photograph and I looked at it thinking ‘Which is most important, this awful photograph going out in the world or Robin’s justice, and I said you owe me with this horrible photograph.’  So I don’t enjoy doing it, I don’t like doing it but I’d be better at it than Sallie. Sallie would be a gibbering idiot – I shouldn’t say that, you’re not a gibbering idiot, Sallie.  She’s incredible.  They’re all incredible, the paperwork that they’ve had to do.  And that’s another thing; you could employ people, there’s so much work to do.  You could employ two or three people full-time to trawl through all the work, but you have to do it by yourself.  Rely on friends to help you do that and fortunately for Robin he has got some – a wonderful family and some fantastic friends from the village – people from Melsonby who are still there, never gone away.  They write to him all the time.  So I do it because I love them and I want to help and I want to – and it’s something that we’ve done quite well in.  We’ve met some great people who’ve – who want to guide us and help us, which is just amazing.

‘Sallie would be a gibbering idiot’ says Jane, without a trace of irony. United Against Injustice (UAI) is an organisation that has been riven with infighting for many years. It is now run by Kevin McMahon, an ex Merseyide Police civilian officer with a conviction for witness intimidation. His co-founder, Andrew Green, a lecturer in law at Sheffield University and noted miscarriage of justice advocate, was driven out in 2016. Jane has denied that she is romantically involved with Robin Garbutt but loves him and his family.

SL: So, you say you’ve become close to the family and you love them.  What is it that convinces you that Robin is innocent?

JM: Well, everyone says, and it’s true, Robin is the nicest man.  You will not meet a nicer, funnier guy.  He’s genuine, he’s non-judgemental.  While he’s in prison now, he’s doing so much work to help other kids, other lads in prison, it’s – but even if he was the most miserable, middle-aged, grumpy old – unsociable, unlikeable character, the evidence is absolutely overwhelming.  It’s stacks up all by itself.  If Robin Garbutt was just a (audio unclear) wasn’t a nice person, the evidence supporting his innocence is overwhelming.  So, I always knew he was innocent.  We always knew that, you know, if he’d done it, he would put his hands up to it.  There’s no way on God’s Earth that he would put his mum and his step-dad and his sister, his family through this.  No way would he do it.  If he’d have done it – maybe we’ve all got a breaking point, maybe we all know we all have a point where something gets that bad but – they loved each other.  They loved each other very much.  There was a few – there was talk at the beginning of – the newspapers peddled the story that Diana was having affairs.  They weren’t really affairs.  She had a couple of flirtations within the drink, she’d had too much to drink and she kissed somebody and there was something else – the thing was, it couldn’t be used against Robin because Robin didn’t know about them.  Robin knew about the thing with the cousin.  He knew about that and it caused trouble, it caused trouble.  But that was the year before.  That was all done and dusted.  Life was good, it was happy.  But the evidence stacks up all by itself.  Stands alone.

 – The court heard from seventeen defence witnesses who all spoke well of Robin. But none of them brought testimony that could assist him in respect of the alleged armed robbery taking place. The court also heard that Diana had told one of the men with whom she was romantically involved, Kevin Heapey, that her marriage was ‘doomed’ and what they had ‘was something special’. They were planning a life together once both of them had removed their ‘baggage’ (existing relationships). Jane repeatedly states that ‘the evidence stacks up, it’s overwhelming’ but doesn’t point to any that the CCRC or Court of Appeal would find persuasive. Another conundrum ducked by Jane is that in the first Garbutt police interview, conducted on the day that Diana was killed, he refers to the murder having taken place in ‘Di’s bedroom’ then quickly corrects himself to ‘our bedroom’. (Watch the 4 minute clip here).

SL: One other thing that I wanted to bring in, the Post Office – so, there’s been this big case about all these people that were accused, some of them convicted for stealing from the Post Office.

JM: Yeah.

SL: It was actually the Post Office’s own software that had introduced that was miscalculating and making it look like there was money missing when it wasn’t, and they’ve had quite a success in the courts, the Postmasters that took that case that case to court.  So, just to clarify, was that the system –

JM: Yes.

SL: That was in place in Robin and Diana’s Post Office?

JM: Yeah. Yeah, exactly the same system.  And at appeal we were able to prove there was no – at appeal we were able to talk about that. But the Post Office Horizon case is massive.  I don’t want to say too much about it really because it’s kind of ongoing.  Because Robin had – Robin’s team – Robin has – another application has gone into the CCRC, the Criminal Case Review Commission, with lots of new evidence in it.  And hopefully this time the CCRC will see that this man is innocent and even though they’ve had previous applications, this one’s got more clarity in it.  The lawyers are as we speak, preparing an addendum, which is in addition to the CCRC application because Robin’s application went in in December and the judgment didn’t come through for the Post Office Horizon until after the application had gone in.  So there’s another being prepared now.  But the CCRC have referred loads of cases, which is fantastic.  Loads of Post Office Masters – and as you say, some of them went to prison.  Their lives were ruined by – and the most troubling thing of all is the Post Office knew, the Post Office knew for ten years what the – and they used to tell individual Postmasters.  They’ve had a massive programme on Radio 4, anyone can find it now, it’s out there.  It’s called The Great British – The Great Post Office something or other, it’s been on Radio 4 everyday.  Nick Wallis is one of the investigators who worked on it, a journalist, I’m not sure if he’s a journalist but, anyway, he’s a documentary maker.  He’s a great guy.  I think there’s a programme coming in the next few nights on television about it.  In fact, he wanted to cover Robin’s case.  He contacted me and said ‘How come we’ve never known about this case of Robin Garbutt? I can’t believe I don’t know about this case.’  And there’s hope that sometime we’ll do something on the case.  He’s just been so wrapped up in what they’re doing now with the Post Office Horizon – that at some point there’s a chance that he will do a piece on Robin’s case as well, because it all ties in.

 – This is the biggest red herring of all. The bare facts are these: On both the occasions of the alleged 2009 and 2010 robberies the sums said to be taken from the safe – £11,300 and £16,150 – tallied with what was in the post office accounts. That was Garbutt’s evidence at court. There was no shortfall as a result of malfunctioning software. There was an empty safe on two occasions, with a total of £27,450 missing, with threadbare accounts of robberies, at peak school and commuter time, that not one single person witnessed apart from Garbutt in either 2009 or 2010. It is probably not a coincidence that the amount spent on holidays, luxuries and the new kitchen would reveal a figure close to the amounts said to be robbed from the safe. A mystery that Dr Lean doesn’t pursue is that if the Post Office judgment was made public on 16th December, 2019 (eleven days after the submission of the third Garbutt CCRC application) why it has taken six months to prepare ‘an addendum’ to that application? 

SL: Yeah, you had another very well known writer/journalist do some work on Robin’s case earlier on –

Dr Lean and the ‘very well known writer/journalist’ were close associates – and two of the driving forces behind the Gordon Park innocence claim. Sandra ill-serves her listeners by not disclosing that.

JM: Yeah, we did.  We had  – Sallie, Robin’s sister- after they failed at the appeal and it was devastating for them.  The work that Sallie and her family have done is incredible, but Sally came across and contacted an incredible guy Bob Woffinden who’s an investigative journalist and he’s written several books and – incredibly highly thought of, and he put so much work into Robin.  He completely believed it was a miscarriage and we’ve got so much paper work that we hand out – we use it now – that’s a photograph of Robin, but we have handouts that we give, it’s a seventeen page document that Bob did.  He went to the village, he went to Melsonby, he met friends by http://unclear of Robin’s, spoke to villagers and stayed over with Sallie.  He visited Sallie and Mark.  He never got to meet Robin, unfortunately, and he did so much work.  He wanted to take Robin’s case to the Houses of Parliament http://unclear miscarriage.  But Robin was advised by the legals not to do that.  Legals, solicitors are often very guarded, nervous about being public about things.  We need to say as well that Robin doesn’t have the same legal team that he had in the beginning now – they’re no longer there.  But Bob works so hard and… But sadly, Bob died two years ago.  I think it was two years in May.  2018, 1st of May, so massive loss to his family and his friends, but also to the miscarriage world because he really made a difference.  He made a massive difference and worked – but we do say now Bob’s still working.  He’s still working for us, because we still use his work all the time and it carries so much credit.  We were really, really lucky a few months ago, that private investigator Mike Naughton – we’ve got two Mike Naughtons in our life.  We’ve got a private investigator, and we’ve got Mike Naughton from Bristol who’s the founder of Empowering The Innocent who we’re involved with as well.  But Mike Naughton, private eye, contacted Private Eye. And Private Eye contacted us which was fantastic.  And because Bob had done this work it gave the story so much credit and Heather Mills, the journalist at the Private Eye, who’s lovely, as soon as she saw Bob’s work she knew it was credible because she knew Bob.  So it’s like Bob’s still… although he’s not here he’s still – his work still helps Robin a lot.

 – It is true that Bob Woffinden was a well-regarded journalist. But the Garbutt case was not his finest hour (neither was the Park case for that matter). His piece in the Inside Time magazine, to which Jane refers, is written from the standpoint of campaign supporter, not independent investigator, and adopts some of Garbutt’s more absurb propositions. It does not address the gaping holes in the murderer’s account of an alleged armed robbery, or why he lied successively and repeatedly to the police and the court. The most telling thing that can be said of Bob’s work on the Garutt case is that it led to two applications to the CCRC, neither of which were even strong enough to move the case off first base despite the family’s high expectations. To continue to rely on that platform is, on any view, bizarre. But in keeping with how much of the rest of campaign is conducted.

SL: So if you could say something to people who find themselves in the position that Robin and his family found themselves in at the beginning, what would you say to them?

JM: If they knew now what they knew then [sic] it would be – it would have been a totally different story.  I suppose when it happens to you, anything can happen to anybody, you could get involved in a car accident, you could be in a fight you could – somebody said to me quite a long time ago ‘why are you involved?’  http://unclear I said ‘can you imagine, you get burgled, your house is burgled and in that burglary you find your loved one has been murdered in that burglary.  Imagine dealing with that.  Then imagine three weeks later the Police come for you and say ‘it was you, you did it.’ And that can happen to anybody, at any point, and if the Police decide to make it fit for you then you – you’re against the Police, you’re then against the Crown Prosecution Service and the court room.  I’d say that you’d take it very seriously.  Take it very seriously and don’t – I think what – they didn’t know they were sitting on their laurels but what they assumed, what we all assume is, the truth will out.  We don’t have anything to worry about with this because in the court case, as it all unravels, the truth will come out and everyone will know what really happened.  I mean – Sallie said, Robin’s sister said ‘in that court room, everybody knew Robin was innocent.’  The courtroom was packed.  The gallery was packed.  Everybody knew.  And she said ‘even when the verdict came in, even the prosecuting barrister, even he looked as shocked as everybody else was’.  Nobody really thought there was going to be a conviction of guilt.  And also, don’t forget that there was 12 jurors, 2 of them- it was a 10-2 jury, they took the majority, so it wasn’t a – it wasn’t an outright 12 jurors.  And poor Robin said that at the time when the jurors came out, when they came out to http://unclear he knew straight away it was guilty because two of the jurors were crying, and he knew then what the result was going to be.

 – In that courtroom ‘everybody knew Robin was innocent’ says Sallie Wood (and now Jane). That excludes Diana’s family, those villagers who gave evidence against the murderer, the press, ten of the jury, the police, the Post Office employees, the prosecution team, the expert witnesses, and the judge. 

But it can happen to anybody and you’re on your own.  You need to do as much homework as you can.  It’s kind of like if your child was poorly in hospital, you’d ask every question there was, you wouldn’t take everything for granted, you’d have to keep asking questions.  The doctors say ‘we’re going to do this’ and you’d say ‘Why? Why are you going to do that?’ And the thing that happens is you put the lawyers maybe on a pedestal and you assume they all know what they’re doing.  You assume they’re all very, very good at what they do.  And sometimes they’re not and you have to ask and question ‘Why would you do that, why would you do that? Why are you doing that?  And why are we not doing this?’  Like for example, Mike, private eye Mike Naughton, he was employed by the defence team right at the very beginning, and he came up with loads of stuff.  I mean, if we’d still got his reports – his report was massive.  He then passes it on to the defence team, Robin’s lawyers.  Robin never met Mike Naughton.  Robin’s family never met Mike Naughton, so he’s gives his report to the defence lawyers; they don’t use half of it.  You know, they didn’t use it.  Maybe they didn’t think we needed to use it.  Maybe they thought ‘it’s so obvious that this man’s innocent, we don’t have to really fight very much.’  But you have to tick every – you’ve got to make sure you do absolutely everything by the – you’ve got to fight.  Fight, you know?  And poor Mark, Mark’s Robin’s brother-in-law, he said a few times during the lead up to the trial, said to the solicitors ‘are you sure you can do this?  Are you sure you’re up for this?  It’s a big murder trial, are you sure?’  And they kept saying ‘Of course we are, of course we are.  Of course.’ Once they got the wrongful conviction – sorry, a conviction, we were stuffed.  There’s no way back.  That door’s closed.  To overturn that is – and poor Mark said he went into the chambers afterwards and was crying, as you can imagine, it must have been absolutely terrible and said ‘You’ve just managed to get the most innocent man in Britain convicted of the worst crime there is.’  But there’s no going back.  You can’t, you can’t undo that.  You can in – and the other thing to note as well is that in famous miscarriages of justice they had to go through at least three appeals before they overturned – you know the Birmingham Six, I think, were they seventeen years?  Seventeen years, the Birmingham Six fighting for. (name unclear) was seven years.  People fight for years, it takes years and anyone that thinks that they’re not working – I suppose people might think that Robin’s case, it’s all gone quiet, well it’s not quiet at the moment but, ‘gone quiet’ – he must have done it, he must have been guilty because he’s still in prison, we don’t put innocent people in prison, but we do.  We do keep innocent people in prison and that family have been working on this case every day since.  There’s not a day that goes by – I think Robin sometimes has to put it down and move away from it for a couple of weeks to then come back to it and read it again, go over it again.  But it’s – the system is broken, the system is broken.  It needs mending.  We need to mend it.

 – One of Jane’s less attractive habits is conflating the Robin Garbutt case with other miscarriage of justice claims. He talked himself into a guilty verdict without aid from anyone else. No empty safe, no alleged robbery, no conviction. As for Michael Naughton, the special constable turned private investigator, caution would need to be advised when relying on anything he says. Thoroughly exposed as a liar and a charlatan in this piece here.

SL: My final question for you, Jane, because we’re almost out of time; would you, prior to this, would you have believed this can happen?

JM: No, not really.  No.  I think I would have thought it was very, very, very, very rare.  Joyce, Robin’s mum said the same thing.  When you saw on the television news, when there’d been a murder enquiry and then later on you find out who’s done it it’s –  it was the husband or the brother or whatever and everyone goes ‘Oohh, the father did it then.’  And you just assumed he’s been found guilty, he’s guilty.  I never would have believed, never would have believed that not only can you get a wrongful conviction, which are really not anything but rare, but then once you get the wrongful conviction, you can’t overturn it.  You have to rely on the system, there’s a huge system that doesn’t recognise innocence.  You’re guilty in their eyes and hopefully things are getting better, but – this application’s in to the CCRC now with Robin and we’re praying that – they have referred quite a few lately that – their numbers have been really low for referrals.  Maybe they’re creeping up, well they are creeping up.  Let’s pray that they will see this for what it is.  It’s blatantly obvious to anybody that Robin is innocent, and we just need to get him home for his mum.  And we need to get him back – back to his family.  But no, I never would have believed it Sandra, never in a million years.

 – ‘It’s balatantly obvious to anybody’ says Jane. Except those that have researched the case thoroughly and independently. Convictions are quashed by the Court of Appeal as she well knows. The brother of her friend and supporter, Michelle Diskin, was cleared of the murder of BBC presenter, Jill Dando. Barry George was also assisted by Bob Woffinden. Which, if nothing else, shows how tightly networked those involved in miscarriages of justice are. 

SL: Jane, thank you so much for joining us today.  For telling us about the case, you’ve done a great job filling everybody in with all the details and helping people to understand that this happens to ordinary people.

‘You’ve done a great job’ says Dr Lean. Completely overlooking the gaping holes in Jane Metcalfe’s story about a cold-hearted psychopath who appears to have groomed his latest ‘victim’ into projecting a campaign grounded in half-truths and blatant untruths. 

JM: It does, yeah.  Ordinary people with no convictions, no – not even a parking ticket.  Nothing.  We said before, that you can understand it when there’s been a grey area if someone’s already had quite a few convictions, you can understand a grey area there, but not when it’s somebody who’s – They gathered 500 statements, the Police gathered 500 hundred statements about Robin.  500 hundred.  Not one, not one said anything negative about him, and actually it counts for nothing in the end.  It didn’t mean anything in that court room.  His character didn’t count for anything, it was just this evidence that was so flimsy.  And now with the – what the Private Eye said, the lady who did the Private Eye piece, I wish I could have read it out to you really.  She finishes saying ‘I wonder now what that jury would think.  If that jury heard this story now, the real story, what would they make of it?’  And that’s how she leaves it there.  She leaves the – that little piece that she wrote.  And what would they make of it?

SL: I’ll put that Private Eye piece on the website as well so that people can go and read that.

 – The Private Eye piece, by Heather Mills, largely regurgitates the Bob Wooffinden narrative, but linking it to the Horizon cases is hopelessly misconceived. That will be revealed in the fullness of time. Not the Eye’s finest hour, either.

In summary, either wittingly or unwittingly, Dr Sandra Lean has allowed the broadcast of an innocence narrative that is, essentially, grounded in deceit. It is also completely absent of consideration for the victim of this heinous crime, Diana Garbutt, and her family. Likewise, if the convicted murderer is innocent then where is the drive, or impetus, to catch the real killer(s)?  In a broadcast lasting one hour, no mention at all is made of either. It is all about “Poor Robin”.

Moreover, if this is a fair example of the general quality of Dr Lean’s research, or oversight, then she must stand discredited. This podcast is a genuinely appalling misrepresentation. As for Jane Metcalfe this is behaviour entirely in keeping with the disgraceful way the Garbutt campaign is, and has been, run. But the end will soon come for them. It is very doubtful that the third CCRC application will spark an investigation of their claims and, even if it did, it is unlikely it would lead to a referral back to the Court of Appeal. Even less likely that that three law lords would quash his conviction.

Robin Garbutt, unless he changes his tune, will spend the rest of his life in prison.

For those with an hour of their life to waste, this is the YouTube version of the interview.

Dr Lean and the Garbutt campaigners were offered right of reply. They have, unsurprisingly, not responded. Jane Metcalfe has, however, disappeared from Twitter. Her last post about the innocence claim was on 14th June, 2020 having previously been very prolific.

Garbutt’s brother-in-law, Mark Stilborn, has, since this article was published and updated, claimed in interview that Jane’s campaign is ‘independent’ of the ‘Robin Garbutt Official‘ campaign run by him and his wife, Sallie Wood. Although Mark acknowledges that the family are ‘grateful for her getting the publicity in Private Eye’. A curiosity given the appearance of the three of them together on network television as recently as March, 2020.

The Garbutt defence team at trial have also been contacted for comment. The communication did not even receive the courtesy of an acknowledgement.

Page last updated on Wednesday 9th September, 2020 at 1205hrs

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

Photo credits: J.D. Butler, ITV, Press Association

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.

© Neil Wilby 2015-2020. 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.

Danny Major case back under CCRC review

After a pause lasting almost five years, the innocence claim of former West Yorkshire Police officer, Danny Major, is once again being considered by the Criminal Case Review Commission. He was convicted in November, 2006 of assaulting a prisoner and causing actual bodily harm following an incident that took place in Leeds Bridewell three years earlier. Concurrent sentences of 3 months and 15 months imprisonment were handed down.

New central Leeds police station opens | Calendar - ITV News

The Major family has vehemently protested his innocence ever since (read more here).

Since 2013, there has been two investigations carried out by Greater Manchester Police into the handling of complaints made by Danny’s mother, Bernadette Major. There are wide-ranging allegations of corruption involving the notorious Professional Standards Department.

The first investigation, codenamed Operation Lamp, was launched in April, 2013 at the behest of the West Yorkshire Police and Crime Commissioner and concluded in December, 2014. But, for reasons GMP has never explained, the report was not released until 12 months later.

A second investigation, codenamed Operation Redhill, was instigated by the incumbent chief constable, Dionne Collins, in April, 2016. The first phase appears to have now also concluded in November, 2019, absent of any announcement from either the Major family, GMP or WYP.

The criminal justice watchdog confirmed earlier this week that their investigations have now resumed:

“A second application arrived  on 14th December 2015. Maslen Merchant of Hadgkiss Hughes and Beale is the family’s legal representative. We started a review, but it became clear that we could not sensibly conduct our review while there were ongoing police investigations (Greater Manchester Police’s Operation Redhill)  in relation to the case. In November 2017 we wrote to Mr Major and his lawyers to explain that we had essentially paused the case and that we would restart our review when we could. That is to say, if facts came light that required it, or when Greater Manchester Police (GMP) relevant enquiries were complete.

“This second review of Mr Major’s conviction resumed at the end of November last year when GMP supplied us with a summary of its investigation. We asked for more material from the investigation and, in January 2020, GMP supplied us with extensive material in relation to phase one of Operation Redhill. We are in the process of considering that material. The Covid-19 related closure of our office in March has caused some delay as it reduced our ability to securely access some of that material, but the case is being actively considered.

“The first CCRC application in relation to Danny Major was received in 26 September 2007 (Maslen Merchant/Hadgkiss Hughes and Beale were not the representatives at that stage, but they did take over shortly after in January 2008).

“We sent a Provisional Statement of Reasons  in October 2010 (a PSOR is used when, after a review, we consider that we have not identified reasons to refer a case.  It sets out the reasons for that view and invites a response from the applicant / their legal representative if they have one – nowadays 90% of applicants do not). We consider any response before making a final decision.

“The CCRC received substantial further submissions in response to the PSOR (over a period of almost six months) and further work was conducted before we eventually issued a final Statement of Reasons not to refer on 2nd August 2011. (The CCRC is prohibited from making its statements of reasons public. However CCRC applicants can share them if they wish)”.

The final SOR ran to 62 pages with a further 11 pages of annexed material. It was signed off by John Weeden, CB. The other two Commissioners who formed the committee considering the Danny Major were Ewen Smith, a Birmingham solicitor, and Jim England. All three served their full ten year term at the CCRC.

The Major family and their legal representative were criticised for both the repetitive nature of their lengthy submissions and for introducing issues that could not go to the consideration of a referral back to the appeal court.

This echoed criticism of two of the three grounds upon which the appeal to the Court of Appeal was made. One was characterised as ‘surprising’ and another has having no merit whatsoever (read in full here).

The Major family’s first application to the CCRC ran to almost 400 pages and the watchdog narrowed its focus to:

  • The integrity of PC Kevin Liston, the key prosocution witness
  • The integrity of other officers involved in the detention of the assaulted prisoner, Sean Rimmington, and those involved in the subsequent investigation
  • The integrity of West Yorkshire Police
  • The integrity of the Crown Prosecution Servive
  • CCTV evidence at Leeds Bridewell

The CCRC enquiries, including interviews with Danny Major, his parents, officers from the Professional Standards Department at West Yorkshire Police; telephone conversations with prosecution counsel, Ben Crosland, and defence counsel, Simon Jackson QC (now a judge) and Sunny Bhalla, at the material time a casework manager at the now defunct Independent Police Complaints Commission appeared to be comprehensive. They were not challenged by way of judicial review.

This is yet another case where a notably poor police investigation, an unsatisfactory series of trials (three in all) with familiar disclosure issues, and a subsequent, sustained cover-up and closing of ranks by the investigating force to protect a corrupt police officer, may not be enough to see the conviction quashed. Particularly, if there is no confession by another officer, or officers, present in Leeds Bridewell that night.

Given the passage of time, seventeen years, and the high stakes that has to be considered unlikely. There has been no announcement of any arrests or press coverage of prosecutions during the currency of Operation Redhill, now in its fifth year. Taken together with its predecessor investigation, Operation Lamp, which took just under three years, it is believed to be the longest investigation ever into an assault in the history of the police service.

Both police forces and the Major family were approached for comment. There were no responses to those enquiries.

Page last updated: Monday 13th July, 2020 at 1730 hrs

Photo Credits: WYOPCC, CCRC

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.

© Neil Wilby 2015-2020. 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.