Police refuse to come clean over sexual risk order

Over the past two years it has been my considerable misfortune to have the job of holding North Yorkshire Police up to some sort of scrutiny. I have been hanging on to the baton, largely, for my North Yorks Enquirer colleague, Nigel Ward, who found himself shackled, until recently, by a grotesque and ultimately failed civil harassment claim launched against him by his local police force [1].

It is a thankless task, made doubly difficult by the complete absence of support from the more conventional oversight bodies such as the Police and Crime Commissioner, the Independent Police Complaints Commission and Her Majesty’s Inspectorate of Constabulary.

Add in a tame, under-resourced local and regional press and it emphasises the uphill nature of the work the back-in-harness Nigel and myself carry out.

One of our stock-in-trade tools as journalists is the freedom of information (FOI) request. A device that used expediently can winkle out information to build an exclusive story.

One such request has been finalised recently by NYP and provides further insight into a force completely averse to any form of criticism – most especially from either Nigel or myself – and utterly obsessed with containing damage to its reputation.

The request, quite remarkably, was finalised within the statutory twenty working day period for information requests. But that may have more to do with me taking the chief constable to court over previous FOI failures [2] than a desire to please an investigative journalist. Particularly one who has already taken them severely to task over the subject matter of the request, which concerns a Sexual Risk Order handed out to York-based, John O’Neill. The questions put to the force sought to add flesh to this article I published on the topic in August, 2016 [3].

The response from NYP (and a full list of the questions) is now in the public domain and can be viewed in full here [4].  It is characterised, as ever, by defensiveness.

They refuse to name the solicitor(s) acting for the Chief Constable in this high profile matter that for days dominated national newspapers and was a lead story on network television. In the face of this, and the fact that there have been two public hearings in York Magistrates Court, a Section 40 (2) exemption is relied upon by the force (breach of personal data). Which is, of course, now being challenged by way of a review and then, very probably, a complaint to the Information Commissioner’s Office.

The next question concerning the selection process received a vague answer that didn’t really go to the heart of the issue, except to confirm that the selection of barrister Oliver Thorne was not subject to any competitive element. It is true to say that, on any reasonable view, he has not covered himself in glory as counsel in this particular case.

After admitting in their response to the third question that the controversial – and heavily criticised – Sexual Risk Order was drafted by a North Yorkshire Police in-house solicitor, they refuse to name him (or her). It should be noted, however, that the NYP Force Solicitor and Head of Legal Services, Jane Wintermeyer, is also in charge of the Civil Disclosure Unit that is responsible for finalising FOI requests. There appears to be no recognition of the potential conflict of interest in NYP’s response to this particular information request.

The response to the first part of the fourth question takes us into the realms of the far-fetched. A familiar landing place for a number of FOI outcomes from this source. NYP claim that it would take in excess of 18 hours (around two and a half working days) to calculate the amount spent internally on the John O’Neill case. Which begs the question: what sort of financial systems/controls are in place at NYP? The response to the second part of the question also leaves me scratching my head as the total cost externally (presumably the value of Mr Thorne’s fees), up to and including the latest court hearing, was £2284.32. Which seems on the low side for the services of a barrister of thirteen years call from a leading Leeds-based set (KBW).

In their response to the fifth and last question NYP say that the John O’Neill case has never been given an operational name.

The internal review has now been filed with NYP and they have twenty working days to respond [5]. However, their record in this area of operation is not good. I have a number of reviews of information requests that are overdue. The golden rule for NYP plainly being: The more damaging the disclosure might be to the force, the longer finalisation of a request or a review will take.

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The next instalment of the saga played out at York Magistrates Court on 22nd September, 2016. An amended Order was handed down by the judge to John O’Neill that listed twelve restrictions. The ‘unpoliceable’ 24 hour notice before sex has gone, as has the restriction on electronic equipment and internet use. Albeit the latter can be monitored by police. However, District Judge Lower remained in no doubt about the risk that O’Neill posed to women.

O’Neill told ITV News, outside the court, that he was considering an appeal against the Order. He claims it breaches his human rights and that he has ‘no chance of forming a relationship’ with the SRO in place.

It has emerged that at least fifty others are presently the subject to a Sexual Risk Order in this country.

[1] Private Eye: Article published 31st August, 2016 ‘North Yorkshire Boors

[2] Neil Wilby: Article published 10th June, 2016 ‘Chief constable and PCC face court action

[3] Neil Wilby: Article published 22nd August, 2016 ‘Between a rock and a hard place

[4] North Yorkshire Police: FOI response to Neil Wilby (475.2016.17)

[5] What Do They Know: Audit trail for FOI request 353604-479ad2a5

Page last updated Friday 23rd September, 2016 at 0745hrs

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

Picture credit: York Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Executive Summary and Recommendation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

She is upholding her commitment to being open and transparent.

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

1. Introduction and Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Other Options Considered

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

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

3. Contribution to Police and Crime Plan Priorities

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

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

4. Implementation and Resourcing Implications

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

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

5. Consultations Carried Out

Professional consideration and advice has been provided by: 

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

 5. Compliance Checks

Financial Implications/Value for money: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Annotations

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

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

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

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

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

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

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

Operation Barium too hard to swallow?

On 7th July, 2009 I wrote to Sir Norman Bettison, then Chief Constable of my local police force. He was offered intelligence over the misconduct of a number of his junior officers and a newspaperman’s instinct that all was not well within West Yorkshire Police.

Shortly afterwards, I received a telephone call from his staff officer at the time, Chief Inspector Christopher Rowley. Recently, and controversially, appointed to disgraced South Yorkshire Police as an assistant chief constable (read more here).

It matters little that CI Rowley’s call was a fob-off, delivered in an unattractive manner. It was to lead, indirectly, to a challenge never before faced by a police force: Scrutiny by investigators, not part of any official oversight body, who were to determined to show the true face of a police force that considered itself completely unaccountable to anyone.

At the time of my letter being sent to Bettison, one of his gilded protégés was Mark Gilmore. He was one of five assistant chief constables in a Command Team that was to become almost entirely  discredited: Bettison’s career ended in ignominy as he became engulfed in a number of scandals, with his role in the Hillsborough Disaster aftermath being much the highest profile.

Bettison’s deputy chief constable was none other than David Crompton. Also widely known as ‘Disaster Dave‘ and for whom Hillsborough was also to prove his nemesis (read more here).

Two other of the disgraced chief’s assistants, John Parkinson (later to succeed him as temp0rary chief constable) and Geoff Dodd, were to retire from the police service with clouds hanging over them. Dodd was connected to the framing and jailing of a promising young police constable and, after the Operation Lamp investigation into that miscarriage of justice was completed, but before the report was published, he sailed into the sunset clinging to his gold plated pension. Parkinson was also deeply involved in the PC Danny Major cover-up, amongst a significant number of other misdemeanours, about which more can be read here.

My first interaction with Parkinson was in May 2010, as he was portfolio holder for the notorious Professional Standards Department in West Yorkshire Police. Just under two years later I wrote to him and promised I would drive him out of the police service, based on the evidence I held. He probably laughed it off at the time, but a year later he was gone.

Mark Gilmore, having been recruited in 2008 by Bettison from a sinecure as staff officer to ACPO president Sir Hugh Orde, was given a special projects role in the procurement and delivery of profit for investment (PFI) schemes at WYP. Bettison was, at the time, vice president of the now-defunct ACPO.

A number of new divisional headquarters around the county and a massive project at the force’s operational support and training centre at Carr Gate, near Wakefield were built as a result of the PFI financing. The total sums involved have been reported in the local press as totalling £300 million, yet the company appointed to facilitate the financing appeared to be carrying a net current deficit of several million pounds.

There is a well-grounded suspicion that the PFI schemes are a ticking timebomb as far as future debt is concerned. As soon as time and funding allow, this is to form the subject a separate forensic investigation by me.

In July 2011, Gilmore was appointed as deputy chief constable to another big city force. He joined another Bettison protégé who was chief constable of Northumbria Police, Sue Sim. Recently in the news as a whistleblower exposing concerning practices amongst senior officers in her former force (read more here). Bettison and Sim worked together at Merseyside Police, during the former’s controversial reign in Liverpool.

It is not known, at this stage, whether Gilmore was intended to be one of the subjects of his former chief’s scathing and wide-ranging criticisms. Incredibly, it is West Yorkshire Police who have been sent to investigate Mrs Sims’ complaints.

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Less than two years later, Gilmore was back at West Yorkshire Police having been crowned as chief by the newly-elected Police and Crime Commissioner (PCC), Mark Burns-Williamson.

Sources close to the process suggested at the time that Gilmore had defeated John Parkinson, Mark Milsom, an ACC with WYP and most famous for running a BMW X5 police car through a red traffic light and into the side of a bus in Leeds city centre, and Phil Gormley, at the time chief constable of Norfolk Constabulary, a formet Metropolitan Police assistant commisssioner and, presently, chief constable at Police Scotland.

The largely invisible Gilmore was later to controversially refuse to prosecute Milsom over the ramming of the bus in City Square, saying after a lengthy investigation that “it was not in the public interest“. A decision that was to leave most West Yorkshire folk, and many of the front line officers in their police force, entirely bemused (read more here).

The very few policing commentators who were aware of the shortlist could only stand shocked at the decision to select Gilmore ahead of Gormley. Burns-Williamson, who prior to his appointment had been Chair of the police authority for ten years, appeared to place emphasis on the fact that Gilmore was a known entity – and his experience in the Police Service of Northern Ireland (PSNI) was particularly relevant.

Those in the know had an entirely different perception: Gilmore knew where a whole pile of WYP corruption bones were buried and it was felt that Burns-Williamson didn’t want anyone from ‘outside the circle’ poking around and asking questions.

I wrote an article that was first published on the uPSD website at the end of April 2013 that set out in some detail the extent of the alleged ‘cover-ups’ to which Gilmore was, at the very least, a passive party (read more here). It was a formidable list. For his part, Burns-Williamson was content to continue as though none of this corruption existed. Indeed, his oft-repeated mantra during the election campaign that brought him to power in 2012 was that “there is no corruption in West Yorkshire Police”. He didn’t repeat it in the campaign in May, 2016.

It took just fourteen months before his PCC, so effusive at the time of his appointment, had to remove his ‘chosen one’ from police HQ. Mark Gilmore was suspended from duty in June, 2014. This move was prompted by a PSNI investigation into the awarding of police vehicle contracts in Northern Ireland.

Seven men were arrested by detectives working on the case at the time and questioned on suspicion of offences including bribery, misconduct in public office and procuring misconduct in public office. Gilmore was not one of those detained. In a statement he insisted that “I have conducted myself with the honesty and integrity expected of someone in my position and have 31 years unblemished professional record”. He presented himself at a Belfast police station, voluntarily, for an interview under caution.

He added: “I have fully co-operated with the investigation and will continue to do so. I hope to work with the Police and Crime Commissioner to bring about a quick and positive resolution to this matter so I can return to serving the people of West Yorkshire as soon as possible.”

The criminal investigation was concluded a year later with no charges being laid against Gilmore. His suspension was lifted by Burns-Williamson, but he was immediately placed on gardening leave. The effect was, more or less, the same. Gilmore was barred from West Yorkshire Police premises and could have no contact with any of the officers over whom he, notionally, had command. The criminal investigation was replaced by a misconduct probe led by Assistant Chief Constable Tim Jacques of Lancashire Police. It was codenamed Operation Barium. The terms of reference and cost for that probe are currently the subject of a freedom of information request.

The cost at this point to the taxpayers of West Yorkshire of funding two chief constables was in the region of £200,000. Burns-Williamson sought to deflect criticism by concocting a role with the National Police Chiefs Council (formerly ACPO in all but name) whereby Gilmore was supposed to be occupied by the implementation of an intranet system for the chief officers involved with the Council.

Bradford councillor, Michael Walls, a member of the police scrutiny panel said at the time: “It seems improper that the West Yorkshire taxpayer is funding an officer on a very significant salary, to undertake work benefitting the residents of London”. Which wasn’t quite accurate, but the sentiment was well meant.

Burns-Williamson, meanwhile, was deaf to the criticism and appeared to be clinging grimly on to the hope that Gilmore would be cleared by the Barium probe and he could return to police HQ.

On 9th August 2016, almost 26 months since he was suspended, Gilmore announced he was retiring from the police service and would not be returning to the West Yorkshire force, irrespective of the outcome of Operation Barium.

As ever with Burns-Williamson, there is a troubling deceit about such matters and it now revealed that the report was delivered by Lancashire Police on 26th July, 2016 to the Commissioner’s office. A spokesman says that the PCC plans to publish the report ‘as soon as practicable’, but fails to clarify why that cannot be immediately. It also remains unclear, at present, as to whether Operation Barium’s remit covered Gilmore’s involvement in the highly lucrative PFI building contracts.

The Chair of the police scrutiny panel, Alison Lowe, a close Labour party ally of Burns-Williamson, says he is currently on holiday and that she didn’t expect to be briefed by him until the next panel meeting in September. She didn’t even know that the report had been in Burns-Williamson’s hands for the past two weeks. Which, given my own extensive experience of dealing with Cllr Lowe’s hapless panel, is entirely in character. She added that she felt that Gilmore’s retirement was a “good thing”. But made no mention of the huge burden placed on the taxpayer for the previous 26 months amounting to a sum in excess of £600,000.

The last words, at least until the Barium report is put under the x-ray, goes to Mark Polin, Chair of the Chief Police Officers Staff Association (CPOSA). He said in May, 2016: “Mark Gilmore remains committed to working alongside the police and crime commissioner to serve the communities of West Yorkshire”.

Mr Polin added “We are disappointed at the length of time the investigation has taken, which follows satisfactory resolution of the Northern Ireland and IPCC investigations, and Mr Gilmore looks forward to this matter being resolved as soon as possible.”

It is understood that CPOSA’s insurers have been underwriting Gilmore’s legal fees in defence of any contemplated actions against him. Mr Polin was not so forthcoming when contacted for comment this week.

 

Page last updated: Sunday 14th August, 2016 at 0855hrs

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

Photo credit: Huddersfield Examiner

 

There are more questions than answers

So goes the 1970’s song by reggae artiste, Johnny Nash, from his iconic, chart-topping album ‘I Can See Clearly Now’. And so it is with my dealings with the slightly less famous Julia Mulligan, North Yorkshire’s Police and Crime Commissioner. Who is now recognisable to at least 10% of the populace at the rural end of God’s Own County.

For the past eighteen months, Julia has ducked my every question over the funding and conduct of a controversial civil harassment claim, brought by the police force to which she was elected to provide oversight. Indeed, her reputation as a ‘question dodger’ extends far beyond my own domain. Even the nodding placemen on the local Police and Crime Scrutiny Panel have admonished her over poor community engagement.

But, back to the matter in hand. Her reasoning was that by commenting on the court case it might prejudice proceedings. Which, actually, has little merit given that it was heard by a very experienced single judge sitting firstly in the High Court and, latterly, in the County Court in Leeds.

If ever a day comes when His Honour Judge Gosnell is influenced by anything said outside of his courtroom that is exactly the moment when the sky falls in on the entire civil justice system.

On 29th July, 2016, three days after the case concluded at a final hearing, I posted an open letter on this website which posed fifteen public interest questions about the case, the way  it had been handled, the conduct of Julia’s two most senior police officers and, of course, the funding. That letter can be read here in full. It is by no means an exhaustive list and there at least as many more yet to be posed.

On the same day, I emailed Julia’s Chief of Staff, Will Naylor, and invited a response from the Commissioner. With a promise that an appropriate reply to the questions would be published in full.

What was provided, almost exactly a week later, could scarcely be described as adequate. Or, in any way appropriate, in the present circumstances.

Indeed, the letter has been passed to my solicitors for appraisal. As to publish it may well be defamatory of well known Whitby citizen journalist, Nigel Ward. It is understood that Mr Ward has also passed the letter to his own solicitors, who will be seeking clarification over some of the remarks made by the disengaged Commissioner. Particularly, as Julia contends that Mr Ward has ‘harassed’ some of the claimants, which is not the finding of the court. She has also made what appear to be similarly misinformed comments concerning the matter of costs that have been ordered, by the court, against the claimants.

I have the overwhelming advantage over the Commissioner by not only being in court for every hearing of this case except the first (when I was ill) but also having read, with appropriate care, all the relevant court pleadings and orders.

There are also concerning references in her letter to my ‘close’ association with the three defendants in the civil claim. This is the latest in a lengthening number of attempts to smear me, by association with Grandma B campaigner and military historian, Peter Hofschröer, who was recently sentenced at Teesside Crown Court to two and a half years in prison over thousands of indecent images found on computer equipment connected to him (read York Evening Press coverage here).

The plain facts are: I have never met Mr Hofschröer; never spoken to him on the telephone; and never emailed him, as far as I can trace. The only time I have ever seen him is when he has twice given evidence, via video link from HMP Hull, whilst I have been sat on the press benches in Court 19 at Leeds Combined Court Centre.

It matters little – and I certainly didn’t scream ‘harassment’ – that Mr Hofschröer has also been abusive towards me in open forum. Simply because I wouldn’t assist in his campaign. That is not to say that the Grandma B crusade was without merit. It certainly raises many questions about the conduct of a number of NYP officers, but it was the manner in which the campaign was being handled that caused me deep concern. A view shared by everyone else I represented at the time, as police complaints advocate.

My friendship with Nigel Ward is not a secret. I respect him as a courteous and helpful man, and a relentless warrior in the battle against public sector misconduct and criminality in his local area. Interestingly, he has just registered another notable success against the notorious Scarborough Borough Council over the ‘whitewash’ of yet more corruption within that ‘Rotten Borough’, part of which entailed the victimisation of a whistleblower.

All this came to light this week in Employment Tribunal proceedings in Hull, before Judge Humphrey Forrest, in a case that saw whistleblower, Ben Marriott, succeed in his claim against the Council. North Yorkshire Police are very tightly aligned with Scarborough Borough Council and the latest corruption exposure will not have gone down well with the boys in blue who, on past experience, will be happy to look the other way.

As far as the third claimant goes, I have not spoken to, or heard from, Luxembourg-based Tim Hicks via email or phone since May, 2016 and have met him just the once, apparently surveilled by North Yorkshire Police, at the Hilton Hotel in Leeds in February, 2015. I discovered that Mr Hicks claim with NYP had reached a compromised settlement at the end of June, via my own enquiries and sources. Not from him. That is entirely his prerogative, of course, but scarcely supports the PCC’s assertion that we are ‘close’.

Turning now to the fifteen questions that were asked of Julia Mulligan in the open letter. They can be usefully grouped together so that it is easy to see just what the Police and Crime Commissioner wants to bury out of public sight:

Operation Rome

Questions 1,2,3 and 4 all concerned the ill-starred criminal investigation that sought to prosecute Messrs Hicks, Hofschröer and Ward for harassment. The whole episode has been shrouded in deceit and my questions essentially sought to identify the senior officer driving it and publication of the investigation report. If, as Julia has consistently maintained, £409,970 was spent by North Yorkshire Police then the public are entitled to see what they got for their money.

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In her letter, Julia makes no reference whatsoever to Operation Rome and does not address ANY of the questions, let alone provide the answers.

Much more background on Operation Rome can be found in earlier articles by me here and here.

Operation Hyson

Questions 5,6,7 and 8 (part) all concerned Operation Hyson. The codename given by North Yorkshire Police to the civil harassment claim. All four questions are not only ignored by Julia in her reply she doesn’t rate Operation Hyson worthy of mention. The pointed question as to how much she, herself, knew about the civil action is, of course, ducked as well. Just as she ducked the same question repeatedly throughout the proceedings.

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The public, quite rightly, expect their elected representative to not only know about key issues affecting finance and performance of the police force serving their constituency, but to report on them openly and honestly as well and where necessary challenge them.

Much more on Hyson can be read here and here.

Finance and budget

Questions 8 (part), 9, 10 and 11 all concern public funding with particular focus on the grotesque sums allocated to Julia’s Conservative Party crony, Jane Kenyon-Miller, whose evidence against Nigel Ward in both the civil claim and the failed criminal prosecution before it, left a great deal to be desired and appeared, on its face, highly vulnerable to forensic cross-examination.

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In her letter, Julia makes no reference whatsoever to the financing of the claim, except a vague threat about me not repeating that costs had been awarded against the claimants. In short, she does not address ANY of these four questions, let alone provide the answers.

Misconduct matters

Questions 12, 13, 14 and 15 all concern alleged misconduct by her most senior officers. The matters cited in the questions are well evidenced and would not have been introduced in a public forum, otherwise. Julia has, not only a duty as the elected policing representative to deal openly and effectively with these issues, but a statutory duty as well. One in which, she has performed less than satisfactorily of late, and her reply to my open letter leaves the very strong impression that she is perfectly prepared to tolerate any sort of behaviour from the senior ranks of North Yorkshire Police, provided their, and her, reputation doesn’t get damaged in the process.

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Having not answered one single question out of fifteen, Julia signs off her letter by imploring that I do not challenge her again on the subject of Operations Hyson and Rome. She doesn’t want any more well-founded journalist’s questions about her senior officers making false statements in court proceedings, scandalous frittering away of public funds, and cronyism.

This, from a Police and Crime Commissioner who freely, and persistently, proclaims that she is ‘open and transparent‘ in everything she does. Readers of this article are invited to form their own view on that. They may even be minded to hum, or sing, Johnny Nash’s ‘I Can See Clearly Now’ whilst musing on that question.

In the meantime, I will conduct further, legitimate enquiries in order to winkle out the answers that so many in North Yorkshire are keen to learn. This will include another round of freedom of information requests, involving further needless expense both to me, and to North Yorkshire Police.

It is, of course, also my prerogative (or that of anyone else) to ask public questions at successive ‘open and transparent’ North Yorkshire Police Scrutiny Board meetings over the next year or so. Or, who knows, some bright spark may ask all fifteen at once?

All because the public’s elected policing representative can’t face unpalatable truths about the way her own staff, and the police force she monitors, go about their work.

 

Page last updated: Saturday 6th August, 2016 at 1945hrs

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

 

 

 

 

Chief Constable and Police Commissioner face court action over persistent data and information breaches

County Court claims have been filed naming Julia Mulligan, the Police and Crime Commissioner for North Yorkshire and her Chief Constable, Dave Jones, as defendants over persistent breaches of both the Data Protection Act, 1998 and the Freedom of Information Act, 2000.

The court action in both cases has been taken out by investigative journalist, Neil Wilby.

Recovery of costs of the time spent dealing with both the PCC’s office, and the police force’s Civil Disclosure Unit, over their failure to comply with the law over two data subject access and eleven freedom of information requests is claimed.

One information request made by Mr Wilby took 373 days before a response was given. The request simply asked for the number of sergeants in the force with the surname ‘Smith’.

A court order compelling the Commissioner and the Chief Constable to lawfully dispose of the data and information requests within 14 days is also sought.

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The PCC’s acting Chief Executive, Simon Dennis, initially instructed Joint Corporate Legal Services, which serves both the police force and the PCC’s office, to respond to the claim.

Acting Force Solicitor and Head of Legal Services, Jane Wintermeyer, confirmed receipt of those instructions from the PCC and intimated that her department would also deal with the claim against the Chief Constable, once it has been served on him by the court.

Mrs Wintermeyer also says: “The Civil Disclosure Unit are (sic) continuing to deal with the  outstanding Subject Access Request, FOI’s and Reviews and will revert as soon as they can”. Which is, on any reasonable view, a frank admission that the PCC and the force are operating outside of the law in dealing with Mr Wilby’s requests.

However, following objections raised by Mr Wilby to both Mr Dennis and the Chief Constable, Mrs Wintermeyer was replaced by an outside firm of solicitors. Leeds law firm, Weightmans, has filed the acknowledgement of service with the court. The protest against the involvement of Mrs Wintermeyer was grounded in the fact that she is presently the subject of two serious, and unresolved, conduct complaints.

The involvement of Weightmans has already proved controversial. Their senior partner, Nick Collins, who is handling the claim had, in early skirmishes, made the quite astonishing assertion that ALL of Mr Wilby’s freedom of information requests were classified by both North Yorkshire Police and the PCC’s office as “vexatious”. He has since withdrawn the allegation, confirmed that NONE of the requests were in fact vexatious, and offered a retraction and an apology. He claims that he was NOT acting on instructions from the police or the Commissoner’s office when making this outrageous and offensive claim – and that he simply made it up himself.

Unperturbed, the errant lawyer then ventures into the area of “vexatious” data subject access requests. Data access is governed by S7 of the Data Protection Act and the concept of a “vexatious” request under the Act would test even the most experienced data practitioners. There is certainly no legal precedent that is readily accessible and, despite being invited to provide one, Mr Collins has so far declined to do so.

As Mr Wilby has only ever made one data request each to North Yorkshire Police and the PCC – neither of which are finalised appropriately several months later – it is difficult to see where Mr Collins is going with this inference.

There has, however, been no retraction of another wild, unevidenced assertion by Mr Collins to the effect that the “large” number of information requests made by Mr Wilby (a total of nineteen in two years by an investigative journalist to two different data controllers) was a significant factor in causing 500+ other requests per year to be finalised outside of the statutory period. Made all the more incredible by that fact that published data shows non-compliance was at its worst before Mr Wilby made his first of those requests in September 2014.

To top that all off, Mr Collins asserts that his clients have not broken the law: In the face of the most compelling and overwhelming evidence. He is refusing to say whether he is acting on instructions from the police, and the PCC, in order to make such claims or, as with the false ‘vexatious’ submission, he has simply made this up himself, as well.

But the biggest difficulty of all faced by Mr Collins is that he has signed Statements of Truth, below the two Defence documents filed on behalf of the Chief Constable, and the Police Commissioner, that are both palpably false. It would also be difficult to persuade a judge that he had an honest belief in their truth, given what he has alleged and then later admitted.

He is presently the subject of a complaint to the Solicitors Regulatory Authority – and Mr Wilby has invited the court, in his Reply to Defence, to apply sanctions against Mr Collins under Civil Procedure Rule 32.14 which deals with false witness evidence (see below).

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All these shenanigans, which have also included peremptory, dark threats as to the financial consequences to Mr Wilby of not abandoning the claims, have already cost the North Yorkshire precept payer a sum estimated to be in excess of £20,000. Weightmans were invited, as a matter relevant to the issues in dispute, and to the proportionality of their defence, to state exactly how much has been charged. They have, so far, declined to do so. Indeed, they didn’t even have the courtesy to acknowledge the email bearing the request.

Poor communication, and lack of candour, by Mr Collins is a recurrent feature of Mr Wilby’s interaction with him, which reflects poorly on the professionalism of that law firm. That is also, it seems, reflected higher up the Weightmans food chain. In an increasingly tetchy interchange with their partner responsible for regulatory matters, James Holman, the firm refused to tell Mr Wilby, even when pressed on the subject, whether Mr Collins faced sanction internally over his conduct. In those circumstances, the working hypothesis has to be that there is nothing of this nature in the offing.

Mr Holman also insisted that having to be nudged for a response over a complaint of this seriousness did not constitute discourtesy. Mr Wilby has, sensibly, agreed to disagree with him.

Weightmans have, however, pledged to co-operate with the SRA’s investigation into the conduct of Mr Collins.

Freedom of information requests were made necessary to establish how much is being spent on defending these claims, by the police and the PCC, via their big city lawyers. Full details of both of these requests can be read here and here. The information requests also sought to establish which senior NYP and NYPCC officers are giving instructions to Mr Collins. Which, in itself, was expected to be revelatory. No information has been forthcoming. The original requests were the subject of an internal review prior to the matter being referred as a complaint to the Information Commissioner’s Office (ICO).

Some weeks ago, in an effort to resolve matters, Mr Wilby suggested that the total sum sought, in both of his claims, for his loss of earnings and disbursements (the grand total of £385), be donated to a charity of the Chief Constable’s choice. That, so far, has proved unacceptable to the profligate Chief, and his Commissioner, as a means of settling the matter.

There is also an issue with the form of words concerning the declaration of the court, sought by Mr Wilby, to the effect that the police and the PCC have both acted unlawfully, and the future remedy for such conduct. The fact that both the police and the PCC have continued to routinely break the law SINCE court proceedings were issued only serves to exacerbate the issue.

Interestingly, a complaint made by Mr Wilby in July, 2015 concerning Mrs Mulligan’s failure to hold the Chief Constable to account over Freedom of Information Act failings was NOT upheld by the Police and Crime Scrutiny Panel for North Yorkshire (PCP).

Between April 2012 and June 2015, NYP’s Civil Disclosure Unit failed to determine 1,558 (One thousand five hundred and fifty eight) freedom of information requests within the statutory 20 working day period. These figures, although known at the time by Mrs Mulligan, were not disclosed to the PCP in her formal response to Mr Wilby’s complaint. That matter will be re-addressed at the conclusion of the present court proceedings. Alongside a complaint from another journalist, Nigel Ward, who has an unfinalised information request dating back to 22nd February, 2015. Yes, 2015.

Mrs Mulligan now also has the unenviable record of a 100% failure rate over compliance in finalising data access requests. Over the past three years, there have also been a staggering 103 non-compliant data access requests finalised by the force. That might be a tough one for the PCP to find a workaround, when that fact is put to them formally about their ‘open and transparent’ PCC.

At a hearing on Monday 10th October, 2016, in  Huddersfield County Court, applications by the two policing chiefs to (i) transfer the claims to Leeds County Court before HHJ Gosnell (ii) strike out the claims or, (iii) alternatively, grant summary judgement in their favour were all dismissed.

The district judge found that there was a case to answer on the alleged breach by the chief contsable; an admission of breach by the police commissioner. It was also a finding that the matters concerning the information requests fell away, as their had been no formal application to allow in amended particulars, filed and served on 1st September, 2016, that went beyond the police chiefs’ defence grounded in S56 of the Freedom of Information Act. The judge did make the point that it was open to Mr Wilby to make a new claim against either police chief (or both), grounded in breach of duty, negligence and discrimination, rather than a breach of the Act per se.

The present claims against both the Chief Constable and the Police Commissioner were listed as back-to-back final hearings on the following morning before the same judge. They were represented by junior barrister, Sophie Mitchell, of St Paul’s Chambers in Leeds.

As on the previous day, Ms Mitchell did not distinguish herself. At the applications hearing she had attempted to hand a 16 page skeleton argument over to both the judge, and Mr Wilby, six minutes before the hearing. It was not accepted by either.

At the substantive hearings, Ms Mitchell produced a thick volume of legal authorities, of approximately 200 un-numbered pages, as the hearing was about to start. Whilst that was not, in itself, fatal to the administration of justice, the very late service – and unsatisfactory composition – of the trial bundle was. It had not reached the judge having only been despatched from Weightmans late on the previous Friday afternoon.

Mr Wilby was able to retrieve two sizeable lever arch files from his neighbour’s house (to where they had been delivered by the postal service on Saturday afternoon) at 7.30pm the previous evening. It is unclear when Ms Mitchell received her copy of the trial bundle but she claimed, to the astonishment of most of those present in the courtroom, that she hadn’t read it. In particular, Mr Wilby’s witness evidence around which the whole trial centred. At that point, the judge allowed a short adjournment for Ms Mitchell to read up on the case.

When court resumed, Ms Mitchell attempted to cross examine Mr Wilby over materials upon which the defence relied, but were not exhibited in the trial bundle. It was clear that proceedings could not continue in this fashion. The judge, accordingly, stood both of the cases down and made Orders for case management and re-listing.

The performance of both Mr Collins, in terms of the preparation for the trial and Ms Mitchell in how she prepared and advocated for her clients, both fell some way short of the professional standards that courts and litigation opponents can rightly expect. On this subject the last word goes to well known York-based governance adviser, Gwen Swinburn, who attended the adjourned final hearings:

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The Chief Constable, Mrs Mulligan and Mr Collins have all been approached for specific comment on this article. None of the three even had the courtesy to acknowledge the email carrying the request.

Mr Holman was also approached and his views have been taken into account when detailing the interaction with him, concerning the complaint against Mr Collins. He has asked Mr Wilby not to contact him further.

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Page last updated Thursday 13th October, 2016 at 1435hrs

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

 

Police and Crime Commissioners, Scrutiny Panels and some ‘holding to account’ myths

In November 2012, voters in forty-one police areas in England and Wales went to the ballot box and elected Police and Crime Commissioners (PCC) for the first time. They would replace the moribund police authorities, which had existed since the abolition of watch committees in 1964.

The three principal functions of a PCC were, by statute, to be the drawing up of policing priorities, setting the budget for their force and holding the Chief Constable to account.

As part of the same Police Reform and Social Responsibility Act, Police & Crime Panels (PCP) were to be established to provide financial and performance scrutiny, deal with complaints and to hold the PCC to account. The Panels were established in line with the legislation, comprising of a large number of elected local councillors and a small number of independent nominees. It was a natural sinecure for former police authority incumbents.

The Police Commissioner poll was, by general consensus, badly conceived, poorly executed and resulted in voter turnouts at unprecedentedly low levels. It resulted in almost all of the successful candidates having a mandate from their electorate of less than 8%. It was a notable Home Office failure.

It comes as no surprise in this maelstrom to find that some of the new PCC’s were to prove either incapable of fulfilling the role or to have have been embroiled in controversy of varying degrees of seriousness: Bedford’s Olly Martins, Cumbria’s Richard Rhodes, Durham’s Ron Hogg, Kent’s Anne Barnes, Lancashire’s Clive Grunshaw have all faced Independent Police Complaints Commission (IPCC) investigation and, most notoriously, Shaun Wright resigned his South Yorkshire post following the breaking of the Rotherham children abuse scandal and Wright’s alleged complicity in it.

West Yorkshire’s Mark Burns-Williamson has narrowly avoided IPCC investigation over criminal complaints thus far (three previous referrals to them and one being presently considered) but has suffered the ignominy of having a Chief Constable he hand-picked being suspended for over a year over bribery allegations and Mark Gilmore is still, to date, on gardening leave whilst Lancashire Police conduct further investigations under the codename Operation Barium, and led by ACC Tim Jacques. Burns-Williamson did not come out unscathed either, in the IPCC investigation that followed the sudden, and controversial, retirement of Sir Norman Bettison.

He is joined in this calamitous situation by Avon and Somerset’s Sue Mountstevens, who dispensed with an incumbent Chief Constable (Colin Port) to install York born and bred Nick Gargan. After a suspension of over a year, whilst the IPCC conducted an investigation-cum-fishing expedition, Ms Mountstevens has asked Gargan to resign. A decision which was the subject of challenge by Gargan and over which the Police Scrutiny Panel were due to have the last say. In the event, Gargan tendered his resignation on 16th October, 2015 and it was accepted with immediate effect. Thus, apparently, ending a saga which is estimated to have cost approaching £1 million.

Over in Lincolnshire, former ITV Calendar presenter Alan Hardwick wrongly suspended his Chief Constable, Neil Rhodes. The £500,000 High Court spat that followed completely exonerated Rhodes, as did the subsequent Operation Redbone police investigation conducted by Sir Peter Fahy of Greater Manchester Police. At the core of the dispute were allegations made by the West Yorkshire PCC’s Chief Executive, Fraser Sampson, who emerged with little credit at the conclusion of the saga.

Amidst all of this controversy, there has been an almost eerie silence from the Scrutiny Panels and no visible holding to account. Even allowing for the limitations placed upon the Panels by the woefully-drafted Elected Local Policing Bodies (Complaints and Misconduct) Regulations, there has been no robust condemnation of some notably poor conduct. As with their police authority predecessors, drawing a handsome honorarium and not rocking the boat is, seemingly, the priority.

The North Yorkshire PCC, Julia Mulligan, is Chair of the Transparency and Integrity Standing Group at the Association of Police and Crime Commissioners, an organisation set up – and funded by – the Home Office. No criticism of her colleagues’ behaviour by Mrs Mulligan can be traced by searching the internet. Apart from her sub-group role Mrs Mulligan is also a Main Board Member of the APCC. Along with, incidentally, the aforementioned Mark Burns-Williamson.

Mrs Mulligan, whose husband Paddy is both a local and county councillor in North Yorkshire, earned the notable distinction of polling the highest percentage vote (58.25) of all the PCC election ballots, but by way of the sixth lowest turnout (13.25%), has neither suffered such widespread opprobrium nor has she, so far, been referred to the IPCC (or, in this writer’s certain knowledge, ever looked likely to be) over her conduct, by the PCP sub-committee that handles complaints against her.

It is known that of the eight complaints made against Mrs Mulligan, in the near three year period since she was elected, three are from journalists (this writer and two others I will not name, at this stage, as Mrs Mulligan is funding civil action against them) and one is from a retired Middlesbrough solicitor, Anthony Nixon. The Nixon complaints are in the public domain and can be read at this link.

Two of the journalist complaints were both concerned with poor communication from the PCC’s office and, also, of prejudicial treatment against each of them when pursuing complaints on behalf of others, in the public interest. Broken promises, and insulting comments made by Mrs Mulligan, were amongst other issues cited in the complaints. She has also refused, for over two years, to apologise to one of the journalists after being recommended to do so, by the PCP, following the upholding of his complaint: A rare instance, indeed, of the PCP holding their PCC to account. Albeit, with little or no discernible effect. The complaint from ‘Mr H’ – and its outcome can be read here.

But it is the latest of these complaints to have been lodged against Mrs Mulligan that has, arguably, caused her, and the North Yorkshire PCP, the most angst. These are the core of those complaints, submitted by this writer:

  • She has failed to hold the Chief Constable to account over (a) a bomb hoax that appears, on the face of it, to have been instigated deliberately by police officers in Northallerton (b) woeful outcomes delivered on a regular basis by the force’s professional standards department, at least one of which was widely reported in the regional and national press. Read more here. (c) routine breaking of the law concerning disposal of freedom of information requests (d) victim support – specifically not providing written outcomes to complainants/victims of crime (e) 101 service being not fit for purpose
  • She failed to comply with her statutory duty (See here for The Elected Policing Bodies [Specified Information] Order 2011) to provide a Decision Notice, concerning the expenditure of several hundred thousand pounds funding a civil court claim, filed by three very senior police officers and six members of the public. Two months after this complaint was recorded – and very probably ten months after it should, lawfully, have been published, a Decison Notice (of sorts) appeared on the PCC website. It’s full text can be read here and is presently the subject of robust challenge, by way of a judicial review application. A Letter before Action was served on Mrs Mulligan on 9th November, 2015.
  • The legality (vires) of that funding was also raised in the complaint and is, also, argued in the judicial review application referred to above.
  • She allegedly made defamatory statements concerning two local journalists in public statements published in two regional newspapers and on the police force website.
  • There were other minor matters concerning failures to engage effectively (a regular feature of earlier complaints against Mrs Mulligan) and one which is still very much extant. For example, she has so far failed to acknowledge the letter despite being specifically requested to do so.

These complaints were recorded by the PCP Secretariat on 30th July 2015 and considered by the Panel complaints sub-committee on 19th August. At which, the notably weak submissions of the PCC (compiled by her Chief Executive) in response to the complaints were considered. The three sub-committee members, presumably acting on advice from the Panel’s legal officer, Barry Khan, decided that some of the more serious elements of the complaint were to be referred to the next full Scrutiny Panel meeting, where Mrs Mulligan was to be questioned on these. So far, so good: A discernible level of holding to account by the PCP.

That full meeting, which took place on 8th October 2015 had been in the calendar, and advertised on the PCP website, for months. Mrs Mulligan, allegedly, told the Panel Secretariat that she wasn’t able to attend the Panel meeting and the Secretariat declined twice to respond to written requests from this writer to provide an explanation for her absence. Which is a most peculiar stance to adopt, from a body whose principal purpose is to hold the PCC to account.

After persisting via social media, this writer was able to obtain details of Julia Mulligan’s diary for 8th October, the day she was supposed to be facing questions over the complaints against her at the Panel meeting. The diary shows she was in her office making, and receiving, phone calls. On any independent view, fairly routine stuff and certainly nothing in the way of a good and sufficient excuse not to be at the PCP meeting. All public entreaties to her office, via social media, to elicit the reason for Mrs Mulligan’s absence from the Panel meeting failed.

The presumption is this: There is no viable reason – and the North Yorkshire Police and Crime Scrutiny Panel are now complicit in the failure of their PCC to hold the Chief Constable to account and, further, are not overly exercised in holding Mrs Mulligan to account, either.

Both the office of PCC Julia Mulligan, the Panel Secretariat and its Chair, Cllr Carl Les, were approached for comment on the matters set out above. Mrs Mulligan’s staff officer, Will Naylor, claims that she was told by the Panel ‘she was not needed at the meeting’ which is at complete odds with what this writer was told, in writing, by the Panel Secretariat’s Corporate Development Officer, Ray Busby. The Panel, through Cllr Les, responded with a statement that, in parts, stretched the bounds of credulity and further clarification has been sought from him before his response is published. In the interim period, this writer is happy to reproduce the factual part of Cllr Les’s statement: ‘During the (period) since Mrs Mulligan took office, the Panel has met fifteen times. Mrs Mulligan has attended all those meetings, except the one on 8th October, (2015)’

It is unclear, at this stage, whether Mrs Mulligan’s absence was connected to a Conservative Party PCC selection meeting, on 15th October, at which she was re-selected as candidate for the May 2016 election. Presumably Cllr Les, as Chair of North Yorkshire County Council, as well as the Police Scrutiny Panel would have had a big say in that. As, it is reasonable to assume, would Cllr Les’s fellow County Councillor, Paddy Mulligan.

It is also worth recording at this point that Cllr Les has come under journalist scrutiny from in the past, over expense claim and register of interests issues (read here) which might lead some to question as to whether he is, in fact, the right person to be holding the Police Commissioner to account. Mr Les has also refused an interview with this writer, in an attempt to get to the bottom of this farrago.

For his part, Ray Busby, has now decided that being asked, in his role as a public servant, to provide honest answers to polite, if awkward, public interest questions by a journalist concerning legitimate business with the Panel is just too much for him to bear. He has requested that this writer does not contact him again, directly. Not much evidence of holding to account there, either.

This is a story that will run for some time yet and one that will be regularly updated as more information is prised from the relevant authorities by way of Freedom of Information requests, or the judicial review challenge to the Decision Notice referred to above.

But one crystal clear view has emerged from this sorry saga: The Police and Crime Scrutiny Panel in North Yorkshire is a sham, and a shambles, and it fails in its primary duty to hold to account the Police and Crime Commissioner, Mrs Mulligan.